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Affie 100 Fonds Trust
Art Auction Terms and
Conditions
IntroductionThe Affie 100 Fonds Trust (‘Trust’) is a Public Benefit Organisation. The Trust, as auctioneers, acts as agents of the seller of a lot. The contractual relationship of the Trust with prospective buyers and sellers is governed by the terms and conditions set out herein (‘general conditions of auction’) and any special terms and conditions that the Trust may impose by notice or in any catalogue. The Trust reserves the right to amend or delete any part of the website and the general conditions of auction at any time and without prior notice. You should review the general conditions of auction on a continual basis and remain up-to-date in respect of any changes. In terms of section 11 of the Electronic Communications and Transactions Act, 25 of 2002 (‘ECT Act’) and the common law, these general conditions of auction are valid, binding and enforceable against all persons that click to accept these conditions and access or use the website.
1. DefinitionsIn these general conditions of auction, headings are for convenience only and shall not be used in their interpretation, and unless the context clearly indicates a contrary intention, 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:
1.1 ‘AHS’ means the Afrikaanse Hoër Seunskool;1.2 ‘AHMP’ means the Afrikaanse Hoër Meisieskool Pretoria;1.3 ‘auction’ means any auction sale (effected or conducted through whatever medium, in person, online or otherwise) at which a lot is offered for sale by the Trust;1.4 ‘auctioneer’ means the representative of the Trust conducting an auction;1.5 ‘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;1.6 ‘business day’ means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa;1.7 ‘buyer’ means the bidder who makes the bid or offer for any lot that is finally accepted by the auctioneer (after determination by the auctioneer of any dispute that may exist in respect thereof) at a sale of that lot, and where the buyer is an agent acting for a principal, it means the buyer and the buyer’s principal jointly and severally;1.8 ‘catalogue’ means any advertisement, brochure, estimate, pricelist and other publication (in whatever medium, electronically or otherwise) published by the Trust in respect of any auction;1.9 ‘Consumer Protection Act’ means the Consumer Protection Act, 68 of 2008, as amended from time to time;1.10 ‘ECT Act’ means the Electronic Communications and Transactions Act, 25 of 2002, as amended from time to time;1.11 ‘forgery’ means an imitation made with the intention of deceiving as to authorship, origin, date, age, period, culture or source, which is not shown to be such in the description in the catalogue and which at the date of the sale had a value materially less than it would have had if it had been in accordance with that description and includes any misrepresentation made with the intention of deceiving as to authorship, origin, date, age, period, culture or source;1.12 ‘hammer price’ means the bid or offer made by the buyer (being inclusive of any VAT) for any lot that is finally accepted by the auctioneer (after determination by the auctioneer of any dispute that may exist in respect thereof) at a sale of that lot;1.13 ‘lot’ means any item, items, work or artwork to be offered for sale as a unit and identified as such by the Trust at the auction. Each lot is, unless it is indicated to the contrary, regarded to be the subject of a separate transaction;1.14 ‘parties’ means the bidder, buyer, seller and the Trust;1.15 ‘PBHS’ means the Pretoria Boys High School;1.16 ‘personal information’ means any information supplied to the Trust by a bidder, buyer, seller or user of the website upon submission of an Exhibition Proposal or registration as a bidder or otherwise, or information relating to a bidder, buyer, seller or user of the website that identifies the bidder, buyer, seller or user or could reasonably be used to identify the bidder, buyer, seller or user regardless of the medium involved;1.17 ‘PHSG’ means the Pretoria High School for Girls;1.18 ‘private treaty’ means the sale of any lot other than by auction sale at a price privately agreed on by the buyer and Trust or seller, as the case may be;1.19 ‘purchase price’ means the hammer price of any lot at a sale thereof (being inclusive of VAT), plus all recoverable expenses for which the buyer is liable in respect of that lot (if any);1.20 ‘recoverable expenses’ includes all fees, taxes (including VAT), charges and expenses incurred by the Trust in relation to any lot that the Trust is entitled to recover from a buyer or seller;1.21 ‘reserve’ means the confidential minimum amount (being inclusive of VAT) which a seller is willing to accept for his/her artwork plus the seller’s commission;1.22 ‘sale’ means the sale of any lot at an auction after final acceptance by the auctioneer of a bid, and includes a sale done by private treaty, and ‘sell’ and ‘sold’ shall have corresponding meanings;1.23 ‘sale proceeds’ means the amount due by the Trust to the seller of a lot in respect of the sale of that lot, made up of the hammer price of the lot, less the applicable seller’s commission for that lot, less all recoverable expenses for which the seller is liable in respect of that lot and any other amounts due to the Trust by the seller in whatever capacity and howsoever arising;1.24 ‘seller’ means the artist or art student named as the seller of any lot, being the artist or art student that offers the lot for sale;1.25 ‘seller’s commission’ means the commission payable by the seller to the Trust on the sale of a lot and is calculated as the difference between the confidential minimum amount (being inclusive of VAT) which a seller is willing to accept for his/her artwork(s), and the hammer price of the relevant lot;1.26 ‘Trust’ means The Affie 100 Fonds Trust;1.27 ‘VAT’ means value-added tax levied in terms of the Value-Added Tax Act, 89 of 1991, including any similar tax which may be imposed in place thereof from time to time; and1.28 ‘website’ means the Trust’s website located at https://www.Affie100.co.za and includes any part or element thereof.
