Selected Winners Sale
general conditions
1. The Stichting Selected Winners Sale (hereafter: ‘SWS’) is organizing on Thursday 13th of August 2009 a yearling trotters auction, (hereafter: ‘the auction’) in Vogelpark Avifauna in Alphen aan den Rijn. The auction will take place under the supervision of a notary.
2. The legal relationship between SWS and the vendor is an agreement by order.
3. These conditions of auction primarily apply to the relationship between SWS and the vendor and the relationship between SWS and the bidder/purchaser. By vendor and bidder/purchase is also meant any legal successor/procurer.
4. SWS is not bound to agreements between the vendor and the bidder/purchaser other than stated in these conditions of auction.
5. All stipulations in these conditions of auction are made for the benefit of all those who work for and have worked for, or work and have worked on the behalf of SWS. The regulations in these conditions of auction apply directly to these persons as if they were SWS.
6. Participation in the auction will be seen as acceptance of the conditions of auction, with the exception of contingent conditions to be handled by the participant him/herself.
the auction
7. SWS or a selection committee allotted by the SWS will examine and select the horses that come into consideration for participation in the auction. Decisions by SWS or the allotted selection committee is binding. SWS or the selection committee is authorized to obtain advice from third parties and still retains the authorization at all times to refuse a horse or horses, without having to give reasons, on grounds of physical defects, as well as on other grounds as determined by the SWS or the selection committee even in the case where the horse or horses have already been selected for the auction. SWS and the selection committee are not bound in any way, on no matter what grounds, to compensate the vendor for any costs thus accrued.
8. The horses will be sold outright, without proceedings or recompense, in the state in which they were allotted. Registered horses will be sold, at bidding, with a minimum stake of € 4,000 per horse. In the case where no opening bid is made, the auctioneer will drop the minimum stake to € 3,000. In the case where still no bid is made, the horse will remain unsold. The auctioneer retains the right to change the order of sale of the horses to be sold, without having to give reasons for denying participation of a horse as well as retaining the right to refuse the acceptance of bids or persons as bidder/purchasers.
9. Bidder/purchasers are expected to be fully commercially competent and to be in full possession of their mental faculties. Each bidder/purchaser is expected to have bid for him/herself and will be held to his/her bid until a higher bid has been definitely accepted. A bidder/purchaser is, along with his/her eventual principal, fully responsible for non-fulfilment of his/her obligations. A vendor who appears to have bought back his own horse (although, from part 28 up to and including part 31, strictly forbidden) is also considered to be a bidder/purchaser: for such vendors, all regulations concerning bidder/purchasers (under which is also meant all financial obligations) in these conditions of auction equally apply.
10. Risks concerning the horses are in force immediately from the moment of allotment from vendor to bidder/purchaser. As long as full payment has not been received by SWS from the bidder/purchaser, the vendor retains ownership of the horse.
11. Immediately after allotment, the bidder/purchaser shall, on production of identification, sign a written agreement of sale. If the agreement of sale is not immediately offered for signing to the bidder/purchaser, then he/she must, directly after the auction, report to the SWS administration office.
information
12. SWS has striven to compile the catalogue/video/dvd as accurately as possible. Pedigree information aims to give an impression of the quality of the horses without pretending to be exhaustive and therefore offers no guarantees.
13. It is the responsibility of the vendor to check the accuracy of the information in the catalogue and the dvd/video and to report to SWS in writing, in good time, before the auction in the event of any mistakes or inadequacies and to bring to the notice of such, thereby acquainting SWS, in as much detail as possible, with any changes or additions that are needed.
14. A copy of the veterinary report will be sent on written request from 7 days before the auction; the report can be viewed on request at the auction. The veterinary report and any possible other veterinary reporting by the veterinary surgeon designated by SWS is binding for SWS, for the vendor and the bidder/purchaser.
15. The bidder/purchasers are obliged, if requested by SWS, to supply information concerning the adequacy of their financial circumstances, in which case they must show documentation proving the substance of their finances to SWS. By participation in the auction, the bidder/purchasers authorize SWS in the obtaining of information, concerning their financial circumstances, from third parties.
registration, costs and payment
16. SWS is authorized, at all times and without stating reasons, to refuse participation to horses and/or vendors. The registration fee shall be a commission of 6.5% (including VAT) of the purchase price excluding VAT, at a minimum sum of € 1.100 including VAT and the halter fee. This minimum sum of € 1.100 is due to SWS by the vendor from the moment that a registered horse has been recorded on video and/or mentioned in the catalogue. The vendor must pay, at the auction, the remaining sum related to the price of sale in cash at the administration offices of SWS. Payment must be in Euros, without any discount or deduction.
