Terms & Conditions

VENDU CAPE
RULES OF ONLINE AUCTION AND CONDITIONS OF SALE

1. Interpretation and preliminary

1.1. These Rules are intended to set out the terms upon which Vendu conducts Auctions, regulate the conduct of its Users and prescribe the terms and conditions embodied under the Agreement.

1.2. By electing to Participate, the User irrevocably and unconditionally agrees to be bound by these Rules and, inasmuch as it may be applicable, the terms and conditions of any Agreement.

1.3. The User hereby acknowledges that the provisions of these Rules:

1.3.1. are fair and reasonable; and

1.3.2. were published prior to the Auction and could be accessed by the User at all material times prior to the Auction.

1.4. The headings of the clauses of these Rules are for the purpose of convenience and reference only and shall not be used in the interpretation of, nor modify nor amplify the terms of these Rules nor any of its clauses. Unless a contrary intention clearly appears:

1.4.1. words importing:

1.4.1.1. any one gender include the other two genders;

1.4.1.2. the singular include the plural and vice versa; and

1.4.1.3. natural persons include created entities (corporate or unincorporate) and the state and vice versa;

1.4.2. the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:

1.4.2.1. "Agreement" means the agreement which regulates the sale and purchase of any Lot concluded between the Buyer and the Seller as from and with effect at the Fall of the Hammer in accordance with the applicable terms and conditions under these Rules;

1.4.2.2. "Auction" means any online auction Sale in terms of which Lots are offered for Sale by Vendu Cape Auctioneers CC on the Website, which auction shall commence at the Commencement Time and which shall conclude at the Fall of the Hammer of the last Lot under the applicable Online Catalogue;

1.4.2.3. "Bidder" means any User which enters a bid for any Lot;

1.4.2.4. "Buyer" means the Bidder who has placed the highest bid at the Fall of the Hammer, provided that such bid is higher than the Reserve Price, in respect of that Lot and provided always that such bid is accepted by Vendu Cape Auctioneers CC;

1.4.2.5. "Buyer's Premium" refers to the fee payable by the Buyer to Vendu Cape Auctioneers CC, calculated as a percentage of the Hammer Price, Closed Tender Price, or Agreed Price of any Lot or item purchased. Bidders must check the individual Lot's Disclaimer or invoice to determine the specific Buyer's Premium applicable, in the absence of a specified Buyer's Premium in the Lot's Disclaimer. In the context of private negotiated sales (Private Treaty) conducted by Vendu Cape Auctioneers CC, a Buyer's Premium may be charged. The actual percentage will be determined on a case-by-case basis, considering factors such as the complexity of the sale, duration, and current market conditions stated in the Lot's Disclaimer or directly negotiated with the buyer;

1.4.2.6. "Commencement of the Auction" means the earlier of the time at which the Auction is scheduled to commence and the time at which bids are accepted in relation to such Auction;

1.4.2.7. "Current Rates" means the applicable rate of commission, premiums and other amounts payable to Vendu, together with any VAT, as published and amended by Vendu from time to time on the Website;

1.4.2.8. "Closed Tender" means the process of selling a product by inviting a select group of potential buyers to provide their highest written offers by a specified date;

1.4.2.9. "Cut-Off Time" means the time published by Vendu from time to time on the Website, being the time at which bids in respect of the Lot are no longer open for acceptance;

1.4.2.10. "Deposit" means the amount (ZAR 20 000) which Vendu requires a Participant to pay to Vendu as a refundable deposit from time to time, as provided for under the Registration Documents. In the context of private treaty sales, Vendu Cape Auctioneers CC reserves the right to request a variance in the deposit amount from the buyer. The specific deposit amount shall be determined and negotiated on a case-by-case basis, taking into account the nature of the asset, the total sale value, and any other pertinent circumstances surrounding the sale. Such negotiations shall be conducted in good faith, with the aim of reaching an agreement that is equitable for both Vendu Cape Auctioneers CC and the buyer. The agreed-upon deposit amount shall be duly documented in the sales agreement and is required to be paid by the buyer as a sign of commitment to the purchase, subject to the terms and conditions stipulated therein. This clause ensures flexibility in our sales approach, allowing Vendu Cape Auctioneers CC to adapt the deposit requirements to suit the unique aspects of each private treaty sale, thereby facilitating a smoother and more tailored transaction process for all parties involved;

1.4.2.11. "Deposit Release Date" means the date on which the deposit will be paid back to the bidder. The Deposit Release Date is the earlier or later of (i) 48 hours after invoice settlement, or (ii) seven (7) days after Fall of the Hammer, unless otherwise agreed in writing;

1.4.2.12. "Fall of the Hammer" means the earlier of the Time of Acceptance or the Cut-Off Time;

1.4.2.13. "Hammer Price" means the bid or offer made by a Bidder in respect of any Lot that is accepted by Vendu;

