General Terms and Conditions for Foals 

1. General Information - Scope

We, the ESI Trading GmbH, entered in the Register of Companies at the District Court (Amtsgericht Oldenburg (Oldb.), Rossegarden 5, 49688 Lastrup (hereinafter only referred to as organiser), run the auction of foals of sellers on the internet (hereinafter only referred to as internet auction) in our own name and for the account of a third party. As the organiser of the purchase agreement with the purchaser as well as of the legal relationship with the bidder (also only referred to as user or customer) and the breeder, we take these online auction conditions (hereinafter only referred to as General Terms and Conditions) as a basis. 

Our General Terms and Conditions shall apply exclusively; we do not recognize any conflicting conditions or conditions deviating from our General Terms and Conditions unless we have explicitly confirmed their validity in writing. Our General Terms and Conditions shall also apply if we fulfil delivery without reservation even though we are aware of conflicting conditions or conditions of the purchaser which deviate from our General Terms and Conditions. 

All agreements reached between us and the purchaser for the purpose of the execution of an agreed contract shall be set forth in these General Terms and Conditions. 

We reserve ownership and copyrights to any and all images, videos, drawings, descriptions and other documents that have been used by us for the auction. Before revealing them to third parties, the purchaser, the bidder or any other third party needs our express written consent. 

Our General Terms and Conditions apply in principle in the same way towards companies (§ 14 German Civil Code) and towards consumers (§ 13 German Civil Code), unless their validity is explicitly limited in terms of individual clauses in its scope. 

 

2. Organisation and execution of the online auction

2.1. Login (registration) and user account
The participation in an auction is only permitted for the natural or legal persons who have registered with the organiser. At the opening of the registration, all the questions asked by the organiser in the registration form have to be duly and correctly answered and required copies may have to be attached. A registration can be deleted at any time without giving reasons in the section “Delete my registration” on our internet platform; in this case, all registered data will be permanently deleted, as long as it is not necessary for an ongoing bidding process or the processing of a purchase that has already taken place. In this case, the deletion will only take place when it is definitely concluded that the data is not needed. For more information, please refer to number 9 of these general terms and conditions. 

Representation and legal capacity 

(a) To register for use, natural persons must be of legal adult age and have unlimited capacity to conduct business. 

(b) Natural authorised representatives of a legal entity must be mentioned by name. 

(c) Registered users receive a password. Every user is obliged to keep the password confidential. 

2.2.Sequence of the internet auction 

(a) The respective internet auction begins with an offer placed on the internet by the organiser on the platform. This is a declaration of intent directed towards the conclusion of a sales agreement by the organiser. With the offer, the bidding time is also defined by the term "auction end". This offer cannot be accepted by a simple “yes”, but is a pre-declared acceptance of the maximum bid. The organiser will only accept the maximum bid that was placed effectively by a bidder according to the terms of these general terms and conditions during the aforementioned bidding time. 

(b) Bids can exclusively only be placed on the mask installed from the platform for registered bidders and only online. Bids that have been placed in other ways will not be taken into account, even if the organiser receives them during the bidding period. Bids, for which the bidder has not stated that he agrees with the validity of these general terms and conditions for his concrete bid and that he has taken note of the right of withdrawal, are also not accepted. Bids placed until the end of the auction that are submitted for the registered user under “bid” according to these general terms and conditions, only participate in the auction if they reach the organiser before the end of the auction. The bidder bears the risk of the submission. 

(c) Before the submission of the bid, the content of the bid, including the customer data, will be summarised on an overview page. The bidder can correct his bid in the change fields provided for this purpose. By clicking on the button “submit bid”, the bidder submits a binding bid to the organiser for the conclusion of a purchase agreement. After submitting the bid, the bidder receives an automatically generated e-mail from the organiser, confirming that we have received the bid and indicating the details (confirmation of receipt). This confirmation of receipt does not constitute acceptance of a contract but only serves as confirmation of participation in the auction with the submitted bid. Each bid of each bidder will be rendered invalid with the submission of a higher bid. The respective bidder is bound to the submitted bid until the end of the bidding period. Bids, that are below the minimum bid, do not participate in the auction, even if the organiser does not receive a higher bid by the end of the auction. The purchase contract for the auctioned horse is made without any separate surcharges with the effective highest bid submitted by the registered bidder (user or customer) at the end of the bidding period. 

(d) An effective bid must correspond to the minimum bid and, moreover, at least one bidding step above the previous bidder's bid. The bidding step amounts 250,00€ for all foals entered in the auction. The bidder shall be informed by e-mail or by another appropriate means if his bid is accepted and also if he has been outbid. 

All indicated bids are subject to the applicable value added tax (currently 16%). 

