Collection 2019 » 11. » Emy Zoetendaele Z (ET)

CONDITIONS OF ONLINE AUCTIONS OF AUCTION 111

CONDITIONS OF ONLINE AUCTIONS OF AUCTION 111

ARTICLE 1. DEFINITIONS

Auction 111: the trade name under which Stal Harrie Theeuwes NV, with registered office at 2240 Zandhoven at Vierselbaan 111, registered under no. 0413.751.124 which facilitates the Auction and the Auction Services.

Auction: the online auction, organised by means of the Auction Website.

Auction Conditions: the following terms and conditions of Auction 111 which apply to each Auction and Purchase Agreement. Each Participant shall be deemed to have taken knowledge of and accepted these Auction Conditions in full and unconditionally. Consequently, the Auction Conditions are automatically applicable from the moment a Bid is made.

Auction Costs: the costs which a Buyer owes to Auction 111 after having received an Award of a Lot.

Auction Services: brokering a Purchase Agreement between Seller and Buyer by facilitating an Auction.

Auction Website: the auction website on which Auction 111 offers its Auction Services: www.auction-111.com.

Award: the express declaration to the Bidder by Auction 111 in the name of the Seller that the Lot for which the Bidder placed a Bid is awarded to the Bidder, who becomes Buyer of the Lot. This Award is done by an auctioneer appointed for this purpose by Auction 111.

Bidder: the adult natural person or legal entity that registers or has registered itself on the Auction Website (www.auction-111.com)

in order to participate in the Auction.

Bid: the amount offered by the Bidder in the Auction for a Lot, plus the taxes and costs (including but not limited to the Auction Fees) as described in the Auction Conditions.

Buyer: the Bidder who has received the Award to purchase a Lot.

Embryo: the foetus that came about after insemination of the donor mare by the stud.

Foal: the horse that resulted (whether or not born) after the further development of the Embryo in the Surrogate Mare.

Frozen Semen: each straw or straws of frozen semen presented to be auctioned on the Auction Website, described in the best possible manner on the basis of the information as  described on the Auction Website. This information is only intended to give an impression of the origin of the Frozen Semen without the pretension to be complete / correct and without giving any guarantees in that respect (e.g. the quality thereof and successful chance of fertilization).

Hors(es): each adult horse, Foal or Embryo presented to be auctioned on the Auction Website, described in the best possible manner on the basis of the information and imagery. This information is only intended to give an impression of the qualities of the Horse without the pretension to be complete / correct and without giving any guarantees.

Lot: one or more Horses or Frozen Semen being auctioned on the Auction Website.

Participant: a Seller, Bidder and/or Buyer.

Personal Information: the (personal) information that must be provided to Auction 111 when registering in order for the Bidder to bid at the Auction.

Purchase Agreement: the purchase agreement between Seller and Buyer that is formed as a result of the Award of the Lot to the highest Bidder.

Seller: the adult natural person or legal entity that commissioned Auction 111 to sell one or more Lots via the Auction, on behalf of and at the expense of the Seller.

Surrogate Mare: the surrogate mare in whose uterus the Embryo was transplanted via embryo transplant that was removed from the uterus of the donor mare. The Embryo further develops in this Surrogate Mare and after birth is raised by this Surrogate Mare.

ARTICLE 2. SCOPE

By participating in the Auction, the Participants declare in their transactions with one another and Auction 111, that they are bound to comply with the Auction Conditions and are bound by the resulting legal consequences for a Participant. Each Participant shall be deemed to have taken cognizance of and accepted the Auction Conditions without reservation, in its full and with the exclusion of any other (general) conditions. Each Participant takes part in the Auction entirely at their own cost and risk. Auction 111 is not responsible for any obligations towards the Participants other than those outlined in the Auction Conditions.

ARTICLE 3. BIDDER REGISTRATION

To participate in the Auction, the Bidder must register before the start of the Auction in the manner prescribed on the Auction Website. Furthermore, by participating in an Auction, the Bidder declares to be authorized to execute legal transactions, and the Bidder declares himself/herself to be competent to conclude a Purchase Agreement with respect to the relevant Lot. Auction 111 reserves the right to refuse or unilaterally terminate registration and participation in an Auction at any time. On first demand of Auction 111, the Bidder must furnish proper proof of identity, in the absence of which the Bidder is not allowed to participate in the Auction. The Bidder is obliged to ensure that all of the information to be provided by the Bidder to Auction 111 upon registration has been filled in completely, correctly and truthfully, and the Bidder guarantees the correctness and completeness of the information he or she furnished. Should this information change at any time, the Bidder is obliged to notify Auction 111 immediately of this/these change(s). The user name and password used by the Bidder for an Auction are strictly personal, and may not be transferred by a Bidder to third parties. If the Bidder suspects that someone else knows his or her password, the Bidder must notify Auction 111 of this immediately. The Bidder is liable for and bound by all transactions that take place at an Auction and that result from the use of his/her password and/or user name, also in case of abuse if the Bidder was careless with his/her user name and password. Auction 111 is co-entitled, in the name of the Seller, to demand compliance with the payment obligations of a Bidder resulting from bids and subsequent an Award that took place via use of the Bidder's password and user name.