1.4.2.14. "Intellectual Property" shall mean all intellectual property subsisting in, pertaining to or used on the Website including, without limitation, patents, inventions, copyright, Trade Marks, goodwill and/or trade secrets;

1.4.2.15. "Lot" means any item or collection of items forming part of a lot contained in an Online Catalogue which are offered for Sale by Vendu in terms of an Auction;

1.4.2.16. "Online Catalogue" means any advertisement or brochure published by Vendu on the Website, advertising for Sale the Lots by way of Auction;

1.4.2.17. "Participation" means to submit bids in an Auction;

1.4.2.18. "Parties" means the User and Vendu, and "Party" shall, as the context requires, be a reference to any one of them;

1.4.2.19. "Personal Information" means information which identifies a User to third parties;

1.4.2.20. "Prime Rate" means the publicly quoted base rate of interest (percent, per annum compounded monthly in arrear and calculated on a 365 day year) from time to time published by The Standard Bank of South Africa Limited, or its successor-in-title, as being its prime overdraft rate, as certified by any manager of The Standard Bank of South Africa, whose appointment, authority and designation need not be proved;

1.4.2.21. "Privacy Policy" means Vendu Cape's privacy policy published on the Website from time to time;

1.4.2.22. "Purchase Price" means:

1.4.2.22.1. the Hammer Price of any Lot; plus

1.4.2.22.2. Buyer's Premium in respect of the Lot; plus

1.4.2.22.3. all Recoverable Expenses; plus

1.4.2.22.4. any VAT payable on any of the aforegoing;

1.4.2.23. "Recoverable Expenses" means all fees, taxes (including VAT), charges and expenses incurred by Vendu in relation to any Lot that Vendu is entitled to recover from a Buyer in terms of the provisions of this Agreement;

1.4.2.24. "Registration Forms" means the registration documents available at the Website;

1.4.2.25. "Reserve Price" means the confidential minimum Hammer Price (if any) at which a Lot may be Sold in terms of an Auction as agreed in writing between the Seller of that Lot and Vendu;

1.4.2.26. "Sale" means the sale and purchase of any Lot by a Buyer in terms of an Auction;

1.4.2.27. "Sale Proceeds" shall mean the amount due by Vendu 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 (plus VAT) for that Lot, less all Recoverable Expenses for which the Seller is liable in respect of that Lot and any other amounts due to Vendu by the Seller in whatever capacity and howsoever arising;

1.4.2.28. "Seller" shall mean the person named as the Seller of any Lot, being the person that offers the Lot for Sale;

1.4.2.29. "Seller's Commission" shall mean the commission payable by Vendu on the Sale of a Lot that is calculated on the Hammer Price of that Lot at the relevant Current Rate;

1.4.2.30. "Specialised Packaging" shall mean packaging provided by specialist fine and decorative art packers which, for the sake of clarity, shall not be provided by Vendu;

1.4.2.31. "Supporting Documents" means, in relation to:

1.4.2.31.1. an individual: private individuals are required to provide proof of identity (ID or Passport) and proof of residence (utilities bill or lease agreement) which is less than 3 (three) months old. Bidders from foreign countries must also produce this documentation;

1.4.2.31.2. a company: buyers who bid on behalf of a company are required to send through certified copies of company registration documents (CM1 or CK1 or CM46 or CM9) and certified proof of address for the company (utility bill or lease agreement). The person who is registering to bid on the company's behalf must also have an affidavit from a director which states that they are bidding for the company. Proof of identification must also be produced for the nominated buyer;

1.4.2.31.3. a close corporation: buyers who bid on behalf of a close corporation are required to send through certified copies of their company registration documents and certified proof of address for the company (utility bill or lease agreement). The person who is registering to bid on the company's behalf must also have an affidavit from a member which states that they are bidding for the company. Proof of identification must also be produced for the nominated buyer;

1.4.2.31.4. a trust: buyers who bid on behalf of a trust are required to send through certified copies of their trust incorporation and trust agreement and certified proof of address for the trust (utility bill or lease agreement). The person who is registering to bid on the trust's behalf must also have an affidavit from a trustee which states that they are bidding for the trust. Proof of identification must also be produced for the nominated buyer;

1.4.2.32. "Time of Acceptance" means the time at which the highest bid in respect of the Lot has been accepted by Vendu;

1.4.2.33. "Trade Marks" means trade marks, trade names or other devices which are or incorporate marks;

1.4.2.34. "Trust Account" means ABSA Bank, Account number: 4059082138, Branch Code: 632005, Swift code: ABSAZAJJ;

1.4.2.35. "User" shall mean the user of the Website and shall include, without limitation, a Bidder and/or a Buyer;

1.4.2.36. "VAT" shall mean value added tax imposed in terms of the Value Added Tax Act, 1991, including any similar tax which may be imposed in place thereof from time to time;

1.4.2.37. "Vendu" means Vendu Cape Proprietary Limited, a private company duly incorporated under and in accordance with the laws of South Africa, under Registration Number 2015/279058/07; and a close corporation duly incorporated as Vendu Cape Auctioneers CC under Registration Number 2003/079717/23;

1.4.2.38. "Website" shall mean the website located at www.auctions.venducape.com and includes any part or element thereof.