17. At the moment when the vendor’s registration fee of the minimum sum (as corresponding to part 16) is due to SWS, he/she shall ensure that the aforesaid sum shall be deposited, within 14 days, on the bank account number 57.15.70.631 in the name of Stichting Selected Winners Sale and stating the registration number concerned. The vendor and his/her horse or horses will only be allowed entry to the auction after he/she has documentary proof to show that it is apparent that he/she has fully paid the aforesaid registration fee.
18. For each horse, the vendor is indebted to SWS for a sales commission of 3% (including VAT) of the price of sale excluding VAT. The sales commission will be used by SWS to stimulate sales among which is meant the payment of trainer commission. Only professional trainers that have been approved by SWS and who have made a written application to the notary before the commencement of the auction may, on behalf of SWS, make a claim for a trainer’s commission of 2.5% (excluding VAT) of the purchase price excluding VAT. Only after the bidder/purchaser has fully completed his/her obligations (of payment) is the trainer’s commission owed by SWS.
19. The bidder/purchaser must make cash payment to the administration office of SWS at the auction, that is: the purchase price augmented by 9.5% agio including VAT on the purchase price excluding VAT, in Euros without any discount or deduction.
20. In the case where the bidder/purchaser is deficient herein, SWS has the right to immediately re-auction the horse, whereby the original bidder/purchaser may no longer be allowed to participate in the bidding. The original bidder/purchaser will be obliged to pay the difference between his/her bid and the final, lower purchase price, as well as the re-auction costs, to SWS; he/she will have no claims in the case where there is a higher purchase price at re-auction.
21. Only with permission obtained from SWS prior to the auction has a bidder/purchaser the right to pay with a transfer account whereby he/she must transfer payment within 7 days after the auction to the SWS bank account number (as corresponding to part 17). SWS also has the right to withhold the above-mentioned permission in the case where the bidder/purchaser’s financial circumstances, according to SWS’ judgement, by means of bank guarantees or suchlike, do not show, or fall short of, sufficient means. SWS has the right to withdraw its given permission at any time in case doubts arise, in their opinion, as to the financial adequacy of the bidder/purchaser or to the securities that have been supplied by him/her.
22. Payment to any other person other than SWS does not release the bidder/purchaser from payment obligations toward SWS.
23. In the case where SWS has not received the payment in full from the bidder/purchaser within 7 days after the auction, the bidder/purchaser is, according to the law, in omission and is obliged to pay, besides other payment obligations toward SWS, an indemnity to the sum of 12% (including VAT) of the purchase price excluding VAT. The total sum, on the basis of all his/her payment obligations that the bidder/purchaser is indebted, will be augmented by an interest of 1.5% per month calculated from the time of auction until the time of full payment.
24. If SWS does not receive, from the bidder/purchaser, full payment within 7 days after the auction, SWS has the right, without notification of default, on behalf of the vendor and without his/her permission, to consider the sale as not binding. In such cases, the vendor and bidder/purchaser remain obliged to fulfil all their payment obligations toward SWS as laid out in the conditions of auction, insofar that these concern a reimbursement for the benefit of SWS.
25. If the bidder/purchaser is in default of fulfilling his/her (payment) obligations towards SWS, all judicial and extra judicial costs accrued by SWS by these circumstances will be charged to the bidder/purchaser with a minimum sum of € 895 including VAT.
26. Only when all (payment) responsibilities towards SWS have been fulfilled by both the vendor and the bidder/purchaser, will SWS then complete payment of all money owed to the vendor within 30 days after the auction.
27. Settlement of mutual claims by the vendor as well as the bidder/purchaser, concerning SWS, is not allowed. SWS is, at all times, authorized to settle mutual claims.
28. All costs, tariffs, commissions and reimbursements are based on the current tax legislation in force on 1 January 2008. If the legislation changes at any time, SWS is authorized to adapt costs, tariffs, commissions and reimbursements as necessary.
bans imposed on vendor
29. It is forbidden for the vendor to bid for (or to have bid for on his/her behalf) a horse on offer at the auction of which he/she is the owner, in whole or in part, whether or not through a legal entity. A vendor will be considered to be the owner.
30. If in the judgement of the auctioneer bids take place that are forbidden as outlined in part 29, he is then authorized to refuse the vendor concerned, and/or the person who bids on behalf of the vendor as a bidder, and to not accept the bid, after which the auctioning of the horse may continue.
