Auction terms and conditions - Schuttert Sport Sales

General

Schuttert Sport Sales (hereinafter “SSS”) organizes an auction of foals and sport horses (hereinafter referred to as ‘the Auction’) on Saturday 6 July during CSI Ommen in Stegeren. The auction will take place under the supervision of a public notary.
The relationship between SSS and the seller is an contract of assignment.
These auction terms and conditions apply to the relationship between SSS and the seller and to the relationship between SSS and the bidder/purchaser. Both the Seller and the bidder/purchaser participate in the Auction entirely at their own account and risk in the Auction. SSS is not bound to the seller and the bidder/purchaser in no event be held to more or other obligations than those described in these Auction Terms and Conditions.
A purchase agreement is concluded exclusively between the seller and the bidder/purchaser. However, the bidder/purchaser is obliged to sign the written purchase agreement as referred to in subsection 11. SSS is not bound by agreements between the seller and the bidder/purchaser. SSS may in not be considered either a seller or bidder/purchaser.
All stipulations in these auction terms and conditions are also made for the benefit of all those who work or have worked for or on behalf of SSS are or were employed by or on behalf of SSS. The provisions of these auction terms and conditions apply apply directly to these (legal) persons as if they themselves were SSS.
Participation in the auction shall be deemed as acceptance of these auction terms and conditions. Any conditions applied by a seller or bidder/purchaser are hereby expressly rejected.

Auction

SSS shall examine and select the foals/horses eligible to participate in the Auction. In doing so, SSS is authorized, but not obliged, to seek advice from third parties. SSS is at all times entitled to refuse the participation of a foal or horse in the Auction on the grounds of (physical) defects, as well as on other grounds to be determined by SSS, even if a foal or horse has already been selected for the Auction. A participation decision by SSS is binding. SSS is never obliged, on any grounds whatsoever, to reimburse the costs incurred by the Seller.
The selected foals/horses will be sold on foot without action or refaction, in the condition they are in at the time of award, in order to be raised by bidder/purchaser to mature horse. The foals/horses will be sold by auction. If no opening bid is made, the auctioneer is authorized to start with a reduced opening bid. The auctioneer has the right to change the order of the foals/horses to be sold or to refuse persons as bidder/purchasers without giving reasons.
Bidders/purchasers shall be deemed to be fully competent to act and in their right mind. Each bidder/purchaser shall be deemed to have bid for himself and shall be bound by his bid until a higher bid is finally accepted. A bidder/purchaser shall be fully liable in addition to his principal, if any, for failure to fulfill his obligations. A seller who buys back his foal shall be considered a bidder/purchaser, and the seller referred to herein shall thus likewise be subject to all provisions of these auction terms and conditions relating to bidders/purchasers.
Only upon delivery of the foal/horse by the seller to the bidder/purchaser, the risk in respect of the foal/horse shall pass from the seller to the bidder/purchaser and immediately.
The bidder/purchaser shall sign a written purchase agreement immediately after the allotment under presentation of identification. If the purchase agreement is not immediately presented to the bidder/purchaser for signature, he must report to the secretariat of SSS immediately after the auction.

Information

SSS has attempted to compile the website and brochure of selected foals/horses for the Auction as accurately as possible. The information contained herein, including but not limited to pedigrees is intended to give an impression of the quality of the foals/horses, without pretending to be complete.
It is the responsibility of the Seller to verify the accuracy of the information and to notify SSS in writing prior to the Auction of any errors/incompleteness and necessary changes/additions. The extent to which any changes/additions are included is at the sole discretion of SSS.
Prior to the Photo/Video Day, the Vendor is obliged to provide SSS with a veterinary report at his expense from a licensed veterinarian appointed by him. The seller must provide the said report to SSS prior to the Photo/Video Day. During the aforementioned photo/video day as well as on the day of the Auction, a veterinarian appointed by SSS will be present who will inspect the foal/horse registered and check the aforementioned veterinary report. A clinical examination will take place. If this veterinarian finds any inaccuracies or incompleteness, he will attach his findings to the previously prepared veterinary report. On the day of the Auction, seller and bidder/purchaser may inspect a copy of the veterinary report including any attached findings.

All sporthorses have been x-rayed at least 3 months prior to the auction, including neck and back. A usual clinical (sport horse) examination has also taken place before the auction. The veterinary findings can be requested by the potential buyer and inspected at the auction office prior to the auction.

The bidders/buyers are obliged to provide information about their financial standing at the request of SSS, substantiated by documents demonstrating such standing.