ARTICLE 4. PRIVACY STATEMENT

Auction 111 shall only use the Personal Information (/data) of a Bidder for the purpose for which it was intended, namely the Auction. All Personal Information (/data) will be recorded and treated by Auction 111 in accordance with the GDPR-legislation.

ARTICLE 5. SECURITY

Auction 111 makes every reasonable effort to safeguard its systems against loss of data and/or against any form of unlawful use, and to this end, shall take appropriate technical and organizational measures. In its dealings with Auction 111, the Bidder is obliged to adequately secure the computer and/or any other device he/she uses to access the Auction Website, and as usual, to protect it against viruses or other unlawful programs or files that can spread via the internet. The Auction Website may contain links to other websites of third parties. Auction 111 has no influence on (the information on) such websites.

ARTICLE 6. THE AUCTION PROCEDURE

Auction 111 acts as an Auction Service. The organization, preparation and implementation of the Auction is determined solely by Auction 111. This means among other things that Auction 111 determines the course of events prior to and during the Auction, and has the sole authority not to auction or to change (the composition of) one or more Lots, to not recognize a Bid and declare it invalid, and suspend, resume, extend or cancel the Auction and/or take other measures it deems necessary. The duration of an Auction is indicated on the Auction Website. This does not prejudice the right of Auction 111 to cancel, terminate (early), suspend or extend the Auction of the Lot(s) at any time. Thus among others, Auction 111 can exercise its right to extend the Auction in the situation that the Auction is not accessible to all Bidders due to technical problem(s). However, Auction 111 is not obliged to do so. A Bidder is required to follow the instructions and directions given by or in the name of Auction 111 in the context of an Auction. A Participant accepts the extraordinary circumstances that can arise during an internet-auction and the (technical) imperfections that may exist. Auction 111 cannot be held liable in any way for such occurrences.

The Auction Website will state an indicative closing time of the Auction per specific Lot. If, however, a Bid is made in the last 5 minutes before the closing time of a Lot, the auction time for that specific Lot will be automatically extended by 5 minutes. The extended time will become the new indicative closing time of that Lot.

ARTICLE 7. DESCRIPTION OF LOTS

In the description of a Lot on the Auction Website, Auction 111 depends on the information about the Lot provided by a Seller or third parties. Auction 111 is not liable for possible printing errors and/or material mistakes in the Auction Website. No assurance can be given with any mention of the sex of an Embryo, this is a risk of the Buyer. Special auction terms can be supplemented with a specific Lot, they are considered known and accepted, when a Bid is made for this particular Lot. If this is the case, they will be placed on the Auction Website before the start of the Auction and deemed by the Participants to be known and accepted.

ARTICLE 8. THE BID

A Bid must be placed in the manner described by Auction 111 on the Auction Website. The Auction takes place 'by bidding'. The Bidder is bound to a bid; it is considered being irrevocable and unconditional. Each Bidder who places a Bid shall be deemed to be bidding for himself or herself, and is personally bound to Auction 111 and (after the Award) to the Seller for his/her obligations to Auction 111 and the Seller. If multiple persons declare that they are placing or have placed a Bid jointly, they are jointly and severally liable for the resulting obligations to Auction 111 and (after the Award) to a Seller. Auction 111 and the Seller are entitled to participate in the Auction and to Bid in the name of third parties on the Lot(s) offered by Seller by means of the Auction.

ARTICLE 9. FORMATION OF PURCHASE AGREEMENT

The Purchase Agreement is formed as a result of the Award to the highest Bidder. The Auction is supervised by an auctioneer who will draw up an official report of the Award. Participation in an Auction does not mean that a Bidder automatically purchases a Lot.

Auction 111 sells the selected Lot(s) behalf and for the account of the Seller through the Auction Website. Auction 111 only provides Auction Services and acts only as intermediary between the Participants. A Purchase Agreement is exclusively entered into between the Seller and the Buyer as described in the Auction Conditions. Auction 111 is not bound by Purchase Agreement(s) between the Seller and the Buyer and all what is arising out the Purchase Agreements (e.g. possible additional arrangements regarding delivery and transfer of risk of the Lot). In addition, Auction 111 is not liable for any shortcomings of the Participants (including, inter alia, any payment-default by the Buyer).

The legal ownership of the Lot will be transferred as soon as the Buyer has fulfilled all its payment obligations as described in the Auction Conditions.

