- Words that indicate the singular form will also imply the plural and vice versa.
- A reference to a male form is also considered to include a reference to a female form and vice versa.
- All the annexes referred to in the Auction Terms and Conditions are an integral and inextricable part of these Auction Terms and Conditions.
- GDA organises online Auctions of dressage Embryos/Unborn Foals/Foals.
- These Auction Terms and Conditions are applicable to all legal relationships between GDA and the Participant, as well as to all legal relationships between Participants themselves. Such insofar as mandatory law does not stipulate otherwise. The Participant is considered to have accepted these Auction Terms and Conditions.
- All the stipulations in these Auction Terms and Conditions are also made on behalf of all parties that are, or were, working for, for the benefit of, and/or on behalf of GDA. They can directly invoke the provisions of these Auction Terms and Conditions as if they were GDA themselves.
- The relationship between GDA and the Vendor is a commission contract whereby the Vendor, as the commissioning party, commissions GDA, as the commissionee, to auction an Embryo/Unborn Foal/Foal for the highest bid.
- Insofar as this concerns an Unborn Foal which is being carried by a surrogate mare, this must also be read as the pregnant mare wherever these Auction Terms and Conditions refer to an Unborn Foal.
- All amounts referred to in these Auction Terms and Conditions do not include the applicable turnover tax (VAT), unless explicitly stated otherwise.
Selection of Embryos/Unborn Foals/Foals
- GDA, or (a) selector(s) designated by GDA, select(s) the Embryos/Unborn Foals/Foals which are eligible for inclusion in the Auction. GDA and/or the selector(s) is/are authorised, but not obliged, to obtain advice from third parties with regard to the selection. If an Embryo/Unborn Foal/Foal has been selected for inclusion in the Auction, this selection will be confirmed by signing the model ‘GDA commission contract’ attached as Annex II.
- GDA/the selector(s) is/are always entitled to refuse an Embryo/Unborn Foal/Foal without stating reasons, on the grounds of (physical) defects, as well as on grounds to be determined by GDA and/or the selector(s). This refusal can also take place if an Embryo/Unborn Foal/Foal has already been selected for the Auction. A decision on inclusion by GDA/the selector(s) is binding. GDA/the selector(s) is/are never obliged to pay the costs incurred by the Vendor on whatever grounds.
- The Vendor guarantees that the ancestry details of the Embryo/Unborn Foal/Foal are correct.
- If an Embryo/Unborn Foal/Foal of the Vendor is selected for inclusion in the Auction, the Vendor will owe GDA a registration fee of € 500.00. GDA will send the Vendor an invoice for payment of the registration fee. The Vendor and its Embryo/Unborn Foal/Foal may only participate in the Auction after the registration fee has been received.
Information and examinations
- GDA puts together the auction collection and the related information on its website with the greatest possible care. The information on the GDA website is intended to give an impression of the quality of the Embryos/Unborn Foals/Foals offered for auction without GDA attempting to provide full information and without it being possible to derive any rights from said information.
- The Vendor agrees to its name or company name being referred to as breeder and/or the Vendor on the GDA website and that GDA will refer to the Embryos/Unborn Foals/Foals (including the Vendor’s name or company name) on third-party websites in order to promote the Auction.
- The Vendor is obliged to check the correctness of the information to be included on GDA’s website regarding its Embryo/Unborn Foal/Foal to be auctioned and to inform GDA of any inaccuracies by no later than seven days before the start of the Auction, in writing and in as much detail as possible.
- The Vendor of a Foal is obliged to present this Foal during the photo and video day to be organised by GDA prior to the Auction. Instructions have been included on the auction website regarding the presentation of the Foal on the photo and video day. The Vendor will adhere to these instructions. The Vendor agrees that GDA will place image material of the Foal made during the photo and video day on the auction website in order to promote the Auction and the Foal then to be auctioned.