31. If, at the allotment, it appears that the vendor, or any other person on behalf of the vendor, appears to have made the final bid, the vendor concerned, and/or the person who had made the final bid on behalf of the vendor, is indebted to SWS for the following: a remuneration of 12% (including VAT) of the purchase price excluding VAT, or where appropriate, the sum of the final bid excluding VAT; the total registration fee including VAT, as meant in part 16, due on the aforementioned purchase price, or where appropriate, the final bid; the agio including VAT as meant in part 19 of the aforementioned purchase price, or where appropriate, the final bid; all the above augmented by an interest of 1.5% per month of the total owed sum to be calculated from the time of the auction until the time of payment in total.
32. SWS is authorized at all times to deviate from the above.
horses absent at time of auction
33. A horse that has been selected must take part in the auction; in default of such, the vendor must, as well as his/her other obligations of payment to SWS, pay an indemnity of the amount of 30%, including VAT, of the mean purchase price, excluding VAT, for each horse sold by auction. The total sum, on the basis of all his/her payment obligations owed by the vendor, will be augmented by an interest of 1.5% per month over the total owed sum, to be calculated from the date of auction until the time of the payment in total, with a minimum sum of € 5,000 including VAT. The SWS administration fixation of the mean purchase price excluding VAT is binding.
34. In the case where a horse, in the opinion of the vendor, cannot participate in the auction because of health reasons, then he/she must explain in writing and in good time and in as much detail as possible, the disorder to SWS, whereby a veterinary surgeon that has been assigned by SWS will establish the nature of the disorder. The conclusion of the veterinary surgeon concerned will be binding.
35. In the case where the vendor, in the opinion of the veterinary surgeon, does not, where appropriate, offer satisfactory opportunity to allow the horse to be examined (in time) and therefore the horse, despite the veterinary surgeon’s approval, does not participate in the auction, the vendor owes the indemnity to SWS as mentioned in part 33. In the case where the horse, whether approved or not by the veterinary surgeon, does not participate in the auction, then the vendor must pay, in any case, the costs accrued by SWS (amongst which veterinary fees) concerning this matter, with a minimum sum of € 1.100 including VAT.
delivery, handing in of and removal of horses
36. Vendors are obliged to deliver their horses to the auction grounds in good condition for auction. If, in the judgement of SWS, horses do not comply with this, SWS is authorized to bring the horses into a condition for auction themselves whereby the costs of such, within reason, will be charged to the vendors concerned.
37. The bidder/purchaser is responsible for the care of and is liable for damage to the horse and/or damage caused by the horse immediately after it has been allotted.
38. The bidder/purchaser must remove the horse, at his/her own expense, from the auction grounds, at the very latest on the day after the auction at 12.00 hours. If the bidder/purchaser has not removed the horse within the time stated, he/she is in default. In such cases, SWS is authorized to remove the horse, or have it removed, from the auction grounds, and to have it stabled elsewhere, whereby the bidder/ purchaser will be charged for the costs accrued, as considered reasonable by SWS. The bidder/purchaser will remain responsible for the care of and remain liable for damage to the horse and/or damage caused by the horse.
39. Only, and only when, the bidder/purchaser has complied with his obligations of payment in full, amongst which is also meant payment obligations concerning remuneration to SWS, may he/she have the horse at his/her disposal and at which time he/she will receive the necessary documents. SWS is at no time obliged to hand over the horse in the case where the bidder/purchaser has not fully complied with his/her (payment) obligations.
40. If the bidder/purchaser does not remove the horse in time and is therefore in default, SWS has the right, in the name of the vendor, without proof of default, to consider the sale as not binding. In such cases the vendor and the bidder/purchaser shall remain liable for the fulfilment of all their obligations of payment as laid down in these conditions of auction, insofar as they concern remuneration to SWS.
stall vices and defects
41. In the case where a bidder/purchaser detects stall vices in the horse bought, whether crib-biting, weaving or wind-sucking, the bidder/purchaser must, within 7 days after the auction, notify SWS in writing with a description in as much detail as possible of the nature of the stall vices. In this case SWS will remove the horse to a location of their choice with the aim to have the horse examined by a veterinary surgeon assigned by them in order to have the stall vices, as described by the bidder/purchaser, examined. The veterinary surgeon’s conclusion as to the nature and seriousness of the stall vices is binding. In the case where, in the judgement of the veterinary surgeon, there are such a stall vices as described by the bidder/purchaser, then the vendor is obliged to pay the costs accrued to SWS, amongst which those concerning the stabling, the transport costs and the veterinary surgeon’s fee. The bidder/purchaser is obliged to pay the said costs accrued to SWS in the case where, in the judgement of the veterinary surgeon, there are no stall vices as described by the bidder/purchaser.
42. The above part, part 41, also applies if the bidder/purchaser detects defects in the horse bought other than the stall vices meant.
