CONDITIONS OF BUSINESS
The contractual relationship of Africa Travel Week and How Many Elephants with prospective Buyers governed by:
- the conditions set out below;
- any additional or special Terms and Conditions that Africa Travel Week and How Many Elephants may impose (whether in the form of notices displayed at the premises at which any auction is conducted or announced by the Auctioneer prior to or during any auction and whether in respect of any specific lot or in general); and
- such other terms and conditions as may be set out in any relevant catalogue (collectively referred to as the “General Conditions of Business”)
In these General Conditions of Business, headings are for convenience only and shall not be used in their interpretation. In these General Conditions of Business, any expression which denotes any gender shall include the other genders, any expression which denotes the singular shall include the plural (and vice versa), any expression which denotes a natural person shall include a juristic person (and vice versa) and the following terms shall have the following meanings:
- “Act” means the Consumer Protection Act 68 of 2008, as amended from time to time and regulations promulgated in respect thereof;
- “Auction” means any auction sale at which a lot is offered for sale by Africa Travel Week and How Many Elephants;
- “Auction” How Many Elephants Auction powered by Africa Travel Week;
- “Auctioneer” means the representative(s) of Africa Travel Week and How Many Elephants
- “Bidder” means any person making, attempting or considering to make a bid or offer to buy a lot at an auction, including the Buyer of that lot;
- “Buyer” means the Bidder who makes the bid or offer for any lot that is finally accepted by the Auctioneer at a sale of that lot, and where the Buyer is an agent acting for a Principal, the Buyer and the Buyer’s Principal jointly and severally;
- “Catalogue” means any advertisement, brochure, estimate, price list or other publication (in whatever medium, printed, electronically, digitally or otherwise) published by Africa Travel Week in respect of any auction;
- “Consumer” means a consumer as defined in section 1 of the Act and whose annual turnover or assets value falls below the threshold contemplated in section 5(2) of the Act and to whom the Act applies;
- “Hammer Price” means the bid or offer made by the Buyer for any lot that is finally accepted by the Auctioneer at a sale of that lot;
- “Lot” means any item or items to be offered for sale by Africa Travel Week at an auction and identified as such;
- “Purchase Price” means the hammer price of any lot at a sale thereof, plus all recoverable expenses for which the Buyer is liable in respect of the lot;
- “Regulations” means the regulations promulgated in terms of section 120 of the Act;
- “Reserve Price” means the confidential minimum hammer price (if any) at which a lot may be sold at an auction, as agreed in writing between the Seller of that lot and Africa Travel Week and How Many Elephants;
- “Seller” means the person named as the Seller of any lot, being the person that offers the lot for sale;
- “Seller’s Commission” means the commission payable by the Seller to Old Johannesburg Warehouse on the sale of a lot that is calculated on the hammer price of that lot at the relevant current rate, with VAT at prevailing rates added to this commission only; and
- “VAT” means Value Added Tax levied in terms of the Value Added Tax Act, No 89 of 1991.
- “Website” means the website address of the auction house being – www.atwconnect.com.
2. BUYER’S CONDITIONS
2.1 The Buyer
- Any dispute of whatever nature about any bid or about the identity of the Buyer shall be determined at the Auctioneer’s absolute discretion.
- All Bidders wishing to make bids or offers in respect of any lot must complete a registration form prior to that lot being offered for sale, which registration form will include an acknowledgement by the Bidder that he is acquainted with and bound by these General Conditions of Business. Bidders shall be personally liable for their bids and offers made during any auction and shall be jointly and severally liable with their Principals if acting as an Agent. Subject to rule 30(2) of the Regulations, the Auctioneer shall ensure that every prospective Bidder must, prior to the commencement of an auction, register his or her identity in the Bidder’s Record, and such registration shall with necessary changes meet the requirements of Chapter 1 of the rules promulgated in terms of the Financial Intelligence Centre Act, No 38 of 2001 (“FICA”).
- Examination Of Lots
- It is the responsibility of all prospective Buyers to examine and satisfy themselves as to the condition of each lot prior to the auction, and that the lot matches any oral or written description provided by the How Many Elephants and Africa Travel Week.
