TERMS AND CONDITIONS OF CAPITAL STUD WHICH WILL GOVERN THE AUCTION AND SALE OF SPORT HORSES WHICH AUCTION AND SALE WILL BE CONDUCTED THROUGH THE MEDIUM OF THE INTERNET
- 1.1. These terms and conditions have been drafted in order to protect the interests of Capital Stud (its proprietor and being Mr Henning Pretorius) the auctioneer appointed by Capital Stud, and potential purchasers relating to the auction sale of sports horses.
- 1.2.Should any potential purchaser of sport horses from Capital Stud not having read and/or not having accepted and/or not having understood all of these trading terms and conditions then such person should not register as a potential purchaser of sport horses from Capital Stud.
- 1.3.These terms and conditions shall be the only terms and conditions which will regulate the auction process and the sale of sport horses by Capital Stud to purchasers thereof.
In these terms and conditions:-
- 2.1. the headings to the clauses are for the purpose of convenience and reference only and shall not aid in the interpretation of or modify the provisions of these terms and condition; and
- 2.2. words importing any one gender shall include the other two genders, words in the singular shall include the plural and vice versa and, unless the context clearly otherwise indicates, the following expressions shall have the following meanings respectively and cognate expressions shall bear corresponding meanings –
- 2.2.1.“AUCTION” means the sale by internet auction of Horses by Capital Stud; and
- 2.2.2.“AUCTIONEER” means the Electronic Agent and/or Mr H Pretorius and/or any party appointed by Capital Stud; and
- 2.2.3.“AUCTION PERIOD” means the time period allocated / designated by the Auctioneer and/or Capital Stud and which is reflected on the Website and being the period during which each Horse is to be offered for sale by Capital Stud subject to any extension of such period as contemplated in clause 3.3 hereinbelow; and
- 2.2.4.“AUCTION PROCESS” means the process whereby a Prospective Purchaser transmits an Offer to Capital Stud (via the Internet) to the Electronic Agent and in order that the Electronic Agent may register the Offer during the Auction Period of each Horse and
- 2.2.5.“CAPITAL STUD” means the Capital Stud, the sole proprietor whereof is Mr Henning Pretorius and being the owner of the Horses; and
- 2.2.6.“COMPUTER SYSTEM” means collectively the computer software programme and the computer hardware that Capital Stud and the Auctioneer intends utilising during the course of the Auction Process and for the purposes of auctioning and selling a Horse; and
- 2.2.7. “CP ACT” means the Consumer Protection Act No 68 of 2008 as amended; and
- 2.2.8. “ECT ACT” means the Electronic Communications and Transactions Act no 25 of 2002 as amended; and
- 2.2.9. “ELECTRONIC AGENT” means the Computer System that Capital Stud utilises in order to enable it/the Auctioneer and during the Auction Process to conclude the sale of a Horse by Capital Stud to the Ultimate Purchaser thereof; and
- 2.2.10. “FEI” means the Fédération Equestre Internationale and being the World Governing Body of equestrian sports; and
- 2.2.11. “HORSE/S” means each warmblood sports Horse/s or collectively all of the warmblood sports Horses to be auctioned and sold by Capital Stud; and
- 2.2.12. “INSURANCE PREMIUM” means the mandatory insurance of a Horse and as referred to in clause 7.1 the extent whereof shall not exceed 0.5% of the Purchase Price inclusive of VAT; and
- 2.2.13. “INTERNET” means the interconnected system of networks that connects computers around the world using the TCP/IT (Transmission Control Protocol/Internet Protocol) used by any information system to connect to the Internet; and
- 2.2.14. “LAWS” means the laws of the Republic of South Africa which shall include the CP Act and the ECT Act; and
- 2.2.15. “OFFER” means the transmission of an electronic message by a Prospective Purchaser of a Horse to the Electronic Agent which message indicates the Offer amount that the Prospective Purchaser submits in order to purchase a Horse; and
- 2.2.16. “PROSPECTIVE PURCHASER/S” means any person and/ or entity that registers itself as such with the Electronic Agent and for the purposes of participating in the Auction Process; and
- 2.2.17. “PURCHASE PRICE” means the highest Offer amount offered by the Ultimate Purchaser to Capital Stud and as determined by the Electronic Agent; and
- 2.2.18. “STUD FARM” means the farm at which the Horses are currently stabled by Capital Stud and will remain so stabled pending the conclusion of the Auction Process and which is located at Skeerpoort in the Northwest Province of the Republic of South Africa; and
- 2.2.19. “ULTIMATE PURCHASER” means the person and/or entity that purchases a Horse and as a consequence of that person having submitted the highest Offer for a Horse and to the Electronic Agent and the subsequent acceptance thereof by the Electronic Agent at the conclusion of the Auction Period; and
- 2.2.20.“VAT” means Value Added Tax in terms of Section 7 of the Value Added Tax Act No 89 of 1991, the current percentage amount applicable on the selling price of a Horse is 15%; and
- 2.2.21.“WEBSITE” means the location on the Internet containing the home/web page of Capital Stud and being the primary entry point of the Website of Capital Stud; and
- 2.2.22.“ZAR” means the currency of the Republic of South Africa and being the Rand.
