Transnet Rail Engineering - Sale 2

AUCTIONEER’S TERMS AND CONDITIONS By participating in this Online Auction, you the bidder / buyer consent and agree to be bound by these terms and conditions in addition to the Sale Specific Terms and Conditions and our General Terms and Conditions applicable to the use of our website. For the avoidance of doubt these terms and conditions shall apply between you (“the bidder/buyer”) and GoIndustry DoveBid SA (Pty) Ltd or, where applicable, the Associated Auctioneer named in the Notice to Purchasers or its agent. 1. Auctioneer's role in Online Auctions 1.1 For the purpose of the Online Auctions GoIndustry DoveBid SA (Pty) Ltd (“GoIndustry SA”) or, where applicable, the Associated Auctioneer named in the Notice to Purchasers or its agent will be the auctioneer and agent for the seller (the "Auctioneer") and will sell goods to a buyer. The Auctioneer may at its discretion or upon the instruction of the seller: 1.1.1 alter or withdraw all or any lots up to the moment at which such lot(s) are indicated as "SOLD" (the "Announcement of Sale"); 1.1.2 where a reserve has been placed on any lot, withdraw that lot in the event that the highest bid price at the end of the Online Auction does not meet the reserve; 1.1.3 bid for any lot or lots offered for sale at the Online Auction on its own account or on behalf of a third party; and/or 1.1.4 combine (including in bulk), sub-divide or amend a lot or lots as the Auctioneer deems appropriate. 1.2 GoIndustry SA or any GoIndustry DoveBid Group Company or an Associated Auctioneer may participate as sellers in Online Auctions from time to time. 1.3 Buyers agree that GoIndustry SA and/or, where applicable, the Auctioneer may at any time and from time to time without notice: 1.3.1 discontinue an Online Auction either temporarily or permanently; or 1.3.2 extend an Online Auction beyond the period indicated on the Site. 2. Sale 2.1 Subject to the reserve price (if any) being met, each lot shall be sold to the highest bidder. All sales are final. In the event of any dispute arising between buyers such dispute shall be dealt with in such manner as the Auctioneer / GoIndustry SA may in its absolute discretion determine. The Auctioneer / GoIndustry SA reserves the right to resell any lot in dispute by putting it up for auction again. The Auctioneer / GoIndustry SA reserves the right to rescind any sale for any reason in which case the buyer’s sole remedy shall be the refund of the amount of the purchase price and any Buyer’s Premium actually paid. 2.2 The completion of a sale shall be indicated on the Site by showing the item as "SOLD" online - if an Online Auction for a lot closes without the lot being sold, it will show as "CLOSED", if a lot is withdrawn, it will show as "WITHDRAWN". 3. Regulation Bidding shall be regulated by the Auctioneer / GoIndustry SA in such manner as it may think fit and, without prejudice to the generality of the foregoing, the Auctioneer / GoIndustry SA may without ascribing any reason therefore, refuse to accept any bid or may facilitate automatic bids on behalf of buyers during the Online Auction process. 4. Notice to Purchasers The Site will show a separate Notice to Purchasers for each Online Auction which will stipulate a payment date ("Payment Date") for each lot in an Online Auction and the date by which the goods will have to be removed by the successful buyer ("Clearance Date" or "Removal Date") and certain other terms and conditions which form part of these Terms and Conditions. 5. Buyer's Premium The buyer will pay to the Auctioneer / GoIndustry SA / GoIndustry DoveBid SA such premium ("Buyer's Premium") on the Announcement of Sale as stipulated in the Notice to Purchasers for the Online Auction in question to which will be added any applicable value added tax or the equivalent or similar sales taxes in the relevant jurisdiction at the current rate. The Buyer's Premium is not negotiable and is payable by all buyers. The Auctioneer / GoIndustry SA / GoIndustry DoveBid SA, when acting as agent for the seller, may also receive commission from the seller. 6. Bidders obligations 6.1 Bidding Fee 6.1.1 Unless otherwise provided for in the Notice to Purchasers for the Online Auction in question or elsewhere, a registered participant as a condition of participation in the Online Auction, may be required to pay an upfront deposit towards the purchase price of the lot to the Auctioneer / GoIndustry SA / GoIndustry DoveBid SA prior to the announcement of sale, failing which the registered participant’s bid will not be recognised. 6.1.2 The deposit shall be held in a non-interest bearing trust account pending the announcement of the Sale. If the registered participant is not the successful bidder, the deposit shall be refunded to the registered participant by electronic transfer to the nominated bank account of the bidder within 14 days of the announcement. 6.1.3 It is recorded that GoIndustry SA is the Holder of a valid Estate Agents Fidelity Fund Certificate and is a member in good standing of the South African Institute of Auctioneers and is covered by the SAIA Fidelity Fund for moveable assets. 