2. Participants2.1 The Trust has created an online auction platform and made exhibition space available at AHS to artists and art students who wish to support the fund raising of the Trust.2.2 Artists are invited to partake in an art auction comprising an online auction that opens two weeks prior to the gala event and ends during an exhibition gala evening on 14 October 2023 at AHS, with the gala being subject to any lockdown or COVID-19 regulations. Attendees of the exhibition gala evening will have access to live auction updates and be able to bid online. Attendees should preferably register as bidders prior to the gala.2.3 Art students of AHS and AHMP will also be invited and a selection committee appointed by the Trust will approve work of art students to form part of a parallel exhibition during the exhibition gala evening on 14 October 2023 at AHS.
3. Application to take part3.1 Applications are made by submitting an exhibition proposal online by following the link provided on the website (‘Exhibition Proposal’).3.2 Willingness to participate should be made and communicated by 31 July 2023.3.3 Exhibition Proposals should be submitted before 1 September 2023.3.4 A maximum of 4 works may be submitted of which 2 may be selected.3.5 Selection will be in the selection committee’s absolute discretion and also subject to availability of exhibition space.3.6 The selection committee aims to maintain quality exhibitions that are non-racial, non-sexual and non-political, and therefore reserves the right to select works that are suitable and in accordance with the ethos and values of the school environment.3.7 The selection committee will consider the Exhibition Proposals and written acceptance of Exhibition Proposals will be e-mailed to applicants.
4. Art auction donation and seller’s commissionIn order to participate in the fund raising, the artist or art student agrees to the seller’s commission as defined above, being the commission payable by the seller to the Trust on the sale of a lot and is calculated as the difference between the confidential minimum amount (being inclusive of VAT) which a seller is willing to accept for his/her artwork(s), and the hammer price of the relevant lot.In order to participate in the fund raising, the artist or art student agrees that bids will begin at approximately 10% above the aforesaid confidential minimum amount (being inclusive of VAT), but subject to the Trust’s sole discretion.
5. Price of artwork5.1 A confidential minimum amount (being inclusive of VAT) which an artist or art student is willing to accept for his/her artwork shall be communicated by the artist or art student to the Trust in writing upon submission of the Exhibition Proposal.5.2 The minimum amount shall be consistent with past sales and current pricing in other galleries, the artist’s website, etc. HOWEVER, ARTISTS MUST BEAR IN MIND THE NATURE OF AN AUCTION, ITS CHARITABLE PURPOSE AND THAT THE SELLER’S COMMISSION MUST STILL BE ADDED TO THE MINIMUM AMOUNT FOR DETERMINATION OF THE RESERVE.5.3 Bidding for all artworks that are displayed and marketed via the online auction will start at the reserve.
6. Payment of artworks sold6.1 The artist or art student will be paid the sale proceeds as defined above, being the amount due by the Trust to the seller of a lot in respect of the sale of that lot, made up of the hammer price of the lot, less the applicable seller’s commission for that lot, less all recoverable expenses for which the seller is liable in respect of that lot and any other amounts due to the Trust by the seller in whatever capacity and howsoever arising.6.2 The sale proceeds will only be paid to the artist or art student within five working days of actual receipt of the purchase price from a buyer.6.3 Notwithstanding any bid being the highest and/or higher than the reserve at the close of the online auction (at the end of the exhibition gala evening), a bid will only be finally accepted upon communication of such acceptance by the Trust to the bidder. A bidder may not withdraw any bid after close of the online auction (at the end of the exhibition gala evening).6.4 Buyers of works from art students must be aware that some of these works must remain at the relevant school for one year after completion of the school year by the relevant art student. Delivery to the buyer can therefore only occur after such period. Artworks subject to this condition will be marked as such.6.5 If a buyer fails to pay the purchase price within 72 hours of acceptance of a bid, the Trust will despatch a notice to such buyer. If a buyer fails to pay the purchase price within seven working days of despatch of such notice, the Trust may cancel the sale.6.6 Upon cancellation of the sale, the work will be returned to the artist or sold by private treaty by the Trust as agreed with the seller.6.7 The artist or art student will not have any claim whatsoever against the Trust for cancellation of the sale.6.8 Artists shall provide the Trust with their correct banking details upon submitting the Exhibition Proposal. No cash payments will be made.