(e) Information of the conclusion of the contract: The bidder who has submitted the highest effective bid at the end of the auction will be notified by e-mail or by another means on a durable medium in text form. The receipt of the notification is the confirmation of the purchase contract that has already been concluded and not an additional condition for its conclusion. Bidders who have not submitted the highest bid do not receive a notification. The maximum bid will be indicated anonymously on the platform immediately after the end of the bidding period. The notification to the purchaser includes, according to § 312 f of the German Civil Code, a confirmation of the contract, in which the content of the contract is repeated, and contains the information required by Article 246a of the Introductory Law to the German Civil Code, including the right of revocation. 

(f) We shall be entitled, at our discretion, to block registered bidders for individual auctions of individual objects or for a specific period or in general and thus fully or partially exclude from the authorisation of participation in auctions. This is only permissible if there is an important reason for which the continuation of a legal relationship with the blocked person is no longer reasonable for us. 

(g) The organiser can cancel an auction at any time before the end of the bidding period, if he decides so with an objective reason at his reasonable discretion. In case of a system failure due to technical circumstances, the organiser is also entitled to cancel the auction. In this respect, we explicitly reserve the right to revoke our respective bid submitted online according to 3. The decision of cancellation will be announced on the internet platform stating the reason. The bids that have already been submitted become invalid without replacement with the announcement. This reservation to revoke our offer to sell to the highest bidder shall terminate at the end of the auction, which has been carried out according to the announcement and ended at the end of the bidding period, without any separate declaration being necessary. Claims for compensation from bidders for technical problems of the processing of the internet auction, in particular for system failure, non-access to bids or their refusal due to technical reasons are inadmissible. 

 (h) During the ongoing auction, the organiser maintains a hotline, which can be reached at the expense of the caller during the time specified on the internet platform and with the fees stated there. The hotline is only used to resolve process problems, and not to receive bids. No commitments or contractual agreements, regardless of their type, will be made via the hotline. 

 

3. Information on the auction lot

The foals that will be auctioned on the organiser’s platform will be presented with the following information:
Name of the horse, sex, age, colour, height, photos, video, pedigree.
The above information is merely a description of the object of the auction, the organizer does not assume any guarantee of corresponding appearance and the information is not content of quality agreement in view of the future purchase contract. The size indications are only approximations. A difference with the actual size is possible. 

The minimum bid in euros will also be stated for the foals entered in the internet auction. 

The location of the foals after the end of the auction is at the seller. Due to the technical and organisational development of the Internet auction, a visit to the foals before the conclusion of the purchase contract is only possible after previous arrangement. 

The foals presented in the internet auction have been clinically examined to prepare for the internet auction.

The clinical examination carried out has been recorded in a veterinary inspection report that can be consulted by the registered customer on a link for the auction foal. The bidder is advised to have the veterinary inspection report interpreted at his own expense by his own veterinarian. The bidder is strongly advised to make use of this access to information about the health of the foal in his own interest. He cannot submit any bid as long as he has not stated that he has received the indication that he has been given access to the clinical examination documents. The result, in the form of an objective diagnosis, referring exclusively to the written and visible veterinarian inspection report is a description of the health condition of the foal engaged in the internet auction but does not constitute a consistency agreement within the meaning of § 434 of the German Civil Code. The minimum bid in euros will also be stated for the horse entered in the internet auction. The location of the horse during the auction and after the end of the auction is at the organiser. 

 

Conditions of sale

 

A. Settlement, Payment and Transition of Property
I. Knock-down prices are net prices. The price payable by the purchaser to the seller is the knock-down price plus VAT (= purchase price). The VAT raised on the knockdown price depending on the seller’s status is 0% (private sale), 10.7 % (flat-taxed farmer);19% (trader/ farmer opting for standard taxation) or VAT of country of origin from seller. For each foal, the applicable tax rate is stated on the internet page. The VAT rate is stated as declared by the exhibitor. The ESI Trading GmbH does not assume liability for this statement.


II. The ESI Trading GmbH fee for acting as an agent is 6 % of the knock-down price (net) plus 19 % VAT, payable by the purchaser.

III. The ESI Trading GmbH has arranged an obligatory insurance with the LVM Versicherung for any foal put to auction at a charge of 2 % of the gross price plus insurance tax, payable by the purchaser.

IV. In agreement with these specifications, the amount due by the purchaser will be calculated as follows:

 

knock-down price (net)
VAT
(depending on seller’s taxation status,
subtotal 1 (= selling price)
buyer’s premium at a rate
of 6 % of the knock-down price (net)
VAT (19%)
on buyer’s premium
(according to section 12 (2) UStG)
subtotal 2
subtotal 1 and 2
(selling price + buyer’s premium)
gross price
+ 2 % insurance premium
on gross price
insurance tax (19 %)
TOTAL INVOICE AMOUNT

 

V. The total invoice amount is payable immediately after the knock-down and must be transferred or settled by check to the account of the ESI Trading GmbH
VI. The foal in question remains in the property of the exhibitor in agreement with section 449 BGB until the total invoice amount has been paid to the ESI Trading GmbH; in the event of payment by cheque or money transfer, passage of title is effected by the unconditional crediting of the total invoice amount to the ESI Trading GmbH account.