6.1.4 If the registered participant is the successful bidder the deposit paid by the bidder shall be retained by the Auctioneer / GoIndustry SA / GoIndustry DoveBid SA as a contribution towards the buyers’ premium as set out in clause 5 above. In such event the deposit shall be regarded as non - refundable. 6.1.5 Notwithstanding the aforesaid, the Auctioneer / GoIndustry SA / GoIndustry DoveBid SA shall not be prevented from recovering any other costs, damages or losses occasioned, including those set out in clause 6.2.3 below by virtue of the successful bidder not fulfilling its obligations to complete the online auction transaction in accordance with these terms and conditions. 6.2 Deposit 6.2.1 Unless otherwise provided for in the Notice to Purchasers for the Online Auction in question, immediately after the Announcement of the Sale, the successful buyer shall pay a 25% deposit towards the purchase price. This deposit shall be over and above the deposit required under clause 6.1 above. 6.2.2 Participant / Buyers expressly authorise GoIndustry SA / GoIndustry DoveBid SA and/or the Auctioneer to charge buyers’ credit cards for the amount of such deposit. 6.2.3 If a successful buyer fails to make a timely deposit, the Auctioneer and the seller may resell the item in question without notice. In addition, unless otherwise provided for in the Notice to Purchasers, the successful buyer shall pay the full purchase price of the lot (including in addition Buyer's Premium and any value added tax or the equivalent or similar sales taxes) to the Auctioneer on behalf of the seller (in cleared funds) on or before the Payment Date. More information about the applicable taxes may be given in the Notice to Purchasers for the Online Auction in question; however, buyers should seek their own tax advice. 6.1.4 The buyer agrees that invoices may be issued in electronic form by email. 6.1.5 Payment shall be made in the currency specified on the relevant Notice to Purchasers. Any bank charges in respect of conversion or transfer of monies shall be met by the buyer. If goods are exported, tax refunds or zero rating may apply, tax refunds (if any) will be made by the Auctioneer, subject to receipt of: (i) satisfactory proof of export by the buyer; (ii) the corresponding amount of tax refund from the relevant tax authority or the seller; and (iii) the relevant tax forms (if applicable). 6.2 Collection/Removal 6.2.1 Unless otherwise provided for in the Notice to Purchasers for the Online Auction in question, the buyer will: (i) remove lots from the seller's premises during normal business hours and not later than the Clearance Date/Removal Date for the lot in question and this condition shall be of the essence of the contract; (ii) only remove lots by previous arrangement with, and subject to the supervision of, the Auctioneer or its agent(s) or appointed representative(s); (iii) not be permitted to remove any lots it has purchased from the seller's premises until all sums due in respect thereof have been paid; and (iv) be responsible for the disconnection, dismantling, packing and collection and insurance of the purchased lot(s) at its own expense. 6.2.2 If, in the Auctioneer's opinion, removal of any lot or part thereof will be likely to cause serious damage to the seller's premises, or any other damage which the buyer is either unable or unwilling to rectify, the Auctioneer may by notice to the buyer rescind the sale of such lot or permit the removal thereof from the premises to proceed subject to such conditions as it may think fit to impose. 6.2.3 The buyer shall provide, or ensure that their agent(s) performing removals on its behalf, provide on demand, evidence of insurance policies reasonably satisfactory to the Auctioneer, GoIndustry DoveBid SA and/or the Seller. 6.2.4 Should any party claim possession of or title to all or part of a lot prior to its removal from the seller's premises, the Auctioneer reserves the right to rescind the sale thereof or to remove or permit the removal thereof from the seller's premises subject to such conditions as it may think fit to impose. 6.2.5 Should the buyer fail to comply with any of the foregoing requirements the lot or lots which have been subject to an Announcement of Sale to him or any part thereof may, without further notice, be re-offered for sale, destroyed or otherwise disposed of by the Auctioneer in any manner as it shall in its absolute discretion deem fit, and any monies paid shall be forfeited. 6.2.6 Without prejudice to any claims that the Auctioneer and/or the seller may have against the buyer for breach of contract or otherwise the buyer will become liable from the Clearance Date/Removal Date for all storage, security and administration expenses and the cost of and incidental to re-selling and/or otherwise disposing of uncleared items. 