1.4.3. when any number of days is prescribed in these Rules, the same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a Saturday, Sunday or public holiday in South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday;

1.4.4. if figures are referred to in numerals and in words, and if there is any conflict between the two, the words shall prevail;

1.4.5. the rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract shall not apply;

1.4.6. any reference in this agreement to a Buyer shall include a reference to that Buyer's assigns expressly permitted under these Rules and, if such Buyer is liquidated or sequestrated, be applicable also to and binding upon that Buyer's liquidator or trustee, as the case may be;

1.4.7. the words "include", "including" and "in particular" shall be construed as being by way of example or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding word/s;

1.4.8. any reference in these Rules to any other agreement or document shall be construed as a reference to such other agreement or document as the same may have been, or may from time to time be, amended, varied, novated or supplemented;

1.4.9. the words "other" and "otherwise" shall not be construed eiusdem generis with any preceding words if a wider construction is possible.

2. Details of auctioneer

2.1. Vendu Cape Auctioneers CC, a close corporation duly incorporated under and in accordance with the laws of South Africa, under Registration Number 2003/079717/23.

2.2. ("Vendu") facilitates Auctions from time to time and is responsible for administering the Website.

2.3. Vendu operates from 119 Beach Road, Mouille Point, Cape Town, being its registered address and principal place of business.

2.4. Domicilium citandi et executandi and service of process:

Addressee: Mr Llewan Delport, Vendu Cape Auctioneers CC.

Postal / courier address (domicilium citandi et executandi): 119 Beach Road, Mouille Point, 8005 Cape Town, South Africa.

E-mail (alternative service channel): llewan@venducape.com.

Requirement: all formal communications, including letters of demand, notices in terms of any statute, summonses, or other legal process, must be expressly addressed to "Mr Llewan Delport" at the above postal address (with a duplicate to the e-mail address). Any notice or process not so addressed shall be regarded as improperly served and of no force or effect against Vendu.

2.5. Vendu's contact details are as follows:

2.5.1. telephone: 021 286 3335 (only available during business hours);

2.5.2. e-mail: info@venducape.com;

2.5.3. website: auctions.venducape.com.

2.6. Vendu's office bearers are as follows:

2.6.1. Llewan Delport.

2.7. Vendu's Trust Account details:

2.8. Vendu Cape Auctioneers CC, Section 32 ABSA Trust Account, Account Number: 4059082138, Branch Code: 632005.

2.9. Vendu provides an online platform to facilitate the Auction of used machinery, vehicles, plant and equipment and any goods of the same kind. Vendu reserves the right to elect, in its sole and absolute discretion, to facilitate the Auction of any goods of whatsoever nature from time to time.

3. Rules for participation

3.1. Any User wishing to Participate must complete the Registration Forms, which are available at auctions.venducape.com/my-account/login-register/, and provide Vendu with all of the Supporting Documents at least 12 (twelve) hours prior to the conclusion of the Auction.

3.2. Upon being registered as a Bidder, each User hereby undertakes to pay the Deposit to the credit of Vendu's Trust Account, and Vendu hereby agrees to hold the Deposit in trust for and on behalf of the Bidder until the Deposit Release Date.

3.3. On the Deposit Release Date, if the Bidder was successful in concluding an Agreement, the Bidder hereby unconditionally and irrevocably authorises Vendu to deduct an amount equal to the Buyer's Premium as the first charge against the Deposit; and:

3.3.1. if the Buyer's Premium is less than the Deposit, Vendu undertakes to pay an amount equal to the Deposit less the Buyer's Premium to the Seller on behalf of the Buyer as a payment against the Purchase Price; or

3.3.2. if the Deposit is less than the Buyer's Premium, the Bidder hereby irrevocably and unconditionally authorises Vendu to set off the Deposit against any amount which is owed to Vendu by the Bidder, and the Bidder hereby undertakes and agrees to pay an amount equal to the shortfall between the Deposit and the Buyer's Premium to Vendu within 12 (twelve) days of being called upon to do so by Vendu.

3.4. On the Deposit Release Date, if the Bidder did not conclude an Agreement for any reason whatsoever, Vendu shall refund to the Bidder the Deposit in full without set-off or deduction of any nature whatsoever.