3. AUCTION PERIOD
- 3.1. The Auctioneer shall auction and sell each Horse through the medium of the Computer System and the Electronic Agent during a specific period of time and as indicated on the relevant page of the Website.
- 3.2. It shall be within the sole discretion of Capital Stud to amend and/or vary and/or extend any Auction Period relating to a particular Horse.
- 3.3. The Auctioneer shall automatically extend the Auction Period i.e. the time at which the Electronic Agent is to accept the final Offer by 5 (five) minutes but only in the event where Offer/s are received by the Electronic Agent within the last 5 minutes of the designated Auction Period i.e. there will be no further extension beyond the expiration of the 5 (five) minute extension time referred to herein.
4. AUCTIONEER’S COMMISSION
No Auctioneers’ commission shall apply to the selling price of a Horse.
5. PAYMENT OF PURCHASE PRICE AND THE INVOICING THEREOF
- 5.1. The Ultimate Purchaser shall pay the Purchase Price to Capital Stud and by way of an electronic funds transfer or bank cheque and within 7 (seven) days of the completion of the Auction Period in regard to each Horse.
- 5.2. Capital Stud shall transmit to the Ultimate Purchaser and to its email address, (as reflected in the electronic registration form completed by the Ultimate Purchaser when registering as a Prospective Purchaser) a tax invoice and within 24 hours of the completion of the Auction Period in regard to a Horse but subject to it being able to do so i.e. there being no interruptions in being able to do so (signal and/or power failures).
6. FAILURE TO TIMEOUSLY PAY THE PURCHASE PRICE
In the event that the Ultimate Purchaser fails to timeously effect payment of the Purchase Price then in such event the Ultimate Purchaser shall be liable to pay Capital Stud interest at a rate of 2% per month from the expiry of the date referred to in clause 5.1 until date of payment of the entire Purchase Price.
7. COLLECTION OF HORSE
- 7.1. The Ultimate Purchaser shall collect the Horse from the Stud Farm and within 7 (seven ) days of the completion of the Auction Period.
- 7.2. In the event that the Ultimate Purchaser does not collect a Horse within the time period indicated in clause 5.1, Capital Stud shall continue to stable a Horse at the Stud Farm and at a daily stabling rate of ZAR180.00 plus VAT.
- 7.3. The Ultimate Purchaser shall be obliged to pay the costs of stabling the Horse prior to its removal and if such removal does not take place within the time period indicated in clause 5.1.
8. HORSE LIFE INSURANCE
- 8.1. As a consequence of the Ultimate Purchaser not being able to arrange immediate insurance cover relative to the life, loss of use and/or critical care of the Horse, Capital Stud shall insure the Horse, for the account of the Ultimate Purchaser, with a recognised equine insurer for an amount equal to the Purchase Price, the Insurance Premium will not exceed 0.5% of the Purchase Price, and until the 31st December 2020 i.e. in the name of the Ultimate Purchaser and noting the interest of Capital Stud in the Horse which noting shall continue (and thereafter be cancelled) by Capital Stud as soon as the Ultimate Purchaser has effected payment of the Purchase Price.
- 8.2. In the event that the Horse is not collected by the Ultimate Purchaser from the Stud Farm by the 31st December 2020 and in the sole and unfettered discretion of Capital Stud, Capital Stud shall be entitled to extend the insurance cover on the Horse beyond the 31st December 2020 and at the cost of the Ultimate Purchaser.