ARTICLE 10. INVOICING AND PAYMENT

Settlement with the Buyer will be calculated as follows: (i) the price of the Award plus (ii) 7,5% of this price of the Award as Auction Costs for the Buyer = net price, possibly to be increased by applicable VAT = settlement amount. By making a Bid, a Bidder commits himself to pay of the settlement amount in case this Bid will result in an Award. Auction 111 shall send an invoice to the Buyer for the Auction Costs owed to Auction 111 by the buyer. In addition, the Buyer shall also receive a settlement statement from Auction 111 concerning the settlement amount plus 21% VAT if the Lot was sold with application of VAT. The invoice and settlement statement are payable on their due date, being the date of the Award. If the Buyer fails to make timely payment in the manner prescribed by Auction 111, the Buyer is in default with respect to Auction 111 and with respect to the Seller, and Auction 111 and the Seller are entitled to interest at 10% per year until the day of full payment as well as to fixed damage compensation of 10% of the invoice amount and the settlement amount. If the Seller or the Buyer terminates or otherwise impairs the Purchase Agreement, the Buyer remains indebted to Auction 111 for Auction Costs without prejudice to any other right of Auction 111 in this case. When the invoice and/or the settlement amount are not paid after 14 days after it’s due date, Auction 111 has the right to cancel the sale without prior explaining and the Lot stays property of the (original) Seller.

In the event that a Purchase Agreement is legally dissolved or annulled by the Seller and/or the Buyer, the Seller and the Buyer shall nevertheless comply with all their payment obligations, as mentioned in the Auction Conditions towards Auction 11, in as far as compensation to be paid to Auction 111 is concerned.

In the case where a Buyer is requesting the transfer of awarded Lot(s) to another member state of the European Union or outside the European Union and has to be invoiced with a zero-rated VAT, the Buyer 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 Buyer 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 awarded Lot concerned. At the request of Auction 111, the Buyer is obliged to immediately repay the above-mentioned sum to Auction 111. In such cases, the reimbursement of such shall only take place when the Buyer has, to the satisfaction of Auction 111, complied with the above conditions. In any case, the Buyer is liable for, and indemnifies Auction 111 from any damage that may result from non-compliance of the aforementioned conditions. In addition, the Buyer is liable for all judicial and extra judicial costs born by Auction 111 with a minimum sum of EUR 1.000,--.

ARTICLE 11. SURROGATE MARE

The Surrogate Mare that is sold to the Buyer bearing an Embryo remains the property of the Seller and after prior notification, no later than 6 months after the birth of the Foal, is returned by the Buyer to the Seller, in good health, dewormed and vaccinated. If the Seller prefers, he may require a deposit of 1.500 EURO (excl. VAT) for the loan of the Surrogate Mare. This deposit is refunded to the Buyer when the Surrogate Mare is returned in good condition, as mentioned above. The Seller bears full responsibility for the Surrogate Mare and its unborn Foal until at least the 60th day of gestation or the date of sale when this exceeds the 60 days of gestation. The Seller is no longer responsible for the health of the Surrogate Mare and its unborn Foal after the date of sale. The Foal is named after the stud of the Seller unless otherwise agreed between the Seller and Buyer.

ARTICLE 12. PICK-UP

After the Auction and payment by the Buyer of all its payment obligations as described in the Auction Conditions, the Buyer and the Seller will make arrangements for the delivery of the awarded Lot(s) in mutual consultation. The risk related to the Lot transfers to the Buyer from the moment of delivery of the respective Lot to the Buyer. The legal relationship exists directly between the Buyer and the Seller, with this understanding that the Seller is liable to the Buyer, with explicit exclusion of Auction 111 for any shortcoming a Lot may display after the Auction.

Auction 111 will not take out any insurance for Lots or other matters on behalf of the Seller and the Buyers. As Sellers and Buyers take part in the Auction for their own account and risk, Auction 111 advises them that they take out such insurance themselves.

Unless otherwise agreed by the Buyer and the Seller in writing, the principle applies that (i) when (the) awarded Lot(s) must be delivered outside Belgium, the Buyer will pay for the transport-costs or arranges the transport himself or (ii) when (the) awarded Lot(s) (is) are to be delivered within Belgium, the Seller will pay for the transport-costs or arranges the transport himself.

ARTICLE 13. LIABILITY

Auction 111 is not liable for anything directly and/or indirectly related to the Auction, Auction Conditions and the Lots, except in cases of wilful intent or wilful recklessness on the side of Auction 111.

ARTICLE 14. APPLICABLE LAW AND COMPETENT COURT

The auctioneer appointed by Auction 111 will, in the first instance, settle all disputes in relation to the Auction. The brokering and intervention of Auction 111 and the sale take place in accordance with Belgian law. In the case of disputes, only Belgian law shall apply and only the courts of the (territorial) jurisdiction of Antwerpen shall have exclusive jurisdiction to hear the disputes.

ARTICLE 15. OTHER PROVISIONS

Auction 111 retains the right to modify these Auction Conditions without prior informing Participants. In the case of such modifications, the new Auction Conditions will automatically come into force as per the next Auction and as published on the Auction Website.

In the event that any of the terms and conditions contained in the Auction Conditions shall be deemed invalid or unenforceable, then the remaining terms and conditions shall be construed as if such invalid terms and conditions were not contained herein; and such invalid and unenforceable terms and conditions will be replaced by such terms and conditions which as closely as possible meets the intention of the original invalid terms and conditions.

In case of a dispute between the English and Dutch language of the Auction Conditions, the Dutch language of the Auction Terms shall apply.

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