3.5. The Bidder hereby undertakes, represents and warrants in favour of Vendu and the Seller that, as at the Fall of the Hammer and up until the Deposit Release Date, it will have sufficient available cash on hand to discharge the Purchase Price of each Lot in terms of which it has concluded an Agreement and all fees and charges payable by it to Vendu, in full on the Deposit Release Date.

3.6. The Bidder must send an email asking for their deposit and fill in correct bank account details for their user account: auctions.venducape.com/my-account/.

4. Rules for auction

4.1. All Auctions and the details of any Lot to be sold at any such Auction shall be advertised by Vendu on its Website. Vendu may, in its sole and absolute discretion, elect to use any other medium in addition to its Website to advertise an Auction.

4.2. Vendu shall not be liable for any error, misstatement or omission which it makes in relation to the condition of the Lot.

4.3. Each Lot shall be subject to a Reserve Price, save for circumstances where Vendu expressly advertises that the Auction shall not be subject to a Reserve Price. Where any Lot is subject to a Reserve Price, Vendu shall be entitled to only accept bids which are in excess of the Reserve Price. Users will be notified on the Website once the Reserve Price has been met.

4.4. Subject to clause 4.3, Vendu shall disclose that such Lot is being offered for sale by Vendu or its employees, agents, directors, officers or any of their immediate relations on its Website in a conspicuous place.

4.5. Each Bidder hereby undertakes, represents and warrants in favour of Vendu and the Seller that it shall not engage in bid manipulation or collusive bidding and shall not unfairly induce any prospective purchaser to pay a higher Purchase Price for any Lot. Each Bidder shall bid as a principal and shall not bid from multiple devices on one single account.

4.6. Vendu shall keep a record of each bid which was made in respect of any Lot and shall keep a record of the Purchase Price for any Lot and of the Buyer and Seller of such Lot.

4.7. Each Bidder will be notified of the Fall of the Hammer and of the Purchase Price at which the Lot has been sold. The successful Bidder will be notified of the conclusion of the Agreement by Vendu by way of e-mail.

4.8. Every Bidder shall be deemed to act as principal. Each Bidder shall be personally liable for its bids and offers made in terms of any Auction and shall be jointly and severally liable with its principal if the Bidder is acting as an agent for a principal, whether or not its principal was disclosed to Vendu.

4.9. Each Bidder hereby undertakes, represents and warrants to and in favour of Vendu that it is duly authorised to make bids and that, upon the acceptance of any bid, it shall be bound by the terms of the Agreement.

4.10. The Auction duration shall be until all time has elapsed on the auction clock. Any activity by a Bidder during the last ten (10) minutes of this period shall cause the auction clock to reset to ten (10) minutes. Subject to compliance with these Rules, the highest bid submitted for any Lot at the time of the conclusion of the Auction shall be accepted if above reserve.

4.11. Vendu shall be entitled, in its sole and absolute discretion, to withdraw or re-offer any Lot for sale prior to the conclusion of an Agreement, or to accept or reject any bid for any Lot.

4.12. The Agreement between the Buyer and the Seller of any Lot shall be deemed to be concluded on the acceptance by Vendu of a bid at the Hammer Price. For the sake of the avoidance of doubt, Vendu is not a party to the Agreement and Vendu shall not be liable for any breach by either party to the Agreement.

4.13. Any participant that:

4.13.1. fails to make payment in full of any amount set out under any invoice within the 2 days of the date upon which such invoice was issued;

4.13.2. enters multiple bids simultaneously through the use of more than one device; or

4.13.3. makes any approach directly to the seller of any goods,

4.13.4. shall be deemed to be in default of the provisions of these terms and conditions of auction and shall be regulated in terms of the Breach clauses herein.

4.14. Prohibited bidder interference.

4.14.1. From the close of bidding until final settlement, a Bidder (including its officers, employees, agents or representatives) may not, without the Auctioneer's prior written consent, communicate directly or indirectly with the Seller or any of the Seller's stakeholders for the purpose of:

• requesting, demanding or negotiating a variation of the Bidder's bid or of the sale terms;
• inducing the Seller to disregard, bypass, delay or modify Vendu Cape's standard sale process; or
• otherwise pressuring, obstructing or influencing the Seller in relation to the award, performance or cancellation of the sale ("Interference").

4.14.2. Any Interference constitutes an immediate breach; see clause 9.1.14 for remedies.

5. Condition of the lot

5.1. The Bidder hereby acknowledges that each Lot is purchased "voetstoots" with all latent and patent defects. All assets/lots are sold with no duty to repair by the seller.

5.2. A purchased Lot shall be at the Buyer's risk of loss and damage in all respects from the Fall of the Hammer in respect of that Lot, whether or not payment has been made, and neither Vendu nor the Seller shall thereafter be liable for, and the Buyer indemnifies Vendu against, any loss or damage of any kind, unless caused by the gross negligence or wilful default of Vendu and/or its employees or agents prior to the collection of the Lot by the Buyer.

