Online Auction Conditions StuDutch Trading 2023
The StuDutch online auction is organized by the private limited company StuDutch Trading B.V., established in (5271 VR) Sint-Michielsgestel at the Schuilenburg nr. 1, the Netherlands, registered with the Chamber of Commerce under number: 76240711.
General
1. StuDutch Trading (hereinafter: 'STD') organizes an online foal/embryo auction (here after: ('The Auction') from 2 till 5 june 2023 and for jumping/dressage foals, breedingmares, semen and/or embryos.
2. These auction conditions apply to all purchase agreements entered during The Auction with regard to foals, breedingmares, semen, embryos offered via STD, as well as all agreements resulting from these.
3. The agreements referred under 2 and on these auction conditions are governed by Dutch law, with the general exclusion of the applicability of the Vienna Sales Convention (CISG).
4. The relationship between STD and the Seller is an assignment agreement whereby the Seller, as principal, instructs STD, as contractor, to auction the foal(s)/embryo(s) offered by the Seller at the highest bid.
5. Where in these auction conditions reference is made to embryos, the mare in foal, if necessary, should be understood as well.
6. These auction conditions are also made for the benefit of all those who work or were working for STD. These (legal) persons can appeal directly to these auction terms and conditions.
7. Participation in The Auction shall be considered as acceptance of these auction conditions. Any conditions used by the Seller or Bidder/Buyer are hereby expressly rejected.
8. All rates and prices in these auction conditions are exclusive of turnover tax (VAT), unless explicitly stated otherwise.
The Auction
9. STD determines the order and sequence of The Auction. STD has the right to refuse access to and/or participation in The Auction to anyone without giving reasons, or to set (further) conditions for participation in The Auction.
10. The breedingmares/semen/foals/embryos offered for The Auction will be auctioned/sold without action or reckoning, in the state in which they are when awarded, without STD being liable in connection with the value, state and/or capacity of the breedingmares/semen/foals/embryos auctioned.
11. Bidder/Buyer bids at his/her own expense and risk until a higher bid is accepted. The Bidder/Buyer will be held to his/her bid.
12. In order to be able to bid for The Auction online or digitally, a potential Bidder/Buyer may be asked to deposit a security deposit into the bank account of STD at the request of STD. In this case, the potential Bidder/Buyer must comply with the request for a deposit before the potential Bidder/Buyer is approved for participation.
13. STD is never liable for damages suffered as a result of: acts and/or omissions by third parties, delays in using the auction site, failure or unavailability of the auction site for any other reason. This includes the unavailability of a specific auction site. Such delay or failure may be caused by, among other things, the malfunctioning or unavailability of Internet connections, or the malfunctioning or unavailability of (computer) equipment.
14. Bidder/Buyer shall be deemed to have full legal capacity and to have full knowledge of the facts. Each Bidder/Buyer is deemed to have bid for himself/herself. The Seller who repurchases his/her breedingmares/semen/foals/embryos considered to be the Bidder/Buyer and all the provisions of these auction conditions that concern Bidder/Buyer apply to the Seller referred to herein as well.
15. On its website prior to The Auction, STD offers the Bidder/Buyer the opportunity to form its own opinion about the breedingmares/semen/foals/embryos and the extent to which the breedingmares/semen/foals/embryos corresponds to its/its wishes in view of the specific purposes of use intended by the Buyer. If necessary or desired, the Bidder/Buyer must seek independent expert advice on the matter.
16. Only those commission agents, approved by STD, who have notified STD in writing 2 days before the start of the auction that they are acting for one or more of the Buyers and have indicated on which breedingmares/semen/foals/embryos they wish to bid, can claim a commission. The commission agent will be equivalent as a Bidder/Buyer and will be held to the obligations stated in these auction conditions and will be responsible for a correct (financial) settlement. After the Bidder/Buyer has completely fulfilled his (payment) obligations and the foal has been delivered to the Buyer, STD will owe the commission, no sooner than two weeks after delivery.
17. STD cannot guarantee that the Seller can transfer the ownership of an auctioned breedingmares/semen/foals/embryos freely and unencumbered to the Bidder/Buyer and STD is not liable for any related damage.
18. The Seller guarantees to be able to transfer full ownership of the breedingmares/semen/foals/embryos freely and unencumbered to the Buyer. The Seller is obliged to indemnify STD against claims by the Buyer and/or a third party or parties in connection with the failure of the Seller to comply with this guarantee.