7. Buyer's responsibilities and conduct 7.1 The buyer will be responsible for all damage that it, its carriers or its agents may do to the property of any third party (and, in particular, to the seller's premises) in removing the lot(s) it has purchased. Should the Auctioneer consider such damage likely to occur, it may require the buyer to deposit such sum of money with the Auctioneer, by way of security for the costs of reinstating that part of the premises likely to be damaged by the removal of a lot, as the Auctioneer may require. Should the buyer refuse to deposit such monies, the Auctioneer may refuse the buyer access to the seller's premises for the purpose of collecting all or any of the lots it has purchased, or rescind the sale of such lot. 7.2 By placing a Bid on a lot, the buyer represents, warrants and undertakes that it has the requisite authority and capacity to enter such Bid and close the transaction and that any Bid that it makes constitutes an irrevocable offer to buy the lot in question for the full amount of the Bid. 8. International statutory compliance exclusion 8.1 It is expressly brought to the buyer's attention that, at the time of sale, any item of plant, machinery or equipment contained in the lot(s): (i) may not necessarily comply with the Health and Safety at Work Etc. Act 1974, Environmental Protection Act 1990 or any other UK and/or EC Acts, Regulations, Directives or their applicable laws or equivalent or similar laws in any relevant jurisdiction or; and (ii) could contain blue or white asbestos, hazardous substances, dangerous chemicals etc. which if not handled correctly during their removal from a site could be in breach of the Health & Safety at Work Etc. Act 1974, Control of Substances Hazardous to Health Regulations 2002 or any other current legislations covering the use of such substances in a working environment in the UK, the EC or any other relevant jurisdiction. 8.2 The buyer undertakes to: (i) remove, ship and use any purchased plant and equipment within the UK or EC or any other relevant jurisdiction in a way that does not contravene any relevant legislation and in full compliance with all applicable safety standards; (ii) comply with all current applicable legislations in any relevant jurisdiction and reasonable instructions by the Auctioneer in relation to the removal/disposal of waste including hazardous waste. 8.3 Participants agree to comply with all applicable export or import control or related laws or regulations and not to violate any applicable local, state, national or international law, statute, ordinance, rule or regulation. 8.4 Participants acknowledge that the Auctioneer is not the exporter of record of any asset unless expressly stated. The Auctioneer gives no representation or warranty concerning and has not conducted any investigation to ascertain which items, if any, constitute, for example, “Restricted Technology” for US law purposes or whose export is otherwise restricted under applicable law. The Auctioneer reserves the right to cancel or rescind any sale in an Online Transaction at any time if it determines, in its absolute discretion, that the sale does or may violate applicable export or import control or related laws and regulations. 9. Intellectual Property Rights The buyer acknowledges that any software or intellectual property rights attaching to a lot or lots may not be the property of the seller or capable of transfer by the seller. Neither the seller nor the Auctioneer is in any way authorising the use by the buyer of such software or intellectual property rights and any use of such software or exploitation of such intellectual property rights shall be at the buyer's sole risk. 10. Transfer of risk 10.1 Upon the Announcement of Sale the buyer shall assume all risks in and relating to such lots. The buyer is advised to effect in respect of all such risks arising thereafter any insurance it may consider necessary. The duty of the Auctioneer and/or the seller to make lots available shall be deemed performed upon Announcement of Sale even if a lot is subsequently damaged and/or part thereof has been lost. 10.2 Property and title in each lot shall not pass to the buyer until: (i) full payment therefore has been received or (where payment or part payment is made by cheque) until the cheque(s) in question have been cleared; and (ii) each such lot has been removed from the seller's premises in its entirety. 11. Voetstoots 11.1 All goods are sold voetstoots or "AS IS, WHERE IS, WITH ALL FAULTS AND WITHOUT RECOURSE". Illustrations, pictures or videos posted on the Site are for the convenience of the buyers only. 11.2 The Auctioneer and, where applicable, GoIndustry DoveBid SA (Pty) Ltd has used its reasonable endeavours to ensure that the description of each lot(s) appearing on the Site are accurate, but the buyer relies upon such description at its own risk. Buyers should satisfy themselves prior to the sale as to the condition of the lot and should exercise and rely on their judgment as to whether the lot accords with its description at their own risk. 11.3 Subject to the obligations accepted by GoIndustry DoveBid SA (Pty) Ltd and, where applicable, the Auctioneer under these Terms and Conditions neither the seller nor GoIndustry DoveBid nor, where applicable, the Auctioneer nor any of their respective employees or agents are responsible for errors of description or for the genuineness or authenticity of any lot and no warranty whatever is given by GoIndustry DoveBid or, where applicable, the Auctioneer, or their respective employees or agents or the seller to the buyer in respect of any lot and any express or implied conditions or warranties are hereby excluded to the greatest extent permitted by law. 12. Liability 12.1 Where the buyer loads any