Auction conditions for the Performance Plus Elite Auction 2008 Eibergen, The Netherlands

General conditions:

1. Performance Plus Bv is organizing, on Saturday the 29th of November 2008, Performance Plus Elite Auction (hereafter: ‘the auction’) at the premises of Reesink Horses in Eibergen, the Netherlands.
2. These conditions of auction apply primarily to the relationship between Performance Plus Bv and the bidder/purchaser. By bidder/purchase is also meant any legal successor/procurer.
3. Participation in the auction will be seen as acceptance of the conditions of auction, with the exception of contingent conditions to be handled by the participant him/herself.

The auction:

1. The horses will be sold outright, without proceedings or recompense, in the state in which they were allotted.
2. The auctioneer retains the right to change the order of sale of the horses to be sold and, without giving reasons, to deny participation by persons as bidder/purchasers.
3. Bidder/purchasers are expected to be fully commercially competent and to be in full possession of their mental faculties. Each bidder/purchaser is expected to have bid for him/herself and will be held to his/her bid until a higher bid has been definitely accepted. A bidder/purchaser is, along with his/her eventual principal, fully responsible for non-fulfillment of his/her obligations. If the agreement of sale is not immediately offered for signing to the bidder/purchaser, then he/she must, directly after the auction, report to the Performance Plus Bv administration office.
4. Registered horses will be, at bidding, sold, in the case where still no bids are made, the horse will remain unsold.
5. Risks concerning the horses by which is meant among other things, yet not limited to, damage to and damages caused by horses, are transferred immediately from the vendor to the bidder/purchaser at the moment allotted. As long as Performance Plus Bv has not received full payment from the bidder/purchaser, the vendor remains owner of the horse.
6. Immediately after allotment, the bidder/purchaser shall, on production of identification, sign a written agreement of sale. If the agreement of sale is not immediately offered for signing to the bidder/purchaser, then he/she must, directly after the auction, report to the Performance Plus Bv administration office.

Information:

1. Performance Plus Bv has strived to compile the catalogue as accurately as possible. Pedigree information aims to give an impression of the quality of the horses without pretending to be exhaustive and therefore gives no guarantees.
2. A duplicate of the veterinary report as well as X-rays can be seen, on request, five days before the auction and on the day of the auction itself. The contents of the veterinary report, the X-rays and any other possible veterinary communications by the veterinary surgeon as appointed by Performance Plus Bv, is binding for Performance Plus Bv and the bidder/purchaser.
3. The bidder/purchasers are obliged, if requested by Performance Plus Bv, to supply information concerning the adequacy of their financial circumstances, in which case they must show documentation proving the substance of their finances to Performance Plus Bv. By requesting participation in the auction, the bidder/purchasers authorize Performance Plus Bv in the obtaining of information concerning their financial circumstances from third parties.
4. At the auction it is possible to bid by telephone, if in advance an amount of  € 1.000,- is received on the bankaccount of Performance Plus Bv as downpayment. For more information about bidding by telephone, please contact the organisation.

Registration, costs and payment:

