Strauss & co - 13 February 2016, Cape Town

(including after the fall of the hammer, cancel any sale if the Auctioneer and/or The CWA believes that there may be an error or dispute of any nature whatsoever, and shall have the right, as it deems fit, to divide any lot, to combine any two or more lots, or to put up any lot for auction again. Any notice required to be given in connection with this agreement: i. if given by The CWA, shall be delivered by hand, or sent by registered post; or by email, provided such address is given in which event such address shall constitute the domicilium et citandi et executandi of the person to whom notice must be given. Notice shall be deemed to have been received by the person who is required to receive such notice, whether given personally or to a third party or any other manner as envisaged by this clause: i. on the date of delivery if delivered by hand or email; ii. on the seventh (7th) day from the date of posting, including the date of posting, if posted by prepaid registered post fromwithin the Republic of South Africa, which postage shall be deemed to have been sent on receipt of the post office of proof of posting. 15. If required by The CWA, such written notification must be given to The CWA at its email address as published in the brochure, alternatively The CWA’s published address and/or telephone number. 16. The Seller submits to the non-exclusive jurisdiction of the South African courts. 17. The Buyer and/or Seller, as the case may be, hereby pledges the goods either sold and/or bought as security to The CWA for amounts which are owing to it. 18. No variation, alteration, consensual termination, representation, condition, term or warranty, relaxation or waiver or release by The CWA, or estoppel against The CWA, or the suspension by The CWA, in respect of these terms and conditions of business, or any part thereof, shall be of any force or effect unless reduced to writing and signed by The CWA and the Buyer. 19. The Buyer shall be responsible for the payment of The CWA’s legal costs, calculated on the scale as between attorney and client , incurred by The CWA in enforcing any of its rights of its principal whether such rights are exercised by way of legal proceedings or not. 20. Notwithstanding the nature or amount of the claim by The CWA, The CWA and the Buyer hereby consent to the jurisdiction of the Magistrate’s Court otherwise having jurisdiction; this consent is without prejudice to the right of The CWA to institute proceedings and to obtain judgment or any order in the High Court of competent jurisdiction, The CWA nevertheless still being entitled to claim on the High Court scale of costs and expenses, all as set out in this agreement. C. TERMS RELATING TO BUYERS OF GOODS AT AN AUCTION OR BY PRIVATE TREATY 1. Buyer’s Registration i. Buyer bidders must prior to the commencement of an auction register his/her identity on The CWA’s Buyer’s card and such registration must with the necessary changes meet the requirements of Chapter 1 of the regulations in terms of the Financial intelligence Centre Act, 2011, published in Notice No. R. 1595 in Gazette No. 24176 of 20 December 2002, in respect of establishment and verification of identity, and sign that entry. 2. Auction Bids i. The goods (lots) sold shall be to the highest bidder whether the sum bid be equivalent to the real value or not. Where the sale is announced to be with reserve, the goods shall be sold to the highest bidder either on or in excess of the reserve price. ii. No person shall, at any bid, advance less than the amount fixed for that purpose by the Auctioneer. Bids can be retracted before the fall of the hammer but the Auctioneer may refuse any bid. iii. Should there be a dispute as to the highest bid, even after the fall of the hammer the auctioneer shall in his sole and absolute discretion, determine which bid shall be accepted and The CWA and/or the Auctioneer shall be absolved of any liability of any nature whatsoever in regard thereto. ln the event of a dispute the Auctioneer may determine the dispute in his absolute discretion, or the property may, at the Auctioneer’s option, either be put up again at the least undisputed bid, or be withdrawn. 3. Absentee Bids i. Upon request, The CWA shall execute absentee bids on behalf of intending Buyers. Absentee bids are a service provided by The CWA for the Buyers benefit and The CWA cannot be held responsible for errors or omissions with respect to the bidding process. Lots will be bought as cheaply as is allowed by other bids placed and the Seller reserves. ln the event of identical bids, the earliest will take precedence. When absentee bids are placed by telephone they are accepted at the Buyer’s risk, and must be confirmed prior to the sale by letter or facsimile. ii. AII absentee bids shall be registered with The CWA in accordance with The CWA’s procedures and requirements. The CWA reserves its rights, at its sole and absolute discretion, to receive and/or reject such absentee bids and/or to receive and/or reject absentee bids if not registered. Absentee bidders must register his/her identity as per clause 10.a above. 