CONDITIONS OF SALE
These are the Terms and Conditions of Sale for the 2020 CALLAHO ‘ONLINE SALE BY AUCTION’ of Warmblood Horses, bred and produced by CALLAHO Warmblood Sport Horses, trading as CALLAGRO (Pty) Ltd, to be held from the 22nd of June 2020 until the 27th of June 2020 and to be conducted electronically via internet on the website portal www.callaho.auction
1. INTRODUCTION & DEFINITIONS
i. For the purposes of this document a ‘registered buyer’ will be referred to as ‘bidder’ until such time as a tendered bid becomes the final closing bid, electronically accepted, whereupon the ‘bidder’ will be referred to as the ’buyer’
ii. The Conditions shall be binding on each and every bidder or buyer of horses, as well as any advisor or proxy of a person who is registered as a bidder and bids or buys on behalf of another person.
iii. Any person who registers as a bidder and submits an electronic bid on the Callaho Online Auction Platform or makes an entry in the sales documents of CALLAHO shall be considered to be prima facie proof of the intent to purchase a horse in terms of the Callaho Auction terms and conditions.
iv. Furthermore, such registration automatically implies that the bidder has diligently read, be thoroughly familiar with and to have accepted, and agreed to, the Terms and Conditions of sale as laid out herein, and that these terms and conditions will in their entirety be binding on any consequences of such registration.
v. For the purposes of this agreement “sale documents” shall include any of the following documents or electronic submissions, entered, completed and/or signed by or on behalf of the bidder or buyer;
vi. “Horse” shall mean a Warmblood sport horse and “lot” shall have a corresponding meaning;
vii. “VAT” shall mean value added tax, currently calculated at 15%
viii. “Purchase facility” shall mean the maximum amount any buyer, who has secured financing or terms from a third person or institution, will be allowed to bid for at this sale.
ix. Any reference to “auction price” shall be deemed to be the value of the accepted, final winning bid, unless the context requires otherwise. The “auction price” excludes VAT, auction commissions, mandatory horse insurance as well as any administration fee which may be applicable.
x. Any reference to “purchase price” shall be deemed to be the sum of the “auction price” + VAT (15%), auction commission (3.5%), mandatory horse insurance (0.5%) as well as any administration fee which may be applicable, + VAT, unless the context requires otherwise.
xi. Any reference to “purchaser” in the Conditions and/or the sale documents shall be deemed, unless the context requires otherwise, to be a reference to “buyer”
xii. Any reference to “buyer” shall be deemed to include a “bidder” where the context can be interpreted to appropriately include both.
xiii. Any reference to “bidder” shall be deemed, unless the context requires otherwise, to be a person or their proxy who has completed an online registration form which has been accepted by Callaho.
xiv. Any reference to CALLAHO, shall be deemed, unless the context requires otherwise, to include a reference to the respective agents, representatives and employees of CALLAHO.
xv. Any reference to ‘current bid’ will refer to the bid which is currently the highest bid while bidding on that particular horse is still active on the portal and therefore still open and subject to a counter bid.
xvi. Any reference to ‘final bid’ or “final winning bid” will refer to the bid which was the highest bid at the moment that bidding on that particular horse closed on the portal and therefore not subject to a counter bid.
xvii. Any reference to “at the commencement of the fall of the hammer” will mean that bidding is closed and any further counter bids will not be accepted and any reference to “at the exact moment the online portal bidding window closes” or “ bidding timed out” or “bidding closed’ will have the exact same meaning.
xviii. A horse shall be deemed “sold” immediately upon Callaho’s acceptance of the final bid which will be confirmed by e-mail communicated to the final bidder immediately after bidding is closed.
xix. Upon the issue of the e-mail confirming acceptance of the winning bid by Callaho, the bidder will henceforth, for the purposes of this document as well as any reference within the context of the Callaho Auction, be referred to as the buyer of that particular horse.
xx. Headings have been inserted in the Conditions for convenience only and shall not affect the interpretation or meaning thereof.
xxi. Words importing one gender shall imply both genders and words importing the singular shall include the plural and vice versa.
xxii. CALLAHO reserves the right to alter or amend the Conditions as and when it deems necessary.