1. Only advisors that have been approved by Performance Plus Bv and who have made a written application to Performance Plus Bv before the commencement of the auction that they will represent one or more of the bidder/purchasers, can make a claim on the commission of the vendor. This commission will be after written application specified. Only after the bidder/purchaser has fully completed his/her obligations of payment is the commission owed by the vendor.
2. The bidder/purchaser must make payment to the administration office of Performance Plus Bv at the auction, that is; the purchase price augmented by 10 % agio (including VAT) on the purchase price (excluding VAT) in euros, without any discount or deduction. Payment is effected by signing a unique authorisation. The amount will be withdrawn from your account within 3 days. For bidders/purchasers from abroad an alternative way of payment can be approved by the administration office under the condition that a cash down payment of  € 1.000,- is made.
3. In the event where the bidder/purchaser is deficient herein, Performance Plus Bv has the right to immediately re-auction the horse, whereby the bid of the original bidder/purchaser may no longer be accepted. The original bidder/purchaser will be obliged to pay the difference between his/her bid and the final, lower purchase price, as well as the re-auctioning costs, to Performance Plus Bv. The bidder/purchaser will have no claims in the case where there is a higher purchase price after the re-auction.
4. Only with permission obtained from Performance Plus Bv prior to the auction has a bidder/purchaser the right to pay with a transfer account whereby he/she must transfer payment within 5 days after the auction to the bank account number of Performance Plus Bv. Performance Plus Bv will, in such cases, oblige the bidder/purchaser to have the horse insured, which will take effect immediately and will be at the cost of the bidder/purchaser, with Hippozorg Paardenverzekering B.V. This insurance must be for a period of 10 days with a premium of 1.075 % of the purchase price, in the case of damage, the bidder/purchaser will be also charged an annual premium of 4% of the purchase price. This short summary of the aforesaid insurance is not considered to be complete thus the bidder/purchaser cannot derive any legal rights from such. The bidder/purchaser can obtain a copy of the conditions of insurance on the day of the auction from the administration office of Performance Plus Bv.
5. Performance Plus Bv also has, amongst other things, the right to withhold the above-mentioned permission in the event that the bidder/purchaser’s financial circumstances, according to Performance Plus Bv’s judgment, by means of bank guarantees or suchlike, do not show, or fall short of, sufficient means. Performance Plus Bv has the right to withdraw its given permission at any time in case doubts arise, in their opinion, as to the financial adequacy of the bidder/purchaser or to the securities that have been supplied by him/her.
6. Payment to any other person other than Performance Plus Bv does not release the vendor or the bidder/purchaser from payment obligations toward Performance Plus Bv.
7. In the event that Performance Plus Bv has not received the payment in full from the bidder/purchaser within 5 days after the auction, the bidder/purchaser is, according to the law, in omission. The bidder/purchaser is then obliged to pay to Performance Plus Bv, as well as his/her other obligations of payment, an indemnity to the sum of 12% (including VAT) of the purchase price (excluding VAT). The total sum that the bidder/purchaser is indebted from his/her obligation of payment will be augmented by an interest of 1.5% per month to be calculated from the time of auction until the time of full payment.
8. If Performance Plus Bv does not receive, from the bidder/purchaser, full payment within 5 days after the auction, Performance Plus Bv has the right, without notification of default, on behalf of the vendor and without his/her permission, to consider the sale as not binding. In such cases, the vendor and bidder/purchaser remain obliged to fulfil all their payment obligations toward Performance Plus Bv as laid out in the conditions of auction as far as these concern an indemnity on behalf of Performance Plus Bv.
9. If a stallion born in 2006 and sold through the auction is approved in conformity with the selection system of the KWPN (hereafter: ‘the approval’) before 1 January 2012 and therefore qualifies for registration in the KWPN studbook, the bidder/buyer shall pay to the seller, on top of the realised auction price, an amount of € 50,000.- exclusive of VAT (hereafter: ‘the bonus’). The relevant bonus is stated in the catalogue. If a stallion born in 2006 and sold through the auction is approved in conformity with another selection system within Europe than that of the KWPN (hereafter: ‘the approval’) before 1 January 2012 and therefore qualifies for registration in another studbook within Europe than the KWPN, the bidder/buyer shall pay to the seller, on top of the realised auction price, an amount of € 15,000.- exclusive of VAT (hereafter: ‘the bonus’). The relevant bonus is stated in the catalogue. There is no accumulation of bonuses; only the highest relevant bonus shall be payable.
10. If a stallion born in 2007, 2008 or 2009 and sold through the auction is approved in conformity with the selection system of the KWPN (hereafter: ‘the approval’) before 1 January 2013 and therefore qualifies for registration in the KWPN studbook, the bidder/buyer shall pay to the seller, on top of the realised auction price, an amount of € 10,000.- exclusive of VAT (hereafter: ‘the bonus’). The relevant bonus is stated in the catalogue. If a stallion born in 2007, 2008 or 2009 and sold through the auction is approved in conformity with another selection system within Europe than that of the KWPN (hereafter: ‘the approval’) before 1 January 2013 and therefore qualifies for registration in another studbook within Europe than the KWPN, the bidder/buyer shall pay to the seller, on top of the realised auction price, an amount of € 5,000.- exclusive of VAT (hereafter: ‘the bonus’). The relevant bonus is stated in the catalogue. There is no accumulation of bonuses; only the highest relevant bonus shall be payable.
11. The bidder/buyer shall pay the bonus, the relevant mark-up and VAT within14 days after the approval into Performance Plus Bv’s bank account. If the bidder/buyer fails to comply with this obligatory payment, in full or in part, within the stated period, he shall be legally in default of payment. In that case the bidder/buyer shall not only owe the bonus, but shall also be obliged to pay a compensation to and in behalf of Performance Plus Bv of 24% (including VAT) over the bonus (excluding VAT), to be increased by a monthly interest of 1.5% over the total amount payable.
12. If the bidder/purchaser is in default of fulfilling his/her payment obligations towards Performance Plus, all judicial and extra judicial costs accrued by Performance Plus Bv by these circumstances will be charged to the bidder/purchaser with a minimum sum of € 1,000.00 including VAT.

Selection and inspection of horses for the auction:

1. All horses are clinically examined. A copy of the veterinary report, as well as the X-rays (if available), are available for inspection five days before the commencement of the auction.

Delivery and removal of horses:

1. The bidder/purchaser is responsible for the care of the horse immediately after it has been allotted and liable for any damage to the horse, or caused by the horse.
2. The bidder/purchaser must remove, at his/her own cost, the horse from the grounds of the auction, at the latest, 18 hours after the auction has finished. If the bidder/purchaser has not removed the horse in good time, he/she is in default in the law. Performance Plus Bv then has the right  to have the horse removed and stabled elsewhere, whereby the bidder/ purchaser will be charged for the costs accrued, as considered reasonable in the judgment of Performance Plus Bv. The bidder/purchaser remains responsible for the care of the horse and is liable for damage to the horse or caused by the horse.
3. When, and only when, the bidder/purchaser has fully complied with his/her obligations of payment, under which is meant obligations of payment concerning reimbursement to Performance Plus Bv, can the bidder/purchaser take delivery of the horse, whereby he/she will receive the necessary documents. Performance Plus Bv is not obliged to deliver the horse in the event that the bidder/purchaser has not fully complied with his/her payment obligations.