7. What is included in the exhibition and online auction?7.1 Card machines will be available to process sales on the evening of 14 October 2023, while automated payment will be available on the website.7.2 A permanent record will be kept in the form of an online exhibition website.7.3 The Trust will arrange insurance, packaging and shipping of artworks sold to buyers if required in writing by a buyer, but this will constitute recoverable expenses for the buyer’s account.7.4 A curator will assist in setting up the exhibition and adjusting the lighting.7.5 Exhibition insurance cover may be provided. See ‘Insurance and Liability’ below.7.6 The exhibition will be photographed.7.7 Tickets will be sold to the public to attend the exhibition gala evening.7.8 Food, beverages and music will form part of the exhibition gala evening, subject to any lockdown or COVID-19 regulations.7.9 Artists will receive two complimentary tickets for the exhibition gala evening and are encouraged to invite family and friends and avail themselves to discuss their artworks with buyers and guests.
8. What else is required of artists?8.1 All insurance, packaging and transport of artworks to AHS for purposes of the exhibition gala evening is for the artist’s own account.8.2 Artists must at their cost deliver artworks to AHS on 12 October 2023 and artworks must remain at AHS from 12 October 2023 until the end of the exhibition gala evening on 14 October 2023.8.3 Artists residing in Pretoria are required to collect, by latest 16:00 on 15 or 16 October 2023 artworks that were not sold. Unsold artworks will be shipped by the Trust to artists residing outside Pretoria.
9. Insurance and liability9.1 The Trust may provide insurance of artworks on the AHS premises up to a maximum insured amount of R20,000, which includes insurance for theft or malicious damage but only for the stipulated time as determined by the Trust (‘exhibition insurance’). This will not include insurance cover for mobile phones, laptops and any other personal items.9.2 The exhibition insurance cover will not apply to the transportation of artworks to and from the AHS premises.9.3 The exhibition insurance will only cover the confidential minimum amount (being inclusive of VAT) up to a maximum amount of R20,000, and not the retail price of each artwork.9.4 In order to qualify for exhibition insurance, a full detailed inventory of all artworks to be exhibited needs to be submitted no less than two weeks prior to the exhibition gala evening of 14 October 2023.9.5 In case of a claim, any loss above R20,000 and any excess amount as stipulated by the policy will be for the artist’s account. This is applicable for each artwork claimed by the artist.9.6 The Trust shall not be liable for any loss or damage to artworks whether or not caused by its negligence or otherwise.9.7 Artists may at their own cost procure additional insurance cover should they wish.
10. Marketing10.1 Artists will be entitled to an exhibition listing on the website and possible inclusion in any AHS newsletter prior to 14 October 2023.10.2 By submitting digital images for the Exhibition Proposal, the artist agrees, on an irrevocable basis, that the Trust may reproduce any such images of artworks free of charge for the purposes of marketing and promotion.10.3 The Trust reserves the right to advertise the auction’s information and images via direct email and Instagram and Facebook posts and any other appropriate advertising platforms it deems fit.10.4 Each artist may also promote the online auction and exhibition gala evening on his/her own platform.
11. The exhibition set-up11.1 A curator will assist in setting up the exhibition and ensuring good visibility of all artworks.11.2 The art will be curated and exhibited professionally on the 14th of October 202311.3 Display equipment will be provided by the Trust at the exhibition venue, unless unusual display equipment is required, in which case artists are to provide same.11.4 All artworks must be supplied to AHS in perfect condition and exhibition ready on 12 October 2023.11.5 Artworks must remain at AHS from 12 October 2023 until the end of the exhibition gala evening on 14 October 2023.11.6 Artists residing in Pretoria are required to collect, by latest 16:00 on 15/16 October 2023 artworks that were not sold. Unsold artworks will be shipped by the Trust to artists residing outside Pretoria.11.7 No artwork may be stored at AHS after the exhibition gala evening is over.11.8 The Trust reserves the right to not exhibit artwork that the selection committee considers inappropriate. This includes, but is not limited to, artworks that depict images of a sexual nature, have pornographic content, contain racism, are offensive to religious beliefs, support extreme political views or denigrates older or disabled people. Artworks should be in accordance with the AHS ethos and values.11.9 The Trust will compile labels to display at the exhibition from the information submitted by artists for the Exhibition Proposal.