item of plant, machinery or equipment contained in a lot or lots to remove it from a site, neither GoIndustry DoveBid nor, where applicable, the Auctioneer shall be under any liability whatsoever to the buyer or any third party for any damage however so caused by the removal and the buyer shall be responsible for and indemnify GoIndustry DoveBid and, where applicable, the Auctioneer against any damage or loss which GoIndustry DoveBid or, where applicable, the Auctioneer may suffer or incur in respect of loss, damage or injury suffered by the buyer's employees or any third party arising from the removal of the plant, machinery or equipment. The buyer shall indemnify GoIndustry DoveBid, or, where applicable, the Auctioneer against any loss damage suffered by GoIndustry DoveBid or, where applicable, the Auctioneer which directly or indirectly is attributable to the nature of the plant, equipment or machinery acquired by the buyer whether through breakage, rust, decay, desiccation, leakage, wastage, inherent or latent defect or vice or natural deterioration. 12.2 The Auctioneer is acting as agent of the seller in an Online Auction and is not responsible for acts and omissions, material information withheld or concealed or misrepresented by the seller or any of the seller's principals, officers, directors, employees or other agents. 12.3 The Auctioneer / GoIndustry SA / GoIndustry DoveBid SA provides no representation or warranty, nor accepts liability for any claim arising under the Occupational Health and Safety Act 85 of 1993 (as amended), or similar legislation. The buyer / bidder is to make whatever enquiries are necessary to satisfy itself as to any applicable Health and Safety issues pertaining to the sale lots themselves, the location or conditions of title, the removal of such items and all relating matters. 12.4 No party shall have any liability to the other party under this agreement for any consequential loss, loss of profit and or damage to goodwill, special damages, indirect losses, business interruption losses, loss of business, contracts, opportunity and or production. 12.4 The Auctioneer / GoIndustry SA / GoIndustry DoveBid SA provides no warranty, representation or guarantee in respect of any error or interruption of the online auction process. 12.5 The Auctioneer / GoIndustry SA / GoIndustry DoveBid SA’s total liability under this agreement shall not exceed the aggregate amount actually received by the Auctioneer / GoIndustry SA under this agreement by way of the buyers premium or in terms of 6.2.1 above. 13. Choice of Law and Jurisdiction 13.1 All disputes relating to these terms and conditions between participants and the auctioneer shall be exclusively governed by and interpreted in accordance with the laws of the Republic of South Africa. 13.2 Participants and the auctioneer / GoIndustry SA hereby irrevocably submit to the exclusive jurisdiction of the South African courts over any claims, dispute or matter arising under or in connection with these sale terms and conditions or their enforceability. Each participant acknowledges that GoIndustry would not permit the participant to register as a buyer or seller if the terms of this clause 13 were not valid, binding and enforceable. 13.3 Participants irrevocably consent to any process in any legal action or proceedings arising out of or in connection with these Terms and Conditions or its enforceability being served in accordance with the provisions of these Terms and Conditions relating to the service of notices. Service shall be affected by serving documents on the participants at the domicilium address specified in 13.4 below, either by post, by fax or by email. Nothing contained in these Terms and Conditions shall affect the right to serve process in any other manner permitted by the laws of the country in which service is to be effected. 13.4 The Participants choose their respective domicilium citandi et executandi for all purposes herein as per the Participants registration contact details contained on the GoIndustry DoveBid website. 13.5 If a sale consists of real property in a country outside South Africa, the Participants and GoIndustry SA and or GoIndustry DoveBid and/or, where applicable, the Associated Auctioneer agree, at their own cost, to do all things and execute all contracting deeds, assignments, instruments, transfers and other documents as may be necessary or desirable to give full effect to the transaction in that country. 13.6 Participants consent to the jurisdiction of the Magistrates Court in terms of section 45 of the Magistrates Court Act No 32 (or as amended) in which GoIndustry SA or the Auctioneer whichever is applicable is domiciled. Notwithstanding the aforesaid GoIndustry SA / the Auctioneer shall be entitled to institute proceedings in the High Court should it so desire. 13.7 In the event of the Auctioneer / GoIndustry SA having to institute legal proceedings in respect of these terms, the participant concerned shall be liable for costs on an attorney own client scale including tracing agents fees and collection commission. 13.8 These Terms and Conditions are drawn up in the English language. If these Terms and Conditions are translated into another language, the English language text prevails.