THOROUGHBID LIMITED
Terms and Conditions for Users of ThoroughBid's Services (these "Terms and Conditions")
1 The Status of ThoroughBid's Services and these Terms and Conditions
1.1 Please note that these Terms and Conditions use the defined terms and rules of interpretation set out at Clause 2 below.
1.2 ThoroughBid Limited is a company registered in England and Wales under company number 12744662 with its registered office at Ampney Knowle Farm, Barnsley, Cirencester, Gloucestershire, GL7 5ED ("ThoroughBid"). ThoroughBid's VAT number is 357845652.
1.3 This is a legal document which sets out the Terms and Conditions between you, a particular User of ThoroughBid's Services (referred to as “you” or “your” in this document), and ThoroughBid in relation to your use of ThoroughBid's Services.
1.4 Please read these Terms and Conditions carefully. By accessing or using the Platform or Services (or enabling anyone else to do so), you are agreeing to these Terms and Conditions. ThoroughBid draws your attention in particular to ThoroughBid's limitations on Liability under Clause 18.
1.5 These Terms and Conditions relate to Services provided by ThoroughBid that facilitate the sale and purchase of horses and which ThoroughBid makes exclusively available to people involved in the equine industry.
1.6 These Terms and Conditions reflect the relationship between Users of the Services and ThoroughBid. Before making use of the Services, you should also read the Terms of Sale set out at Schedule 1 (as may be updated from time to time in accordance with Clause 2.1.41). You acknowledge and agree that you will enter into a binding contract with another User when you buy or sell a horse using the Services pursuant to Clauses 7.1 or 7.2. ThoroughBid is not a party to any relationship entered into between Users when they buy and sell horses using the Services. ThoroughBid will not be a party to any arrangements or agreements made between Users and all such arrangements and agreements are subject to the applicable terms and conditions forming the basis of the contract between the Buyer and the Seller.
1.7 ThoroughBid only makes available a Platform that provides intermediary services for the benefit of ThoroughBid's Users (except that ThoroughBid may act as your agent solely in the limited circumstances described at Clause 7.13 or where ThoroughBid invoices the Buyer for the Purchase Price and any Seller's Boarding Fees on behalf of the Seller).
1.8 Please note that each Auction which takes place via the Services is subject to a Reserve Price as specified in the applicable Catalogue. The Seller reserves the right, either itself or through any one other person on its behalf (and not any other person), to submit a Bid for their Lot, subject always to the General Rules.
1.9 ThoroughBid takes no responsibility for any information that is contained in a Lot's Listing Page and the Seller is responsible for the accuracy and lawfulness of all of the information about the Lot which is contained in its Listing Page. Subject to Clause 18.2, ThoroughBid shall have no Liability to any third party in relation to any information about a Lot which is contained in the applicable Catalogue.
1.10 These Terms and Conditions were most recently updated on 02.07.2021. ThoroughBid may amend these Terms and Conditions from time to time as set out in Clause 2.3. Every time you wish to make use of the Website or Services, please ensure you have read and understood the current version of the Terms and Conditions that is in force.
1.11 You are advised to print and keep a copy of these Terms and Conditions and each amended version for your own records and future reference.
1.12 Before participating in any Auction held via the Services, or making a private offer in accordance with Clause 7.2, ThoroughBid advises that you read carefully the Purchaser Guide made available by ThoroughBid and the information contained in the applicable Catalogue.
2 Defined terms and interpretation
2.1 In these Terms and Conditions, unless the context otherwise requires:
2.1.1 "Auction" means an auction taking place on the Platform through which Users take part in a competition by placing a bid or bids in order to have the highest unique bid to buy the Lot that is the subject of that auction;
2.1.2 "Auction Commencement Date" means the date falling six days from the applicable Catalogue Launch Date or such other date as may be stated in the Catalogue, and from which date the Lots described in the applicable Catalogue will each be subject to an individual Auction that takes place via the Platform;
2.1.3 "Bid" means a bid at a price which a bidder intends to pay for the particular Lot which is the subject of the auction if that bidder is successful in winning the auction;
2.1.4 "Bidder" means a User when they place a Bid for a Lot;
2.1.5 "Business Day" means any day other than (i) a Saturday, (ii) a Sunday or (iii) a day which is a bank holiday in England as set out from time to time at https://www.gov.uk/bank-holidays;
2.1.6 "Buyer" means a User that is deemed to enter into a contract with the Seller for the purchase of the Lot in accordance with Clauses 7.1 or 7.2;
2.1.7 "Buyer Commission Fee" means the amount payable by the Buyer to ThoroughBid upon the Buyer's entry into a contract with the Seller for the sale and purchase of a Lot in accordance with Clauses 7.1 or 7.2, and which fee shall be the applicable percentage, as set out in the Purchaser Guide, of either: (i) where the contract is entered into between Users pursuant to Clause 7.1, the amount of the Bid that was submitted by the Buyer; or (ii) for the purposes of a contract entered into between Users pursuant to Clause 7.2, the amount of the Buyer's offer for the purchase of the applicable Lot that was accepted by the Seller;
2.1.8 "Catalogue" means a catalogue made available by ThoroughBid at the Website which contains the details of Lots that will each be the subject of an Auction starting on the applicable Auction Commencement Date;
2.1.9 "Catalogue Information" means the Initial Catalogue Information, together with any further information or materials about the Lot provided to ThoroughBid in accordance with Clause 4.4;
2.1.10 "Catalogue Launch Date" means the date on which a Catalogue is first made available by ThoroughBid via the Website;
2.1.11 "Collection Deadline" means the applicable deadline by which the Buyer must collect the Lot which shall either be: (i) the deadline stipulated at Clause 7.3.5; or (ii) the deadline stipulated at paragraph 10.6(b)(ii) of the Terms of Sale;
2.1.12 "Commencement Date" means the date on which you agree to these Terms and Conditions when submitting your details to become a User or first make use of the Platform or Services (whichever is the earliest);
2.1.13 "Complaint" has the meaning set out at paragraph 9.1 of the Terms of Sale;
2.1.14 "Entry Fee" means the applicable fee payable by you to ThoroughBid for providing you with the opportunity for your Lot to be catalogued ahead of an Auction as set out on the Entry Form;
2.1.15 "Entry Form" means the form made available on the Platform which a User needs to complete in order to submit a Lot to be auctioned via the Platform in accordance with Clause 4.1;
2.1.16 "Fall of Hammer" means the moment at which an Auction closes for a particular Lot and no further Bids can be made for that Lot;
2.1.17 "Fees" means the fees payable to ThoroughBid under these Terms and Conditions, and as set out at Clause 12.1;
2.1.18 "FX Facility" means the facililty to buy or sell in currencies other than Pounds Sterling provided by ThoroughBid through our partner, REGENT FE (the trading name of Regent Foreign Exchange Limited), as set out in the Purchaser Guide at https://www.thoroughbid.co.uk/purchaser-guide;
2.1.19 "General Rules" means the general rules for you making use of the Platform and your use of the Services as set out at Schedule 2 as updated by ThoroughBid from time to time by informing you of the relevant changes by email and making an updated copy of the updated general rules available on the Website;
2.1.20 "Initial Catalogue Information" means the information about the Lot, as set out at Schedule 3, to be provided to ThoroughBid by a User when it completes the Entry Form;
2.1.21 "Intellectual Property Rights" means copyright and neighbouring and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
2.1.22 "Liability" means liability in or for breach of contract, tort, negligence, misrepresentation, restitution, breach of statutory duty or any other cause of action whatsoever relating to or arising under or in connection with these Terms and Conditions, including liability expressly provided for under these Terms and Conditions or arising by reason of the invalidity or unenforceability of any term of these Terms and Conditions (and for the purposes of this definition, all references to these Terms and Conditions shall be deemed to include any collateral contract);
2.1.23 "Listing Page" means one or more pages of information or materials relating to a Lot which are included in the applicable Catalogue in order to inform prospective Bidders about the Lot;
2.1.24 "Lot" means a horse to be featured in a catalogue made available by ThoroughBid for sale via ThoroughBid's services;
2.1.25 "Nominated Bank Account" means the bank account, in respect of which details are provided to ThoroughBid by a User when they enter a Lot into an Auction or such other bank account that the User subsequently provides to ThoroughBid;
2.1.26 "Notice of Complaint" has the meaning set out at paragraph 8.1 of the Terms of Sale;
2.1.27 "Off-Platform Private Sale" has the meaning set out Clause 8.1;
2.1.28 "Payment Deadline" means the applicable deadline by which the Buyer must pay the Purchase Price and the applicable Commission Fee to ThoroughBid which shall either be: (i) the deadline stipulated at Clause 7.3.4; or (ii) the deadline stipulated at paragraph 10.6(b)(i) of the Terms of Sale;
2.1.29 "Platform" means the online platform provided by ThoroughBid and accessible via ThoroughBid's website where users may place bids for a lot in an auction that has been submitted to ThoroughBid's platform by a seller, and through which a user may enter into a legally binding contract with another user for the sale and purchase of a horse in the circumstances described in Clauses 7.1 or 7.2;
2.1.30 "Prohibited Substances" means any anabolic steroid and/or bisphosphonate and/or any corticosteroid and/or clenbuterol and/or any non-steroidal anti- inflammatory drugs or their metabolites. Anabolic steroid means an anabolic androgenic steroid, or a metabolite, an isomer, an isomer of the metabolite or a pro-drug of the substance. (See Vendor Guide for further information.)
2.1.31 "Purchase Confirmation Form" means the form made available by ThoroughBid by email which must be completed by the Buyer in accordance with Clause 7.3.2(a), and by the Seller in accordance with Clause 9.1 if it wishes for its Lot to be "bought-in";
2.1.32 "Purchase Price" means: (i) for the purposes of a contract entered into between Users pursuant to Clause 7.1, the amount of the highest Bid submitted in the applicable Auction, together with all applicable taxes on that amount payable by the Buyer; or (ii) for the purposes of a contract entered into between Users pursuant to Clause 7.2, the amount of the User's offer for the purchase of the applicable Lot that is accepted by the Seller, together with all applicable taxes on that amount payable by the Buyer;
2.1.33 "Purchaser Guide" means the guide made available by ThoroughBid on the Platform under the "INFO" tab containing important information for prospective Bidders and Buyers. Can viewed at https://www.thoroughbid.co.uk/purchaser-guide;
2.1.34 "Reserve Price" means a minimum price which the highest Bid for a Lot must meet or exceed in order for that Lot to be sold;
2.1.35 "Seller" means a User when they sell or offer to sell a horse using the Platform;
2.1.36 "Seller's Boarding Fee" means a fee of £75 per day;
2.1.37 "Services" means the services provided by ThoroughBid which enable Users to take part in buying and selling Lots via the Platform, together with all related services provided by ThoroughBid from time to time (including Users' access to the Platform);
2.1.38 "Sold With a Pre-Sale Veterinary Certificate" has the meaning set out at paragraph 2.1 of the Terms of Sale;
2.1.39 "Sold With a Veterinary Certificate of Pregnancy" has the meaning set out at paragraph 2.1 of the Terms of Sale;
2.1.40 "Sold With a Veterinary Certificate of Suitability for Breeding" has the meaning set out at paragraph 2.1 of the Terms of Sale;
2.1.41 "Terms of Sale" means the terms set out at Schedule 1 as updated by ThoroughBid from time to time by informing you of the relevant changes by email or making an updated copy of the updated terms available on the Website;
2.1.42 "ThoroughBid IPR" means the Intellectual Property Rights in the Platform, Website or Services, along with ThoroughBid's Catalogue IPR;
2.1.43 "ThoroughBid Panel" means a panel comprising one or more veterinary surgeons appointed by ThoroughBid;
2.1.44 "ThoroughBid's Catalogue IPR" means all Intellectual Property Rights in the Catalogues except for any Intellectual Property Rights that are licensed to ThoroughBid pursuant to Clause 16.1;
2.1.45 "User" means any business or other person (which may be represented by an individual acting on their behalf) who has registered to use or access some or all of the Platform;
2.1.46 "User Information" has the meaning set out at Clause 3.4;
2.1.47 "User Material" means any information, data, documentation and other materials submitted by or on behalf of you to ThoroughBid in connection with your use of the Services (including any Catalogue Information or User Information);
2.1.48 "Vendor Commission Fee" means the amount payable by the Seller to ThoroughBid, or retained by ThoroughBid out of the Purchase Price, upon the Buyer's entry into a contract with the Seller for the sale and purchase of a Lot in accordance with Clauses 7.1 or 7.2, and which fee shall be the applicable percentage, as set out in the Vendor Guide or otherwise set out in these Terms and Conditions, of either: (i) where the contract is entered into between Users pursuant to Clause 7.1, the amount of the Bid that was submitted by the Buyer; or (ii) for the purposes of a contract entered into between Users pursuant to Clause 7.2, the amount of the Buyer's offer for the purchase of the applicable Lot that was accepted by the Seller;
2.1.49 "Vendor Guide" means the guide made available by ThoroughBid on the Platform under the "INFO" tab containing important information for prospective Sellers at https://www.thoroughbid.co.uk/vendor-guide;
2.1.50 "Veterinary Surgeon" means a fully licensed independent veterinary surgeon, registered with an internationally recognised Veterinary governing body;
2.1.51 "Virus" means any viruses, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or computer programming routines intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal data;
2.2 In these Terms and Conditions:
2.2.1 references to Clauses and Schedules are to the clauses of, and schedules to, these Terms and Conditions and references to paragraphs are to paragraphs of the relevant Schedule. These Terms and Conditions include the Schedules;
2.2.2 words importing a gender shall include the other gender and the neutral;
2.2.3 references to persons and entities include individuals, bodies corporate, firms, partnerships or unincorporated associations;
2.2.4 the singular includes the plural and vice versa;
2.2.5 the headings are inserted for convenience only and shall not affect the interpretation or construction of these Terms and Conditions;
2.2.6 references to "includes" or "including" or like words or expressions shall mean without limitation;
2.2.7 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification); and
2.2.8 references to "written" or in "writing" includes in electronic form.