Cost and payment

All rates and prices in these auction terms and conditions are exclusive of VAT. VAT will be charged on the purchase price and commission amount.
The commission amount payable by the seller is 10% excluding VAT on the purchase price.
If the seller buys back a foal up to an amount of € 9.500,-, he does not have to pay a commission amount in accordance with the provisions in sub 17 and following of these terms and conditions. If the bid on repurchase by the seller is higher than €9,500,-, the seller shall, in addition to the 10% commission, also owe the buyer’s premium in accordance with the provisions in sub 19 and following of these conditions.
The bidder/purchaser must pay the purchase price at the Auction, plus 10% commission excluding VAT on the purchase price, by bank transfer or by PIN after receiving the invoice. In euros without any discount or deduction. In the case of a physical auction, a new buyer must report to the SSS secretariat for payment.\
If the buyer fails to fulfill his obligations under subsection 19, SSS shall have the right to immediately re-auction the foal, whereby the original buyer’s bid shall not be accepted. The original buyer shall be obliged to pay to SSS the difference between his bid and the lower purchase price at the second auction, as well as the associated costs. The Buyer shall have no claims against SSS in the event a higher proceeds are realized at the second auction.
Only with the prior consent of SSS does a Buyer have the right to pay by bank, whereby the amount due must be credited to the account number of SSS within 8 days after the auction. Among other things, SSS is entitled to withhold the aforementioned permission if, in the opinion of SSS, the Buyer fails to demonstrate its financial standing or provides insufficient security by means of a bank guarantee or otherwise. SSS is entitled to withdraw its consent at any time if, in its opinion, there is doubt about the Buyer’s financial standing or about the security provided by the Buyer.
Only commission agents approved by SSS who have indicated in writing to the SSS Secretariat before the start of the auction that they are acting for one or more of the bidders/purchasers may claim commission (excluding VAT on the entire purchase price) in accordance with the scale below;

Foals:

5% commission on a sale amount between € 15,000 and € 20,000.
5% commission on a sale amount above € 20,000,-.

Sport horses:

5 % commission on a sale amount up to and including € 50,000.00
7,5% commission on sales up to and including € 100.000,-.
10% commission for sales of more than €100,000.

After signing the sales contract, the commission agent will be equivalent to the buyer and will be held to the obligations mentioned in these general conditions and will be responsible for a correct (financial) settlement. After the bidder/purchaser has fully complied with its (payment) obligations and the foal or horse has been delivered to buyer, SSS shall, no sooner than two weeks after delivery, owe the commission.

Payment to anyone other than SSS does not release the seller or the buyer from its payment obligations to SSS. As long as SSS has not received payment in full from the buyer, the seller remains the owner of the foal/horse.
If SSS has not received payment in full from the seller and/or purchaser within 30 days of the auction, the seller and/or purchaser shall be in default by operation of law and shall owe SSS compensation in the amount of 12% of the purchase price, plus interest of 1.5% per month on the total amount owed, to be calculated from the time of the auction until the time of payment in full. The foregoing is without prejudice to SSS’s right to performance and/or compensation.
Furthermore, if SSS has not received payment in full from the Buyer within 30 days of the auction, SSS shall be entitled, without notice of default on behalf of the Seller and without its consent, to consider the sale to be cancelled. In such a case, the seller and the Buyer shall remain bound to SSS to fulfill all their payment obligations specified in these auction terms and conditions, insofar as these concern compensation for the benefit of SSS.
If the Buyer or the Seller fails to fulfill its (payment) obligations to SSS, all (extra)judicial costs incurred by SSS as a result shall be borne by the Buyer or the Seller, with a minimum amount of €1,000.
If there is a foal with a known defect of which a veterinary surgeon appointed by SSS has declared in writing that repair (cure) is possible, the buyer is obliged to fulfil his obligations in accordance with the conditions in sub 19 to 26 inclusive. In the event of the death or rejection of a foal/horse by the aforementioned veterinary surgeon, who makes a binding decision regarding the health of the foal/horse, before the expiry of the period within which delivery by the seller to the buyer should have taken place, the purchase agreement shall be deemed to have been dissolved and the purchase price together with any VAT payable thereon shall be refunded by SSS. The registration fee and the surcharge shall not be refunded by SSS to the Seller or the Buyer respectively, or shall remain payable to SSS. With regard to the term(s) within which delivery of the aforementioned foal must take place, reference is made to the provisions of paragraph 36.
If and only after all (payment) obligations to SSS have been fulfilled by both the Seller and the Buyer, SSS shall pay the purchase price to the Seller no later than 10 days after the Seller’s notification of delivery as referred to in subparagraph 33. However, if the Buyer notifies SSS of a defect or stable defect in accordance with the provisions of sub 37 to 40, and a dispute arises in respect thereof, SSS shall not be obliged to make payment to the Seller nor to repay the Buyer. SSS shall only be obliged to make the said payment to the Seller or the said reimbursement to the Buyer if and as soon as the aforesaid dispute (among other things) has been settled in favour of the Seller or the Buyer, respectively, in accordance with the provisions of paragraphs 37 to 40 inclusive.