- The Vendor of an Unborn Foal is obliged to have the pregnant mare clinically examined no fewer than seven and no more than fourteen days prior to the auction, on its instruction and for its own account, and to have the pregnancy established by a certified vet. In connection with this the Vendor will use the designated ‘Pregnant Mare Examination Form’ model attached as Annex III. GDA must have received a completed Pregnant Mare Examination Form signed by the vet by no later than two days before the start of the Auction. GDA will not hold any veterinary inspection or examination prior to, during, or after the auction.
- The Vendor of a Foal is obliged, no fewer than seven and no more than twenty-one days before the start of the Auction, to have the Foal clinically examined by a certified vet designated by GDA on its instruction but for the account of GDA. In connection with this the Vendor will use the designated ‘Foal Examination Form’ model attached as Annex IV. Unless explicitly agreed otherwise between GDA and the Vendor, this examination will take place during the photo and video day to be organised by GDA. GDA must have received a completed Foal Examination Form signed by the vet by no later than two days before the start of the Auction.
- GDA will post the examination forms referred to in Articles 18 and 19 of these Auction Terms and Conditions on its website by no later than two days before the start of the Auction. The content of the examination forms is binding for GDA and the Participants.
- By offering an Embryo/Unborn Foal/Foal for auction the Vendor declares that it is unaware of any facts or circumstances which make the Embryo/the Unborn Foal/Foal unsuitable for normal breeding purposes. The Vendor also guarantees that the Embryo/Unborn Foal/Foal is free of prohibited substances as included on the most recent list of substances of the Federation Equestre Internationale (FEI).
Auction and Contract of Sale
- GDA organises and facilitates the Auction and auctions Embryos/Unborn Foals/Foals on the instructions of the Vendor without being or becoming party to Contracts of Sale which are to be, or have been, formed. GDA determines the dates and times at which an Auction takes place.
- GDA determines the order and sequence of the Auction. GDA is entitled to refuse anyone access to, or participation in, the Auction without stating reasons, or to impose (additional) conditions.
- The Embryos/Unborn Foals/Foals offered for auction are to be sold via bidding unless GDA determines that the Auction (or a part thereof) will take place in a different way.
- Prior to the Auction GDA will offer Bidders the possibility of forming their own opinion about the Embryos/Unborn Foals/Foals offered for auction and the extent to which these correspond to the Bidders’ wishes and intended use.
- The Embryos/Unborn Foals/Foals offered for auction are to be auctioned/sold outright, without proceedings or recompense, in the condition they are in at the moment of auction, without GDA being liable in relation to the value, the state, or condition of auctioned Embryos/Unborn Foals/Foals.
- GDA is permitted to obtain information regarding the solvency of Bidders and to make participation in the Auction of a particular Bidder dependent on the information obtained.
- Bidding will take place by digitally entering a bid. In order to enter a bid digitally, GDA can demand of Bidders that they pay a deposit into a bank account designated by GDA. In that case Bidders must comply with the request to pay the deposit before they are allowed to participate in the Auction.
- Each Bidder is bound by its bid which will be regarded as unconditional and irrevocable. Bidders will bid for their own account and will be bound by their bids until a higher bid has been accepted.
- An Auction will close on a predetermined date and time. If a bid is made five minutes before the indicated closing time, the closing time will be extended by two minutes (each time). The definitive closing time will then be two minutes after the last bid.
- An Embryo/Unborn Foal/Foal will be allocated to the Bidder with the highest bid. As from the moment of Allocation the Contract of Sale between the Purchaser and the Vendor will be formed on the basis of the conditions as laid out in the model attached as Annex I. GDA will send this model to the Purchaser and the Vendor as soon as possible after the end of the Auction. Within five working days after the model has been sent the Purchaser and the Vendor will return a signed model to GDA, purely to record the fact that the Contract of Sale has been formed. If the Purchaser and/or the Vendor fail to return the signed model, this will not affect the formation of the Contract of Sale.
Auction Commission, Purchase Price and payment
- Bidding and payments will take place exclusively in euros.