2.3 ThoroughBid reserves the right to amend these Terms and Conditions at any time by posting an amended version of these Terms and Conditions online on the Website, although ThoroughBid may also email you with the latest draft. The amended version of ThoroughBid's Terms and Conditions will take effect in accordance with Clause 2.4. ThoroughBid may introduce the changes with or without informing you, although where ThoroughBid reasonably considers the change to be significant, ThoroughBid shall endeavour to give at least 30 days warning of the changes. However, in any event, you are responsible for regularly reviewing information posted online and the latest Terms and Conditions to obtain timely notice of all changes.
2.4 If ThoroughBid amends these Terms and Conditions pursuant to Clause 2.3, the amended version of these Terms and Conditions will apply to any Auction where the Auction Commencement Date applicable to that Auction falls at least five Business Days after the date upon which the amended version of these Terms and Conditions was first made available on the Website.
2.5 If you are a Seller and the version of the Terms and Conditions which will be applicable to your Auction in accordance with Clauses 2.3 and 2.4 changes after the date upon which you made your request to submit a Lot to be catalogued and auctioned in accordance with Clause 4.1, you may inform ThoroughBid in writing by email to salesoffice@thoroughbid.co.uk to be received by ThoroughBid at least two Business Days prior to the Auction Commencement Date applicable to that Auction if you do not wish to go ahead with submitting your Lot to Auction on the basis of the Terms and Conditions that will apply. Where ThoroughBid receives such a written communication from you, ThoroughBid shall within such period of time as ThoroughBid considers to be reasonable:
2.5.1 withdraw your Lot from the applicable Catalogue and from being auctioned; and
2.5.2 if you have already paid ThoroughBid the Entry Fee, return the Entry Fee to you.
If ThoroughBid does not receive a written communication from you pursuant to this Clause 2.5, you will be deemed to have accepted the amended version of these Terms and Conditions applicable to your Auction.
2.6 You shall not participate in any Auction as a Bidder or Buyer unless you accept the version of the Terms and Conditions which will apply to that Auction in accordance with Clauses 2.4 . Any participation by you in an Auction will be deemed to constitute your acceptance of the version of the Terms and Conditions which apply to that Auction.
2.7 Subject to Clauses 2.3 and 2.4, no changes to these Terms and Conditions shall apply specifically between ThoroughBid and you unless there is express written agreement of both you and ThoroughBid.
2.8 These Terms and Conditions shall apply to all use that you make of the Platform and Services.
3 Registering for use of ThoroughBid's Services
3.1 You shall register as a User in order to be able to make use of the Platform and Services. Please note that to use the Platform and Services you (and your representatives as applicable) if a human individual must be 18 years of age or over. If you do not register as a User, you may only view Auctions and you shall not take part in any Auction.
3.2 ThoroughBid reserves the right to prevent you from using the Platform or the Services (or any part of them), and ThoroughBid reserves the right to decline a new registration, for any reason. ThoroughBid or you may terminate your registration at any time by terminating your access to the Services in accordance with Clause 19.2.
3.3 If you register as a User, you may make use of the Platform's functionality to submit Lots for Auction as a Seller or to submit Bids for Lots that are being auctioned.
3.4 To register as a User, you shall supply ThoroughBid with the following information relating to you or your representative: your or their name, date of birth, details of your business/employer (if applicable), address, email address, telephone number, billing address, desired username (which you may need to replace if your desired one is unavailable), password, contact details to be provided to another User when you have agreed to buy or sell a Lot to that other User through your use of the Services, Nominated Bank Account and such other details as ThoroughBid may require during the registration process ("User Information").
3.5 You shall use your own details and you shall ensure that you and your representatives do not impersonate another person or adopt a false identity.
3.6 You shall not choose a password that can be readily guessed. If you think that you may have allowed a third party to see or use your password other than with your permission, you shall inform ThoroughBid immediately. You shall regularly change your password and in any event when ThoroughBid requires.
3.7 You shall keep your password strictly confidential and secure and you shall immediately inform ThoroughBid if any unauthorised third party becomes aware of that password or if you become aware of any unauthorised use of your email address or password or there is any breach of security known to or suspected by you. You agree that any person to whom your username or password is disclosed is authorised to act as your agent or representative for the purposes of using (and/or transacting via) the Platform, Services and Website. Please note that you are entirely responsible if you do not maintain the confidentiality of your password. You are also entirely responsible for bringing these Terms and Conditions to the attention of all persons who may access the Platform, Services or Website through your password or your internet connection.
3.8 Following your submission of your User Information, ThoroughBid shall review that User Information and, provided that ThoroughBid is satisfied that you have submitted complete and accurate information, ThoroughBid shall send an email to the email address you have given, requiring you to follow the instructions in that email in order to be able to use the Platform and Services. Until you have complied with the instructions in that email, you shall not use the Platform or Services.
4 Submitting a Lot for Auction
4.1 To request that a Lot be catalogued and auctioned by ThoroughBid via the Services, you shall submit to ThoroughBid all of the Initial Catalogue Information by filling in the Entry Form no later than 5pm three days prior to the applicable Catalogue Launch Date. Once you have completed the Entry Form, ThoroughBid shall provide you by email with details for paying the applicable Entry Fee. You shall pay the applicable Entry Fee to ThoroughBid promptly following your receipt of the email containing payment details. ThoroughBid shall be under no obligation to catalogue your Lot or submit your Lot to Auction unless the Entry Fee has been received in cleared funds by ThoroughBid prior to the Catalogue Launch Date.
4.2 If, once you have completed the Entry Form, you wish to provide ThoroughBid with additional Catalogue Information (such as photos or videos) relating to the Lot for inclusion in the Listing Page, you may provide such additional Catalogue Information by uploading it to the Lot in the “My Entries” section of the Website no later than 9am on the Catalogue Launch Date. ThoroughBid shall be entitled to decide in its absolute discretion whether it wishes to include such additional Catalogue Information or materials in the Listing Page. Failure to provide approved photos and video as may be applicable by such time will result in the Lot not being included in the Catalogue or submitted to Auction, and ThoroughBid shall be entitled to retain any Entry Fee already paid by you.
4.3 When you submit your Lot for Auction via the Services, it shall be made subject to a Reserve 4.3Price, as set by ThoroughBid acting in its absolute discretion.
4.4 In addition to providing the Initial Catalogue Information, in order for the Lot to be catalogued and auctioned via the Services, you shall also provide the applicable veterinary certificates in accordance with paragraph 2 of the Terms of Sale by uploading them in the “My Entries” section of the Website, by no later than 5pm on the third day before the applicable Auction Commencement Date. Failure to provide such certificates as may be required by such time will result in the Lot not being included in the Catalogue or submitted to Auction, and ThoroughBid shall be entitled to retain any Entry Fee already paid by you.
4.5 ThoroughBid may choose whether or not to accept any request that you make for a Lot to be catalogued and auctioned by ThoroughBid via the Services pursuant to Clause 4.1 in ThoroughBid's absolute discretion.
4.6 Once ThoroughBid is satisfied that you have provided all required Catalogue Information, and subject to Clause 4.4, ThoroughBid shall compile the Catalogue Information into a Listing Page.
4.7 ThoroughBid may choose to obtain a pedigree catalogue page for the Lot from a pedigree provider, such as Arion Pedigrees Ltd, for inclusion in the Lot's Listing Page.
4.8 In relation to each Lot you submit to be auctioned via the Platform:
4.8.1 you are responsible for the accuracy, content and legality of all Catalogue Information which you provide and any other information that is contained in your Lot's Listing Page (including, for the avoidance of doubt, any information that ThoroughBid obtains from a pedigree provider in accordance with Clause 4.7). It is your responsibility to regularly check your Lot's Listing Page at reasonable intervals before the commencement of the Auction. You shall inform ThoroughBid immediately by writing to salesoffice@thoroughbid.co.uk if you become aware of any inaccuracies, or anything that is unlawful, in the Catalogue Information that you have provided to ThoroughBid or in any other information comprised in your Lot's Listing Page. If ThoroughBid becomes aware that any Catalogue Information which is supplied by you, or any other information comprised in the Lot's Listing Page, is unlawful or inaccurate, ThoroughBid may modify or remove such Catalogue Information as ThoroughBid in its absolute discretion sees fit;
4.8.2 save as explicitly stated otherwise in these Terms and Conditions, you are responsible for all taxes (including penalties, late payment interest or charges) related to the sale by you of the Lot; and
4.8.3 you shall ensure that you hold the legal right to sell the Lot, and that your submission of the Lot to be catalogued and auctioned via the Services does not infringe any third party rights or is unlawful in any way.
4.9 If, by 9am on the applicable Catalogue Launch Date, ThoroughBid has received the applicable Entry Fee from you, then, subject to Clauses 4.11 and 4.13, ThoroughBid shall include the Lot in the applicable Catalogue and the Lot will be the subject of an Auction starting on the applicable Auction Commencement Date. Typically, an Auction will be live for a period of 10 hours (subject to any extension in accordance with Clause 6.4) but ThoroughBid reserves the right to hold Auctions for a shorter or longer period in ThoroughBid's absolute discretion. If ThoroughBid, in its absolute discretion, decides to hold an Auction for a period that is shorter or longer than three days, ThoroughBid shall make known the duration of the Auction in the applicable Catalogue.
4.10 ThoroughBid may, in its absolute discretion, choose to submit a new Lot to Auction notwithstanding that an Entry Form for the Lot has not been submitted by 5pm three days before the applicable Catalogue Launch Date. For the purposes of clarification, such a Lot shall be known as a “wildcard entry”. If you wish to submit a Lot to Auction later than 5pm three days before the applicable Catalogue Launch Date, please contact ThoroughBid at salesoffice@thoroughbid.co.uk and ThoroughBid shall inform you of the special terms which will apply in relation to the submission of your Lot which you must accept in order to be entitled to submit your Lot for Auction. ThoroughBid makes no guarantee to catalogue your Lot unless all required documentation is received prior to the deadline specified by ThoroughBid.