12. Conditions mainly concerning sellers12.1 The seller irrevocably instructs the Trust to offer for sale at an auction all works submitted for sale by the seller and received and accepted by the Trust and to sell the same to the relevant buyer of the lot of which those works form part, provided that the bid or offer accepted from that buyer is equal to or higher than the reserve (if any) on that lot.12.2 If any work submitted for sale by the seller and received and accepted by the Trust in accordance with the clause above was unsold on auction, and if the Trust receives a bid or offer from a buyer, then the Trust may proceed to sell same (taking into account the deduction of the applicable seller’s commission and recoverable expenses for which the seller is liable), whether by private treaty at the venue or on the commerce portions of the website or otherwise, after contacting the seller and obtaining confirmation from the seller to do so. Where a work is made available for sale by private treaty, the Trust will sell the work on behalf of the seller to the buyer at the purchase price determined and agreed to by the seller with all conditions and seller’s commission still applicable.12.3 The Trust has the right, in its absolute discretion, to offer a work referred to above for sale under a lot, to refuse any bid or offer, to divide any lot, to combine two or more lots, to withdraw any lot from an auction, to determine the description of lots (whether in any catalogue or otherwise), to store accepted works at the auction premises or any other location as it may deem fit and whether or not to seek the opinion of experts.12.4 The Trust shall not be under any obligation to disclose the name of the buyer to the seller, save for the circumstances contemplated elsewhere in these general conditions of auction.
13. Descriptions13.1 The seller acknowledges that the Trust is entitled to rely on the accuracy of the description of a lot as provided by or on behalf of the seller in his/her Exhibition Proposal.13.2 The Trust shall not be liable for any error, misstatement or omission in the description of a lot (whether in any catalogue or otherwise).
14. Conditions mainly concerning buyers14.1 Any dispute of whatever nature about any bid or about the identity of the buyer (including without limitation any dispute about the validity of any bid, or whether a bid has been made, or any dispute between two or more bidders or between the auctioneer and one or more bidders) shall be determined at the auctioneer’s absolute discretion.14.2 Every bidder shall be deemed to act as principal unless, prior to the commencement of any auction, the Trust is provided with a written acknowledgement from a third party in respect of whom a particular bidder is acting as agent, which acknowledgement must identify the third party principal who must also then register as a bidder.14.3 All bidders wishing to make bids or offers in respect of any lot must complete an online bidder registration form prior to that lot being offered for sale, which registration form will include an acknowledgement by the bidder that he/she accepts these general conditions of auction. 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 agent.14.4 The following information must accompany the bidder registration form:14.4.1 for individuals: photo identification (driver’s licence, national identity card, or passport) and, proof of current address (for example, a current utility bill or bank statement);14.4.2 for corporate clients: certificate of incorporation, memorandum of incorporation or equivalent document(s) showing the name and registered address together with documentary proof of directors and beneficial owners; and14.4.3 for trusts, partnerships, offshore companies and other business structures: please contact us in advance to discuss our requirements.14.5 Prospective bidders shall register with the Trust by way of the registration form before bidding in the auction, while a R5,000 holding deposit may be placed on their credit cards.14.6 Bidders who do not attend the exhibition gala evening must be aware that the online auction only closes at the end of the exhibition gala evening. Attendees of the exhibition gala evening will during the gala evening also make online bids. It is therefore the responsibility of absentee bidders to stay online during the exhibition gala evening so as to avoid disappointment. The Trust will not be responsible for any losses arising from missed bids.14.7 The Trust will not be liable for any failure to receive any bid from any cause whatsoever, including but not limited to website- or internet related errors.14.8 If identical bids are made, the Trust will give precedence to the first bid received.
15. Examination of lots15.1 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 visual, oral or written description provided by the seller and/or the Trust. All illustrations of a lot in any catalogue are intended merely as guidance for bidders and do not provide definitive information as to colours, patterns, condition or damage to any lot (including any picture frame).15.2 The Trust shall not be liable for any error, misstatement or omission in the description of a lot (whether in any catalogue or otherwise).15.3 In bidding for any lot, all bidders confirm that they have not been induced to make any bid or offer by any representation of the seller or the Trust.