- Africa Travel Week and How Many Elephants shall not be liable for any error, misstatement, or omission in the description of a lot (whether in any catalogue or otherwise), unless Africa Travel Week and How Many Elephants, its employees or agents, engaged in intentional misleading or deceptive conduct.
- Exclusions And Limitations Of Liability To Buyer
- Neither Africa Travel Week nor How Many Elephants:
- shall be liable for any omissions, errors or misrepresentations in any information (whether written or otherwise and whether provided in a catalogue or otherwise) provided to Bidders, or for any acts or omissions in connection with the conduct of any auction of for any matter relating to the sale of any lot, including when caused by the negligence of, Africa Travel Week, their respective employees and/or agents;
- The risk in any goods sold, shall pass to the Buyer immediately from the fall of the Auctioneer’s hammer. The purchaser acknowledges that the Auctioneer will secure the goods in the same way as any other goods under his control and is not liable in any way for any damage to, or shortfall in, the goods or any goods stolen or destroyed before the Buyer takes delivery of the purchased goods.
- All Buyers are advised to arrange for their own insurance cover for purchased lots effective from the day after the date of sale for purposes of protecting their interests as Africa Travel Week cannot warrant that the Seller has insured its interests in the lot or that Old Johannesburg Warehouse insurance cover will extend to all risks.
- Africa Travel Week does not accept any responsibility for lots damaged by insect infection, changes in atmospheric or climatic conditions or other conditions outside its control, and shall not be liable for damage to glass or picture frames.
- Neither Africa Travel Week nor How Many Elephants:
2.4 Conduct Of The Auction
2.4.1 The Auctioneer has the absolute discretion to withdraw or re-offer lots for sale, to accept and refuse bids and/or to re-open the bidding on any lots should he believe there may be a dispute of whatever nature or error of whatever nature, and may further take such other action as he in his absolute discretion deems necessary or appropriate. The Auctioneer shall commence and advance the bidding or offers for any lot in such increments as he considers appropriate.
2.5 Payment And Collection
2.5.1 The Buyer shall pay How Many Elephants the Purchase Price immediately after a lot is sold, unless expressly agreed between the parties in writing, and shall provide How Many Elephants with details of his name and address and, if so requested, proof of identity and any other information that How Many Elephants may require.
2.5.2 Unless otherwise agreed in advance in writing, the Buyer shall make full payment of all amounts due by the Buyer to How Many Elephants on the date of sale (or on such other date as How Many Elephants and the Buyer may agree upon in writing) in, electronic funds transfer, credit or debit card.
2.5.3 Ownership in a lot shall not pass to the Buyer thereof until How Many Elephants has received settlement of the full Purchase Price of that lot in cleared funds. Furthermore, How Many Elephants shall not release a lot to the Buyer prior to full payment thereof. However, should How Many Elephants agree to release a lot to the Buyer prior to payment of the Purchase Price, full ownership of such lot shall not pass to the Buyer, nor shall the Buyer’s obligations to pay the Purchase Price be impacted, until such receipt by How Many Elephants of the full Purchase Price in cleared funds.
2.5.5 The Buyer shall collect the purchased goods at his sole risk and cost immediately after the auction has finished, or on the Wednesday 13 April from 11am to 3pm. Goods can be couriered to the Buyer at the Buyer’s own cost.
2.5.6 The refusal of any approval, license, consent, permit or clearance as required by foreign or local law(s) shall not affect the Buyer’s obligation to pay for the lot.
2.5.7 The Buyer shall be and remain responsible for any removal, storage, or other charges for any lot and must at his own expense ensure that the lot purchased is removed immediately after the auction but not until payment of the total amount due to How Many Elephants has been received by How Many Elephnats. All risk of loss or damage to the purchased lot shall be borne by the Buyer from the moment the Buyer’s bid is accepted by How Many Elephants in the manner referred to above. Neither Africa Travel Week nor How Many Elephants be nor its servants or agents shall accordingly be responsible for any loss or damage of any kind, whether caused by negligence or otherwise, from date of the sale of the lot, whilst the lot is in their possession or control.