5.3. Each Buyer is obliged to take out its own insurance cover for purchased Lots as from and with effect on Fall of the Hammer, or as soon as reasonably possible thereafter. Vendu cannot and does not warrant that the Seller has insured its interests in the Lot or that Vendu's insurance cover will extend to all risks.

5.4. Each Bidder hereby undertakes, represents and warrants to and in favour of Vendu that removal of an asset from site will act as confirmation that the buyer has satisfied themselves with the condition and that there is no pending issue with regard to the assets removed.

6. CPA

6.1. These rules comply with section 45 of the CPA and the CPA Regulations.

6.2. When goods are put up for sale by auction in lots, each lot is, unless there is evidence to the contrary, regarded to be the subject of a separate transaction.

6.3. Note: Bidders can request a breakdown of the total cost of advertising and conducting the auction.

7. Vendu's liability

7.1. Vendu shall not be liable for indirect or consequential loss of whatsoever nature, howsoever arising.

7.2. Subject to clause 7.1 above, a Buyer's claim shall not exceed an amount equal to the Purchase Price actually paid by the Buyer in respect of a Lot.

7.3. Neither Vendu nor the Seller:

7.3.1. shall be liable for any omissions, errors or misrepresentations in any information (whether written or otherwise and whether provided on its Website, in any advertisement or otherwise) provided to any Bidder, 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 or Vendu; and

7.3.2. gives any guarantee or warranty to a Bidder other than those expressly set out in these Rules (if any), and any implied conditions, guarantees and warranties are excluded.

7.4. Each User makes use of the Website and each Bidder Participates in an Auction at its own risk.

8. Payment, collection and delivery

8.1. On the Deposit Release Date, the Buyer shall pay the Purchase Price to Vendu free of any set-off (other than the balance of the Deposit, if any), deduction or withholding of any nature whatsoever, into a bank account nominated by Vendu to the Buyer in writing.

8.2. In the event that Vendu is not the owner or rightful holder (who has the right to sell) of the goods bought on auction, Vendu has a trust account into which all moneys will be paid for the benefit of the seller, minus the agreed commission.

8.3. On payment of the Purchase Price, the Lot shall be deemed to be delivered to the Buyer and Vendu shall hold the Lot for and on behalf of the Buyer.

8.4. The Buyer shall be liable for the storage, transportation and freight costs of any Lot (including customs clearance, if applicable) and Vendu shall be entitled to impose a fee for storage, transportation and freight costs should the Buyer fail to collect the Lot within 2 (two) Business Days of the Deposit Release Date. Vendu shall be entitled to refuse to release the Lot to the Buyer until it has been reimbursed in full by the Buyer for all of its storage, transportation and freight costs in respect of that Lot.

8.5. Buyers transferring funds from outside of the Republic of South Africa must include an additional fee of ZAR six hundred and fifty (ZAR 650.00) for each such transfer in order to cover any banking charges which may be levied.

8.6. A Buyer requiring the export of a Lot outside of the Republic of South Africa hereby undertakes to do all things as may be necessary or requisite to procure the issue of police clearance and a customs clearance certificate in respect of any Lot purchased by the Buyer, failing which it irrevocably authorises any director of Vendu as its attorney and agent, in rem suam, to sign all such documents and to make all payments as may be necessary or requisite to procure the issue of police clearance and/or customs clearance, and the Buyer hereby ratifies all and whatsoever the said director may do acting under the aforesaid power of attorney.

8.7. Should the Buyer fail to procure the issue of police clearance, such Buyer shall be liable to pay an additional fee of ZAR four thousand five hundred (ZAR 4 500.00) to cover administrative costs associated with obtaining the police clearance.

8.8. All additional costs associated with customs clearance will remain for the Buyer's own account and responsibility.

8.9. Vendu shall not be liable for any acts or omissions of any packers or shippers.

8.10. A Buyer's Premium, calculated at the applicable current rate of the Hammer Price (plus VAT), shall be payable by the Buyer to Vendu in respect of the sale of each Lot.

8.11. The Buyer acknowledges that Vendu, when acting as agent for the Seller of any Lot, may also receive a Seller's Commission and/or other fees for or in respect of that Lot.

8.12. Ownership in a Lot shall not pass to the Buyer until Vendu has received settlement of the full Purchase Price of that Lot in cleared funds. Vendu shall not release a Lot to the Buyer for collection prior to full payment thereof.

8.13. 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 and any storage, transportation or freight costs associated therewith.

8.14. Any payments made by a Buyer to Vendu may be applied by Vendu towards any sums owing by the Buyer to Vendu on any account whatsoever and without regard to any directions of the Buyer.