16. Exclusions and limitations of liability16.1 If a lot sold to a buyer proves to be a forgery (which will only be the case if an expert appointed by the Trust for such purpose confirms same in writing), the buyer may (as his sole remedy hereunder or at law) return the lot to the Trust within seven days of the date of the sale of that lot in the same condition in which it was as at the date of sale, together with a written statement by the buyer detailing the defects to the lot, the date of the sale and the number of the lot. Should the Trust be satisfied in its absolute discretion that the lot is a forgery, the sale of that lot shall be set aside and the purchase price of that lot shall be refunded to the buyer.16.2 Neither the Trust nor the seller:16.2.1 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 or for any matter relating to the sale of any lot, including when caused by the negligence of the seller, the Trust, their respective employees and/or agents; and16.2.2 gives any guarantee or warranty to bidders other than those expressly set out in these general conditions of auction (if any), and any implied conditions, guarantees and warranties are excluded.16.3 Without prejudice to any other provision of these general conditions of auction, any claim against the Trust and/or the seller of a lot by a bidder shall be limited to the purchase price of the relevant lot. Neither the Trust nor the seller shall be liable for any indirect or consequential losses.16.4 A purchased lot shall be at the buyer’s risk in all respects from the acceptance of such buyer’s bid, whether or not payment has been made, and neither the Trust nor the seller shall thereafter be liable for, and the buyer indemnifies the Trust against, any loss or damage of any kind, including when caused by the negligence of the Trust and/or its employees or agents.16.5 All buyers are advised to arrange for their own insurance cover for purchased lots effective from the day after the exhibition gala evening for purposes of protecting their interests. The Trust cannot warrant that the seller has insured its interests in the lot or that the Trust’s exhibition insurance cover will extend to all risks.16.6 The Trust does not accept any responsibility for lots damaged by insect infestation, changes in atmospheric conditions or other conditions outside its control, and shall not be liable for damage to glass or picture frames. The Trust shall not be obliged to provide picture frames for any lot. If a lot is sold with a picture frame, such picture frame shall be provided by the seller on an ‘as is’ basis. The Trust does not accept any responsibility for the condition of any picture frames and cannot be held responsible for any losses, which may be incurred.
17. Import, export and copyright restrictions17.1 Save as expressly set out, the Trust and the seller make no representation or warranties as to whether any lot is subject to export, import or copyright restrictions. It is the buyer’s sole responsibility to obtain all approvals, licences, consents, permits and clearances and to pay any duties or taxes that may be or become required by law for the sale and delivery of any lot to the buyer. The denial of any permit or licence shall not justify cancellation or rescission of the sale contract or delay in payment. In this regard, and without limiting the generality of the foregoing: Property made of or incorporating (irrespective of percentage) materials from endangered and other protected species of wildlife are marked with the symbol * in the lot description. All are identified in the lot description with language indicating (as such). Prospective purchasers are advised that several countries prohibit altogether the importation of property containing certain materials, and that other countries require a permit (e.g. a CITES permit) from the relevant regulatory agencies in the countries of exportation as well as importation.17.2 Certain works of art, collector’s pieces and antiques may be regarded as prohibited and/or restricted in South Africa and would require specific permits and approvals. It is the buyer’s sole responsibility to obtain any relevant export or import permit or licence. The Trust cannot ensure that a permit or licence will be obtained and are not responsible for any costs incurred in either securing or denial of any permits or licences required for export or import. The inability of a buyer to export or import any such works of art, collector’s pieces and antiques is not a basis for cancellation or rescission of the sale.17.3 Other countries regulate the movement of antiquities and cultural items, which in some cases are subject to a right of pre-emption or compulsory purchase by the country from which they are to be exported. It is the responsibility of the seller to ensure that the item is properly and lawfully exported from the country in which it is located. Buyers should always check whether an export permit or licence is required before exporting. If you participate in the auction or commerce portions of the website, and, as a result, purchase works that you plan to ship to another country, you agree that you are responsible for familiarising yourself with and complying with any and all applicable rules and regulations. The inability of a buyer to export or import property containing endangered and other protected wildlife material is not a basis for cancellation or rescission of the sale. Lots containing potentially regulated wildlife material are marked as a convenience but the Trust does not accept liability for errors or for failing to mark lots containing protected or regulated species.17.4 The Trust makes no representation or warranty and accepts no liability whatsoever to the seller, the buyer, or any third party in respect of the availability or issuance of valid import and export permits or the existence or exercise of pre-emption or other rights to purchase by governmental or regulatory authorities anywhere.