4. Telephone Bids i. Subject to a Buyer arranging with The CWA and subject to a Buyer completing such documentation as The CWA may require it to do, whether it be by fax or by electronic transmission, or any other form of transmission, a Buyer, on making such telephone call, is deemed to accept these Terms and Conditions and to be bound thereby and shall be permitted to bid by means of a telecommunication. The right of a Buyer to bid is subject to a telecommunication line being available, fully functional and operative. The person who makes the bid on the telephone shall be deemed to be the Buyer and shall be deemed to be personally liable for the payment of the purchase price and other amounts as are required to be paid. ln executing bids on the telephone, the Buyer waives and abandons any claim howsoever or whatsoever arising against The CWA and/or the Auctioneer, including any act or omission and/or act of negligence and/or any act on the part of The CWA and the Auctioneer, or in failing to have regard or failing to take cognisance of such bid. ii. The CWA reserves its rights, at its sole and absolute discretion, to receive and/or reject such telephone bids and/or to receive and/or reject telephone bids if given less than twenty-four hours before the auction and/or private treaty sales. iii. The CWA reserves the right to record telephone bidding and the telephone bidder consents to such recording. 5. Payment i. The hammer price as defined in clause A.1.x above, including further amounts payable in terms hereof such as Value Added Tax (if any), shall forthwith become due, owing and payable to The CWA in full immediately upon the knock down of the hammer and/or acceptance of the offer. ii. Any payment by a Buyer to The CWA shall be applied by The CWA towards any sums owing by the Buyer to The CWA on any account whatever without regard to any directions of the Buyer or his/her agent, whether express or implied. iii. The purchase price shall be paid in South African Rands. Foreign Buyers are required to make arrangements with their banking houses to transfer forex funds equivalent to the Rand value as stated on the purchase tax invoice. All fees relating to this transfer of funds from the foreign bank to The CWA’s South African account shall be for the account of the Buyer. iv. The CWA accepts only EFT’s (electronic funds transfers) and Credit Card payments. No cheque payment or cash payments will be accepted. COMPANY’S CURRENT ACCOUNT: Name of Account: The Cape Wine Auction Trust Name of Bank: STANDARD BANK OF SOUTH AFRICA LIMITED Branch Code : 00 1213 209 Account Number: 272560286 Swift code: SBZAZAJJ 6. Credit terms and Invoicing i. No credit shall be given to any Buyer unless prior to the auction The CWA has in its absolute discretion agreed in writing in response to a request to grant the Buyer credit. The Buyer shall make payment of such amounts of interest and other charges as are permitted in terms of the National Credit Act 34 of 2005. Ownership of the goods sold shall not vest and/or pass to the Buyer until such time as the full purchase price including VAT (if applicable) thereon and any other amounts have been paid in full. ii. Buyers will be invoiced within 72hrs of Auction and have 30 days in which to make payment in full, but no lot may be collected/redeemed until such time as there has been full and final payment as confirmed by The CWA. Any amounts outstanding will attract interest at 2% above the ruling South African prime interest rate iii. Any auction lots unpaid 90 days after billing will automatically attract a 10% surcharge on the amount outstanding and be subject to legal proceedings being instituted by the CWA for collection of outstanding monies. 7. Collection of goods i. Ownership of the goods purchased by a Buyer shall remain vested in The CWA, until such time as the Buyer has made full payment to The CWA which payment includes the payment of the purchase price of the goods, The Auctioneers commission (if applicable),Value Added Tax on the sale (if applicable) and any other amounts as provided for herein. ii. The Buyer will be responsible for all packing, removal, insurance, transport and storage charges. iii. The Buyer will be responsible for the collection of the goods as per prior arrangement with the donor of the goods and only upon receipt of proof of payment that such goods have been paid for. Such proof of payment shall be obtained from The CWA. 8. The Buyer’s Risk i. The Buyer shall be solely responsible for any loss of and/or damage to and/or diminution in value of and/or deterioration of any goods (lots) purchased at the auction immediately upon the knock down by the Auctioneer to the Buyer of the hammer price. 9. Breach by the Buyer i. Should the Buyer breach any of the terms and conditions thereof, alternatively not make payment in full or collect the items bought as provided herein, or should there be any other breach, the Auctioneer, agent for the Seller (alternatively The CWA in the event of it being the Seller of its own goods) will, and at its absolute and sole discretion, and without prejudice to any other rights it may have in law, be entitled to exercise one or more or all of the following remedies: i. to institute proceedings against the Buyer for payment and/or damages for breach of contract; ii. to cancel the sale of that or any other lots sold to the defaulting Buyer at the same time or at any other auction; iii. to remove, store and insure the goods at the sole expense of the defaulting Buyer and if such goods are stored either at The CWA’s premises or any other place as The CWA may require such goods to be stored at, the Buyer shall be responsible for all charges associated therewith; iv. to charge interest on suchmonies as are due, owing and payable. 119