43. If the bidder/purchaser does not notify, within the aforementioned term of 7 days after the auction, the meant stall vices or other defects and/or if the aforementioned veterinary surgeon does not confirm the stall vices or other defects, the bidder/purchaser loses the right to consider the sale as not binding or to claim absence of consensus ad idem.
annulment and cancellation
44. If the sale, in a legally valid way, is annulled or cancelled by the bidder/purchaser, the vendor and the bidder/purchaser are still bound to all their obligations of payment to SWS as mentioned in the conditions of auction, insofar as these concern payment or remuneration to SWS. The sale can be annulled or cancelled if the applicable lawful stipulations are observed when the conditions of auction deviate unlawfully.
liability
45. SWS cannot be held liable for the accuracy of the information in the catalogue, the information supplied at the auction grounds or any information made available during the auction. The vendor indemnifies SWS from all claims from third parties (amongst which is meant bidders/purchasers) for damages resulting from inadequacy of the compulsory check and statements by the vendor concerning the catalogue as meant in part 13.
46. SWS cannot be held liable for the accuracy of the information contained in the veterinary report, the veterinary information supplied at the auction grounds or any information made available during the auction.
47. SWS cannot be held liable for any damage before, during or after the auction, sustained or perpetrated by any person, goods or horses.
48. SWS shall not provide an insurance on behalf of the vendors or bidders/purchasers concerning the horses or other matters. As vendors and bidder/purchasers are themselves entirely responsible for participation in the auction and at their own risk, SWS advises that such insurance, as meant, should be taken out by them. In the case of the death of a horse on the day of the auction and when the vendor or bidder/purchaser concerned does not receive payment from the aforementioned possible insurance, SWS shall pay back the registration fee of € 1.100 including VAT to the vendor concerned or the agio to the bidder/purchaser concerned. Concerning the aforementioned refund, SWS offers its services to vendors and bidder/purchasers without admitting any liability now or at any time in the future.
49. SWS is not liable for the failings of third parties; under this is also classified the bidder/purchaser’s non-payment.
50. SWS excludes liabilities except in the event of those with intent or clear culpability by SWS.
51. Anyone who perpetrates damage to goods and/or property of, or used by, SWS are liable for such damage.
52. Vendors as well as bidder/purchasers are liable for any damage they have perpetrated. Vendors as well as bidder/purchasers indemnify SWS against any liabilities from third parties (amongst which is meant other vendors and/or bidder/purchasers as well as visitors) concerning such matters.
other matters
53. In the case where, in the business of transferring the auctioned horses to another member state of the European Union at the request of the bidder/purchaser, an invoice is sent with zero VAT, the bidder/purchaser puts him/herself under obligation, in the member state of destination, to fulfil all necessary conditions demanded and in so doing to actualise an intra-community legal transaction.
54. If application of the VAT zero rating tariff, no matter the circumstances, appears to be impossible (subsequently) then the bidder/purchaser, at that time, is still obliged to pay a sum to the amount that would be owed in case of a domestic delivery of the horse concerned. At the request of SWS the bidder/purchaser is required to pay the aforementioned sum to SWS immediately. In such cases the refund will be reimbursed only when and not before the bidder/purchaser has complied with the conditions of part 53. The bidder/purchaser indemnifies SWS in all cases from damages that result from the non-compliance of part 53. Therein the bidder/purchaser is liable for all judicial and extra judicial costs born by SWS concerning this matter with a minimum sum of € 895 including VAT.
transference
55. In the case where one or more of these aforementioned regulations in these conditions of auction shall not be considered, or become, lawful, the remaining regulations herein shall remain lawful. In such cases, a new regulation will replace the unlawful regulation concerned; the new regulation will be so constructed as to simulate, as much as is possible, the content, range and goals of the old unlawful regulation as mentioned above.
disputes
56. If, at allotment, a difference of opinion arises as to the question of whom had made the last bid, or if other difficulties, confusions or disputes arise at the time of bidding and/or allotment, the auctioneer is authorized to have final say herein which is binding. In the case where the abovementioned difference of opinion concerns the last bid, the auctioneer has the right to continue the sale by bidding.
57. In the case where the auctioneer calls in the notary to make judgement, the notary shall, binding and irrevocably, decide for all parties. During the auction the notary is also authorized to make judgement in disputes in other matters than those regarding that of bidding and allotment.
58. The legal relationship between SWS and the bidder/purchaser and the vendor are subject to the Dutch law, with the complete exclusion of the Weens Koopverdrag (CISG). Disputes, other than those specifically in pursuance of parts 56 and 57 which are subject to the judgement of the auctioneer and the notary, shall be settled exclusively by a qualified Dutch judge in Amsterdam.
These conditions are a translation from the Dutch language. In case of dispute only the original Dutch version is binding.
download the English conditions of auction