Absence of Foals/Horses at the Auction

A selected foal or horse must participate in the Auction, failing which the seller must pay SSS the costs incurred by it, with a minimum of €750 excluding VAT.
If, in the opinion of the Seller, a foal or horse cannot participate in the Auction for health reasons, this must be communicated to SSS in good time, in writing and with a description of the condition, after which SSS is entitled to have the nature of the condition determined by a veterinary surgeon appointed by it. That veterinarian’s determination in this regard shall be binding. If the seller does not give the foal (timely) opportunity to be examined by that veterinary surgeon, or if the foal is approved by that veterinary surgeon and nevertheless does not participate in the auction, the seller shall owe SSS the compensation referred to in paragraph 29.

Presentation, removal and delivery of foals/horses

Sellers are required to deliver their foal and mare or sport horse to the auction grounds in good auction condition at a time to be specified by SSS.
The seller shall deliver the foal or horse to the buyer by taking possession at the address to be given by the buyer within the Netherlands, with due observance of the provisions of sub 33 to 36. If the buyer and/or seller reside outside the Netherlands, delivery shall take place in consultation between the two parties. Costs for transport abroad shall be for the buyer. Delivery shall take place within the time limits mentioned in these auction conditions.
After buyer has fulfilled his payment obligations (in accordance with the provisions of sub 19 or 21, as the case may be, payment to SSS), SSS shall report buyer’s payment to seller as soon as possible. The seller shall deliver the foal after the payment by SSS has been reported to the seller to the buyer, within 7 days or in agreement with the buyer. Seller shall notify SSS in writing of the subsequent delivery as soon as possible by completing, signing and returning the “proof of delivery” form to SSS. Exceptions to this are the foals/horses referred to in subsections 34 and 35. Delivery thereof shall take place in the manner provided for in sub 34 and 35, whereby the aforementioned notification of delivery by the Seller shall apply in full. Any delivery other than as aforesaid and otherwise provided for in these auction conditions shall be entirely at the seller’s risk. Sellers must have removed the foals/horses, whether sold or not, from the auction grounds no later than three hours after the end of the auction. If the seller fails to do so, SSS has the right to remove the foal or horse from the auction grounds and stable it elsewhere, whereby all costs reasonably incurred by and at the discretion of SSS shall be borne by the seller.
If a foal or horse is not delivered to Buyer within 3 months after the Auction, due to facts/circumstances which are within Buyer’s sphere of risk, the foal or horse will be at Buyer’s expense and risk from the next day. The delivery period stated in this sub may be deviated from only in exceptional cases and after the intervention of SSS. A foal with a known defect as referred to in sub 27 shall remain at the expense and risk of the seller until the time of delivery to the buyer, subject to the provisions of sub 37.
Delivery to buyer of a foal younger than 4.5 months on the risk transfer date mentioned in sub 33 shall take place within 1 month after the foal reaches that age. Delivery of a foal with a known defect as referred to in sub 27 to the buyer shall, in the event of the recovery referred to in sub 27 and 37, to be determined by the veterinary surgeon referred to in sub 27 and 37, take place within 1 month after recovery but at the latest within 6 months after the auction.
The buyer can in any case only dispose of the foal or horse after he has fulfilled his (payment) obligations in full, including those towards SSS, whereby he will receive the necessary documents.

Stable Virtues and Flaws

Sellers are obliged to deliver, auction and deliver their foals/horse free of defects and barn vices and issue a corresponding guarantee. This guarantee does not include the absence of OC and OCD in the foal and the presence of the wffs gene. If the law and/or jurisprudence regarding the guarantee and/or duration thereof stipulate otherwise, such other mandatory provision 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 veterinary surgeon appointed by SSS declares in writing that repair (cure) is possible, as referred to in sub 27, the seller assumes the obligation to keep the foal in his care and to see to its repair (cure), without this entailing extra costs for the buyer. The foal shall remain at the expense and risk of the seller until the moment of delivery to the buyer.
If the buyer discovers stall vices in the purchased foal or horse, being crib-biting, weaving or air-sucking, not being a known defect as referred to in paragraph 37, the buyer must notify SSS in writing within 7 days after delivery to the new owner, describing the nature of the stall vices. SSS will then lodge the foal or horse at a location of its choice in order to have the foal or horse examined by a veterinary surgeon appointed by it for the stall vices described by the purchaser. The said veterinary surgeon shall determine the nature and seriousness of the stall vices in a binding manner. If, in the opinion of this veterinary surgeon, there are stall vices described by the Buyer, the Seller must pay SSS the costs incurred in this respect, including with regard to stabling, transport and this veterinary surgeon. The Buyer shall pay the said costs to SSS if, in the judgment of that veterinarian, there are no stable vices described by the Buyer.
The provisions of sub 37 also apply if the buyer discovers defects in the purchased foal or horse, other than a known defect referred to in sub 37 and other than the stall vices referred to. The seller must take back the foal or horse immediately and at his own expense, against repayment of the purchase price, if the sale is legally dissolved or annulled.
If the buyer does not report the aforementioned stall vices or (other) defects within the aforementioned period of 7 days after delivery in the aforementioned manner and/or if the aforementioned veterinary surgeon does not establish the stall vices or (other) defects, the right of the buyer to annul the purchase or to appeal to a lack of will lapses, unless the law and/or jurisprudence in that respect imperatively stipulates otherwise.