Stall vices and deficiencies:

1. In the event where a bidder/purchaser detects stall vices in the horse purchased, whether crib-biting, weaving or wind-sucking, the bidder/purchaser must, within 7 days after the auction, notify Performance Plus Bv in writing with a description in as much detail as possible of the nature of the stall vice. In such cases, Performance Plus Bv will remove the horse to a location of their choice with the aim to having the horse examined by a veterinary surgeon assigned by them in order to have the stall vice, as described by the bidder/purchaser, examined. The veterinary surgeon’s conclusion of the nature of the stall vice is binding. In the event where, in the judgment of the veterinary surgeon, there is such a stall vice as described by the bidder/purchaser, then the bidder/purchaser has the right to annul the sale
2. In the event that the bidder/purchaser, within the term of 7 days after the auction, does not notify Performance Plus Bv in the manner as mentioned above, of the stall vices in question or other defects, and/or in the event where the above-mentioned veterinary does not establish that there are stall vices or other defects, the bidder/purchaser does not have the right to annul the sale nor make a claim of absence of consensus ad idem.

Annulment and quashing:

1. In the event where the legal sale is annulled or quashed by the bidder/purchaser, the bidder/purchaser will remain bound to all their obligations of payment toward Performance Plus Bv, as mentioned in the conditions of auction, as far as these concern indemnities to Performance Plus Bv. The sale can be annulled or quashed if the valid legal conditions concerned are taken into consideration, insomuch as they do not deviate in law from the conditions of auction.

Liability:

1. Although Performance Plus BV strives to give the information as accurate and complete as possible, Performance Plus Bv cannot be held liable for the accuracy of the information in the catalogue, the information supplied at the auction grounds or any information made available during the auction.
2. Performance Plus Bv cannot be held liable for the accuracy of the information contained in the veterinary report, the veterinary information supplied at the auction grounds or any information made available during the auction. For these purposes the buyer/purchaser can turn to the veterinarian.
3. Performance Plus Bv cannot be held liable for any damage before, during or after the auction, sustained or perpetrated by any person, goods or horses.
4. Performance Plus Bv will not take out an insurance concerning horses or other matters, on behalf of the bidder/purchasers. As bidder/purchasers take part in the auction at their own cost and at their own risk, Performance Plus Bv advises that they take out the meant insurance themselves.
5. Performance Plus Bv is not liable for the failings of third parties.
6. Performance Plus Bv is not liable unless in the case of foul play or gross negligence by Performance Plus Bv.
7. Anyone who perpetrates damage to goods, or goods used by Performance Plus Bv, is liable for such damage.
8. 43. Bidder/purchasers are liable for any damage they may have perpetrated. Bidder/purchasers indemnify Performance Plus Bv from any liability toward third parties by which is meant other bidder/purchasers or visitors concerning this matter.

Other matters:

1. In the event where, in the business of transferring the auctioned horses to another member state of the European Union, at the request of the bidder/purchaser an invoice is sent with zero VAT, the bidder/purchaser puts him/herself under obligation, in the member state of destination, to fulfil all necessary conditions demanded and in so doing to actualize an intra-community legal transaction.
2. If application of the VAT zero rating tariff, no matter the circumstances, appears to be impossible (subsequently), then the bidder/purchaser, at that time, is still obliged to pay a sum to the amount that would be owed in the case of a domestic delivery of the horse concerned. At the request of Performance Plus Bv the bidder/purchaser is required to pay the aforementioned sum to Performance Plus Bv immediately. In such cases, the refund will be reimbursed only when and not before, the bidder/purchaser has complied with the conditions of part 39. The bidder/purchaser indemnifies Performance Plus Bv in all cases from damages that result from the non-compliance of part 39. Therein the bidder/purchaser is liable for all judicial and extra judicial costs accrued by Performance Plus Bv with a minimum sum of € 1,000.00 (including VAT).

Conversion:

1. In the case where one or more of these conditions of auction are not, or become, no longer lawful, the remaining conditions remain lawful. In such cases, a new lawful condition will come in the place of the no longer lawful condition; in which the new condition will resemble, concerning content, range and aim, as much as possible the old, no longer lawful, condition.

Disputes:

1. If, at allotment, a difference of opinion arises to the question as to whom had made the last bid, or in the event that other difficulties, confusions or disputes arise at the time of bidding and/or allotment, the auctioneer is authorized to have final say herein which is binding. In the case where the aforementioned difference of opinion concerns the last bid made, the auctioneer is authorized to continue the sale by way of bidding.
2. The legal relationship between Performance Plus Bv and the bidder/purchaser are subject solely to Dutch law, with the complete exclusion of the Vienna Sales Treaty (CISG).  Disputes, other than  specifically in pursuance of part 44, which are subject to the judgment of the auctioneer, shall be settled exclusively by the qualified judge in Zutphen.

These conditions are a translation from the Dutch language. In the case of dispute only the original Dutch version is binding.