4.11 As from the moment that ThoroughBid receives your request to submit a Lot to Auction pursuant to Clause 4.1, you shall only be entitled to withdraw a Lot from being auctioned if, prior to the Auction Commencement Date, ThoroughBid receives a written request from you by email to salesoffice@thoroughbid.co.uk requesting the withdrawal of the Lot which is accompanied by a vet's certificate signed by a Veterinary Surgeon and which is to ThoroughBid's reasonable satisfaction. If the information about the Lot which you submit pursuant to this Clause 4.11 is not to ThoroughBid's reasonable satisfaction, then ThoroughBid reserves the right to issue you with an invoice for a withdrawal fee in the sum of £250 which shall be payable by you within three Business Days of your receipt of the applicable invoice.
4.12 By submitting a Lot to be catalogued and auctioned via the Services, you undertake that you shall complete and fully perform any contract that may be entered into between you and another User pursuant to Clauses 7.1 or 7.2.
4.13 Where ThoroughBid has accepted a request from you pursuant to Clause 4.1 for a Lot to be catalogued and auctioned via the Services, ThoroughBid may in ThoroughBid's absolute discretion, and at any time, decide to withdraw your Lot from inclusion in the applicable Catalogue and being auctioned. Where this is the case, ThoroughBid shall return to you the applicable Entry Fee unless ThoroughBid, in ThoroughBid's absolute discretion, considers that you have committed a material breach of these Terms and Conditions.
5 Inspections
5.1 If a User wishes to contact a Seller in order to arrange an inspection of the Seller's Lot or to make enquiries about it, that User shall contact the Seller using the details made available for the Seller in the Lot’s Listing Page.
5.2 If you are a Seller, you agree, as from the Catalogue Launch Date of the Catalogue in which your Lot is featured until Fall of Hammer, to use all reasonable endeavours to co-operate with all enquiries and requests from other Users, including by:
5.2.1 responding to any requests for information about the Lot; and
5.2.2 using all reasonable endeavours to facilitate any inspection of the Lot requested by another User, whether such inspection is to be carried out by that User or a third party on its behalf, such as a member of the "Federation of Bloodstock Agents", a licensed racehorse trainer or Veterinary Surgeon or any other designated representative.
5.3 Without prejudice to any of ThoroughBid's other rights and remedies under these Terms and Conditions, ThoroughBid reserves the right to do either or both of the following, if, in ThoroughBid's absolute discretion, ThoroughBid considers that you have not complied with Clause 5.2:
5.3.1 withdraw your Lot from the Catalogue in which it is featured and from being auctioned via the Services; or
5.3.2 terminate your right to use the Services.
6 Bidding for Lots
6.1 Subject always to the General Rules, during the period in which an Auction is live:
6.1.1 any User other than the Seller may submit a Bid for the Lot that is the subject of that Auction; and
6.1.2 either the Seller or any one person on the Seller's behalf (and not any other person) may submit 6.1.2 a Bid for the Lot that is the subject of that Auction.
6.2 If you place a Bid for a Lot, you acknowledge and agree that you cannot withdraw your Bid under any circumstances.
6.3 Without prejudice to any of ThoroughBid's other rights and remedies under these Terms and Conditions, ThoroughBid may, in ThoroughBid's absolute discretion, prevent you from placing Bids if ThoroughBid consider that you are in breach of the General Rules.
6.4 From the start of an Auction, ThoroughBid shall display on the Platform information about the time at which Fall of Hammer is scheduled to take place. If a Bid is received by ThoroughBid in the last minute before an Auctioned in scheduled to end, ThoroughBid shall extend the period for which that Auction is scheduled to run, on a rolling basis, by further periods of two minutes.
7 Completion of a sale following Fall of Hammer
7.1 Upon Fall of Hammer where one or more Users placed a Bid for the Lot, and both of the following applies:
7.1.1 the highest Bid met or exceeded the Reserve Price; and
7.1.2 that highest Bid was not placed by or on behalf of the Seller;
then, at Fall of Hammer, the User that submitted the highest Bid shall be the Buyer and shall be deemed to have entered into a contract with the Seller to buy the Lot for the Purchase Price on the basis set out in these Terms and Conditions and subject to the Terms of Sale which are current at the time of the Auction Commencement Date.
7.2 Upon Fall of Hammer where:
7.2.1 no Bids were placed in the Auction;
7.2.2 the highest Bid placed in the Auction was not placed by or on behalf of the Seller, and that highest Bid did not meet or exceed the Reserve Price; or
7.2.3 the highest Bid placed in the Auction met, or exceeded, the Reserve Price and that highest Bid was placed by or on behalf of the Seller but the Seller has not "bought-in" the Lot in accordance with Clause 9.1;
then, ThoroughBid may offer the opportunity through the Platform for any User other than the Seller to communicate to ThoroughBid a private offer that they would like to make to the Seller for the Lot. The ability to make such a private offer shall be open for seven days from the date in which the lot was offered for sale. ThoroughBid shall pass any such private offer received to the Seller following ThoroughBid's receipt of it, for the Seller's decision. If the Seller confirms to ThoroughBid in writing by email to salesoffice@thoroughbid.co.uk that it wishes to accept that offer within the time for doing so as stated on the Platform, then, at the time of ThoroughBid's receipt of that confirmation, ThoroughBid shall inform the User that placed the offer of the Seller's decision to accept the offer. Upon ThoroughBid informing the User of the Seller's decision to accept the offer, the Seller shall be deemed to have entered into a contract for the sale and purchase of the Lot on the basis set out in these Terms and Conditions and subject to the Terms of Sale which are current at the time of the relevant Auction Commencement Date applicable to the Lot.
7.3 Where a contract is entered into between a Buyer and Seller pursuant to Clauses 7.1 or 7.2:
7.3 1 risk in the Lot shall pass from the Seller to the Buyer as from the moment at which the contract for the sale and purchase of the Lot between the Seller and Buyer is deemed to have been entered into in accordance with these Terms and Conditions;
7.3.2 ThoroughBid shall:
(a) make the Purchase Confirmation Form available to the Buyer via email. The Buyer shall complete the Purchase Confirmation Form promptly with accurate information within 30 minutes of it having been sent to the Buyer by email. The Buyer acknowledges that if the Buyer does not complete and return the Purchase Confirmation Form to ThoroughBid in accordance with this Clause 7.3.2(a), the Buyer shall not be entitled to exercise any of its rights under the Terms of Sale to: re-examine the Lot; test the Lot for Prohibited Substances; or test the Lot for piroplasmosis; or to submit a Notice of Complaint; and
(b) within 24 hours of the contract for the sale and purchase of the Lot between the Seller and Buyer being entered into, issue the Buyer with an invoice for the Purchase Price (purely as an agent for the Seller) and the applicable Commission Fee;
7.3.3 ThoroughBid shall provide each of the Buyer and the Seller with the other's contact details which were provided to ThoroughBid for this purpose when they registered for use of ThoroughBid's Services;
7.3.4 subject to Clause 7.4, the Buyer shall pay the applicable invoice issued by ThoroughBid for the Purchase Price and the applicable Commission Fee in cleared funds prior to:
(a) 12pm on the date falling three days after the date on which Fall of Hammer occurred where the contract for the sale and purchase of the Lot was entered into pursuant to Clauses 7.1; or
(b) 12pm on the date falling three days after the date on which the contract is deemed to have been entered into where the contract for the sale and purchase of the Lot was entered into pursuant to Clause 7.2; and
7.3.5 subject to Clause 7.4, the Buyer shall collect the Lot from the Seller, subject to ThoroughBid having first confirmed to the Buyer that it has received the payment referred to by the time stated at Clause 7.3.4.
7.4 The Buyer shall be under no obligation to pay the Purchase Price or the Commission Fee prior to the deadline stipulated at Clause 7.3.5, or to collect the Lot prior to the Collection Deadline, where the Buyer has exercised its right pursuant to paragraph 3 of the Terms of Sale to request the re-examination of the Lot and either of the following applies: (i) the sale is cancelled in accordance with paragraphs 3.4(b); or (ii) ThoroughBid accepts the Buyer's claim that the Lot has failed its re-examination pursuant to paragraph 3.5 of the Terms of Sale. Where the Buyer claims that the Lot has failed its re-examination and the Buyer's claim is referred to adjudication by ThoroughBid in accordance paragraph 3.8 of the Terms of Sale, then, unless ThoroughBid's decision made pursuant to paragraph 10.2 of the Terms of Sale is to uphold the Buyer's claim (in which case the sale will be cancelled), the Buyer shall fall under the obligations to pay the Purchase Price and the Commission Fee in accordance with paragraph 10.6(b)(i) of the Terms of Sale and to collect the Lot in accordance with paragraph 10.6(b)(ii) of the Terms of Sale.
7.5 The Seller shall provide the Buyer, at the Seller's expense, with such reasonable assistance as the Buyer may require in connection with the collection of the Lot:
7.5.1 where the Buyer falls under the obligation in accordance with Clause 7.3.5, to collect the Lot prior to the Collection Deadline; or
7.5.2 where the Buyer falls under the obligation in accordance with paragraph 10.6(b)(ii) of the Terms of Sale, to collect the Lot from the Seller prior to the deadline stipulated in that paragraph.
7.6 Unless ThoroughBid informs the Seller otherwise in writing, the Seller shall not in any circumstances allow the Lot to be collected by the Buyer prior to the applicable Collection Deadline until such time as ThoroughBid has confirmed to the Seller that ThoroughBid has received the Purchase Price and the applicable Commission Fee from the Buyer in cleared funds (and any failure by the Seller to follow this will be at its own risk).
7.7 Where the Buyer complies with its obligation to pay the Purchase Price and the applicable Commission Fee to ThoroughBid in cleared funds prior to the applicable Payment Deadline, and if the sale has not been cancelled in accordance with the provisions of the Terms of Sale (in which case the Purchase Price shall be returned to the Buyer in accordance with the applicable provisions of the Terms of Sale), then ThoroughBid shall pay the Purchase Price to the Seller's Nominated Bank Account. ThoroughBid shall pay the Purchase Price no sooner than the seventh Business Day and no later than the 14th Business Day that falls following the date of the receipt by ThoroughBid of the Purchase Price and the applicable Commission Fee from the Buyer, provided that ThoroughBid, acting in its absolute discretion, is satisfied that there is no longer any possibility of the sale being cancelled in accordance with the Terms of Sale. If, on the 14th Business Day following the receipt by ThoroughBid from the Buyer of the Purchase Price and the applicable Commission Fee, ThoroughBid acting in its absolute discretion, considers that there is still any possibility of the sale being cancelled in accordance with the Terms of Sale, ThoroughBid, shall be entitled to delay the payment of the Purchase Price to Seller's Nominated Bank Account until such time as ThoroughBid, acting reasonably, considers that there is no longer any possibility of the sale being cancelled in accordance with the Terms of Sale.
7.8 Where the Buyer does not comply with its obligation to pay the Purchase Price and the applicable Commission Fee to ThoroughBid prior to the applicable Payment Deadline, then:
7.8.1 ThoroughBid may require that interest on the Purchase Price owing to the Seller accrues to ThoroughBid at a rate of 8% above Bank of England base rate from time to time per annum (after as well as before judgment), such interest to run from day to day and to be compounded monthly, for each day (whether in full or in part) falling after the deadline stipulated at Clause 7.3.5 or paragraph 10.6(b)(ii) of the Terms of Sale as the case may be, during which payment of the Purchase Price has not been made;
7.8.2 ThoroughBid may require that interest on the applicable Commission Fee owing to ThoroughBid accrues to ThoroughBid at a rate of 8% above Bank of England base rate from time to time per annum (after as well as before judgment), such interest to run from day to day and to be compounded monthly, for each day (whether in full or in part) falling after the deadline stipulated at Clause 7.3.5 or paragraph 10.6(b)(ii) of the Terms of Sale as the case may be, during which payment of the Commission Fee has not been made; and
7.8.3 where ThoroughBid and the Buyer have agreed that the Buyer shall pay the Purchase Price and the applicable Commission Fee using the FX Facility, by the Buyer requesting to use this payment method on the Purchase Confirmation Form, ThoroughBid shall be entitled to charge the Buyer the sum of £100 in consideration of the costs incurred by ThoroughBid as a result of the Buyer's failure to pay the Purchase Price and the Commission Fee using the FX Facility prior to the deadline stipulated at Clause 7.3.4 or paragraph 10.6(b)(ii) of the Terms of Sale as may be applicable. ThoroughBid shall issue a new invoice for the outstanding balance, including the £100 sum, at the new currency rate, which the Buyer shall pay within two days of the Buyer's receipt of invoice. If the Buyer brings a claim under paragraph 3 of the Terms of Sale that results in the cancellation of the sale, the Buyer shall be under no obligation to pay the £100 sum referred to in this Clause 7.8.3 and ThoroughBid, at ThoroughBid's absolute discretion, shall be entitled to provide an invoice for this £100 sum to the Seller which shall be payable by the Seller within two Business Days of the Seller's receipt of invoice.