19. The Seller guarantees that the pedigree data of the breedingmares/semen/foals/embryos are correct.
20. The risk with regard to the embryos, including but not limited to damage to and caused by embryos, is immediately transferred from the Seller to the Bidder/Buyer at the moment of award. As long as STD has not received full payment from the Bidder/Buyer, the Seller remains the owner of the embryo. Immediately after the award, the Bidder/Buyer is responsible for the care of and liable for damage to both the embryo as created by the embryo.
Information
21. STD compiles the auction collection on its website as carefully as possible. The information on the website is intended to give an impression of the quality of the foals/embryos offered for auction, without STD being exhaustive and without any rights being derived from it.
22. The Seller undertakes to check the information to be included on the website for accuracy and to inform STD in writing of inaccuracies in as much detail as possible no later than 7 days prior to the auction.
23. The Seller of an embryo is obliged to make available to STD a veterinarian report drawn up by an approved veterinarian appointed by him/herself to determine the gestation of the mare at least 7 days prior to the Auction. A copy of this veterinarian report can be inspected on the day of The Auction. STD will not carry out any veterinarian inspection or examination prior to, at the end of or after the auction.
24. The Seller of a breedingmare or foal is obliged to provide STD with a veterinarian report, in accordance with STD model, from an approved veterinarian appointed by the Seller, prior to The Auction, but no later than 10 days prior to The Auction, at his expense. This veterinarian report must be in the possession of STD no later than 5 days prior to The Auction.
25. The content of the aforementioned veterinarian report mentioned in sub 24 is binding for STD, for the Seller and for the Bidder/Buyer. This report can be requested from the STD secretariat from two days before The Auction.
26. By offering the foal for auction, the Seller declares that he/she is unaware of any facts or circumstances which make the foal unsuitable for normal use in rearing. The Seller further guarantees that the foal is free of prohibited substances as appearing on the most recent list of substances of the Fédération Equestre Internationale (FEI). By offering the breedingmare for auction, the Seller declares that he/she is unaware of any facts or circumstances which make the breedingmare unsuitable for normal use of breeding.
27. If there is a foal with a known defect of which a veterinarian appointed by STD has declared in writing that recovery (healing) is possible, then the Buyer is obliged to fulfil his obligations in accordance with the conditions in sub 28,29 and 31 up to and including 33. In the event of death or rejection of a foal by the aforementioned veterinarian, who decides in a binding way about the state of health of the foal, before the expiration of the term within which delivery by the Seller should have taken place to the Buyer, the Purchase agreement is considered dissolved and the final bid amount will be refunded by STD with any VAT owed on it. The Registration Fee, the Auction Commission Fee will not be refunded by STD to the Seller or the Buyer respectively, or will remain due to STD. With regard to the term(s) within which delivery of the foal referred to above must take place, reference is made to the stipulations in sub 37 up to and including sub 46.
Costs and payment
28. Within seven days after The Auction, the Buyer must pay STD the purchase price in Euros by transfer to the bank account number in the name of STD, without any discount or settlement.
The purchase price for foals/breedingmares and semen will be calculated as follows:
Final Bid amount increased by commission/auction costs , being an amount equal to 10% of the Final Bid amount, to be increased by the applicable VAT rate.
The purchase price for embryos is calculated as follows:
Final Bid amount increased by commission/auction costs, being an amount equal to 10% of the final bid amount to be paid, plus the costs of the mare in foal, to be increased with the applicable VAT rate.
The invoice amount is immediately due and payable. Payment shall be made exclusively by bank transfer. Settlement of any counterclaims is excluded.
29. If STD has not received full payment from the Seller/Buyer within fourteen days after the auction, the Seller/Buyer is legally in default and owes compensation in the amount of 10% of the Final bid Amount, increased by an interest of 1.5% per month over the total amount owed, to be calculated from The Auction until the time of full payment. All this without prejudice to STD's right to performance and/or compensation.
30. If STD has not received full payment from the Seller/ Buyer within fourteen days after The Auction, STD is furthermore entitled, without notice of default and without the Seller's consent, to regard the sale as cancelled. In that case, the Seller and Buyer remain obliged towards STD to fulfil all their payment obligations stated in these auction conditions, insofar as these concern compensation for the benefit of STD.
31. If the Seller/Buyer fails to meet their (payment) obligations towards STD, all (extra) judicial costs incurred by STD as a result will be for the account of the Buyer or Seller, with a minimum amount of €1,000 (thousand euros).
32. Payment to any party other than STD does not release the Seller or the Buyer from their payment obligations to STD. As long as STD has not received full payment from Bidder/Buyer, also by virtue of any other purchase agreements, the Seller remains the owner of the foal.