18. Conduct of the auction18.1 Notwithstanding any bid being the highest and/or higher than the reserve at the close of the online auction (at the end of the exhibition gala evening), a bid will only be finally accepted upon communication of such acceptance by the Trust to the bidder. A bidder may not withdraw any bid after close of the online auction (at the end of the exhibition gala evening).18.2 The auctioneer has the absolute discretion to withdraw or reoffer lots for sale, to accept and refuse bids and/or to reopen the bidding on any lots should he believe there may be a dispute of whatever nature (including without limitation a dispute about the validity of any bid, or whether a bid has been made, and whether between two or more bidders or between the auctioneer and any one or more bidders) 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.18.3 The Trust may place consecutive bids on any lot on the seller’s behalf up to the reserve only.18.4 The contract between the buyer and the seller of any lot shall be deemed to be concluded on the striking of the auctioneer’s gavel at the hammer price finally accepted by the auctioneer (which means written communication of acceptance to the bidder) and after determination of any dispute that may exist. Where a lot remains unsold (where there is no written communication of acceptance to the bidder) there is no such contract that is concluded. The Trust is not a party to the contract of sale and shall not be liable for any breach of that contract by either the seller or the buyer.18.5 The auctioneer has the absolute discretion to accept or refuse bids from bidders that differ from the increments he was adhering to.
19. No cancellation or returnsNo statutory “cooling off” period shall apply in respect of the sale of any lot. A buyer shall accordingly not be entitled to rescind any sale or request a refund of any payment pertaining thereto after his/her bid has been finally accepted by the auctioneer, save in the circumstances expressly provided for in these general conditions of auction.
20. Payment and collection20.1 The buyer shall pay the Trust the purchase price within 72 hours after a lot is sold and shall provide the Trust with details of his name and address and, if so requested, proof of identity and any other information that the Trust may require.20.2 Unless otherwise agreed in advance, the buyer shall make full payment of all amounts due by the buyer to the Trust (including the purchase price of each lot bought by that buyer) within 72 hours of the date of sale (or on such other date as the Trust and the buyer may agree upon in writing) by credit card, direct deposit or electronic funds transfer into the bank account of the Trust for same day value, free from the cost of transfer of funds and without any deduction, set-off or withholding, or such other payment method as the Trust may be willing to accept. The Trust does not accept any cheques or cash and does not accept any credit cards other than MasterCard or Visa. All credit card purchases are to be settled in full within 72 hours of the date of sale.20.3 Ownership in a lot shall not pass to the buyer thereof until the Trust has received settlement of the purchase price of that lot in full and in clear funds. The Trust shall not be obliged to release a lot to the buyer prior to receipt in full payment thereof. However, should the Trust agree to release a lot to the buyer prior to payment of the purchase price in 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 the Trust of the full purchase price in cleared funds.20.4 The refusal of any approval, licence, consent, permit or clearance as required by law shall not affect the buyer’s obligation to pay for the lot.20.5 Any payments made by a buyer to the Trust may be applied by the Trust towards any sums owing by the buyer to the Trust on any account whatsoever and without regard to any directions of the buyer or his agent. The buyer shall be and remain responsible for any insurance, removal, storage, shipping or other charges for any lot and must, subject to the provisions of clause 7.3, at his own expense and accord ensure that the lot purchased is removed immediately after the exhibition gala evening but not until payment of the total amount due to the Trust is made. All risk of loss or damage to the purchased lot shall be borne by the buyer from the moment when the buyer’s bid is accepted by the Trust in the manner referred to above. Neither the Trust nor its servants or agents shall accordingly be responsible for any loss or damage of any kind, whether caused by negligence or otherwise, from the date of the sale of the lot, whilst the lot is in their possession or control.20.6 Notwithstanding the provisions of clause 7.3, all packaging, shipping and handling of lots is at the buyer’s risk and expense and the Trust shall not be liable for any acts or omissions of any packers or shippers.20.7 If the sale of any lot is rescinded, set aside or cancelled by an action of the buyer, and the Trust has accounted to the seller for the sale proceeds, the seller shall immediately refund the full sale proceeds to the Trust, who will in turn refund the purchase price to the buyer.