7.9 If the Buyer pays the Purchase Price and the applicable Commission Fee to ThoroughBid, but does not comply with its obligation to do so prior to the applicable Payment Deadline, ThoroughBid shall pay the Purchase Price to the Seller's Nominated Bank Account, no sooner than the seventh Business Day, and no later than the 14th Business Day, that falls after the date of the receipt by ThoroughBid of the Purchase Price and the applicable Commission Fee from the Buyer.
7.10 If and to the extent that ThoroughBid does not receive the Purchase Price and the applicable Commission Fee in full from the Buyer prior to the applicable Payment Deadline, then ThoroughBid shall be entitled to appropriate any monies received from the Buyer towards satisfaction of the applicable Commission Fee and any interest thereon accruing in accordance with Clause 7.8.2, before appropriating them towards satisfaction of the Purchase Price or any interest thereon accruing in accordance with Clause 7.8.1.
7.11 If for any reason the Buyer does not comply with its obligation to collect the Lot prior to the applicable Collection Deadline, then for each day (whether in full or in part) falling after the applicable Collection Deadline that the Lot has to continue to be boarded by the Seller due to the Buyer's failure to collect the Lot prior to the applicable Collection Deadline, the Buyer shall be liable to pay to the Seller a daily Seller's Boarding Fee. ThoroughBid shall be entitled to invoice the Buyer on behalf of the Seller for any Seller's Boarding Fees at such intervals as ThoroughBid shall see fit, and the Buyer shall pay to ThoroughBid any invoice issued by ThoroughBid for the Seller's Boarding Fees within two Business Days of receipt of the invoice. Within seven Business Days of the receipt by ThoroughBid of any Seller's Boarding Fees from the Buyer in cleared funds, ThoroughBid shall pay those Seller's Boarding Fees to the Seller's Nominated Bank Account.
7.12 Without prejudice to any other rights and remedies that ThoroughBid may have under these Terms and Conditions, if on the 14th or a subsequent day that falls after the applicable Payment Deadline, ThoroughBid has still not received in full the sum of the Purchase Price and ThoroughBid's Commission Fee (together with any interest due pursuant to Clause 7.8) and all Seller's Boarding Fees from the Buyer, ThoroughBid, in its absolute discretion, shall be entitled to deem that the Buyer has repudiated the contract that has been entered into between the Buyer and the Seller for the sale and purchase of the Lot.
7.13 Where, in accordance with Clause 7.12, ThoroughBid deems that the Buyer has repudiated the contract that has been entered into between the Buyer and the Seller, ThoroughBid shall have the right to require the Seller to:
7.13.1 appoint ThoroughBid as its agent to bring an action against the Buyer, at the Seller's sole expense, for the payment of the outstanding Purchase Price (together with any Seller's Boarding Fees owed by the Buyer to the Seller); or
7.13.2 submit the Lot to be entered into the next Catalogue and auctioned again via the Platform, and appoint ThoroughBid as its agent, at the Seller's sole expense, to bring a claim against the Buyer for the difference between any lower price for which the Lot is sold at such subsequent Auction and the sum of the Purchase Price (together with any Seller's Boarding Fees owed by the Buyer to the Seller).
7.14 The Seller acknowledges and agrees that ThoroughBid shall at no time be under any obligation to exercise ThoroughBid's rights under Clause 7.13 and that nothing under Clause 7.13 shall prejudice any right of the Seller to bring a claim against the Buyer in connection with the failure of the Buyer to pay the Purchase Price (together with any Seller's Boarding Fees owed to the Seller). Where ThoroughBid brings a claim against the Buyer on the Seller's behalf pursuant to Clause 7.13, the Seller shall provide ThoroughBid (at the Seller's own cost) with all reasonable assistance and co-operation as ThoroughBid may require in relation to bringing that claim.
8 Private sales that take place outside of the Platform
8.1 If you submit a Lot for Auction by ThoroughBid pursuant to Clause 4.1 and either of the following applies:
8.1.1 you withdraw the Lot from being auctioned in accordance with Clause 4.11; or
8.1.2 no contract for the sale and purchase of the Lot is entered into pursuant to Clauses 7.1 or 7.2 and you do not inform ThoroughBid that the Lot is "bought-in" in accordance with Clause 9.1;
then, if that Lot is sold otherwise than by way of the Services between the date on which it first appears in the applicable Catalogue and the date falling 14 days after the date by which all Auctions for Lots featured in that Catalogue have ended (an "Off-Platform Private Sale") you shall promptly, and in any event within 24 hours of that Off-Platform Private Sale, inform ThoroughBid in writing of that Off-Platform Private Sale by email to salesoffice@thoroughbid.co.uk and pay to ThoroughBid a fee on the Off-Platform Private Sale which is equivalent to 5% of the price for which the Lot was sold via that Off-Platform Private Sale. ThoroughBid shall issue you with an invoice for the applicable amount within one Business Day of having been informed by you in writing of the Off-Platform Private Sale. ThoroughBid's applicable invoice provided under this Clause 8.1 shall be payable by you within three Business Days of receipt.
8.2 If you fail to inform ThoroughBid of an Off-Platform Private Sale for your Lot within three Days of that Off-Platform Private Sale in accordance with Clause 8.1:
8.2.1 you shall owe ThoroughBid a fee on the Off-Platform Private Sale equivalent to 10% of the price for which the Lot is sold via the Off-Platform Private Sale; and
8.2.2 ThoroughBid shall within one Business Day of ThoroughBid having become aware of the Off-Platform Private Sale issue you with an invoice, payable by you immediately, for:
(a) the applicable fee referred to at Clause 8.1; and
(b) interest on the applicable fee referred to at Clause 8.1 to be calculated on the basis referred to at Clause 12.11.1 for the period between the expiry of the third Business Day following the date of the Off-Platform Private Sale and the date upon which ThoroughBid issues ThoroughBid's applicable invoice in accordance with this Clause 8.2.2.
8.3 For the purposes of calculating the applicable fee on an Off-Platform Private Sale due to ThoroughBid under Clauses 8.1 or 8.2.1, ThoroughBid reserves the right to require you to pay the applicable fee on such sale price by reference to an amount which ThoroughBid, acting reasonably, considers to be the market value of the Lot on the date upon which the Off-Platform Private Sale took place if, in ThoroughBid's reasonable opinion, the price for which the Lot was sold on the date of the Off-Platform Private Sale was below market value.
9 Bought-in and Unsold Lots
9.1 Upon Fall of Hammer, if the highest Bid that was placed in an Auction was placed by the Seller and that Bid met or exceeded the Reserve Price, the Seller shall inform ThoroughBid in writing if it wishes for ThoroughBid to publish the Lot as having been "bought-in" by completing the Purchase Confirmation Form and submitting it within 30 minutes of Fall of Hammer. Unless a completed Purchase Confirmation Form containing the Seller's confirmation that the Lot has been "bought-in" is received by ThoroughBid within 30 minutes of Fall of Hammer, then the Lot shall be published as unsold and may be listed by ThoroughBid as available for Users to “Make an Offer” in accordance with Clause 7.2.
9.2 If the Seller informs ThoroughBid in writing in accordance with Clause 9.1 that the Lot has been "bought-in", ThoroughBid shall be entitled to issue the Seller with an invoice for an amount that is equivalent to a 2.5% Commission Fee on the Seller's winning Bid. ThoroughBid's applicable invoice provided under this Clause 9.2 shall be payable by the Seller within three Business Days of receipt.
9.3 If a Lot is auctioned via the Platform and both of the following applies:
9.3.1 no contract is entered into for the sale and purchase of the Lot pursuant to Clause 7.1; and
9.3.2 ThoroughBid is not informed in writing by the Seller that the Lot is deemed to be "bought-in" in accordance with Clause 9.1;
then, if on the third day following Fall of Hammer, no contract has been entered into for the sale and purchase of the Lot pursuant to Clause 7.2, ThoroughBid shall be entitled to issue the Seller with an invoice for £250 in consideration of the Seller having had the opportunity to sell their Lot via an Auction held on the Platform. If, however, the Lot is subsequently sold pursuant to Clause 7.2, ThoroughBid shall refund the fee referred to in this Clause 9.3 to the Seller.
10 Circumstances in which a Sale may be Cancelled
10.1 The Buyer and Seller acknowledge and agree that where a contract for the sale and purchase of a Lot is entered into between them pursuant to Clauses 7.1 or 7.2, the Terms of Sale set out the only circumstances in which the Buyer shall be entitled to request the cancellation of the sale and, where applicable, claim a refund of the Purchase Price and the applicable Commission Fee.
11 ThoroughBid's provision of the Services and the Platform
11.1 A User will be deemed to have entered into a binding legal agreement with another User in any of the circumstances described in Clauses 7.1 or 7.2. ThoroughBid are not a party to that binding legal agreement.
11.2 The Platform and the Services are made available by ThoroughBid solely to enable people in the equine industry to buy and sell horses by way of Auction, or by way of private sale in the circumstances described at Clause 7.2.
11.3 You shall not participate in any Auction unless you are fully able to complete any binding legal agreement with another User that may result.
11.4 You acknowledge and agree that each Lot is sold with any engagements applicable to that Lot that have been announced by the applicable Auction Commencement Date. ThoroughBid shall have no Liability for any matter relating to the engagements of the Lot (including the omission from the Lot's Listing Page of any details about engagements). The Seller is solely responsible for ensuring that all relevant documentation is completed and lodged with the "Authority" in question for an engagement that has been announced by the applicable Auction Commencement Date, but it shall be for the Buyer to cancel any engagement if it chooses including bearing the cost of any forfeit for doing so.
11.5 You shall not allow any Lot to take up an intended engagement and race from the Auction Commencement Date until ThoroughBid has received full payment of the Purchase Price and the applicable Commission Fee from the Buyer, along with any other outstanding Fees that may be due from the Buyer to ThoroughBid.
11.6 ThoroughBid does not warrant the eligibility of any Lot for any breeders’ scheme. Regarding any such statements as to such eligibility, it is entirely the responsibility of the Seller to ensure they are accurate.
11.7 You acknowledge that:
11.7.1 any payments that ThoroughBid makes are made by ThoroughBid at the risk of the payee, including any payments made pursuant to Clauses 2.5.2, 7.7, 7.9, 7.11 or paragraphs 3.4(b), 3.7(c), 5.5(b), 6.5(b) or 10.5(f) of the Terms of Sale;
11.7.2 ThoroughBid shall be under no obligation to place the Purchase Price or any other sums on deposit pending onward payment of them by ThoroughBid to a User;
11.7.3 any arrangement or agreement you conclude with any other User via the Platform or the Services is entirely at your own risk and ThoroughBid shall in no circumstances have any Liability whatsoever in respect of any such arrangements or agreements or any User's failure to comply with such arrangements or agreements;
11.7.4 other Users shall be responsible for performing their respective obligations owed to you. This shall not be ThoroughBid's responsibility. Subject to Clause 18.2, you shall not seek to claim any Liability from ThoroughBid for any act or omission of another User or any failure of another User to carry out any of their obligations owed to you; and
11.7.5 the information about Lots (including the information contained in the Catalogue) available on the Platform and Website is dependent on information submitted by Users or otherwise obtained by ThoroughBid from third parties (for example where ThoroughBid obtains a pedigree certificate in accordance with Clause 4.7). ThoroughBid makes no warranty in respect of the accuracy, completeness, currency, fitness for purpose or legality of any information accessed using the Platform, Services or Website, or otherwise communicated to you by ThoroughBid, that has been made available by another User in connection with their use of the Services or that has been obtained by ThoroughBid from a third party. Subject to Clause 18.2, ThoroughBid shall not have any Liability to you in respect of any information about a Lot that is made available via the Services.