VII. In the event that the purchaser does not pay the total invoice amount within five working days after the day of the auction, the seller may withdraw from the purchase contract and sell the foal elsewhere. The first purchaser is liable for any loss and also liable to pay damages to the organizer.

VIII. The exhibitor transfers their claim against the purchaser for payment of the selling price (knockdown price + VAT) to the organizer, the ESI Trading GmbH, for collection and settlement. In the event of delayed payment by the purchaser, the organizer does not advance funds to the exhibitor. In the event of delayed payment, the organizer is authorized to take action for payment of the selling price and the ancillary claims against the purchaser on behalf of the exhibitor without requiring the exhibitor’s special order. The costs for the judicial assertion of the claim are born by the exhibitor.

IX. The organizer of the auction sale should like to point out that she reserves the right to pay a commission to third parties causally involved in the conclusion of the purchase contract from the agency fee.



B. Collecting the Foal and Passing of Risk
I. The purchaser must collect the foal no later than six month after the foal’s birth at the seller’s residence. Until then, costs for upkeep including vet and farrier are born by the exhibitor/seller. Seller and purchaser may bindingly agree upon a later date of collection, incurring livery costs. Exhibitor/ seller und purchaser have to agree upon a fixed date for collecting the foal.

II. A prerequisite for collecting the foal is that it has been examined by an equine veterinary surgeon
commissioned by the seller and has been declared free from defects. As far as possible the purchaser
should be present during the veterinary examination. In the event that the purchaser is prevented
for any reason, a veterinary certificate stating the result and findings of the examination must be submitted to the purchaser immediately.

III. With the foal declared free from defects and ready for collection, passing of risk to the purchaser
will be effected. Provided that the purchaser is a consumer, passing of risk is effected by delivery to
the purchaser.

IV. A foal declared ready for collection which is not immediately collected, will incur livery costs payable to the seller/exhibitor by the purchaser. The purchaser must be notified of these costs beforehand.

V. If a foal has been purchased by several persons jointly, these persons share the liabilities arising
from the purchase at auction (purchasing price, collecting, etc) towards the seller/exhibitor as joint
and several debtors. Moreover, the purchasers are considered as joint creditors regarding their claims
arising from the auction transaction, entitling the seller/exhibitor to deliver to any of the purchasers.



C. Insurance
For all foals to be put up to auction the ESI Trading GmbH, has arranged an obligatory insurance with the LVM Versicherung based on the following conditions:

I. Insurance coverage takes effect with the knock-down.

II. Insurance coverage of the foal expires after twelve weeks (at the earliest upon the foal completing six months of age) with the insurance amount correlating to the total amount due by the purchaser.

III. The shipping of the foal to the first purchaser’s stable is included within the insurance period.

IV. The indemnity to be granted is 80 % of the particular insurance sum (up to max. 35,000.00 €)
minus possible realisation proceeds. In the case of damage the ESI Trading GmbH, and the insurance company (LVM) must be informed without delay.

D. Liability and Limitation
I. Purchaser and seller agree on the legal and factual nature of the foal as described below:
1. Information stated on the web page as to pedigree and age, as well as sex and colour.
2. The physical condition as stated in the certificate of examination issued by an equine veterinary
surgeon. This certificate states the physical condition at the moment of knock-down. Any further
written or verbal statement by the veterinarian or representatives of the organizer shall not incur liability.

II. In order to claim warranty on the auction purchase, any notice of defects has to be submitted in
written form to the exhibitor/seller by the purchaser and for information to the ESI Trading GmbH.

III. Liability for deficiencies or other damages after passing of risk is limited to two years in case the
seller is an entrepreneur (section 14 BGB) and the purchaser a consumer (section 13 BGB) and to one
year in all other cases.
IV. The liability limitations and exclusions do not extend to liability claims as to damages of life,
body or health resulting from at least negligent breach of duty by the seller or the ESI Trading GmbH or legal representative or vicarious agent. The liability limitations
and exclusions do not extend to liability claims as to other damages resulting from at least gross
negligent breach of duty by the ESI Trading GmbH legal representative or vicarious agent.



E. Changes, Applicable Law, Place of Jurisdiction, Severability Clause
I. ESI Trading GmbH and auctioneer reserve the right to
alter the proceedings and schedule of the event. Alterations will be announced in due time.

II. German Law shall apply under exclusion of the United Nations Convention on Contracts for
the International Sale of Goods (GISG).

III. Place of jurisdiction for all conflicts arising out of the contract between purchaser and organizer, the ESI Trading GmbH, shall be the organizer’s registered
seat provided that the purchaser is a merchant, a legal entity governed by public law or specialized agency subject to public law or the purchaser has
no place of general jurisdiction in Germany.

IV. In the event that any or several of the conditions stated above should be or become void, this shall not affect any other conditions.
In case of doubt, the German version of the conditions of sale is given priority to the English translation.

Stübben Bucas Covalliero