GENERAL AND SPECIAL TERMS AND CONDITIONS OF AUCTION
ARTICLE 1. DEFINITIONS
General and special terms and conditions of auction: the following general and special terms and conditions of auction of ET-A apply to the purchase agreement unless otherwise agreed between the parties which are expressly accepted by the purchaser. Each bidder shall be deemed to have taken knowledge of and accepted these terms and conditions of auction. Consequently, the following general and special terms and conditions of auction are automatically applicable from the moment a bid is made. ET-A: BVBA VALENTIJN DE BRABANDER, with registered office at Dendermondebaan 66 box A, 9240 Zele, registered in the CBE register under no. 0837.903.420, which facilitates the auction and the auction services.
Seller: the natural person or legal entity that commissioned ET-A to sell one or more horses via an auction, on behalf of and at the expense of the seller.
Bidder: the major natural person or legal entity that registers or has registered on the auction website of ET-A in order to participate in the auction organised by ET-A.
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).
Participant: a seller and/or bidder. Lot: one or more horses being auctioned on the ET-A auction website.
Buyer: the bidder who has been awarded the purchase.
Purchase agreement: the purchase agreement between seller and buyer that is formed as a result of the awarding of the lot to the highest bidder.
Awarding: the express declaration to the bidder by ET-A 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 awarding is done by a public official appointed for this purpose by ET-A. Horses: In the following general and special terms and conditions of auction, by horse or horses is understood each adult horse, foal or embryo.
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.
Surrogate mare: the surrogate mare in whose uterus the young 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.
Foal: the foal offered at the auction site, described as well as possible on the basis of information and images. This information is used solely to give an impression about the qualities of the foal, without pretending to be complete/correct and without giving any guarantees.
Horse: the horse offered at the auction site, described as well as possible on the basis of information and images. This information is used solely to give an impression about the qualities of the horse, without pretending to be complete/correct and without giving any guarantees.
Frozen Semen: the frozen semen (number of straws offered at the auction site, described as well as possible on the basis of information and images. This information is used solely to give an impression about the qualities of the frozen semen, without pretending to be complete/correct and without giving any guarantees.
Personal information: the (personal) information that must be provided to ET-A when registering in order for the bidder to bid at the auction organized by ET-A. Auction: the online auction via the ET-A auction website.
Auction services: brokering a purchase agreement between seller and buyer by facilitating an online auction.
Auction website: the auction website on which ET-A offers its auction services: www.et-auction.com.
ARTICLE 2. SCOPE
By participating in the auction organized by ET-A, the participants declare in their transactions with one another, and the bidder declares in its transactions with ET-A, that they are bound to comply with these general and special terms and conditions of auction and are bound by the resulting legal consequences for a participant. Each participant shall be deemed to have taken cognizance of and accepted these terms and conditions of auction without reservation.
ARTICLE 3. BIDDER REGISTRATION
To participate in the auction organized by ET-A, the bidder must register before the start of the auction in the manner prescribed by ET-A 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. ET-A reserves the right to refuse or unilaterally terminate registration and participation in an auction at any time. On first demand of ET-A, 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 ET-A 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 ET-A 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 ET-A 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. ET-A is co-entitled, in the name of the seller, to demand compliance with the payment obligations of a bidder resulting from bids and subsequent awarding that took place via use of the bidder's password and user name.
ARTICLE 4. PRIVACY STATEMENT
ET-A shall only use the (personal) information of a bidder for the purpose for which it was intended.
ARTICLE 5. SECURITY
ET-A 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 ET-A, 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. ET-A has no influence on (the information on) such websites.
ARTICLE 6. THE AUCTION PROCEDURE
Via the auction organized by ET-A, the seller places a Horse, Foal, Frozen Semen or Embryo which has been transplanted from the corresponding donor mare, inseminated by a specific stud, into a surrogate mare for sale. ET-A acts as auction service. The organization, preparation and implementation of the auction is determined solely by ET-A. This means among other things that ET-A determines the course of events prior to and during the Auction, and has the 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 ET-A to cancel, terminate (early), suspend or extend an Auction at any time. Thus among others, ET-A 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, ET-A is not obliged to do so. A bidder is required to follow the instructions and directions given by or in the name of ET-A in the context of an auction. A bidder accepts the extraordinary circumstances that can arise during an Internet auction and the (technical) imperfections that may exist. ET-A cannot be held liable in any way for such occurrences. If a bid is made in the last 5 minutes before the closure of the auction, the auction will be extended by 5 minutes.
ARTICLE 7. DESCRIPTION OF LOTS
In the description of a lot on its auction website, ET-A depends on the information about the lot provided by a seller or third parties. ET-A is not liable for possible printing errors and/or material mistakes in the auction catalogue. No assurance can be given with any mention of the sex of an embryo. 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.