11.8 ThoroughBid does not warrant that:
11.8.1 any Lot is owned by any person stated to be the owner at the time that the Lot is catalogued;
11.8.2 the Website will be compatible with any hardware and software which you may use;
11.8.3 the Platform, Services or Website will be free of faults and ThoroughBid does not accept Liability for any errors or omissions;
11.8.4 your use of or access to the Platform, Services or Website will be uninterrupted;
11.8.5 any information transmitted via the Platform, Services or Website will be transmitted accurately, reliably, in a timely manner; or
11.8.6 the Platform, Services or Website are free from Viruses or anything else which may have a harmful effect on any technology. Although ThoroughBid may put in place security measures for your protection, (subject to Clause 18.2) ThoroughBid shall not have any Liability for damage to, or Viruses or other code that may affect, any computer equipment, software, data or other property as a result of your access to or use of the Platform, Services or Website. ThoroughBid shall also not have any Liability for the actions of third parties in breaching any security measures.
11.9 In the event of a fault in the Platform, Services or the Website, you should report it by email to: salesoffice@thoroughbid.co.uk. ThoroughBid will use ThoroughBid's reasonable endeavours to correct any errors or omissions on the Platform or Services as soon as practicable after being informed of them.
11.10 Although ThoroughBid will try to allow access and minimise downtime to the Platform, Services and Website, access to the Platform, Services and Website may be suspended, restricted or terminated at any time for any reason (including for necessary maintenance or introduction of new functionality or content).
11.11 ThoroughBid reserves the right to change, modify, substitute, suspend or remove without notice any information or service on the Platform or Website or forming part of the Services from time to time without prior warning to you.
11.12 To use the Website, you shall be solely responsible for your own Internet connectivity and appropriate telecommunication links.
11.13 You shall co-operate with ThoroughBid on all matters related to the Services.
11.14 ThoroughBid shall be under no obligation to provide you with technical support for your use of the Platform, Services or Website. If, in ThoroughBid's absolute discretion, ThoroughBid provides you with any technical support, ThoroughBid shall not have any Liability to you if that support does not resolve the relevant issue within any particular timeframe or at all.
12 ThoroughBid's Fees and payment terms
12.1 In consideration of you being provided with the right to make use of the Services, you shall pay to ThoroughBid any sums that may be due to ThoroughBid from you from time to time under these Terms and Conditions or otherwise in connection with ThoroughBid's provision to you of the Services, including:
12.1.1 the applicable Entry Fee when you submit a Lot to the Platform in accordance with Clause 4.1;
12.1.2 the withdrawal fee referred to at Clause 4.11;
12.1.3 the fee due to ThoroughBid pursuant to Clause 8 where an Off-Platform Private Sale takes place;
12.1.4 the applicable Commission Fee when you become the Buyer of a Lot pursuant to Clauses 7.1 or 7.2 (together with any interest accrued thereon in accordance with Clause 7.8.2 where you do not pay the Commission Fee prior to the applicable Payment Deadline);
12.1.5 any interest on the sum of the Purchase Price that accrues thereon in accordance with Clause 7.8.1 where you do not pay the Purchase Price prior to the applicable Payment Deadline;
12.1.6 the administration fee payable pursuant to Clause 7.8.3 where you have agreed to pay the Purchase Price and the Commission Fee via the FX Facility and you do not pay the amount due prior to the applicable Payment Deadline;
12.1.7 the fee due to ThoroughBid pursuant to Clause 13.2.2 where you fail to comply with the deadline referred to in Clause 13.2;
12.1.8 the fee due to ThoroughBid where a Lot is "bought-in" in accordance with Clause 9.2;
12.1.9 the fee due to ThoroughBid where a Lot is "unsold" in accordance with Clause 9.3; and
12.1.10 the sum due from you to ThoroughBid pursuant to paragraphs 3.4(c), 3.7(d), 5.5(c), 6.5(c) or 10.5(e) of the Terms of Sale where you are a Seller and the sale is cancelled;
12.1.11 there are commission fees charged for using the FX Facility described in Clause 2.1.18. ThoroughBid receives a share of these.
together, being the "Fees".
12.2 You shall pay to ThoroughBid all Fees within the required timeframes (including any timeframes stipulated in these Terms and Conditions). Time for payment shall be of the essence.
12.3 Unless these Terms and Conditions or the applicable invoice stipulates otherwise, you shall pay ThoroughBid for any invoice for ThoroughBid's Fees issued by ThoroughBid within three days of your receipt of it.
12.4 You shall ensure you are fully entitled to use any payment details which you provide to ThoroughBid (or ThoroughBid's payment services providers) in connection with your payment of the Fees. You shall ensure that any payment card or bank account which you use has sufficient funds to cover the proposed payment.
12.5 All Fees are exclusive of VAT and other taxes and levies (if applicable), which shall be payable in addition at the same time as the payment of the Fees.
12.6 Where, in accordance with these Terms and Conditions, ThoroughBid issues an invoice for the Purchase Price to the Buyer, ThoroughBid shall, where applicable, apply VAT on that Purchase Price using the information that is: (i) provided by the Buyer when the Buyer completes the Purchase Confirmation Form; and (ii) provided by the Seller when the Seller completes the Entry Form. Where you are the Buyer, you warrant to ThoroughBid that all information you provide when completing the Purchase Confirmation Form is complete and accurate and that you will inform ThoroughBid promptly, and in any event within 24 hours, if at any time any of the information contained in the Purchase Confirmation Form becomes inaccurate. See Purchaser Guide for further information about VAT.
12.7 Subject to Clause 18.2, ThoroughBid shall have no Liability to the Buyer or the Seller in any circumstances if ThoroughBid does not, where applicable, apply VAT on the Purchase Price at the correct rate.
12.8 Unless otherwise agreed by ThoroughBid in writing, all payment of ThoroughBid's Fees or other sums due to ThoroughBid shall be in the currency in force in England from time to time.
12.9 No payment by you of any Fees, shall be considered paid until ThoroughBid have received the relevant payment in cleared funds in full.
12.10 ayment of all sums due to ThoroughBid under these Terms and Conditions shall be made in full without any set-off, deduction or withholding whatsoever and made using such payment method as may be stipulated in these Terms and Conditions or any other payment method reasonably stipulated by ThoroughBid.
12.11 If you are late in paying any part of any monies due to ThoroughBid under these Terms or Conditions or any other contract between ThoroughBid, ThoroughBid may (without prejudice to any other right or remedy available to ThoroughBid whether under these Terms and Conditions or by any statute, regulation or bye-law) do either or both of the following:
12.11.1 except in the circumstances where Clause 7.8 applies (and in which circumstances you shall pay ThoroughBid interest in accordance with that Clause), charge interest and claim other costs on the amount due but unpaid as permitted under the Late Payment of Commercial Debts (Interest) Act 1998 from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly; or
12.11.2 suspend the performance of ThoroughBid's Services and any other contract between ThoroughBid and you until ThoroughBid has been paid in full.
13 Compliance with laws relating to the import or export of goods
13.1 Where you enter into a contract for the sale and purchase of a Lot pursuant to Clauses 7.1 or 7.2, you shall comply at all times with all applicable laws and regulations relating to import or export of goods. For the avoidance of doubt, your obligations under this Clause 13.1 include you ensuring at all times that you have in place all paperwork as may be required under applicable laws and regulations relating to the import and export of goods, and ensuring that you deliver up to ThoroughBid such paperwork as you may be required to deliver up under applicable laws and regulations relating to the import and export of goods so that ThoroughBid can pass it from you to the other User with whom you have entered into a contract for the sale and purchase of the Lot pursuant to Clauses 7.1 or 7.2.]
13.2 Without prejudice to your obligations under Clause 13.1, where you are the Buyer and you will be exporting the Lot, you shall deliver up to ThoroughBid all proof of export documentation required under applicable laws and regulations within 28 days of the date on which the contract for the sale and purchase of the Lot pursuant to Clauses 7.1 or 7.2 has been entered into. Where ThoroughBid does not receive the proof of export documentation required from you before the deadline stipulated in this Clause 13.2, ThoroughBid reserves the right to:
13.2.1 provide you with an invoice for VAT on the Purchase Price on behalf of the Seller at such rate as ThoroughBid, in its absolute discretion, considers to be applicable which shall be payable by the Buyer within three Business Days of it having been received by you; and
13.2.2 provide you with an invoice in the sum of £100 in consideration of ThoroughBid's administration costs incurred in relation to your failure to comply with the deadline referred to in this Clause 13.2. This invoice shall be payable within three Business Days of it having been received by you.
14 General rules
14.1 You shall (and you shall procure that your representatives shall, as applicable) comply with all of the General Rules and act in the spirit of the General Rules when making use of the Platform, Services and Website.
14.2 You shall inform ThoroughBid as soon as you suspect that any User is in breach of any of the General Rules. Following receipt of your information, ThoroughBid may investigate and decide what, if any, action to take in ThoroughBid's absolute discretion. ThoroughBid shall not enter into discussion as to ThoroughBid's decision or the results of ThoroughBid's investigation.
14.3 You shall not falsely report any actual or suspected breach of the General Rules.
14.4 If you are a Seller, ThoroughBid reserves the right to remove any one or more of your Lots from the Platform at any time if ThoroughBid suspects that you have breached any provision of these Terms and Conditions.
14.5 If you are a Bidder, ThoroughBid reserves the right to remove your participation in Bidding for any one or more Lots at any time if ThoroughBid suspects that you have breached any provision of these Terms and Conditions.
15 Intellectual Property Rights
15.1 All ThoroughBid IPR shall remain ThoroughBid's property (or that of ThoroughBid's licensors). You shall not, and you shall not attempt to, obtain or claim any title to any ThoroughBid IPR. All rights not expressly granted by ThoroughBid are reserved.
15.2 Strictly in accordance with these Terms and Conditions, ThoroughBid permits you to make use of the Platform and Services from the Commencement Date until the sooner of:
15.2.1 the expiry of these Terms and Conditions;
15.2.2 the termination of these Terms and Conditions; or
15.2.3 the exercise by ThoroughBid of any of ThoroughBid's rights under these Terms and Conditions to suspend or terminate your access to the Platform or Services.
15.3 None of the ThoroughBid IPR may be reproduced or redistributed without ThoroughBid's prior written permission. Except as expressly permitted under these Terms and Conditions, you shall not reproduce, modify, copy or distribute or use for any purposes any of the ThoroughBid IPR without ThoroughBid's written permission or as explicitly provided by law.
15.3 Except to the extent that ThoroughBid expressly permits, you shall not modify any ThoroughBid IPR.
15.5 All Intellectual Property Rights in the ThoroughBid name and logos are owned by ThoroughBid (or ThoroughBid's licensors). Other product and company names mentioned on the Catalogues, Platform or Website are the trade marks of their respective owners.
16 Rights in the Catalogue Information
16.1 As between you and ThoroughBid, you shall retain ownership of all Catalogue Information submitted by you to ThoroughBid for the purposes of that information being made available in the Catalogue in accordance with these Terms and Conditions. You waive your moral rights in all Catalogue Information submitted by you (so that ThoroughBid and any third party may use and adapt the Catalogue Information in any way without infringing such moral rights including the right to be identified, the right of integrity and the right against false attribution) and you hereby grant to ThoroughBid a royalty-free, perpetual, irrevocable, assignable, sub-licensable, worldwide, non-exclusive right and licence to use, copy, modify, edit, adapt, translate, publish and distribute (in ThoroughBid's absolute discretion) for any purpose whatsoever (including for display in the Catalogue, on the Platform or Website and for marketing and promoting the Services) any Catalogue Information submitted by you to ThoroughBid.
16.2 You hereby warrant and represent to ThoroughBid on an ongoing basis that:
16.2.1 you have sufficient rights in order to be able to provide any Catalogue Information to ThoroughBid, and for ThoroughBid to use the Catalogue Information in any ways that it is intended to be used (including as may be described in these Terms and Conditions); and
16.2.2 in providing any Catalogue Information to ThoroughBid, to the Platform or to any third party in connection with your use of the Services, you shall not in any way breach any of the provisions of these Terms and Conditions.