8.15. Vendu will not implement direct marketing in any manner or form in order to solicit transactions and, as all transactions conducted on its Website will be restricted to Auctions, no statutory "cooling off" period shall apply to any transactions conducted on its Website. A Buyer will not be entitled to rescind any transaction and request a refund of any payment in terms thereof after its bid has been finally accepted by Vendu, save in circumstances contemplated elsewhere in these Rules.

9. Breach

9.1. Without prejudice to any rights that the Seller may have, if, for whatsoever reason, any Lot is not paid for in full or payment of any amount is not cleared, or if there is any other breach of these Rules by the Buyer, Vendu acting as agent of the Seller shall, in its sole and 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:

9.1.1. to store and insure the Lot at its premises or elsewhere should the Lot not be collected within 28 (twenty-eight) days after the Fall of the Hammer, and at the Buyer's sole risk and expense;

9.1.2. to rescind the Agreement in respect of that or any other Lots sold to the Buyer in terms of the same or any other Auction;

9.1.3. to set off any amounts owed to the Buyer by Vendu against any amounts owed to Vendu by the Buyer;

9.1.4. to reject future bids and offers on any Lot from the Buyer;

9.1.5. to institute an action against the Buyer for damages;

9.1.6. to resell the Lot or cause it to be resold by normal public auction, private treaty, Auction, Closed Tender or otherwise, with estimates and a Reserve Price determined by Vendu in its sole and absolute 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 Vendu and the Seller in such resale;

9.1.7. to exercise a lien over and sell any of the Buyer's property in Vendu's possession and apply the proceeds of such sale to any amounts owed by the Buyer to Vendu;

9.1.8. to retain that or any other Lots sold to the Buyer at the same time or at any other Auction, whether online or elsewhere, and to release such Lots only after payment of the total amount due;

9.1.9. to disclose the Buyer's details to the Seller to enable the Seller to commence legal proceedings;

9.1.10. to commence legal proceedings;

9.1.11. to charge interest on a monthly basis at a rate not exceeding the Prime Rate on the total amount due to the extent that it remains unpaid after 7 (seven) days from the Fall of the Hammer;

9.1.12. if the Lot is paid for in full but remains uncollected after 3 (three) months of the Fall of the Hammer, following 14 (fourteen) days' written notice to the Buyer, to resell the Lot by Auction or private treaty, with estimates and a Reserve Price determined by Vendu in its sole and absolute discretion, or to place the purchased Lot in storage at a storage facility of its choice, at and subject to the terms and conditions of storage of such a storage facility, whereafter such a Lot may be collected by the Buyer from the storage facility upon payment of the storage facility's account for storage of the Lot. Should Vendu elect to sell the Lot, the Sale proceeds of such Lot, less all Recoverable Expenses, will be forfeited unless collected by the Buyer within 6 (six) months of the original Auction;

9.1.13. if the buyer defaults upon the obligations contained in the invoice or breaches the conditions herein, the buyer is required under this agreement to forfeit the Deposit to Vendu.

9.1.14. If the breach arises from Interference as defined in clause 4.14:

• the Bidder indemnifies the Auctioneer and Seller against all loss, liability, costs and expenses (including legal fees on an attorney-and-own-client scale) flowing from such conduct; and
• the Bidder agrees to liquidated damages equal to:
  • the full Buyer's Premium (or commission) that would have been earned on the interfered-with lot(s); plus
  • ZAR 250 000 as a genuine pre-estimate of reputational harm and administrative cost.
• The Auctioneer may, without notice, deduct and set off any amount due under 9.1.14 from the Bidder's deposit, purchase monies or any other sums standing to the Bidder's credit with Vendu Cape.

10. Photography and illustration

10.1. Vendu shall have the full and absolute right to illustrate, photograph or otherwise reproduce images of any Lot submitted by the Seller for Sale, whether or not in conjunction with the Sale, and to use such photographs and illustrations at any time and in their sole and absolute discretion. The copyright of all photographs taken and illustrations made of any Lot by Vendu shall be the sole and absolute property of Vendu, and Vendu undertakes to abide by all copyright applicable to any and all Lots submitted for Sale.

11. Website use

11.1. The User assumes all responsibility and risk for the use of the Website and Vendu disclaims all liability for any loss, injury, damage, cost, penalty or claim resulting from the use of the Website, whether direct or indirect, and whether or not Vendu has been advised of or has knowledge of the possibility of such loss, injury, damage, cost, penalty or claim.

11.2. The User may not use, reproduce, adapt, distribute, publish or in any other way deal or interfere with the Website's contents without the prior written consent of Vendu. The User may download and print 1 (one) copy of the Website's contents for personal, non-commercial and information purposes only.

11.3. Vendu reserves the right to make any changes to the Website, its content and/or services offered through the Website at any time and without prior notice.