21. Remedies for non-payment or failure to collect21.1 Without prejudice to any rights that the seller may have, if any lot is not paid for in full within 72 hours of acceptance of the bid, or if there is any other breach of these general conditions of auction by the buyer, the Trust as agent of the seller 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:21.1.1 to remove, store (with a storage facility chosen at the sole discretion of the Trust and at the cost and expense of the buyer) and insure the lot at its premises or elsewhere and at the buyer’s sole risk and expense;21.1.2 to rescind the sale of that or any other lots sold to the buyer at the same or any other auction after having despatched a notice of demand to the buyer and the buyer having failed to make payment within seven working days of despatch of such notice;21.1.3 to set off any amounts owed to the buyer by the Trust against any amounts owed to the Trust by the buyer for the lot;21.1.4 to reject future bids and offers on any lot from the buyer;21.1.5 to proceed against the buyer for damages;21.1.6 to resell the lot or cause it to be resold by public auction or private treaty, with estimates and reserves at the Trust’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 resale of the lot, including all expenses incurred by the Trust and the seller in such resale;21.1.7 to exercise a lien over any of the buyer’s property in the trust’s possession, applying their sale proceeds to any amounts owed by the buyer to the Trust;21.1.8 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;21.1.9 to disclose the buyer’s details to the seller to enable the seller to commence legal proceedings;21.1.10 to commence legal proceedings; and/or21.1.11 if the lot is paid for in full but remains uncollected after seven days of the exhibition gala evening, following notice despatched to the buyer, to resell the lot by auction or private treaty, with estimates and reserves at the Trust’s sole discretion, or to store the lot, as contemplated above, pending resale. The buyer will be deemed to have forfeited the lot and shall have no claim whatsoever against the Trust.21.2 If any work is not sold and the relevant artist resides in Pretoria and fails to collect the work by latest 16:00 on 15/16 October 2023, the Trust may in its sole discretion retain, donate or sell the work by auction or private treaty, and keep any proceeds from such auction or private treaty. The seller/artist will be deemed to have forfeited his/her work and shall have no claim whatsoever against the Trust.22. Consumer Protection Act22.1 In the event that the buyer is a consumer, these general conditions of auction will be read subject to the Consumer Protection Act, and should any clause or time period referred to in the clauses be in conflict with any of the rights of the buyer in terms of the Consumer Protection Act, then such a clause or time period shall be substituted with any rights afforded by the Consumer Protection Act to such buyer.22.2 The seller and the buyer each understands that the general conditions of auction have important legal consequences.22.3 The seller and the buyer each confirm that he/she has read and understood all the general conditions of auction and raised any questions which require clarification before binding himself/herself to the general conditions of auction.
23. Warranties of the seller23.1 The seller warrants to the Trust and to the buyer that:23.1.1 he/she is the true owner and creator of all works submitted for sale, and that he/she is able to transfer good and marketable title to all such works, free from any encumbrances and other third party claims, to the buyer of the lot of which those works form part;23.1.2 he/she has complied with all requirements, legal or otherwise, in relation to the sale and any export or import of the lot, if applicable, and has notified the Trust in writing of any failure by third parties to comply with such requirements in the past; and23.1.3 to the extent that the seller required any approval, licence, consent, permit or clearance by law to be in possession of any lot or for the sale of any lot, he/she is in possession of a valid approval, licence, consent, permit and clearance.23.2 Subject to the aforesaid warranties, none of the seller, the Trust, its servants or agents is responsible for errors of description of any lot, and no warranty whatsoever is given by the Trust, its servants or agents, or any seller to any buyer in respect of any lot, and all express or implied conditions or warranties are hereby excluded.23.3 The seller of any work forming part of a lot not held by the Trust at the auction premises, warrants and undertakes to the Trust and the buyer that the relevant work will be available and in a deliverable state on demand to the buyer.23.4 The seller agrees to indemnify and keep indemnified the Trust and the buyer against any loss or damage suffered by either in consequence of any breach of any warranty in these general conditions of auction.23.5 The seller agrees that the Trust may, in its absolute discretion refuse to sell any work submitted for sale, irrespective of any previous acceptance to sell. The seller further accepts that the Trust is under no obligation to provide reasons in relation to the refusal thereof.