17 Indemnity
17.1 You shall fully and promptly indemnify and keep indemnified ThoroughBid against all liabilities, losses, damages, injuries, costs, expenses (including legal expenses), fines, demands, claims and proceedings suffered or incurred by ThoroughBid arising (directly or indirectly) out of:
17.1.1 any claims or legal proceedings arising from your use of the Platform, Services or Website or use of the Platform, Services or Website through your user account details, which are brought or threatened against ThoroughBid by any person (other than due to ThoroughBid's default or ThoroughBid's breach of these Terms and Conditions). For the avoidance of doubt, such claims or legal proceedings may include any claims or legal proceedings arising out of your arrangements or agreements with other Users or from the submission or transmission by you, or through your user account, of any User Material which:
(a) infringes a third party's Intellectual Property Rights or other legal rights;
(b) contains any Viruses or anything else which may have a harmful effect on any technology; or
(c) does not comply with any applicable laws, regulations, byelaws, codes of practice, licences, registrations, permits and authorisations;
17.1.2 any breach of these Terms and Conditions by you (or any other person making use of your user account); or
17.1.3 ThoroughBid's use, in accordance with Clause 12.6, of any information provided by you to ThoroughBid, in order to decide whether, and at what rate, VAT should be applied on the Purchase Price.
18 Limits of Liability
18.1 This Clause 18 prevails over all other Clauses and sets forth the entire Liability of ThoroughBid, and the sole and exclusive remedies of you, in respect of:
18.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of these Terms and Conditions or of any Services in connection with these Terms and Conditions; or
18.1.2 otherwise in relation to these Terms and Conditions or entering into these Terms and Conditions.
18.2 ThoroughBid does not exclude or limit its Liability for:
18.2.1 fraud; or
18.2.2 death or personal injury caused by its negligence; or
18.2.3 any breach of the non-excludable obligations implied by law that are applicable to the provision of ThoroughBid's Services under these Terms and Conditions; or
18.2.4 any other Liability which cannot be excluded or limited by applicable law.
18.3 Subject to Clause 18.2, ThoroughBid does not accept and ThoroughBid hereby excludes any Liability for negligence other than any Liability arising pursuant to the terms of these Terms and Conditions.
18.4 Subject to Clause 18.2, ThoroughBid shall not have any Liability in respect of any:
18.4.1 indirect or consequential losses, damages, costs or expenses;
18.4.2 loss of actual or anticipated profits;
18.4.3 loss of contracts;
18.4.4 loss of use of money;
18.4.5 loss of anticipated savings;
18.4.6 loss of revenue;
18.4.7 loss of goodwill;
18.4.8 loss of reputation;
18.4.9 ex gratia payments;
18.4.10 loss of business;
18.4.11 loss of operation time;
18.4.12 loss of opportunity; or
18.4.13 loss of, damage to or corruption of, data;
whether or not such losses were reasonably foreseeable or ThoroughBid or ThoroughBid's agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 18.4.2 to 18.4.13 apply whether such losses are direct, indirect, consequential or otherwise.
18.5 Subject to Clause 18.2, the total aggregate Liability of ThoroughBid to you for all claims arising under these Terms and Conditions in any calendar year period shall be limited to £1 million.
18.6 The limitation of Liability under Clause 18.5 has effect in relation both to any Liability expressly provided for under these Terms and Conditions and to any Liability arising by reason of the invalidity or unenforceability of any term of these Terms and Conditions.
19 Term and Termination
19.1 These Terms and Conditions shall apply between you and ThoroughBid from the Commencement Date.
19.2 Without prejudice to any other right or remedy, each of you and ThoroughBid shall be entitled by giving notice to the other immediately or at any other time, without Liability to the other, to suspend or terminate the Services (in whole or in part) if:
19.2.1 the other commits any material breach of these Terms and Conditions;
19.2.2 you or ThoroughBid suspect, on reasonable grounds, that the other has, might or will commit a material breach of these Terms and Conditions; or
19.2.3 you or ThoroughBid suspect, on reasonable grounds, that the other may have committed or be committing any fraud against the other or against any other person.
19.3 If ThoroughBid suspends or terminates your use of the Service (in whole or in part) under Clause 19.2:
19.3.1 all licences granted by ThoroughBid under these Terms and Conditions shall terminate immediately;
19.3.2 you shall immediately pay to ThoroughBid all outstanding Fees owed to ThoroughBid;
19.3.3 you shall not attempt to use or access the Platform, Services or Website directly or indirectly under any other name or the name of any other User; and
19.3.4 any Fees paid by you shall in any event be non-refundable.
19.4 If ThoroughBid suspends the Services (in whole or in part), ThoroughBid may refuse to restore the Services until ThoroughBid receives an assurance from you, in a form ThoroughBid deems acceptable that there will be no further breach of the provisions of these Terms and Conditions.
19.5 Each of your and ThoroughBid's rights to terminate these Terms and Conditions shall not prejudice any other right or remedy you or ThoroughBid may have in respect of any breach or any rights, obligations or Liabilities accrued prior to termination.
19.6 The provisions of:
19.6.1 Clauses 1, 2, 11, 12, 15, 16, 17, 18, 19, and 21; and
19.6.2 paragraphs 3.4(d), 3.7(e), 5.5(d), 6.5(d), 10.5(g) and 10.6(d) of the Terms of Sale;
together with those provisions that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall survive termination or expiry of these Terms and Conditions.
20 Data Protection
ThoroughBid uses Users' (and their representatives') personal data in accordance with ThoroughBid's privacy policy. You are advised to read carefully ThoroughBid's privacy policy which is available on the Website at this location www.thoroughbid.co.uk. It sets out information about ThoroughBid's use of personal data and cookies.
21 General
21.1 No other terms. Except as expressly stated in these Terms and Conditions, all warranties, conditions and other terms, whether express or implied, by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law.
21.2 Assignment. You shall not assign, delegate, sub-license, transfer, novate, charge or otherwise encumber, create any trust over or deal in any manner with all or any of your rights or obligations under these Terms and Conditions without ThoroughBid's prior written consent (which consent ThoroughBid may grant or withhold in ThoroughBid's absolute discretion). ThoroughBid may assign, transfer or delegate ThoroughBid's rights and obligations under these Terms and Conditions to any other person.
21.3 Force majeure. ThoroughBid shall have no Liability to you for any breach, hindrance or delay in performance of ThoroughBid's obligations under these Terms and Conditions caused by circumstances beyond ThoroughBid's reasonable control including any act of God, actions or omissions of third parties (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, epidemic, pandemic (including coronavirus), fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, volcano, ash cloud, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation, regardless of whether the circumstances in question could have been foreseen.
21.4 No waiver. No waiver by either you or ThoroughBid of any default under these Terms and Conditions shall operate or be construed as a waiver of any future defaults, whether of a like or different character. No granting of time or other forbearance or indulgence by ThoroughBid to you shall in any way release, discharge or otherwise affect your liability under these Terms and Conditions.
21.5 Severability. If any provision of these Terms and Conditions is held to be unlawful, invalid or unenforceable, that provision shall be deemed severed and where capable the validity and enforceability of the remaining provisions of these Terms and Conditions shall not be affected.
21.6 Notices.
21.6.1 Notices to be given to ThoroughBid by you shall be in writing and shall be:
(a) delivered by hand or pre-paid first-class recorded delivery post or other next Business Day delivery service, which shall be sent to ThoroughBid at ThoroughBid's physical address as specified on the Website; or
(b) sent by email to salesoffice@thoroughbid.co.uk.
21.6.2 Notices to be given to you by ThoroughBid shall be in writing and shall be:
(a) delivered by hand, or pre-paid first-class recorded delivery post or other next Business Day delivery service to you at the physical address you gave ThoroughBid when you registered for use of ThoroughBid's Services; or
(b) sent by email to the email address you gave ThoroughBid when you registered for use of ThoroughBid's Services.
21.6.3 Notices sent by you pursuant to Clause 21.6.1(a) or by ThoroughBid pursuant to Clause 21.6.2(a) shall be deemed received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or
(a) if sent by pre-paid first-class recorded delivery post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
21.6.4 A notice sent by you pursuant to Clause 21.6.1(b) or by ThoroughBid pursuant to Clause 21.6.2(b) shall be deemed received if sent by 10am local time of the recipient on the next Business Day following despatch, provided that it was despatched in a legible and complete form to the correct email address without any error message, and provided further that a confirmation copy of the transmission is sent to the recipient by pre-paid first-class recorded delivery post or other next Business Day delivery service in the manner applicable to notices sent by pre-paid first-class recorded delivery post or other next Business Day delivery service set out above. Failure to send a confirmation copy shall invalidate the service of notice by email.
21.7 Third party rights. These Terms and Conditions are between you and ThoroughBid. No one other than your or ThoroughBid, or ThoroughBid's respective successors and permitted assignees, shall have any right to enforce any of the terms under it.
21.8 Governing law and jurisdiction. These Terms and Conditions shall be governed by and construed in accordance with English law. You and ThoroughBid irrevocably agree that the English courts shall have exclusive jurisdiction over any claim or matter brought by you in relation to these Terms and Conditions, provided that nothing in this Clause 21.8 shall limit ThoroughBid's right to take proceedings against you in the English courts or in any other court of competent jurisdiction (to which you irrevocably submit). All dealings, correspondence and contacts between you and ThoroughBid shall be made or conducted in the English language.
Terms of Sale
1 These Terms of Sale
1.1 These Terms of Sale set out:
(a) at paragraph 1, information about: how these Terms of Sale are to be interpreted; where these Terms of Sale will apply; the terms on which a Lot is sold; and the Buyer's responsibility to use its own judgement, and to make its own enquiries, before placing a Bid or making a private offer;
(b) at paragraph 2, the three bases on which a Lot may be sold via the Services and information about the veterinary certificates that need to be provided by the Seller;
(c) at paragraph 3, the process by which the Buyer may exercise the right to request the re-examination of the Lot along with what happens if the Lot passes or fails its re-examination. This Buyer's right to re-examine the Lot is independent of the Buyer's rights under paragraphs 5, 6 or 8;
(d) at paragraph 4, information about the circumstances in which a Lot will be deemed to have failed the wind-testing where it is re-examined pursuant to paragraph 3;
(e) at paragraph 5, the Buyer's right to request that the Lot be tested for Prohibited Substances and the consequences of the Lot testing positive or negative. The Buyer's right to request that the Lot be tested for Prohibited Substances is independent of the Buyer's rights under paragraphs 3, 6 or 8;
(f) at paragraph 6, the Buyer's right to request that the Lot be tested for piroplasmosis and the consequences of the Lot testing positive or negative. The Buyer's right to request that the Lot be tested for Prohibited Substances is independent of the Buyer's rights under paragraphs 3, 5 or 8;
(g) at paragraph 7, general prohibitions against obtaining samples from the Lot other than in accordance with paragraphs 5 or 6;
(h) at paragraph 8, the right of the Buyer to submit a Notice of Complaint to ThoroughBid setting out the basis on which the Buyer has the right to seek the cancellation of the sale on the basis that one or more of the Complaints specified at paragraph 9 applies;
(i) at paragraph 10, the adjudication procedure to be used where the Buyer exercises its rights under paragraphs 3, 5 6 or 8, and the Buyer's claim is referred to adjudication by ThoroughBid. It also sets out the consequences of ThoroughBid's adjudication which will apply depending on whether or not the Buyer's claim is upheld.
1.2 In these Terms of Sale, unless the context dictates otherwise:
(a) any terms that are defined in these Terms of Sale have effect as defined in these Terms of Sale;
(b) any terms used in these Terms of Sale that are capitalised, but not defined in these Terms of Sale, shall have the definitions provided for them at Clause 2.1 of the Terms and Conditions for Users of ThoroughBid's Services;
(c) a reference in these Terms of Sale to a "Clause" is to the applicable clause of the Terms and Conditions for Users of ThoroughBid's Services; and
(d) a reference in these Terms of Sale to a "paragraph" is to the applicable paragraph of these Terms of Sale.
1.3 These Terms of sale apply to contracts entered into between a Buyer and Seller pursuant to Clauses 7.1 or 7.2. Where a contract between Users has been entered into pursuant to Clauses 7.1 or 7.2, these Terms of Sale set out the only circumstances in which the Buyer may claim that it is entitled to cancel the sale and, where applicable, to receive a refund of the Purchase Price and the applicable Commission Fee.