11.4. Vendu reserves the right at all times to disclose any information as necessary or deemed desirable by Vendu to satisfy any applicable South African or international law, regulation, legal process, or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or part.

11.5. The Website may contain links to other websites. Vendu has no control over such websites, does not review their content and will not be liable for their content or accuracy. The User accesses such websites at the User's own risk and discretion.

11.6. The User may link to this Website, provided that the User will only provide a link to this Website's homepage and will not replicate any particular page, including the homepage. When linking to this Website, the User confirms and agrees that it will comply and ensure compliance with the requirements of this clause 11.

11.7. Although every effort will be made to have this Website available at all times, the Website may become unavailable due to maintenance or repairs, loss of connectivity or some other form of interruption. Vendu does not warrant against, nor will it be held liable for, such downtime and is hereby indemnified from any loss, damage, claims, costs or penalties incurred as a result of such unavailability.

11.8. If the User chooses or is provided with identification codes, usernames, passwords or any similar form of identification information as part of the Website's security systems, such User must keep this information secret and confidential and must not permit anyone else to use it. The User shall be responsible for all access to the Website with the User's username and password. When the User's username and password have been used in order to gain access to the Website, Vendu shall be entitled to assume that such use and all related communications emanate from the User. Vendu shall not be liable for any loss or damage arising from unauthorised use of the User's identification information.

11.9. In the event that the User becomes aware of a breach of the confidentiality of the User's username and password, the User must immediately communicate this to Vendu with subsequent confirmation in writing. The compromised username and password will be deactivated as soon as reasonably possible and a new username and password will be issued to the User. Vendu may, in its sole and absolute discretion and for any reason whatsoever, require the User to change their username and password at any time.

11.10. If the User commits any breach of these Rules or in any other way interacts with or uses the Website in an unlawful or unauthorised manner, Vendu shall be entitled, in its sole and absolute discretion, to terminate the User's access to the Website immediately, without prior notice, without any liability on Vendu's part and without prejudice to Vendu's rights in terms of these Rules or at law. Following such termination, the User will forfeit the right to link to this Website as described in clause 11.6.

11.11. By accessing the Website, the User represents and warrants that it owns and/or otherwise controls all of the rights to the content that it posts and/or uploads. Furthermore, the User represents and warrants that the content submitted to the Website is accurate and useable. Vendu is hereby indemnified from and against any and all loss by any person which results from a breach of these representations or warranties.

12. Private information

12.1. In using the Website, the User will from time to time be prompted to provide to Vendu certain personal information, including without limitation information required for purposes of registration. Vendu will process information about the User in terms of its Privacy Policy.

12.2. The User acknowledges that, by using the Website, bidding and/or buying on the Website, the User:

12.2.1. consents to any processing or storage of such information and warrants that any and all data provided is up-to-date, complete and accurate;

12.2.2. undertakes to maintain and promptly update the aforementioned information to keep it up-to-date, complete and accurate; and

12.2.3. warrants that it has read the Privacy Policy, has taken time to understand the content thereof and freely and voluntarily consents thereto.

13. Disclaimer

13.1. Any commentary, advice, information, suggestions, opinions, answers or any other information posted on the Website is not intended to, nor shall it be interpreted to, amount to advice on which reliance should be placed, and is posted merely for guidance purposes only. The User makes use of any such information at its own risk and in its own discretion, and disclaims and indemnifies Vendu from and against any and all liability and responsibility arising from any reliance placed on such information, whether posted on the Website or by any other person visiting the Website.

14. Proprietary rights

14.1. The Website is owned by Vendu and the User acknowledges that Vendu and/or its licensors are the proprietors of any and all Intellectual Property associated with, related to or appearing on the Website.

14.2. The content of the Website, including but not limited to any pictures, photos, text, presentations, names, titles, brands, drawings, models and associated software, are protected by South African and international law. The owners of such content reserve all such rights therein unless provided otherwise in these Rules.

14.3. The User undertakes:

14.3.1. not to use or register any Trade Marks which are the same as or confusingly similar to any of Vendu's Trade Marks, or which marks are likely to be associated with Vendu's Trade Marks, or where such use would take unfair advantage of or be detrimental to the distinctive character or the repute of Vendu's Trade Marks;

14.3.2. not at any time to do or cause to be done any act or thing in any way impairing or tending to impair any part of Vendu's rights, title and interest in and to the Intellectual Property; and

14.3.3. not in any way to make unauthorised use of the Intellectual Property or to represent that it has any rights of any nature in the Intellectual Property or any registrations thereof.

14.4. Vendu's graphics, logos, page headers, button icons, scripts and service names are the Trade Marks or trade dress of Vendu. The Trade Marks and trade dress may not be used in connection with any product or service that is not conducted by Vendu, or in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Vendu. All other Trade Marks not owned by Vendu that appear on the Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Vendu. The User may not use such Trade Marks without consent from the relevant owners.