9. HORSE MEDICAL INSURANCE
- 9.1. Capital Stud shall not insure a Horse in regard to medical complications (e.g. colic operation/s) relative to a Horse but the Ultimate Purchaser shall be entitled to do so.
- 9.2. The Ultimate Purchaser, whilst a Horse remains on the Stud Farm, shall be obliged to advise, Capital Stud in writing of all details relative to medical insurance cover that the Ultimate Purchaser has arranged.
- 9.3. In the event that a Horse requires medical attention (pending its removal from the Stud Farm by the Ultimate Purchaser), the Ultimate Purchaser hereby appoints Capital Stud as its duly authorised agent to employ the services of a veterinarian (for the account of the Ultimate Purchaser) in order to undertake the necessary medical procedure/s so as to ensure the continued well-being of the Horse.
10. HORSE INSPECTION PRE-AUCTION
- 10.1. It is recorded that prior to the Auction and on those dates and times to be arranged with Capital Stud, Capital Stud will permit a Prospective Purchaser to inspect and/or to ride a Horse and/or to undertake the examination of documents and/or DTIs relative to a Horse but subject to the provisions of clauses 10 and 11 here in below.
- 10.2. The Prospective Purchaser here by acknowledges that it shall not been titled to cancel a sale of a Horse to it on the basis that it did not view and/or ride a Horse prior to the Auction thereof.
11. VETERINARIAN EXAMINATION REPORT (“THE REPORT”)
- 11.1. It is recorded that prior to Auction Process, Capital Stud would have employed a veterinarian to undertake a medical examination of the Horses and whereafter the Report would have been generated pursuant thereto.
- 11.2. Subject to the Prospective Purchaser and/or a registered veterinarian contracted by the Prospective Purchaser signing a non-disclosure and confidentiality undertaking agreement Capital Stud shall make available the Report to a Prospective Purchaser in order that that person may familiarise himself with the contents thereof and whereafter the Report shall be returned by the Prospective Purchaser to Capital Stud – the Prospective Purchaser shall not be entitled to retain a copy of the Report.
- 11.3. The Prospective Purchaser shall not be entitled to rely upon the contents or any portion of the Report should it purchase a Horse (become the Ultimate Purchaser) the Prospective Purchaser acknowledging that Capital Stud does not warrant the correctness and/or the accuracy and/ or the completeness of the Report i.e. the Report would have been made available on a good faith basis, the Prospective Purchaser understanding that it will be the Prospective Purchaser’s responsibility and/or obligation to undertake, if necessary, an inspection of a Horse (utilising the services of the relevant experts) in order to satisfy the Prospective Purchaser as to the physical condition of a Horse.
- 12.1. It is recorded that Capital Stud may be in possession of a set of Digital Radiograph Images (“DRIs”) relative to a Horse.
- 12.2. Capital Stud recommends that DRIs be accessed by veterinarians familiar with interpretation of equine DRIs i.e. it is designed to assist Prospective Purchasers (by veterinarians employed by Prospective Purchasers) in assessing the physical attributes of a Horse.
- 12.3 Access to DRIs of a Horse will be restricted to registered veterinarians employed by Prospective Purchasers and accordingly and prior to access being permitted the Prospective Purchaser’s veterinarian will be obliged to sign a non-disclosure confidentiality undertaking relative to the DRIs inspection process.
- 12.4 Capital Stud does not warrant that the DRIs of a Horse are complete, and/or are accurate.
- 12.5 The Prospective Purchaser shall not be entitled to rely upon the contents of the DRIs (including the submission of Offers and/or arising from the purchase of a Horse) and furthermore the Ultimate Purchaser shall not be entitled to have access to the DRIs subsequent to the completion of the Auction Process.
13. HORSE PASSPORT INFORMATION AND VACCINES
13.1. It is recorded that each Horse has been issued with a passport.
13.2. Capital Stud warrants that the information in the passport of a Horse is correct and accurate.
13.3. Capital Stud warrants that each Horse has been timeously vaccinated with vaccines as prescribed by the FEI.
13.4. The Ultimate Purchaser shall not be entitled to cancel the sale of the Horse should the passport reflect information in the passport of a non- material nature.
