Sand Dancing PTY LTD Terms and Conditions
Sand Dancing PTY LTD
A.B.N: 99 603 650 264
CONDITIONS OF SALE
1.1 These Conditions apply to all persons bidding online via the Sand Dancing PTY LTD website (“the Auction”), to the sale and purchase of horses listed for the Auction, and to all matters connected with the Auction.
1.2 All persons participating in the Auction, including the Seller, Buyer and/or Bidder of horses entered in the Auction agree to be bound by these Conditions.
1.3 All horses entered in the Auction are sold and purchased subject to these Conditions.
1.4 Any further or different conditions relating to any sale or any horse or any purchaser must be recorded in writing and signed to the auction by or on behalf of the vendor and the purchaser, and if not so recorded shall be of no effect.
2. Engagement and Authority of Auctioneer
2.1 Sand Dancing PTY LTD (Òthe AuctioneerÓ) is the sole arbitrator of all disputes in connection with the Auction and the Auctioneer’s decision is final.
2.2 The Auctioneer may, in its sole discretion:-
2.2.1. require any person intending to bid at the Auction to complete and sign a registration form and provide identification;
2.2.2 reject or cancel any bid made at the Auction;
2.2.3 advance the bidding at the Auction in increments determined by it;
2.2.4 in the case of a dispute relating to any bid, re-offer the horse for sale;
2.2.5 withdraw any horse from sale.
3. Bidding in the Auction
3.1 Sand Dancing PTY LTD may set a reserve price in respect of any horse;
3.2 Subject to any reserve price, the highest bidder for any horse will be the Purchaser;
3.3 A bidder is taken to be a principal unless, before bidding, Sand Dancing PTY LTD agrees in writing to accept bids from a person for and on behalf of a specified principal;
3.4 Sand Dancing PTY LTD has the right to bid one or more times for a horse, either through the Auctioneer or any other authorized Agent, and may buy the horse.
5.1 At the specified end time of the Auction, the Buyer must:-
5.1.1. provide to the Auctioneer his or her name, address and such other information that the Auctioneer may reasonably request.
5.1.2 sign a Sale Contract confirming the purchase of the horse;
5.2 The buyer must, not later than 4:00pm on the seventh business day following the specified end time of the Auction, pay the Auctioneer the the purchase price (together with applicable GST), by way of cash of EFT.
5.3 In the event of any payment or part payment being overdue, the Buyer agrees to pay interest on such overdue amount, such interest to be calculated at the rate prescribed from time to time under the Penalty Interest Rates Act 1983 (Vic).
5.4 If the Purchaser defaults in the due payment of the purchase price or any part thereon or any other moneys payable by the Purchaser under these conditions of sale then the Auctioneer, shall have the following rights:
(a) to sue the Purchaser for damages for breach of contract
(b) to resell the horse, and recover from the purchaser as liquidated damages the deficiency (if any) arising on the resale plus all costs and expenses associatied with the resale of otherwise arising out of the PurchaserÕs default and
(c) to retain any monies paid by the Purchaser as security for any damages or other moneys payable by the Purchaser to the Auctioneer under these Conditions of Sale.
6. Passing of Ownership and Risk
6.1 At specified end time of the Auction:-
6.1.1. risk in the horse wholly passes from Sand Dancing PTY LTD to the Buyer;
6.1.2. the Auctioneer are free of and disclaim all responsibility for, the safety and welfare of the horse whether or not the Auctioneer is or is taken to be a bailee of the horse;
6.1.3. the Buyer is responsible for obtaining and paying for insurance cover in respect of the horse.
6.2 Subject to Clause 7.2, ownership of the horse passes to the Buyer on at the specified end time of the Auction.
7. Delivery of the Horse
7.1 Subject to Clause 7.2, the Buyer shall collect the horse from the Auctioneer’s stables not later than 4:00pm on the seventh business day following the specified end time of Auction;
7.2 Notwithstanding Clauses 6.2 and 7.1, no horse may be collected from the Auctioneer’s stables and no Buyer may take possession of any purchased horse until the Buyer has paid to the Auctioneer the full purchase price together with GST and until the Auctioneer has expressly and in writing authorized the collection of the horse by the Buyer. Following the clearance of those funds.
8.1 Should the Buyer default in effect of obligations under Clauses 5.1., 5.2., 7.1. or 7.2;
8.1.1. the Buyer shall forfeit any deposit paid by him without the need for any form of notice from the Auctioneer;
8.1.2 the Auctioneer may, at his option:
(a) terminate the sale to the Buyer without the need for any service of notice by the Seller or the Auctioneer, without prejudice to the Seller’s accrued rights under these Conditions;
(b) re-sell the horse by public or private sale without fixing a reserve price in which event, the Buyer is liable to the Auctioneer for any deficiency between the original
selling price of the horse and the price for which the horse was re-sold together with all costs and expenses of and incidental to the Buyer’s default including agistment, costs of re-sale, and any legal expenses (such legal expenses to be calculated on a solicitor and own client basis);
(c) confirm the sale to the Buyer.