1.4 In no circumstances whatsoever shall the Buyer be entitled to claim that it is entitled to cancel the sale and, where applicable, to receive a refund of the Purchase Price and the applicable Commission Fee:
(a) other than in accordance with these Terms of Sale; or
(b) where the Lot has raced following the collection of the Lot by the Buyer from the Seller.
1.5 The Buyer and Seller acknowledge and agree that there is no term implied into the contract entered into between them that the Lot is: (i) of merchantable or satisfactory quality; (ii) fit for training; or (iii) fit for any particular purpose. Any term, condition or warranty that might otherwise be implied into the contract that is entered into between the Buyer and Seller is excluded to the maximum extent permitted by law. The Buyer is responsible for using its own judgement and making its own enquiries regarding the condition and value of the Lot before placing a Bid pursuant to Clause 6.1.1 or making a private offer pursuant to Clause 7.2.
2 The Three Bases upon which a Lot May be Sold via the Services
2.1 Each Lot is sold subject to one or more of the following bases for sale:
(a) sold with a Pre-Sale Veterinary Certificate (subject to post-sale re-examination) ("Sold With a Pre-Sale Veterinary Certificate");
(b) sold with a veterinary certificate of pregnancy (subject to post-sale re-examination) ("Sold With a Veterinary Certificate of Pregnancy"); or
(c) sold with a veterinary certificate of suitability for breeding (subject to post-sale re-examination) ("Sold With a Veterinary Certificate of Suitability for Breeding").
2.2 Where a Lot is Sold With a Pre-Sale Veterinary Certificate, the Seller shall provide a Pre-Veterinary Certificate.
2.3 Where a Lot is Sold With a Veterinary Certificate of Pregnancy, the Seller shall provide: (i) a Pre-Sale Veterinary Certificate and (ii) a veterinary certificate of pregnancy.
2.4 Where a Lot is Sold With a Veterinary Certificate of Suitability for Breeding, the Seller shall provide: (i) a Pre-Sale Veterinary Certificate and (ii) a veterinary certificate of suitability for breeding.
2.5 The Seller shall ensure that each veterinary certificate required to be provided by the Seller pursuant to paragraphs 2.2, 2.3 or 2.4 as may be applicable is dated no earlier than the date which falls 7 days prior to the applicable Auction Commencement Date and is provided to ThoroughBid in accordance with Clause 4.2.
3 Buyer's right to request a re-examination
3.1 If a Lot is:
(a) Sold With a Pre-Sale Veterinary Certificate, the Buyer, subject to paragraph 3.2, shall be entitled to request that the Lot be re-examined. The re-examination shall consist of: (i) a clinical examination; and (ii) wind testing in accordance with paragraph 4 below; or
(b) Sold With a Veterinary Certificate of Pregnancy or Sold With a Veterinary Certificate of Suitability for Breeding, the Buyer, subject to paragraph 3.2, shall be entitled to request that the Lot be re-examined against the two veterinary certificates provided by the Seller pursuant to paragraphs 2.3 or 2.4 as may be applicable. The re-examination shall consist of: (i) a clinical examination; and (ii) wind testing in accordance with paragraph 4 below.
3.2 The Buyer shall only be entitled to exercise its right to require a re-examination pursuant to paragraph 3.1(a) or (b) as may be applicable where the Buyer informs ThoroughBid of its desire to exercise that right by indicating that it wishes to do so in the Purchase Confirmation Form. For the avoidance of doubt, failure by the Buyer to request a re-examination by submitting the Purchase Confirmation Form prior to the deadline specified at Clause 7.3.2(a) shall prevent the Buyer from being able to require the re-examination of the Lot.
3.3 Where the Buyer exercises its right to request the re-examination of the Lot in accordance with paragraph 3.1:
(a) the Buyer shall procure that:
(i) a Veterinary Surgeon carries out the re-examination of the Lot. The re-examination shall not include any radiological or other specialized techniques. The re-examination shall not be concerned with the accuracy of any other statement concerning any particular Lot whether contained on a Lot’s Listing Page or in any veterinary certificate, save that it shall take into account: any qualification contained in the applicable veterinary certificates that were provided by the Seller to ThoroughBid pursuant to paragraphs 2.2, 2.3 or 2.4 as may be applicable; and
(ii) where the Buyer considers that the Lot has failed the re-examination carried out pursuant to paragraph 3.3(a)(i) and the Buyer wishes to cancel the sale, ThoroughBid receives by 9am on the date falling three days after the date on which the contract for the sale and purchase of the Lot was entered into in accordance with Clauses 7.1 or 7.2 as may be applicable a certificate signed by the Veterinary Surgeon who carried out the re-examination pursuant to paragraph 3.3(a)(i) showing evidence that the Lot has failed the re-examination. The Buyer shall ensure that the veterinary certificate to be provided to ThoroughBid pursuant to this paragraph 3.3(a)(ii) is sent to ThoroughBid by email to salesoffice@thoroughbid.co.uk; and
(b) the Seller shall take all reasonable steps as may be necessary to enable the Buyer to procure the re-examination of the Lot pursuant to paragraph 3.3(a)(i).
3.4 The Buyer shall inform ThoroughBid by email to salesoffice@thoroughbid.co.uk promptly, and by no later than 5pm on the second day after the contract for the sale and purchase of the Lot was entered into pursuant to Clauses 7.1 or 7.2, if the Buyer considers that the Seller has unreasonably prevented the Buyer's Veterinary Surgeon from carrying out the re-examination pursuant to paragraph 3.3(a)(i). If ThoroughBid, acting in ThoroughBid's absolute discretion, considers that the Buyer has demonstrated that the Seller has unreasonably prevented the Buyer's Veterinary Surgeon from re-examining the Lot pursuant to paragraph 3.3(a)(i), the Buyer shall be entitled to cancel the sale, in which case, upon ThoroughBid informing the Buyer and Seller in writing that it accepts the Buyer's claim that the Seller has unreasonably prevented the Buyer's Veterinary Surgeon from re-examining the Lot:
(a) risk in the Lot shall pass from the Buyer to the Seller;
(b) the sale of the Lot shall be cancelled, and the Buyer shall be under no obligation to pay the Purchase Price or the applicable Commission Fee. If the Buyer has already paid the Purchase Price and the applicable Commission Fee to ThoroughBid, ThoroughBid shall, within 28 days of ThoroughBid's decision, return the Purchase Price and the applicable Commission Fee to the Buyer's Nominated Bank Account;
(c) ThoroughBid shall be entitled to issue the Seller with an invoice for the applicable Commission Fee that ThoroughBid would otherwise have been entitled to receive from the Buyer had the Buyer not been entitled to cancel the sale. The Seller shall pay ThoroughBid's applicable invoice provided pursuant to this paragraph 3.4(c) within three Business Days of the date of receipt of ThoroughBid's invoice; and
(d) the Seller shall indemnify and keep indemnified ThoroughBid against all liabilities, losses, damages, injuries, costs, expenses (including legal expenses), fines, demands, claims and proceedings suffered or incurred by ThoroughBid arising (directly or indirectly) out of ThoroughBid's investigation into, and deciding upon, the Buyer's claim that the Seller has acted unreasonably in preventing the Buyer from re-examining the Lot.
3.5 If the Buyer wishes for the sale to be cancelled and provides ThoroughBid with a veterinary certificate in accordance with paragraph 3.3(a)(ii) which ThoroughBid, acting in its absolute discretion, considers to provide evidence that the Lot has failed its Re-Examination then, unless ThoroughBid, acting in its absolute discretion, considers that the cause of the failure of the Lot to pass the Re-examination was disclosed in the Lot's Listing Page, ThoroughBid shall inform the Buyer and the Seller in writing that the Lot has failed its re-examination and the Buyer shall no longer be under any obligation to pay the Purchase Price or the Commission Fee prior to the deadline stipulated at Clause 7.3.4, or to collect the Lot prior to the deadline stipulated at Clause 7.3.5.
3.6 From the time at which ThoroughBid informs the Seller that the Lot has failed its re-examination in accordance with paragraph 3.5, the Seller shall have 24 hours to inform ThoroughBid by writing to salesoffice@thoroughbid.co.uk that it wishes to contest the re-examination.
3.7 If the Seller does not, in accordance with paragraph 3.6, inform ThoroughBid that it wishes to contest the re-examination prior to this deadline then:
(a) ThoroughBid shall inform the Buyer and the Seller in writing that the sale has been cancelled;
(b) risk in the Lot shall pass from the Buyer to the Seller as from the time at which ThoroughBid informs the Buyer and Seller that the sale has been cancelled pursuant to paragraph 3.7(a);
(c) if the Buyer has already paid the Purchase Price and applicable Commission Fee to ThoroughBid, ThoroughBid shall, within 28 days of ThoroughBid's decision, return the Purchase Price and the applicable Commission Fee to the Buyer's Nominated Bank Account;
(d) if the Seller knew or should have known that the reason for failure of the re-examination was present in the Lot at the time when the Seller submitted the Lot to Auction, ThoroughBid shall be entitled to issue the Seller with an invoice for the applicable Commission Fee that ThoroughBid would otherwise have been entitled to receive from the Buyer had the Buyer not been entitled to cancel the sale. The Seller shall pay ThoroughBid's applicable invoice provided pursuant to this paragraph 3.7(d) within three Business Days of the date of receipt of ThoroughBid's invoice; and
(e) if the Seller knew or should have known that the reason for failure of the re-examination was present in the Lot at the time when the Seller submitted the Lot to Auction, the Seller shall indemnify and keep indemnified ThoroughBid against all liabilities, losses, damages, injuries, costs, expenses (including legal expenses), fines, demands, claims and proceedings suffered or incurred by ThoroughBid arising (directly or indirectly) out of ThoroughBid's investigation into, and deciding upon, the Buyer's claim that the Lot failed its re-examination.
3.8 If the Seller informs ThoroughBid in accordance with paragraph 3.5 that it wishes to contest the re-examination, the Buyer's claim shall be adjudicated by ThoroughBid in accordance with paragraph 10 and the consequences of ThoroughBid's adjudication shall be as set out in that paragraph.
4 Wind Testing
4.1 Where the Buyer requests that the Lot be re-examined in accordance with paragraphs 3.1(a) or 3.1(b) as may be applicable, the Lot shall be considered to have failed the wind testing if any of the following conditions apply to the Lot (unless the condition was disclosed in the Lot's veterinary certificates supplied by the Seller pursuant to paragraphs 2.2, 2.3 or 2.4 as may be applicable or elsewhere in the Lot's Listing Page):
(a) the Lot is a two-year-old or older (except for a filly sold with a breeding certificate only, or a broodmare or stallion) and either:
(i) the Lot is a Whistler and/or Roarer (meaning a horse that makes abnormal inspiratory sound when actively lunged); or
(ii) the Lot has Laryngeal Hemiplegia (Recurrent Laryngeal Neuropathy);
(b) the Lot is described as a yearling (after 1st July of its yearling year) and any of the following applies in relation to it:
(i) the Lot is a Whistler and/or a Roarer (being a horse which makes an abnormal inspiratory sound when actively lunged) and in addition has Laryngeal Hemiplegia (Recurrent Laryngeal Neuropathy);
(ii) the Lot has Rostral displacement of the palatopharyngeal arch;
(iii) the Lot has Epiglottic entrapment;
(iv) the Lot has Chondroma or significant arytenoid chondritis;
(v) the Lot has one or more Subepiglottic cyst(s); or
(vi) the Lot has a Cleft palate.
4.2 Unless disclosed in the veterinary certificates supplied by the Seller pursuant to paragraphs 2.2, 2.3 or 2.4 as may be applicable or elsewhere in the Lot's Listing Page, a Lot shall also be considered to have failed the wind testing where, in the opinion of the Veterinary Surgeon carrying out the wind testing, the Lot is incapable of (i) being lunged in both directions or (ii) being scoped to satisfaction.
4.3 The Buyer acknowledges that there are other conditions beyond those mentioned in this paragraph 4 which may be revealed by endoscope, but they do not constitute grounds for the Buyer to claim that it is entitled to seek the cancellation of the sale in accordance with these Terms of Sale.