2. NO WARRANTIES OR REPRESENTATIONS
i. The results of the X-ray examination and their interpretation by Veterinarians, their clinical examination, their statements and evaluations are services provided by independent professionals. No contractual promise by CALLAHO is made, since these veterinarians are independent experts expressing an opinion based on their own knowledge, experience and examinations of the auction horses and/or their X-Ray images. Consequently, the horses are sold as inspected and tested by the buyer; no liability is assumed by Callaho for the horse’s status of health, and neither may CALLAHO be held liable for the accuracy of the veterinarian clinical inspections and/or the corresponding evaluations of independent veterinarians.
ii. The onus is on the prospective buyer or his/her proxy acting on their instructions to make an appointment and arrive at the studfarm within the days allocated to physically view, test ride and evaluate the horse they are interested in buying, as well as to request and familiarise themselves with any information or records which are available related to the horse in question.
iii. Furthermore, the onus is on the prospective buyer or his/her proxy to consult with the stud veterinarian who will avail themselves to provide all results of the clinical examination and interpretations and report of the X-ray examination.
iv. Except as specifically provided for in the Conditions, the sale of all horses shall be “voetstoots”, on an “as is” basis, including all faults and defects, patent and latent, either before or after the sale.
v. CALLAHO does not make or give any representation of a warranty or guarantee, expressed or implied, whatsoever.
vi. CALLAHO shall not, neither any of its representatives, be liable for any error or defects in respect of the correctness of any statement or information whatsoever pertaining to a horse, including any statement or information contained in any sale documents, Auction Catalogue or Callaho advertisement. “Statement” or “information” pertains to any representation including but not exclusively, without limitation, regarding the pedigree, height, description, condition, performance, potential, suitability or merchantability of, or any other particulars relating to a horse presented for sale on the auction.
vii. It is the sole responsibility of the prospective buyer to check the inoculation and/or the vaccination status of any horse which he may be interested in buying prior to the commencement of the auction and to satisfy himself that they meet all the legal and his own requirements.
viii. The buyer hereby acknowledges that he/she will make their purchase decision on full reliance of their own, their proxy or independent advisor’s conclusions regarding the condition of the horse or it’s suitability for intended purpose, and that he/she has not relied on any statement or representation made by or on behalf of CALLAHO to make such decision. Furthermore, the buyer acknowledges that no compensation shall be payable by CALLAHO for any faults, imperfections, conditions or any other patent or latent defects which may become patent at any time after the bidding is closed.
3. BIDDING TERMS AND CONDITIONS
i. The 2020 Callaho Online Auction Website will open for registration on Friday 12th of June.
ii. Potential bidders and buyers will immediately be able to register online after which they will be deemed to have read and thoroughly familiarised themselves with the terms and conditions as well as the bidding protocol.
iii. Registered bidders will have their own dash board from whence confidential bids may be placed.
iv. The only information available to all bidders regarding competing bidders will be the current highest bid value and the country from whence this bid is placed. All other information regarding bidders and their identity will be confidential.
v. Active bidding on all the horses listed in the catalogue will open from Monday June 22nd.
vi. The collection has been divided into 4 groups of 11/ 12 horses each, in the same order as the printed and online Callaho catalogue.
vii. Bidding on each group of 11/ 12 horses will close, one group per evening, every evening from Wednesday 24th of June until Saturday evening 27th of June.
viii. Bidding on individual horses in each evenings group will close sequentially, one lot at a time, every 10 minutes, from 6:30pm onwards. The group auction will thus continue every evening for approximately 2 hours until bidding closes on the last horse for the evening sometime after 8pm.
ix. CALLAHO, at its sole discretion, reserves the right to withdraw any horse from the sale at any time without furnishing reasons for doing so.
x. Once a bid has been entered it cannot be withdrawn.
xi. The auction portal will list the bid closing time for each specific lot as well as time remaining before bidding closes.
xii. If a bid is entered within the last remaining 5 minutes before the specified closing time, then a new 3 minute bidding extension will open, commencing from the time the last bid was placed. This protocol allows a reasonable time for a counter bid to be placed.
xiii. On closure of the bidding the last bidder will immediately be informed via e-mail from the Callaho Auction portal that their bid has been accepted, whereupon the horse will be deemed to be sold and ownership, including all risks related to the health or pregnancy status of the horse, will immediately pass to the winning bidder who is now referred to as the buyer.
xiv. Upon receipt of this e-mail, the buyer and new owner of the horse must respond by filling in and returning the provided sale document to acknowledge purchase of the horse and receipt of the invoice for the purchase price.