ARTICLE 8. THE BID
A bid must be placed in the manner described by ET-A on the auction website. The auction takes place 'by bidding'. A bid by the bidder is deemed to be an offer to the seller. The bidder is bound to a bid; it is considered irrevocable and unconditional. Each bidder who places a bid shall be deemed to be bidding for himself or herself, and is personally bound to ET-A and (after awarding) to the seller for his/her obligations to ET-A and the seller. This applies even if the person placing the bid declares to be acting on behalf of a third party. 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 ET-A and (after awarding) to a seller. ET-A 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 via auction.
ARTICLE 9. FORMATION OF PURCHASE AGREEMENT
The purchase agreement is formed as a result of awarding to the highest bidder. The auction is supervised by a public official who will draw up an official report of the awarding. Participation in an auction does not mean that a bidder automatically purchases a lot.
ARTICLE 10. INVOICING AND PAYMENT
A buyer owes auction fees to ET-A that amount to 7,5% of the buyer's final bid. The auction fees are subject to 21% VAT. ET-A shall send an invoice to the buyer for the auction fees owed to ET-A by the buyer. The buyer shall also receive an invoice from the seller concerning the purchase price, plus 21% VAT if the horses were sold with application of VAT. The invoices are payable on their due date. If the buyer fails to make timely payment in the manner prescribed by ET-A, the buyer is in default with respect to ET-A and with respect to the seller, and ET-A 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. If the seller or the buyer terminates or otherwise impairs the purchase agreement, the buyer remains indebted to ET-A for auction fees without prejudice to any other right of ET-A in this case. When the invoice of the sale is not paid after thirty days, ET-A has the right to cancel the sale without prior explaining and the lot stays property of the original seller.
ARTICLE 11. SURROGATE MARE AND EMBRYO
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 receptor. This deposit is refunded to the buyer when the receptor 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 11-A. FOAL
In case of auction of a foal, the buyer pays the full purchase price (highest bid + auction costs + vat) on the account of the ET-A. The transfer of ownership of the foal takes place at the time of allocation in the auction, however, the seller remains responsible for the foal until the moment of delivery to the buyer. The seller undertakes to reach a healthy understanding with the buyer regarding the weaning and delivery of the foal. The foal must be at least 150 days old when weaning. Unless otherwise agreed between the buyer and the seller, the seller must deliver the foal to the Belgian buyer. A foreign customer always collects the foal from the seller, unless otherwise agreed between the two parties.
ET-A will pay the the seller if a signed proof of delivery arrives at the auction committee. Delivery cannot take place without the foal's passport.
ARTICLE 12. PICK-UP
The buyer is obliged to pick up the purchased Horse/Frozen Semen or Embryo at the location and time established by ET-A on presentation of a valid proof of identity. Surrogate mare and embryos must be no later than 30 days after awarding picked up by buyer. Delivery of the horses takes place via pick-up by the buyer or a transport company appointed by him. The pick-up consists of making the horses available to the buyer. The risk transfers to the buyer from the moment of delivery to the buyer or to a transport company appointed by him. The pick-up takes place subject to the suspensive condition that the full purchase price, the auction fees and the possible other amounts owed by the buyer have been paid. If the buyer refuses the pick-up or fails to provide the information or instructions needed for the pick-up, the horses will be maintained by ET-A at the risk of the buyer. In this case, the buyer is required to pay to ET-A all additional costs, including in any case stable and transport costs, in which case the horses shall only be made available for pick-up if and when the buyer has also fully paid these costs.
ARTICLE 13. LIABILITY
Any liability on the part of ET-A is excluded. To the extent that this would be judged differently in law, the liability of ET-A is limited to the amount of the benefit paid out by the insurer. If the insurer does not pay out a benefit in a specific case or the damage is not covered by the insurance, the liability of ET-A is limited to a maximum of the net invoice amount of the auction fees that ET-A receives within the framework of the services it performed. ET-A draws the buyer's attention to the fact that the purchased lot can be insured. The buyer has a choice in this regard of several insurance policies. If for any reason the buyer is able to claim that the sale is annulled, it’s the seller of the embryo who must respond to it.
ARTICLE 14. APPLICABLE LAW AND COMPETENT COURT
The public official will, in the first and also in the last instance, settle all disputes regarding the adjudication concerned that may arise during the auction. The brokering and intervention of ET-A 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 Ghent, Dendermonde section, shall have jurisdiction to hear the disputes. In the case of dispute, only the Dutch text is valid.
ARTICLE 15. OTHER PROVISIONS
ET-A retains the right to modify these terms and conditions of auction. In the case of modifications, the new terms and conditions of auction take effect at the next auction.
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