2.5.8 All packaging and handling of lots is at the Buyer’s risk and expense, and will have to be attended to by the Buyer, and How Many Elephants and How Many Elephants shall not be liable for any acts or omissions of any packers or shippers.
2.6 Remedies For Non-Payment Or Failure To Collect
Without prejudice to any rights that the Seller may have if any lot is not paid for in full or removed in accordance with the conditions of 2.5 above, or if there is any other breach of these General Conditions of Business by the Buyer, How Many Elephants and Africa Travel Week as Agent of the Seller or as Principal of a lot shall, at its absolute discretion and without limiting any other rights or remedies that may be available to it or the Seller hereunder or at law, be entitled to exercise one or more of the following remedies:
2.6.1 To remove, store and insure the lot at its premises or elsewhere and at the Buyer’s sole risk and expense;
2.6.2 To rescind the sale of that or any other lots sold to the Buyer at the same or any other auction;
2.6.3 To reject future bids and offers on any lot from the Buyer;
2.6.4 To proceed with legal action against the Buyer for damages;
2.6.5 To re-sell the lot or cause it to be re-sold, with estimates and reserves at How Many Elephants’s sole discretion, in which event the Buyer shall be liable for any shortfall between the original Purchase Price and the amount received on the re-sale of the lot, including expenses incurred by Africa Travel Week and How Many Elephants in such resale;
2.6.6 To retain that or any other lots sold to the Buyer at the same time or at any other auction and to release such lots only after payment of the total amount due;
2.6.7 To charge interest at a rate not exceeding the prevailing prime rate plus 3% per month on the total amount due to the extent that it remains unpaid after the date of the auction.
2.6.8 The Buyer consents in terms of section 45 of the Magistrates’ Courts Act, No 32 of 1944, as amended, to Africa Travel Week and How Many Elephants, as the case may be, instituting any legal proceedings for enforcing any of its rights in terms of these General Conditions of Business in the Magistrate’s Court of any district having jurisdiction in respect of the bidder by virtue of section 28(1) of the aforesaid Act. Notwithstanding the bidder’s consent to the jurisdiction of the Magistrate’s Court aforementioned, Africa Travel Week and How Many Elephants reserve the right to institute legal proceedings against the Buyer in any other competent court having jurisdiction in the matter, including but not limited to any High Court of the Republic of South Africa.
2.7 Cites Permits, Import, Export, Copyright Restrictions & Licenses
Africa Travel Week advises Buyers from outside the Republic of South Africa to familiarize themselves with the laws of their own countries regulating imports
RULES OF AUCTION
3. Rules Relating To Advertising
3.1 All goods forming the subject of auction have been advertised in compliance with the regulations in such a manner that the general public has had a reasonable opportunity to become aware of the auction, the goods on offer, and these rules governing the auction.
3.2 A consumer may, at any time during ordinary business hours, request that the Auctioneer to provide him with access to an advertisement relating to the auction, and the Auctioneer shall forthwith, without charging any fee whatsoever, comply with such a request.
3.3 The Auctioneer may provide a Bidder with the website which will provide a copy of the full advertisement in a format generally used.
The auction will commence at a published date and time, and will not be delayed to enable any specific person or more persons in general to take part in the auction.
5. Bidding Outcome
A Bidder making the highest accepted bid for a lot shall become the Buyer immediately as such lots have been knocked down to him and where the Buyer is an agent acting for a Principal, the Buyer and the Buyer’s Principal jointly and severally. Should there be any dispute whatsoever over, or in respect of, any lot the auctioneer shall be entitled to settle such dispute at his sole discretion which shall include, but not be limited to, the absolute discretion to re-sell such lot or declare any bidder to be the purchaser. No party shall have a claim for damages of any nature in the event of the auctioneer settling any dispute. The Auctioneer’s decision is final and binding on all of the Buyers.
6. Bidder’s Record
A prospective Bidder in an auction to be held via the internet or other electronic platform must register by providing: his full names, identification or passport number, age, physical address; and the details of the means by which payment will be affected.