xv. Callaho, at its sole discretion, reserves the right to decline the offer vested in the last bid.
xvi. The buyer shall be responsible for settlement of the purchase price which is the sum of the auction price, plus VAT (15%), auction commission (3.5%), mandatory horse insurance (0.5%), as well as an administration fee which is applicable.
xvii. Horses will automatically become insured for 0.5% of the total settlement value, by Callaho on behalf of the buyer, from the close of bidding for a period of one month.
xviii. If for whatever reason a dispute arises in respect of the sale transaction, Callaho reserves the right, at its sole discretion, to either enforce the terms applicable to the transaction or to cancel the transaction and retain ownership of the horse in question.
xix. Furthermore, in the circumstances referred to in paragraph 3.xviii., Callaho retains the right to either keep the horse, or to resell the horse to whomever it decides, at whatever price it determines, or to give the horse away to whomever it deems fit. This decision shall be absolute, final and binding on all parties.
xx. Callaho retains the right, at its sole discretion, to determine or change the bidding rules as it sees fit to facilitate the auction process.
4. EXPORT AND IMPORT REQUIREMENTS
i. Any buyer who is not a South African citizen shall lodge an acceptable letter of credit-standing from his bankers with CALLAHO prior to the sale.
ii. The buyer of any horse requiring to be exported or imported, whether internationally and/or inter-provincially, shall bear the onus and consequently be responsible for ensuring that all requirements necessary for the transport, export or import of such horse is met. The buyer shall not be absolved from complying with his obligations, in particular his payment obligation, in terms of the Conditions by virtue of an allegation of impossibility of performance or force majeure in regard to compliance with the necessary requirements.
5. RISK, OWNERSHIP AND MAINTENANCE COSTS
i. All risk in respect of a horse sold at the sale shall pass to the buyer upon acceptance of the winning bid, at which time the buyer shall forthwith be responsible for the care, keep, custody, control, insurance and security for the horse and for all expenses relating thereto and bear the risk of injury to, sickness or death of the horse.
ii. The buyer agrees to indemnify CALLAHO, its officers, employees, agents and representatives and the owners or operators of facilities in use by CALLAHO from all losses, damages, liabilities, expenses, claims, causes of action or legal fees arising out of or related to the possession, care, keep, custody, control or maintenance of any horse on which he is the successful bidder, including any claims arising out of injuries, sickness, death or damage caused by the horse after the bidder becomes the buyer and owner of the horse.
iii. Pregnant broodmares sold on the auction have been certified ‘in foal’ by the Veterinarian in the days before the auction and consequently the ‘loss of pregnancy’ risk passes to the new owner upon acceptance of their bid. Callaho will therefore not be liable for any loss of pregnancy of a broodmare sold at the auction.
iv. The buyer shall not allow or cause any horse bought in terms of the Conditions to become subject to any lien, hypothec or other form of security until such time as the debt has been settled in full. In the event of such lien, hypothec or other form of security arising, CALLAHO shall be entitled to act in accordance with the relevant sections of paragraph 7.
v. Due to Covid-19 lockdown Callaho shall insure all horses offered for sale, on behalf of the buyer, for a period of one month from date of the sale. Callaho’s interests shall also be endorsed on the policy.
vi. To provide for Covid-19 lockdown, Callaho will care for sold auction horses at the studfarm at its own cost for a period of two weeks after the auction.
vii. Thereafter, if lockdown regulations legally in force prevent horses from being moved, then Callaho will continue to care for horses according to a set ‘Services & Fees (S&F) Schedule’ available from Callaho Stable management.
viii. Upon registration as a bidder the buyer of a horse acknowledges that he has read these terms and that he/she is thoroughly familiar with and accedes to the S&F schedule referred to in section 5.vi. and 5.vii, which can be accessed on the portal under the heading ‘After-sales Service’
ix. In the case of section 5.vii coming into effect then Callaho will extend the mandatory insurance on the horses for as long as the horses remain on the farm. The extended insurance will be for the account of the new owner.
x. Should the full purchase price of any horse not be settled in full, for whatever reason whatsoever, within the insured period, CALLAHO shall be entitled, at the cost of the buyer, to extend such period of insurance until such time as the purchase price is fully paid by the buyer.
xi. Save as provided for in these Conditions or unless other prior arrangements confirmed in writing have been made with CALLAHO, a buyer shall remove the horse purchased and paid for, at their earliest convenience from CALLAHO’s premises after the sale.
xii. De Facto ownership of a horse shall only pass to the buyer upon payment of the full purchase price, notwithstanding that the buyer may have taken possession of the horse. Until the debt has been paid in full, the buyer shall not be entitled to have the horse registered in his name or that of his nominee, nor shall any passports, registration certificates nor any other documentation be handed over.