- After Allocation of the Embryo/the Unborn Foal/Foal, GDA will draw up invoices and the Purchaser will be required to pay GDA the Purchase Price, plus any applicable costs for the surrogate mare and VAT, into a bank account designated by GDA and with due regard for the payment deadline stated on the invoices. The stated payment deadlines are firm deadlines. Until the moment of delivery of the Embryo/the Unborn Foal/Foal, GDA will keep the Auction Amount on behalf of the Purchaser and will do the same on behalf of the Vendor once delivery has taken place.
- The costs of a surrogate mare are € 2,000.00. Depending on the choice made by the Vendor this amount concerns the purchase price for a pregnant mare, or a deposit in the event that a pregnant mare is loaned, in which case the Purchaser must return the mare in question in good condition to a location in the Netherlands indicated by the Vendor within 6 months after the birth of the Unborn Foal. Thereafter, the Vendor must return the deposit to the Purchaser within 14 days after the mare has been delivered.
- In the event of late payment of any invoice by the Purchaser, the latter will be legally in default. As from the day of default the Purchaser:
- will owe interest of 1.5% per month, with part of a month being charged as a whole month, and
- all extrajudicial costs reasonably incurred by GDA while collecting the amount of the invoice in question, which costs are set at 15% of the outstanding amount, with a minimum applying of € 1,000.00.
- In the event of late payment of any invoice by the Purchaser, GDA will be authorised, without notice of default on behalf of the Vendor and without the Vendor’s permission, to dissolve the Contract of Sale without the Purchaser having any right to (a compensation) payment. GDA will then be entitled to sell the Embryo/the Unborn Foal/Foal privately and immediately, with the Purchaser’s bid no longer being valid. The Purchaser never has the right to an additional return in the event of a private sale and will continue to be obliged to reimburse GDA for any lower return. In that case the Vendor and the Purchaser will continue to be obliged vis-à-vis GDA to fulfil all the payment obligations referred to in these Auction Terms and Conditions, insofar as they concern a remuneration on behalf of GDA.
- Only after the Purchaser has paid GDA the GDA invoices in full and the Embryo/the Unborn Foal/Foal has been delivered will GDA pay the Vendor the Auction Amount, to a bank account designated by the Vendor, within ten days after delivery, subject to deduction of the Auction Commission owed by the Vendor to GDA. The payable Auction Commission amounts to:
– 10% of the Auction Amount up to € 15,000.00;
– Plus 15% of the Auction Amount above € 15,000.00.
- If the Purchaser reports a defect or stable vice to GDA in accordance with the provisions of Article 68 of these Auction Terms and Conditions, GDA will retain the Auction Amount until a solution has been reached and the Vendor and the Purchaser, via a unanimous request or a legal judgement, demand of GDA that GDA proceeds to pay out any amount to the Purchaser or the Vendor.
- In the event of an Auction Amount which is lower than the agreed ask price, the Embryo/the Unborn Foal/Foal will not be sold and the Vendor will only pay the registration fee referred to in Article 14 of these Auction Terms and Conditions.
- Payment to any party other than GDA does not discharge the Vendor, or the Purchaser, from their payment obligations vis-à-vis GDA.
- The Purchaser has the option of taking out insurance immediately after the auction for the Embryo/Unborn Foal/Foal with Catherine de Buyl Horse Insurances, for an amount that is equal to the Auction Amount. In the case of an Unborn Foal being carried by the biological mare, which mare remains with the Vendor after the Auction, the Purchaser is obliged to take out ‘unborn foal insurance’ with Catherine de Buyl Horse Insurance for an amount equal to the Auction Amount and for the period from Allocation until the foal has reached the age 150 days.
Delivery, transfer of risk and costs
- If and as soon as the Purchaser has fulfilled all its payment obligations vis-à-vis GDA and the Vendor, GDA will notify the Vendor to this effect as soon as possible. From the moment of the notification that the Purchaser has fulfilled its payment obligations the Vendor is obliged to deliver the Embryo/the Unborn Foal/Foal to the Purchaser within seven days and the Purchaser is equally obliged to take receipt of the Embryo/the Unborn Foal/Foal within seven days. If the Purchaser refuses to take receipt, or is negligent, the Purchaser will be in default vis-à-vis the Vendor and, among other things, obliged to compensate the Vendor for any loss or damage without prejudice to any other right and to pay all related additional costs.