14.5. The User shall not attempt to reverse engineer, reverse compile, translate, decompile, disassemble, modify, create derivative works or otherwise attempt to derive source code from (or the underlying ideas, algorithms, structure or organisation of) the Website or any component thereof, for any purpose, including for the purpose of discovering any aspect of the technology inherent therein.

15. Malicious software and offences

15.1. The User warrants that:

15.1.1. it will not use the Website in any way that causes, or is likely to cause, the Website and access to the Website to be interrupted, damaged or impaired in any manner;

15.1.2. no form of virus, trojans, worms, logic bombs, or other malicious coding, virus or software will be introduced onto the Website or into Vendu's system which may cause any form of technological harm or any other form of harm in any manner or respect;

15.1.3. it will not attempt to gain unauthorised access to the Website, including through the theft of any third party's username and password;

15.1.4. it will not attempt to gain unauthorised access to the Website's server, databases, computers or any other device associated with the Website, and will not attack the Website through a denial-of-service attack or a distributed denial-of-service attack;

15.1.5. it will not use any robot, spider, or other automatic or manual device or process for the purposes of compiling information regarding the identification, address, or other attributes of any of the Users of this Website, or to recreate in original or modified form any substantial portion of the Website; and

15.1.6. it will not take any action that imposes an unreasonable or disproportionately large load on the servers or systems of Vendu.

15.2. Any breach of these Terms regarding malicious software and offences will be reported to the relevant law enforcement agencies, and Vendu will co-operate in all respects with those law enforcement agencies, including by way of disclosure of the identity and identification information of the User.

15.3. Although Vendu and its representatives will use reasonable efforts to ensure that no malicious content can be received from the Website, Vendu does not warrant that the Website is free of malicious content or viruses, and Vendu will not be held liable for any loss resulting from a distributed denial-of-service attack, or any malicious content as described in clause 15.1.2, which may infect any User's computer or device, computer equipment, data or any other proprietary material, where such loss is or may be attributed to the User's use of the Website or downloads received from the Website.

16. General provisions

16.1. The buyer herein certifies that it is the sole responsibility of the Internet bidder to be familiar with the Internet bidding process. The uploaded results of the auction take precedence over any and all messages of high bids during online or live bidding. Live Internet bidders are advised to have a DSL or faster-speed Internet connection to bid during the live auction. Because of the fast-paced nature of the auction, a slower connection could lead to not being able to bid on the items that you are interested in.

16.2. The Website is hosted, controlled and operated from the Republic of South Africa and therefore the Website, the conduct of Auctions and these Rules shall be governed by South African law, and the User agrees to the jurisdiction of the High Court of South Africa, Western Cape Division.

16.3. These Rules, as well as any Agreement concluded between the Parties, constitute the whole agreement between the Parties relating to the subject matter hereof and supersede any other discussions, agreements and/or understandings regarding the subject matter hereof.

16.4. No amendment or consensual cancellation of these Rules and any Agreement, or any provision or term thereof, or of any agreement or other document issued or executed pursuant to or in terms of these Rules and any Agreement, and no settlement of any disputes arising under these Rules and any Agreement, and no extension of time, waiver or relaxation or suspension of, or agreement not to enforce or to suspend or postpone the enforcement of, any of the provisions or terms of these Rules and any Agreement, or of any agreement or other document issued pursuant to or in terms of these Rules and any Agreement, shall be binding unless recorded in a document signed by the Parties (or, in the case of an extension of time, waiver or relaxation or suspension, a document signed by the Party granting such extension, waiver or relaxation). Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.

16.5. No oral pactum de non petendo (agreement not to sue) shall be of any force or effect.

16.6. No extension of time or waiver or relaxation of any of the provisions of these Rules and any Agreement, or any agreement or other document issued or executed pursuant to or in terms of these Rules and any Agreement, shall operate as an estoppel against any party in respect of its rights under this heads of agreement, nor shall it operate so as to preclude such Party (save as to any extension, waiver or relaxation actually given) thereafter from exercising its rights strictly in accordance with these Rules and any Agreement.

16.7. To the extent permissible by law, no Party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded herein or in any Agreement, whether it induced the contract and/or whether it was negligent or not.

16.8. No part of this heads of agreement shall constitute a stipulation alteri in favour of any person who is not a party to the agreement, unless the provision in question relates to the Seller.

16.9. The rules of auction are provided to the buyer as part of the registration process.

16.9.1. A copy of the rules can be found at auctions.venducape.com/terms-conditions.

16.9.2. The mere:

16.9.2.1. logging onto the auction website auctions.venducape.com;

16.9.2.2. participating in the auction and making bids,

16.9.2.3. constitutes an unconditional and binding acceptance of the terms and conditions stated above.