33. The Auction commission to be paid by the Seller has been set at 15%.
34. STD will pay the Final Bid Amount, after it has received it from the Buyer, after deduction of the auction commission and VAT owed to the STD, to the Seller on a bank account indicated by the Seller.
The Seller will receive an invoice for the registration fee of € 350 (Three hundred and fifty euros) excluding VAT. If the Seller remains in default, STD has the right to refuse the foal/embryo for The Auction.
In order for the financial settlement to run smoothly, the Seller commits himself/herself, before delivering his/her foal, to verify this with STD:
a. The Buyer has fulfilled his/her payment obligations in full, and
b. if not, not to deliver the foal before these obligations are fulfilled.
35. If and only after all (payment) obligations towards STD have been fulfilled by both the Seller and Buyer, STD will pay the Seller the Final Bid Amount, after deduction of the Auction Commission owed to STD and VAT to the Seller, no later than 10 days after the delivery notification by the Seller. If, in accordance with the provisions in sub 47 through 50, the Buyer reports a defect or stable vices to STD, and a dispute arises about this, STD is not obliged to pay the Seller, nor to refund the Buyer. STD is only obliged to make the aforementioned payment to the Seller or refund the Buyer if and as soon as the aforementioned dispute (among other things) has been settled for the benefit of the Seller or the Buyer respectively, in accordance with the provisions under 41 through 43.
Delivery
36. After the Buyer has fulfilled his payment obligations (in accordance with the provisions of sub 28, thus payment to STD), STD will report the payment by the Buyer to the Seller as soon as possible. The Buyer must collect the breedingmare/semen/foal/embryo from the Seller within fourteen days after STD has notified the Seller of the payment, and the Seller notifies STD of the subsequent delivery as soon as possible in writing by returning to STD a delivery note signed by the Buyer/Seller in accordance with STD's model.
Exceptions to this are the foals referred to under 40 and 41. Delivery takes place in the manner stipulated in sub 40 and 41, whereby the aforementioned notification of delivery by the Seller applies in full. Every delivery other than the aforementioned and otherwise stipulated in these auction terms and conditions is entirely at the Seller's risk.
37. Until actual delivery, the risk and costs of the foal shall remain at the Seller's expense. Immediately after delivery by the Seller to the Buyer, risk and costs of the foal are transferred to the Buyer.
38. Until actual delivery, the costs of the embryo will remain at the Seller's expense. Immediately after delivery by the Seller to the Buyer, costs relating to the embryo will be transferred to the Buyer.
39. The Seller assumes the obligation to leave the foal younger than 4.5 months with the mare, until the foal has reached the age of at least 4.5 months, without the Buyer being obliged to pay any compensation for this. The stay is at the expense and risk of Seller.
40. Delivery to the Buyer of a foal younger than 4.5 months on the risk transfer date mentioned in sub 39 must take place within 1 week after the time at which the foal has reached that age. Delivery of a foal with a known defect as referred to in sub 27 to the Buyer must take place within 1 month after repair, but at the latest within 6 months after The Auction, in case of the repair as referred to in sub 27 and sub 46, to be determined by the veterinarian as referred to in sub 27 and sub 46.
41. Deviation from the delivery term mentioned in this sub-clause is only possible in exceptional cases and after intervention of STD. A foal with a known defect as referred to in sub 27 remains at the Seller's expense and risk until the moment of delivery to the Buyer, with due observance of the provisions in sub 40.
42. In case the Seller sells the foal at The Auction, which in view of its age (usually older than 4.5 months) can be delivered immediately by the Seller to the Buyer, the foal will be delivered by the Seller to the Buyer, after the Buyer/Seller has fulfilled all his/her financial obligations towards each other and STD.
44. The breedingmare/semen/foal/embryo be collected by the Buyer at the address of the Seller.
45. In any case, the buyer can only dispose of the foal/embryo after he has fully fulfilled his (payment) obligations, including those towards STD.
Stable vices and defects
46. The Sellers are obliged to deliver, auction and deliver their foal free of defects and stable vices and give a corresponding guarantee. This guarantee does not cover the absence of OC and OCD in the foal or the presence of the WFFS gene. If the law and/or jurisprudence concerning the guarantee and/or the duration thereof compulsorily determine otherwise, the said compulsorily different payment shall apply. If a foal is offered for sale with a defect known to both the Seller and the Buyer prior to the sale, of which a veterinarian appointed by STD declares in writing that repair (healing) is possible, as referred to in sub 27, the Seller assumes the obligation to keep the foal under sight and to take care of repair (healing), without this entailing extra costs for the Buyer. The foal remains for the account and risk of the Seller until the moment of delivery to the Buyer.