- Unless expressly provided otherwise in these terms and conditions the Embryo/the Unborn Foal/Foal is delivered to the Purchaser’s address. If the Purchaser/the Vendor is/are resident outside the Netherlands, the place of delivery will be in the Netherlands, unless the parties agree otherwise. The Embryo/the Unborn Foal/Foal is transported for the Purchaser’s account and risk.
- Any delivery which takes place other than stipulated in these Auction Terms and Conditions, is for the Vendor’s account and Frisk.
- An Embryo is delivered in accordance with Article 3:115 of the Dutch Civil Code, depending on where the Embryo is located. By signing the ‘Embryo Delivery Declaration’ to that effect attached as Annex V the Vendor transfers ownership of the Embryo to the Purchaser, which ownership the Purchaser accepts by signing the same declaration. The Vendor will provide GDA with a copy of the Embryo Delivery Declaration as soon as the Vendor and the Purchaser have signed it.
- The Purchaser is responsible for the risk and costs associated with the Embryo from the moment of Allocation.
- An Unborn Foal which is being carried by the biological mother and, which remains with the Vendor after the Auction, will be delivered by the Vendor to the Purchaser in accordance with Article 3:115 sub a of the Dutch Civil Code. By signing the ‘Delivery Declaration Unborn Foal pursuant to Article 3:115, under a of the Dutch Civil Code’, which is attached as Annex VI, the Vendor transfers ownership of the Unborn Foal to the Purchaser, which ownership the Purchaser accepts by signing the same declaration. The Vendor will retain the sold and delivered Unborn Foal from the moment that both the Vendor and the Purchaser sign the declaration until the moment at which the weaned foal reaches the age of 4.5 months and the Vendor has given the Purchaser actual control of this foal. The Vendor will provide GDA with a copy of the Delivery Declaration Unborn Foal pursuant to Article 3:115, under a of the Dutch Civil Code as soon as the Vendor and the Purchaser have signed it.
- An Unborn Foal which is being carried by a surrogate mare will be delivered by the Vendor to the Purchaser by means of actual delivery of the surrogate mare to the Purchaser.
- The Purchaser will bear the risk of an Unborn Foal from the moment of Allocation. The Purchaser is responsible for the costs of an Unborn Foal which is being carried by a surrogate mare from the moment the surrogate mare is delivered to the Purchaser. The Purchaser is responsible for the costs of an Unborn Foal which is being carried by the biological mother, which mother remains with the Vendor after the Auction, from the moment the foal is actually delivered.
- A Foal will be delivered by the Vendor to the Purchaser by means of actual delivery of the Foal to the Purchaser.
- The Vendor takes on the obligation to leave a Foal which is under the age of 4.5 months with the mare until the Foal has reached the age of at least 4.5 months, without the Purchaser owing a payment in this respect. As soon as the Foal has reached the age of 4.5 months, the Foal must be delivered to the Purchaser within two weeks, provided the Purchaser has fulfilled all its payment obligations vis-à-vis GDA and the Vendor.
- A Foal is for the risk of the Purchaser from the moment of actual delivery, but from no later than the day on which the Foal reaches the age of five months.
- The ownership of the Embryo/the Unborn Foal/Foal transfers to the Purchaser (if all the conditions of the legal transfer have been fulfilled) at the moment of delivery as stipulated in these Auction Terms and Conditions, but no earlier than after the Purchaser has fulfilled all its payment obligations vis-à-vis the Vendor and GDA (whether acting on behalf of the Vendor or otherwise).
- GDA cannot guarantee that the Vendor can transfer ownership of the Embryo/Unborn Foal/Foal freely and unencumbered to the Purchaser. GDA is not liable for any related loss or damage.