13.5. Capital Stud, subject to the Ultimate Purchaser having complied with all of his obligations in terms of these terms and conditions, shall release the passport of a Horse on demand to the Ultimate Purchaser or to any third party as designated by the Ultimate Purchaser e.g. to the person/ entity that is tasked with removing a Horse from the Stud Farm.
14. WARRANTIES APPLICABLE TO THE SALE OF A HORSE
- 14.1. No warranties will apply to the auction sale of a Horse from Capital Stud to the Ultimate Purchaser.
- 14.2. By virtue of the recordal referred to in clause 12.1 a Horse is sold on an “as is” (“voetstoets”) basis and accordingly an Ultimate Purchaser shall not be entitled to rely upon any warranty of whatsoever nature (whether same is expressed and/or implied and/or tacit) either in accordance with the Laws and/or the Common Law of the Republic of South Africa.
15. RISK, OWNERSHIP AND POSSESSION
- 15.1. Risk in and to a Horse purchased by the Ultimate Purchaser shall pass to such Ultimate Purchaser when the Electronic Agent determines the identity of that party who has submitted the highest Offer for a Horse (and being the Ultimate Purchaser) and at the termination of the Auction Period.
- 15.2. Ownership in and to a Horse purchased by the Ultimate Purchaser shall pass to such Ultimate Purchaser when the Ultimate Purchaser has paid the Purchase Price plus VAT.
- 15.3. Possession of the Horse will be given to the Ultimate Purchaser as soon as the Ultimate Purchaser has effected payment of the Purchase Price of the Horse and any other amounts contemplated in these terms and conditions.
16. THE RIGHT OF THE AUCTIONEER AND/OR CAPITAL STUD TO REJECT ANY OFFER/S
- 16.1. Capital Stud shall have the sole and unfettered right and during the Auction Process to reject any Offer from a Prospective Purchaser.
- 16.2. In the event that Capital Stud and/or the Auctioneer should exercise the right referred to in clause 14.1 hereinabove then in such event Capital Stud:-
- 16.2.1. shall not be obliged to furnish the Prospective Purchaser with any reasons for its non-acceptance of the Offer; and
- 16.2.2. will not be liable to the Prospective Purchaser for any damages of whatsoever nature arising from the exercise of the right referred to in clause 14.1.
The Offer by an Ultimate Purchaser shall not include VAT, the extent of VAT will be added to the amount of the Offer of the Ultimate Purchaser e.g. if the Offer of the Ultimate Purchaser is the sum of ZAR 1 million then the VAT amount that will apply with be ZAR 150k i.e. the Purchase Price will be the sum of ZAR 1.15 million.
18. BREACH OF THESE TERMS AND CONDITIONS
- 18.1.The Prospective Purchaser acknowledges that the obligations undertaken by the Ultimate Purchaser as reflected in these terms and conditions are material.
- 18.2.In the event of a breach by a Prospective Purchaser /Ultimate Purchaser of any of its obligations in these terms and conditions then in such event Capital Stud shall be entitled to cancel the sale of a Horse and to thereafter, if applicable, to immediately demand return of a Horse to the Stud Farm or to urgently take steps to locate and to thereafter return a Horse to the Stud Farm which process shall be in addition to any other rights that accrue to Capital Stud including the right to seek and to recover such damages that it may have suffered as a consequence of such cancellation.
19. APPLICABILITY OF THE ECT ACT
- 19.1.As a consequence of the Auction of Horses being transacted in an electronic manner, certain provisions of the ECT Act shall apply to the sale of Horses.
- 19.2.It is recorded that in terms of section 20 (c) and (d) of the ECT Act that the Prospective Purchaser is a person who utilises the Electronic Agent will not be bound by these terms and conditions unless these terms and condition were capable of being reviewed (read and considered) by the Prospective Purchaser prior to the Prospective Purchaser becoming involved in the Auction Process.
- 19.3.The Prospective Purchaser hereby confirms and records that the provisions of section 20 (c) and (d) of the ECT Act shall not apply to it and more specifically to the Auction Process and as a consequence of the fact that the Ultimate Purchaser would in fact have reviewed (read, understood and accepted) these terms and conditions and arising therefrom the Electronic Agent will accept and register an Offer from a Prospective Purchaser relative to a Horse.
20. THE CP ACT
The sale of Horses by Capital Stud will be governed by certain provisions of the CP Act.