Dissolution and destruction

If the sale is validly dissolved or annulled by the Seller or Buyer, the Seller and Buyer shall remain obliged to fulfill all their payment obligations to SSS specified in these terms and conditions of auction, insofar as these concern compensation for the benefit of SSS. The sale may be rescinded or annulled in compliance with the relevant statutory provisions applicable in this regard, insofar as these auction terms and conditions do not validly deviate therefrom.

Liability

SSS is not liable for the accuracy of the information on the website or in the brochure, the information given at the auction site and the information during the auction.
SSS is not liable for the accuracy of the information in the veterinary report (including any attached (additional) findings), the veterinary information given on the auction premises and the veterinary information during the auction.
SSS shall not be liable for damages suffered by or to persons, property or horses before, during or after the auction.
With regard to the horses, SSS does not take out insurance on behalf of the sellers and/or bidders/buyers. Since sellers participate in the auction entirely at their own expense and risk, SSS advises sellers to take out said insurance themselves.
In the event of the death of the foal or horse on the day of the auction, while the seller or buyer concerned does not receive any payment under any insurance policy taken out by themselves, SSS will refund the premium to the buyer concerned.
SSS is not liable for failures of third parties. This includes non-payment by the Buyer.
SSS excludes liabilities except in the event of intentional or deliberate recklessness on the part of SSS and/or those who work or have worked for or on behalf of SSS.
Anyone who causes damage to property and/or buildings belonging to (or used by) SSS and/or those who work or have worked for SSS shall be liable for such damage.

Other

If, with regard to the transfer of auctioned foals/horses to another member state of the European Union at the request of the buyer, the buyer is initially invoiced with the Dutch VAT rate, the buyer undertakes to fulfil all necessary conditions in order to achieve a legally valid intra-community transaction. Thereafter, the VAT zero rate will be applied and the VAT will be settled with the buyer.
If application of the zero VAT rate turns out not to be possible for whatever reason (in retrospect), the buyer will still owe an amount equal to the amount that would be due if there were a domestic delivery of the foal or horse concerned. However, at the request of SSS, the Buyer is obliged to pay the aforementioned amount to SSS immediately. In that case, repayment thereof shall be made only and exclusively if the Buyer has satisfied the conditions of subsection 51. In addition, the Buyer shall be liable for all judicial and extrajudicial costs incurred by SSS, subject to a minimum amount of €1,000.
All costs, rates, commissions and fees are based on the tax legislation in force on January 1, 2021. Should the legislation change at any time, SSS shall be entitled to adjust all costs, rates, commissions and fees.

Conversion

If one or more of the provisions mentioned in these auction terms and conditions should be or become invalid, the remaining provisions shall remain in full force and effect. In that case, a new provision shall take the place of the said invalid provision, which shall correspond to the said old invalid provision as far as possible as regards content, scope and purpose.

Disputes

Should a difference of opinion arise at an allotment as to who made the last bid, or should other difficulties, ambiguities and disputes arise with respect to bids and/or about the allotment, the auctioneer is authorized to render a binding opinion thereon. In the event of the aforementioned difference of opinion regarding the last bid, the auctioneer is authorized to continue the sale by auction.
If the auctioneer requests the civil-law notary to render a judgment, the civil-law notary’s decision shall be binding and irrevocable for all parties. During the auction, the notary shall also be authorized to rule on disputes of a nature other than those relating to the bids and awards.
The legal relations between SSS, the Buyer and the Seller shall be governed exclusively by Dutch law, to the complete exclusion of the Vienna Sales Convention (CISG). Disputes, other than those subject to the opinion of the auctioneer or the notary pursuant to the provisions of sub-paragraphs 54 and 55, shall be settled exclusively by the competent court in Amsterdam.