Consumer’s right of withdrawal
- If the Purchaser is a consumer is defined in Article 6:230g of the Dutch Civil Code, the Purchaser can dissolve the Contract of Sale during a cooling-off period of no more than 14 days without stating reasons on the basis of the statutory right of withdrawal referred to in Article 6:230o ff. The Vendor can ask the Purchaser for the withdrawal reason, but the Purchaser is not obliged to state the reason(s). The cooling-off period referred to in this article commences on the day after the Purchaser, or a third party designated in advance by the Purchaser that is not the haulier, has taken receipt of the Embryo/the Unborn Foal/Foal. If the Purchaser and the Vendor have agreed, pursuant to Article 3:115 under a or c of the Dutch Civil Code, that the Vendor or a third party are going to keep the Embryo/the Unborn Foal for the Purchaser and if they have signed the Delivery declaration pursuant to Article 3:115 under a or c of the Dutch Civil Code, the Purchaser will be regarded, by signing said declaration, to have taken receipt of the Embryo/ the Unborn Foal and the cooling-off period referred to in this article will commence.
- If the Purchaser uses the statutory right of withdrawal, the Purchaser will notify the Vendor and GDA to this effect unambiguously and in writing during the cooling-off period. As soon as possible, but within 14 days from the day following the Purchaser’s notification, the Purchaser will return the Embryo/the Unborn Foal/Foal, or hand the Embryo/the Unborn Foal/Foal over to the Vendor. This will be unnecessary if the Vendor has offered to collect the Embryo/the Unborn Foal/Foal in person. In any event the Purchaser will have observed the return deadline if the Purchaser returns the Embryo/the Unborn Foal/Foal before the cooling-off period ends.
- The Purchaser will return the Embryo/the Unborn Foal/Foal with all delivered accessories and in accordance with the reasonable and clear instructions issued by the Vendor.
- The Purchaser bears the risk and burden of proof for the correct and timely exercising of the right of withdrawal.
- The costs relating to returning the Embryo/the Unborn Foal/Foal with all delivered accessories are for the Purchaser’s account.
- During the cooling off period and the time it takes to return the Embryo/the Unborn Foal/Foal with all delivered accessories, the Purchaser will look after the Embryo/the Unborn Foal/Foal with due care and attention and, if provided, in accordance with the Vendor’s instructions.
- If the Purchaser uses its right of withdrawal, all additional agreements will be dissolved by operation of law.
- The Vendor will repay the purchase price to the Purchaser immediately, but in any event within 14 days following the day on which the Purchaser gives notice of the withdrawal. Unless the Vendor offers to collect the Embryo/the Unborn Foal/Foal in person, the Vendor can wait with repayment until it has received the Embryo/the Unborn Foal/Foal.
- The Vendor will use the same means of payment for the repayment that the Purchaser used, unless the Purchaser agrees to another method. The Purchaser will not be charged for any repayments.
- If the Purchaser has opted for a more expensive method of delivery than the cheapest standard delivery, the Vendor will not have to repay the additional costs for the more expensive method.
Non-participation in the Auction
- A selected Embryo/Unborn Foal/Foal must participate in the auction. Failure to do so will mean that the Vendor will be required to pay GDA the costs it has incurred, with the minimum being the registration fee of € 500.00, as well as a payment amounting to € 15,000.00 plus interest of 1.5% per month on the total amount due, calculated from the date of the Auction up to the time of full payment, such without prejudice to GDA’s right to fulfilment and/or compensation.
- If, in the Vendor’s opinion, the Embryo/Unborn Foal/Foal cannot participate in the Auction for health reasons, this must be reported to GDA immediately, in writing and with a description of the affliction which is as detailed as possible, after which GDA will be entitled to have the affliction established by a vet it has designated. The vet’s opinion will be binding. If the Vendor does not offer (sufficient) opportunity to that vet to examine the Embryo/Unborn Foal/Foal (on time), or does not do so according to that vet’s binding opinion, or if the Embryo/Unborn Foal/Foal has been approved by said vet and still does not participate in the Auction, the Vendor will owe GDA the payment referred to in Article 66 of these Auction Terms and Conditions.