47. If the Buyer discovers stable vices in the purchased breedingmare, foal and/or their mare in foal, i.e. cribbing, weaving or windsucking, not being a known defect as referred to under 27, the Buyer must inform STD in writing, describing the nature of the stable vices, within 7 days after delivery at the latest. STD will then accommodate the foal/mare in foal at a location to be determined by STD, in order to have the foal/breedingmare/carriermare in foal examined by a veterinarian to be appointed by STD for the stable vices described by the Buyer. The veterinarian will determine the nature and seriousness of the stable vices. If, in the opinion of the veterinarian, there are stable vices described by the Buyer, the Seller must pay STD the costs incurred in this respect, including the costs for the stabling, transport and the veterinarian. The Buyer must pay the said costs to STD if, in the opinion of the veterinarian, the stable vices described by the Buyer are not involved.
48. The stipulations in sub 47 also apply if the Buyer discovers defects, other than a defect known in sub 27 and other than the aforementioned stable vices, in the purchased foal. Seller must take back the foal immediately and at his own expense, against reimbursement of the Final Bid Amount of the auction and VAT, if the purchase is validly dissolved or destroyed.
49. If the Buyer fails to report the said stable vices or (other) defects within the period of 7 days after delivery in the manner stated above and/or if the aforementioned veterinarian does not establish the stable vices or (other) defects, the Buyer's right to dissolve the sale or to invoke a lack of will lapses, unless the law and/or jurisprudence imperatively stipulate otherwise.
Exclusion and limitation of liability STD
50. STD is not liable for damage caused by the provision of incorrect and/or incomplete information, regardless of the nature and extent of that damage and of that information and regardless of the origin of that information.
51. STD is not liable for damage occurring prior to, during and/or after the photo and video days and The Auction caused by or to persons and/or by or to things and/or by breedingmares, semen, foals, embryos and carriermares in foal.
52. STD is not liable for damages, direct or indirect and regardless of nature and scope, as a result of a shortcoming in the fulfilment of an obligation by a third party or parties.
53. The Bidder/Buyer is liable for all damage caused by him/herself and indemnifies STD against any claim by (a) third party (parties), including but not limited to the Sellers and/or other the Bidders/Buyers, in connection with that damage, regardless of its nature and extent.
54. Exclusions of liability of STD do not apply in case of intent or gross negligence attributable to STD.
55. Any liability of STD is at all times limited to a maximum amount of € 10,000 (ten thousand euros). The right to compensation expires in any case 12 months after the event from which the damage results and for which STD is liable, without prejudice to the provisions of article 6:89 of the Dutch Civil Code.
Turnover tax
56. STD is an entrepreneur for the turnover tax. Changes with regard to the current VAT rate may give rise to a corresponding adjustment of the VAT rates to be applied.
57. If with regard to the transfer of the auctioned foals/embryos to another Member State of the European Union, at the request of the Bidder/Buyer, is invoiced at the zero VAT rate, the Bidder/Buyer undertakes to fulfil all the conditions necessary to achieve a legally valid intra-Community transaction.
58. If the application of the VAT zero rate is not possible due to any circumstance whatsoever (afterwards), the Bidder/Buyer is at that time still due an amount equal to the amount that would be due if there is a domestic supply of the foal/embryo in question. However, at the request of STD, Bidder/Buyer is obliged to pay the aforementioned amount immediately to STD. In that case, repayment will only take place if the Bidder/Buyer has satisfied STD with the conditions of sub 56. Bidder/Buyer indemnifies STD in any case for all damages resulting from failure to meet the conditions of sub 57. In addition, the Buyer is liable for all judicial and extrajudicial costs incurred by STD, with a minimum amount of €1,000 (one thousand euros).
Disputes
59. In the event of a continuing dispute and if legal proceedings have not (yet) been instituted, STD will always initiate mediation between the Buyer and Seller on its own behalf, initially at the expense of the Buyer and Seller, with the costs being charged equally.
60. Disputes, other than those which are subject to the judgement of STD and which have not been resolved after the mediation referred to in sub 59, will be settled by the District Court in The Hague. The legal relationships between STD and the Seller, between STD and the Buyer and between the Seller and the Buyer are exclusively governed by Dutch law, with the complete exclusion of the Vienna Sales Convention (CISG).
61. The Dutch text of these Auction Terms and Conditions is binding.