24. General24.1 The Trust uses personal information supplied by bidders, buyers and sellers or otherwise lawfully obtained for the provision of online auction related services (including but not limited to sales processing and insurance), bidder/buyer/seller administration, marketing and otherwise as required by law. The Trust may divulge any personal information to third parties for purposes of completion of the online auction, and to perform all contractual obligations in respect of the online auction, including insurance, shipping and delivery of artworks.24.2 The bidder, buyer and seller consent to the processing of their personal information and to the disclosure of such information to third parties for the purposes outlined above.24.3 The bidder, buyer and seller shall not hold the Trust liable for, and indemnifies the Trust against, any loss or damage caused by the unlawful use by third parties of any personal information disclosed to such third parties by the Trust.24.4 The Trust will have the right, in its sole and absolute discretion, to refuse entry to the AHS premises or attendance at its exhibition gala evening by any person.24.5 These general conditions of auction, every online auction and all matters concerned therewith will be governed by and construed in accordance with the laws of South Africa and the bidder, buyer and seller submit to the non-exclusive jurisdiction of the South African courts.24.6 If any of these general conditions of auction are held to be unenforceable, the remaining parts shall remain in full force and effect.24.7 The non-exercise of or delay in exercising any right or remedy of a party does not operate as a waiver of that right or remedy, nor does any single exercise of a right or remedy preclude any other or further exercise of it or the exercise of any other right or remedy. A right or remedy may only be waived in writing, and signed by the party to be bound by the waiver.24.8 These general conditions of auction constitute the entire agreement between the parties.24.9 No amendment, consensual cancellation, addition or variation of these general conditions of auction will be binding unless also recorded in writing by the Trust.24.10 Neither party shall be liable for any loss or damage, or be deemed to be in breach of these conditions, if its failure to perform or failure to cure any of its respective obligations hereunder result from any force majeure event. The party interfered with shall give the other party prompt written notice of any force majeure event. If notice is provided, the time for performance or cure shall be extended for a period equivalent to the duration of the force majeure event or circumstance described in such notice, except that any cause shall not excuse payment of any sums owed to the Trust during or after such force majeure event.24.11 Any notice by the Trust to a bidder, buyer or seller may be sent by the Trust to the e-mail address or address as provided to the Trust by the bidder, buyer or seller upon submission of an Exhibition Proposal or registration as bidder, as the case may be, which the bidder, buyer or seller respectively chooses as his/her domicilium citandi et executandi.24.12 Any notice may be given by hand, prepaid registered post or e-mail and if given in any of these ways will be deemed to have been received by the addressee:24.12.1 on the day of hand delivery; or24.12.2 four working days after registered posting; or24.12.3 on the day of transmission by e-mail.24.13 Actual notice by the addressee will be deemed sufficient, notwithstanding that such notice was not given in any way contemplated above.24.14 If any party is required to take any legal steps to enforce any of his/her/its rights under these general conditions of auction, such party may recover its costs from the defaulting party on an attorney-own-client scale.24.15 The deeming provisions of the ECT Act are excluded to the effect that no message shall be deemed to have been received by the Trust unless the Trust acknowledges receipt thereof.
25. Exclusion of sections of Part 2 of Chapter III of the ECT Act25.1 The bidder/buyer/seller and the Trust agree that:25.1.1 the bidder/buyer/seller shall be bound to these general conditions of auction and agreement is concluded in Pretoria (South Africa) at the time the bidder/buyer/seller clicks to accept these general conditions of auction for the first time;25.1.2 data messages (as defined in the ECT Act) addressed by the bidder/buyer/seller to the Trust shall only be deemed to have been received if and when responded to, albeit automated responses/acceptances;25.1.3 data messages (as defined in the ECT Act) addressed by the bidder/buyer/seller to the Trust shall be deemed to have been created and sent by the bidder/buyer/seller from within the geographical boundaries of South Africa;25.1.4 electronic signatures, encryption and/or authentication is not required for valid electronic communications between the bidder/buyer/seller and the Trust; and25.1.5 the bidder/buyer/seller agrees and warrants that data messages that are sent to the Trust from a computer, IP address or mobile device normally used by or owned by the bidder/buyer/seller, were sent and/or authorised by the bidder/buyer/seller personally.
26. Disclosures required by section 43 of the ECT Act26.1 Access to the website may be classified as “electronic transactions” as defined in terms of the ECT Act and therefore sellers/buyers have the rights detailed in Chapter 7 of the ECT Act and the Trust has, amongst others, the duty to disclose the following information, which information is hereby disclosed as follows:26.1.1 Full name and legal status of the website: The Affie 100 Fonds Trust, a non-profit trust26.1.2 Registration number: IT000282/2017(T)26.1.3 Physical address for receipt of legal service:1 Lynnwood Road, Pretoria, 000226.1.4 Postal address:P O Box 14078, Hatfield, 002826.1.5 List of trustees:Bernard du Plessis; Eberhard Bertelsmann; Omri van Zyl; Ehrhard Fürstenburg26.1.6 Telephone number: 012 030 050326.1.7 Website: https://www.affie100.co.za26.1.8 E-mail address: admin@affie100.co.za