6. PARTICIPATION REQUIREMENTS AND PAYMENT.
i. CALLAHO shall, in its sole and unfettered discretion, be entitled to require any prospective buyer to lodge with CALLAHO a sum of money or bank-guaranteed cheque sufficient to cover the agreed purchase facility.
ii. All horses bought at this sale must be paid for in full by the buyer prior to obtaining the required release permit. Purchases shall be paid by electronic transfer or irrevocable commercial letter of credit or cash, in which case a 2% cash deposit fee will be levied on the purchase price. In its sole discretion, CALLAHO may accept a bank guaranteed cheque but acceptance thereof shall not constitute payment until honoured by the bank on which the cheque is drawn.
iii. CALLAHO reserves the right not to release a horse to a buyer, and to keep it stabled at its sales premises at the cost of the buyer, until payment of the full purchase price from the buyer has been honoured and cleared by the bank.
iv. Where a deposit is lodged with CALLAHO, CALLAHO shall deal with the deposit in the following manner:
v. No horse may be removed from the sales complex before a release permit in respect of that horse has been issued by CALLAHO. The release permit will only be issued if the horse is paid in full or if prior credit terms have been arranged and approved.
vi. CALLAHO shall, in exceptional cases, at its sole discretion, agree to waive, in writing, compliance with some or all of the provisions of paragraph 6.
7. LEGAL REMEDIES, REPOSSESSION AND COSTS
i. The buyer agrees and acknowledges that in the event of:
then and in that event CALLAHO shall, without notice and without detracting from any
other remedies which may be available to it,
ii. In the event of repossession for whatever reason provided for in these terms and conditions, CALLAHO may take all necessary steps, either by themselves or through a proxy or agent, and enter upon any land or premises to recover possession of the horse.
iii. In the event of section 7.ii. coming into effect, the buyer agrees to voluntarily hand over the horse to CALLAHO or its agents or to instruct his employees, proxy, trainer(s) or whoever is in possession of the horse to do so. All costs and expenses occasioned by such repossession shall be recoverable by CALLAHO from the buyer.
iv. Should the buyer refuse to voluntarily hand over the horse, CALLAHO shall be entitled to immediately apply for and obtain a repossession order from a court of competent jurisdiction and that opposition to such application shall not be justified and shall attract an adverse costs order.
v. Where any person claims to have a lien over any horse in respect of which the purchase price has not been paid, CALLAHO has the right to settle such lien as it deems fit to recover possession of the horse. Any monies paid in discharge of any lien shall form part of the debt which CALLAHO shall be entitled to recover from the buyer in addition to any other amounts which may be payable.
vi. Notwithstanding the cancellation of the sale by CALLAHO, CALLAHO shall be entitled to retain:
vii. The buyer renounces the benefits of the legal exceptions non numeratae pecuniae, non causa debiti, errore calculi and revision of accounts. The buyer acknowledges that he/she is acquainted with the full meaning and effect of these exceptions.
viii. The buyer consents to the jurisdiction of the Magistrate’s Court in terms of Section 45 of the Magistrate’s Court Act No.32 of 1944 (as amended) having jurisdiction under Section 28 of the said Act, notwithstanding that the claim by CALLAHO exceeds the normal jurisdiction of the Magistrate’s Court as to amount. CALLAHO shall, in its discretion, be entitled to proceed against the buyer in any other court of competent jurisdiction notwithstanding the afore going.
ix. CALLAHO reserves the right to refuse any buyer who has materially breached any condition contained in these Conditions of Sale the opportunity to bid or purchase a horse at the current auction or any Callaho auction held at any time in the future.
x. Callaho will not accommodate ‘buyer’s remorse’. Any horse purchased will be payable in full. Auctions are excluded from Section 55(1) of the Consumer Protection Act, 2008. (Act 68 of 2008), which expressly states that the cooling off period does not apply to goods bought on auction.
i. The physical address provided by a buyer in his application when registering as an online bidder shall be deemed, for the purposes of the Conditions, to be his chosen domicilium citandi et executandi.