21. CONSEQUENTIAL DAMAGES
Capital Stud and/or the Auctioneer shall not be liable to a Prospective Purchaser/the Ultimate Purchaser for any direct, indirect or consequential losses of the Prospective Purchaser/ the Ultimate Purchaser that may arise and as a consequence of the participation of a Prospective Purchaser in the Auction Process and/or arising from the purchase of a Horse by the Ultimate Purchaser.
The Prospective Purchaser and the Ultimate Purchaser hereby agrees that any failure and/or delay by Capital Stud/the Auctioneer in exercising any of its rights in these terms and conditions shall not operate as a waiver by them as regards them exercising any of their rights in terms of these terms and conditions and at any time.
A certificate signed by a representative and/or agent of Capital Stud/ the Auctioneer shall be prima facie proof of any indebtedness owed by the Ultimate Purchaser to Capital Stud, the production of which certificate will discharge any onus on Capital Stud to prove the existence and/or the extent of the indebtedness of the Ultimate Purchaser to Capital Stud.
24. LEGAL COSTS
In the event that Capital Stud is obliged to take any legal action against the Ultimate Purchaser and should it be successful with such legal action then Ultimate Purchaser will be liable for all of Capital Stud’s legal costs and on the scale as between attorney and own client.
25. ADDRESS FOR SERVICE OF NOTICES AND LEGAL PROCESSES BY CAPITALSTUD ONYOU
The Prospective Purchaser/ Ultimate Purchaser selects, as an address for service of all notices and/or legal processes, the address that the Prospective Purchaser has furnished in the registration section of Capital Stud’s Website.
26. APPLICABLE LAW
All matters arising from the Auction Process including Offers shall be subject to the Laws and more specifically governed thereby.
The Ultimate Purchaser hereby consents to the jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg or at Capital Stud’s option, the Magistrates’ Court having jurisdiction in regard to any claim which Capital Stud may institute against the Ultimate Purchaser notwithstanding that the amount and/or the issue in question may exceed the jurisdiction of the Magistrates’ Court.
28. VARIATIONS AND SOLE RECORD OF AGREEMENT
- 28.1.These terms and conditions will constitute the only terms and conditions between Capital Stud/ the Auctioneer and the Prospective Purchaser/ Ultimate Purchaser and accordingly no warranties or representations of whatsoever nature, whether express or implied, not indicated herein shall be binding on them.
- 28.2.No agreement at variance and/or amendments to these terms and conditions and no cancellation of any of these terms and conditions shall be binding on Capital Stud and/or the Auctioneer unless such variation, and/or amendment and/or cancellation is reduced to writing and signed by or on behalf of them.
29. APPLICATION OF THE DISASTER MANAGEMENT ACT NO 57 OF 2002 (“THE DM ACT”)
- 29.1. It is recorded that there currently exists in South Africa a declaration of a National State of Disaster and arising therefrom certain restrictions in regard to the movement (specifically transportation) of Horses may exist at the date of the auction process and/or may come into existence shortly thereafter.
- 29.2. In the event of either of those 2 eventualities referred to in clause 28.1 hereinabove, which then prevents Horses purchased by Ultimate Purchasers being retained at the stud premises then in such event:-
- 29.2.1. all sales of horses shall remain of full force and/or effect and shall not be capable of being cancelled by the Ultimate Purchaser/s thereof; and
- 29.2.2. Capital Stud shall stable the Horse/s concerned and in such event:-
- 126.96.36.199.the Ultimate Purchaser shall be liable for the stabling costs of the Horse/s at a rate of ZAR180 (One Hundred and Eighty Rand) per day plus VAT which amount shall be payable by the Ultimate Purchaser/s on demand after the relevant invoice has been transmitted to the Ultimate Purchaser/s; and
- 188.8.131.52. the Ultimate Purchaser/s will be liable for all veterinarian services that the Horse/s require from time to time, the Ultimate Purchaser/s (by having accepted these terms and conditions) hereby authorising Capital Stud to engage the services of a veterinarian and to contract with the veterinarian business concerned in the name of the Ultimate Purchaser/s; and
- 184.108.40.206. when the National State of Disaster permits the movement/transportation of a Horse then within 7 (seven) days of that event the Ultimate Purchaser/s shall be obliged to remove the Horse/s from Capital Stud but will only be able to do so subject to there being no amounts owing to Capital Stud relative to the stabling of the Horse.