Stable vices and defects
- If the Purchaser is of the opinion that the Embryo/the Unborn Foal/Foal does not comply with the Contract of Sale after delivery, the Purchaser will inform both the Vendor and GDA to that effect within two weeks on pain of lapsing of rights.
- Neither the Vendor nor GDA guarantee the presence or absence of OC and OCD, as well as the WFFS gene in the Embryo/the Unborn Foal/Foal.
Exclusion and limitation of liability on the part of GDA and indemnification
- GDA rejects any liability with regard to the Participants and third parties in relation to, but not limited to, the following instances:
- The state of health and/or Stable Vices of Embryo’s/Unborn Foals/Foals;
- Transportation of Embryo’s/Unborn Foals/Foals;
- Any accident or any kind of loss or damage suffered by anyone in or near the sites or buildings where there is an opportunity for a viewing, or where Embryo’s/ Unborn Foals/Foals are collected;
- Loss or damage which has arisen prior to, during and/or after the end of the photo and video days and the Auction caused by or to people and/or by or to goods and/or by or to Embryos/Unborn Foals/Foals and/or by or to (pregnant) mares;
- Loss or damage caused by the issuing of incorrect and/or incomplete information, irrespective of the nature and scope of that loss or damage and of that information and irrespective of the origin of that information. If the incorrect and/or incomplete information has come from the Vendor, the Vendor must indemnify GDA against all third-party claims in that respect;
- Direct or indirect loss or damage, irrespective of its nature and scope, as a consequence of a failure in the performance of a commitment by a third party/third parties;
- Loss or damage suffered as a consequence of actions and/or omissions by third parties;
- Loss or damage suffered as a consequence of a delay which occurs during use of the auction site, outage, or the non-availability of the auction site for other reasons (including the non-availability of a specific auction).
- Any liability on the part of GDA is always limited to a maximum amount of € 10,000.00. In any event the entitlement to compensation lapses 12 months after the event which resulted in the loss or damage and for which GDA is liable, without prejudice to the provisions in Article 6:89 of the Dutch Civil Code.
- Exclusions of liability on the part of GDA do not apply in the event of intent or gross negligence which can be attributed to GDA or its managerial employees.
- The Purchaser is liable for all loss or damage which it causes itself, or which is for its risk, and indemnifies GDA against any claim by third parties, including but not limited to Participants, relating to said loss or damage, irrespective of its nature and scope.
- GDA is a business which is subject to turnover tax. Changes relating to the applicable VAT rate may provide grounds for a corresponding change to the VAT percentages to be applied.
- If, at the Purchaser’s request, invoicing takes place on the basis of a zero rate of VAT in relation to the transfer of the auctioned Foals/Embryos to another member state of the European Union, the Purchaser undertakes to fulfil all the necessary conditions in order to realise a legally valid intra-community transaction.
- If the application of the zero rate of VAT (retrospectively) turns out to be impossible, for whatever reason, the Purchaser will, at that moment, still owe an amount equal to the amount that would be payable if the Embryos/Unborn Foals/Foals in question had been delivered in the Netherlands. However, the Purchaser is obliged to pay GDA the aforementioned amount immediately, if requested to do so by GDA. Repayment will then only take place if the Purchaser has fulfilled the conditions of Article 75 of these Auction Terms and Conditions, to the satisfaction of GDA. The Purchaser will indemnify GDA against any loss or damage which results from the non-fulfilment of the conditions. What is more the Purchaser is liable for all (extra)judicial costs incurred by GDA, with a minimum amount applying of € 1,000.00.
Disputes and applicable law
- The legal relationship between GDA and the Participant, as well as the legal relationship between the Purchaser and the Vendor, are exclusively governed by Dutch law.
- Any disputes which might arise as a result of the Auction, the Contract of Sale, or additional agreements and other actions related to the Auction and the Contract of Sale, will be settled by the competent court at the Court of Oost-Brabant, ‘s-Hertogenbosch location, unless mandatory competency rules prevent this choice being made.
- The Dutch text of these Auction Terms and Conditions is binding.
In the event of differences between the Dutch and English versions, the Dutch text is binding.