9. The AuctioneerÕs Promises
9.1 The Auctioneer acknowledges and warrants that:-
9.1.1 the Auctioneer has the right to sell the horse and to give a good and sufficient receipt for the purchase price;
9.1.2 to the best of the AuctioneerÕs belief and knowledge, the horse is not affected by any substances currently prohibited under the rules of the organisation Equestrian Australia.
9.1.3 to the belief and knowledge of the Auctioneer, the horse is not a windsucker or a wobbler or a headshaker.
9.2 The Auctioneer must sign all documents relating to the registration and ownership of the horse, including the Sale Document and take all steps necessary to transfer ownership of the horse to the Buyer.
10. AuctioneerÕs Enforcement Rights
10.1 To secure the Buyer’s obligations under these Conditions, the Buyer unconditionally and irrevocably:-
10.1.1 authorizes the Auctioneer as agent for the horse and in the Buyer’s name or otherwise on the Buyer’s behalf, to do all acts and things and to sign all documents necessary for or incidental to any sale of a horse or the disposal of any horse;
10.1.2 grants to the Auctioneer a general lien over, and right to detain the horse (together with all title and registration papers relating to the horse) effective from the specified end time of the Auction, as security for payment of all moneys owed by the Buyer to the Auctioneer including the purchase price, GST and any liability to indemnify the Auctioneer.
10.1.3 Agrees to pay to the Auctioneer agistment fees at the rate of $30 plus GST per day for each day (or part thereof) that the horse remains in the possession of the Auctioneer pursuant to these Conditions after 4pm on the seventh business day following the specified end time of the Auction.
10.1.4 If any sale is cancelled for any reason, the Auctioneer shall remain entitled to be paid or reimbursed for all money owing to it by the purchaser, for any charges, dues (including stabling and dues, fees, vet costs and entry fees) interest and any other money
owing to the Auctioneer.
10.1.5 The Auctioneer shall not have any liability to the purchaser in consequence of any breach or default on the part of either of them. The AuctioneerÕs liability to the purchaser for any negligent act or omission, breach or default on the part of the Auctioneer, shall, to the extent that any such liability exists and is not effectively excluded by the Conditions of Sale, be limited to the lesser of the partyÕs actual direct loss or the sale price of the horse. Under no circumstances may the Auctioneer be liable for any consequential loss.
11. Limitation of Liability
11.1 The provisions of this clause operate subject to any law that restricts or prohibits the exclusion of liability, including the Trade Practices Act 19784 (Cth) and the Goods Act 1958 (Vic).
11.2 The Auctioneer and their officers, employees, agents and independent contractors are not liable to the Buyer, any bidder or any person bidding in the auction, for any
claims, losses, damages, costs or causes of action as a consequence of, relating to, caused by or in any way arising out of:-
11.2.1 the death of, or injury to a horse;
11.2.2 the death of, or injury to the Buyer or any person bidding in the auction;
11.2.3 the sale or purchase of a horse;
11.2.4 any error, omission, misstatement or mis-description on the website of Sand Dancing PTY LTD;
11.2.5 any statement made publicly relating to any horse; and
11.2.6 any act or omission, including any negligence or default of the Auctioneer or any of its officers, employees, agents or independent contractors.
12.1 All bids are made on a GST exclusive basis and the Auction price is subject to 10% GST.
12.2 Where the lot is to be exported, a refund of GST may be available on application to the Australian Taxation Office if its criteria for a refund have been satisfied. Prospective exporters should make and rely upon their own inquiries in relation to GST issues. The Auctioneer shall not have any responsibility or liability to a purchaser in relation to export/GST issues.
13. Understanding and Acknowledgements
13.1 To the fullest extent legally permissible, all conditions or warranties implied by Statute or the general law as to quality and fitness for purpose of the horse are expressly negatived.
13.2 The Buyer acknowledges that:
(a) the horse was available for inspection prior to the auction;
(b) the Buyer had the opportunity to have the horse examined by a Veterinary Surgeon of his or her choice prior to bidding in the Auction;
(c) the purchase was made solely in reliance on the Buyer’s own enquiries, examination and judgement.
13.3 Any prior representations, statements or promises in relation to any horse (if any) are merged in and superseded by these Conditions and the Buyer, bidder and all persons participating in the auction expressly acknowledge they have not relied on them.
14.1 The following words have the meanings set out alongside them:
14.1.1 `auction premises’ the stables of Sand Dancing PTY LTD
14.1.3 `Auctioneer’s stables’ – the stables of Sand Dancing PTY LTD;
14.1.4 `Buyer’ – a person who buys a horse entered in the auction;
14.1.5 `Sale Document’ – a written record or acknowledgment of the sale and purchase of a horse on these Sale Conditions;
14.2 If any condition is or becomes void or unenforceable for any reason, it will not affect the remainder of them.