5 Prohibited Substances
5.1 The right of the Buyer pursuant to this paragraph 5 to have the Lot tested for Prohibited Substances applies only where the Lot is a yearling (after 1st July) or older, with the exception of mares that have been previously covered by a stallion.
5.2 Subject to paragraph 5.3, the Buyer shall be entitled to instruct a Veterinary Surgeon to take a blood sample from the Lot in order to perform a test for Prohibited Substances by no later than 5pm on the second day after the contract for the sale and purchase of the Lot was entered into pursuant to Clauses 7.1 or 7.2, but only if they have indicated that they wish to on the Purchase confirmation form.
5.3 The Buyer shall only be entitled to exercise the right to instruct a Veterinary Surgeon to take a blood sample from the Lot pursuant to paragraph 5.2 where the Buyer informs ThoroughBid of its desire to exercise that right by indicating that it wishes to do so in the Purchase Confirmation Form. For the avoidance of doubt, failure by the Buyer to submit the Purchase Confirmation Form prior to the deadline specified at Clause 7.3.2(a) shall prevent the Buyer from being able to require that a blood test for Prohibited Substances be carried out.
5.4 Where the Buyer exercises its right to carry out a blood test for Prohibited Substances in accordance with paragraph 5.2, the Seller shall take all reasonable steps as may be required to enable the Buyer to carry out a blood test for Prohibited Substances. The Buyer shall inform ThoroughBid in writing promptly by no later than 5pm on the second day after the contract for the sale and purchase of the Lot was entered into if the Buyer considers that the Seller has unreasonably prevented the Buyer's Veterinary Surgeon from carrying out a blood test for Prohibited Substances.
5.5 If ThoroughBid, acting in ThoroughBid's absolute discretion, considers that the Buyer has demonstrated that the Seller has unreasonably prevented the Buyer's Veterinary Surgeon from obtaining a blood sample from the Lot, then the Buyer shall be entitled to cancel the sale, in which case, upon ThoroughBid informing the Buyer and Seller in writing that it accepts the Buyer's claim that the Seller has unreasonably prevented the Buyer's Veterinary Surgeon from carrying out a blood test for Prohibited Substances:
(a) risk in the Lot shall pass from the Buyer to the Seller;
(b) the sale of the Lot shall be cancelled, and the Buyer shall be under no obligation to pay the Purchase Price or the applicable Commission Fee. If the Buyer has already paid the Purchase Price and the applicable Commission Fee to ThoroughBid, ThoroughBid shall, within 28 days of ThoroughBid's informing the Buyer and the Seller in accordance with this paragraph 5.5 that the sale has been cancelled, return the Purchase Price and the applicable Commission Fee to the Buyer's Nominated Bank Account;
(c) ThoroughBid shall be entitled to issue the Seller with an invoice for the applicable Commission Fee that ThoroughBid would otherwise have been entitled to receive from the Buyer had the Buyer not been entitled to cancel the sale pursuant to this paragraph 5.5 The Seller shall pay ThoroughBid's applicable invoice provided pursuant to this paragraph 5.5(c) within three Business Days of the date of receipt of ThoroughBid's invoice; and
(d) the Seller shall indemnify and keep indemnified ThoroughBid against all liabilities, losses, damages, injuries, costs, expenses (including legal expenses), fines, demands, claims and proceedings suffered or incurred by ThoroughBid arising (directly or indirectly) out of ThoroughBid's investigation into, and deciding upon, the Buyer's claim that the Seller has acted unreasonably in preventing the Buyer from carrying out a blood test for Prohibited Substances.
5.6 If the blood sample taken on behalf of the Buyer pursuant to paragraph 5.2 is found to contain any Prohibited Substances other than those disclosed in the veterinary certificate or, as the case may be, veterinary certificates, supplied by the Seller pursuant to paragraphs 2.2, 2.3 or 2.4 as may be applicable or disclosed elsewhere in the Lot's Listing Page, and the Buyer wishes the sale to be cancelled, the Buyer shall provide ThoroughBid with particulars of its claim that the Lot has tested positive for Prohibited Substances in writing by email to salesoffice@thoroughbid.co.uk by no later than 5pm on the 10th day after the contract for the sale and purchase of the Lot was entered into pursuant to Clauses 7.1 or 7.2 as may be applicable. When informing ThoroughBid in writing of its claim, the Buyer must include evidence that the blood sample contained Prohibited Substances other than any Prohibited Substances described in the veterinary certificate or, as the case may be, certificates, supplied by the Seller pursuant to paragraphs 2.2, 2.3 or 2.4 as may be applicable [or elsewhere in the Lot's Listing Page] and this evidence must be supported by a certificate signed by a Veterinary Surgeon and/or a recognised research laboratory.
5.7 Where ThoroughBid receives a claim from the Buyer in accordance with paragraph 5.6 that the blood sample from the Lot contains Prohibited Substances, ThoroughBid shall adjudicate the Buyer's claim in accordance with paragraph 10 and the consequences of ThoroughBid's adjudication shall apply as set out in that paragraph.
6 Piroplasmosis
6.1 The right of a Buyer pursuant to this paragraph 6 to have a Lot tested for piroplasmosis applies only where the Lot is a yearling (after 1st July) or older, with the exception of mares that have been previously covered by a stallion.
6.2 Subject to paragraph 6.3,the Buyer shall be entitled to instruct Veterinary Surgeon to carry out a blood test of the Lot for piroplasmosis in accordance with the Elisa Test and/or the Piro IFAT Test by no later than 5pm on the second day after the contract for the sale and purchase of the Lot was entered into.
6.3 The Buyer shall only be entitled to exercise its right to instruct a Veterinary Surgeon to carry out a blood test of the Lot pursuant to paragraph 6.2 where the Buyer informs ThoroughBid of its desire to exercise that right by indicating that it wishes to do so in the Purchase Confirmation Form. For the avoidance of doubt, failure to submit the Purchase Confirmation Form to ThoroughBid prior to the deadline specified at Clause 7.3.2(a) shall prevent the Buyer from being able to require that a blood test for piroplasmosis be carried out.
6.4 Where the Buyer exercises its right to carry out a blood test for piroplasmosis in accordance with paragraph 6.2, the Seller shall take all reasonable steps as may be required to enable the Buyer to obtain a blood sample from the Lot. The Buyer shall inform ThoroughBid in writing promptly by no later than 5pm on the second day after the contract for the sale and purchase of the Lot was entered into if the Buyer considers that the Seller has unreasonably prevented the Buyer's Veterinary Surgeon from carrying out blood test for piroplasmosis in accordance with paragraph 6.2.
6.5 If ThoroughBid, acting in ThoroughBid's absolute discretion, considers that the Buyer has demonstrated that the Seller has unreasonably prevented the Buyer's Veterinary Surgeon from obtaining a blood sample from the Lot, then the Buyer shall be entitled to cancel the sale in which case, upon ThoroughBid informing the Buyer and Seller in writing that it accepts the Buyer's claim that the Seller has unreasonably prevented the Buyer's Veterinary Surgeon from carrying out a blood test for piroplasmosis:
(a) risk in the Lot shall pass from the Buyer to the Seller;
(b) the sale of the Lot shall be cancelled, and the Buyer shall be under no obligation to pay the Purchase Price or the applicable Commission Fee. If the Buyer has already paid the Purchase Price and the applicable Commission Fee to ThoroughBid, ThoroughBid shall, within 28 days of ThoroughBid's informing the Buyer and the Seller in accordance with this paragraph 6.5 that the sale has been cancelled, return the Purchase Price and the applicable Commission Fee to the Buyer's Nominated Bank Account;
(c) ThoroughBid shall be entitled to issue the Seller with an invoice for the applicable Commission Fee that ThoroughBid would otherwise have been entitled to receive from the Buyer had the Buyer not been entitled to cancel the sale pursuant to this paragraph 6.5. The Seller shall pay ThoroughBid's applicable invoice provided pursuant to this paragraph 6.5(c) within three Business Days of the date of receipt of ThoroughBid's invoice; and
(d) the Seller shall indemnify and keep indemnified ThoroughBid against all liabilities, losses, damages, injuries, costs, expenses (including legal expenses), fines, demands, claims and proceedings suffered or incurred by ThoroughBid arising (directly or indirectly) out of ThoroughBid's investigation into, and deciding upon, the Buyer's claim that the Seller has acted unreasonably in preventing the Buyer from carrying out a blood test for piroplasmosis.
6.6 If the blood sample taken on behalf of the Buyer pursuant to paragraph 6.2 is found to be positive for piroplasmosis and this was not disclosed in the Pre-Sale Veterinary Certificate or, as the case may be, veterinary certificates, supplied by the Seller to ThoroughBid pursuant to paragraphs 2.2, 2.3 or 2.4 as may be applicable or elsewhere in the Lot's Listing Page and the Buyer wishes for the sale to be cancelled, the Buyer shall provide ThoroughBid with the particulars of its claim that the Lot has tested positive for piroplasmosis in writing by email to salesoffice@thoroughbid.co.uk by no later than 5pm on the 10th day after the contract for the sale and purchase of the Lot was entered into pursuant to Clauses 7.1 or 7.2 as may be applicable. When informing ThoroughBid in writing of its claim, the Buyer must include evidence that the blood sample was positive for piroplasmosis and that this was not disclosed in the Pre-Sale Veterinary Certificate or, as the case may be, certificates, supplied by the Seller to ThoroughBid pursuant to paragraphs 2.2, 2.3 or 2.4 as may be applicable [or elsewhere in the Lot's Listing Page. The evidence provided by the Buyer to ThoroughBid under this paragraph 6.5(a) must be supported by a certificate signed by a Veterinary Surgeon and/ or a recognised research laboratory.
6.7 Where ThoroughBid receives a claim from the Buyer in accordance with paragraph 6.6 that the blood sample from the Lot was positive for piroplasmosis, ThoroughBid shall adjudicate the Buyer's claim in accordance with paragraph 10 and the consequences of ThoroughBid's adjudication shall apply as set out in that paragraph.
7 Sampling otherwise than in accordance with Paragraphs 5 or 6
7.1 No sample of hair, blood, urine or other testable material taken from a Lot may be used by the Buyer for the purposes of bringing a claim that the sale should be cancelled unless that claim is brought in strict accordance with the provisions set out in paragraphs 5 or 6.
7.2 Without prejudice to the Seller's obligations under these Terms of Sale to co-operate with the Buyer where the Buyer exercises its rights under paragraphs 5 or 6, the Buyer, and any person acting on the Buyer's behalf, shall not remove any sample of hair, blood or any other testable material from the Lot without the Seller's explicit prior consent.
8 Right of the Buyer to Bring a Complaint
8.1 Following the collection of the Lot by the Buyer prior to the applicable Collection Deadline, the Buyer may provide ThoroughBid with a notice to salesoffice@thoroughbid.co.uk if the Buyer considers that it has a claim that the sale should be cancelled on the basis that the Buyer has a valid Complaint ("Notice of Complaint"). The Buyer shall only be entitled to provide a Notice of Complaint where:
(a) the Notice of Complaint specifies which one or more of the Complaints entitles the Buyer to claim that the sale should be cancelled;
(b) except in the case of the Complaints referred to at paragraphs 9.1(a), 9.1(b), 9.1(c), 9.1(e), 9.1(f), 9.1(g), 9.1(h), 9.1(i) 9.1(i), 9.1(k), 9.1(r), the Notice of Complaint is accompanied by a certificate signed by a Veterinary Surgeon supporting the Buyer's claim;
(c) the Buyer has complied with its obligations to pay the Purchase Price and the Commission Fee prior to the applicable Payment Deadline, and to collect the Lot prior to the applicable Collection Deadline; and
(d) the Notice of Complaint is received by ThoroughBid prior to the applicable deadline stipulated at paragraph 8.2.
8.2 Where:
(a) it is not the case that all of the following applies: (i) the Buyer requested the re-examination of the Lot pursuant to paragraph 3; (ii) the Buyer claimed that the Lot failed its re-examination; and (iii) the Buyer's claim was referred to adjudication in accordance with paragraph 10, then the deadline for the Notice of Complaint to be received by ThoroughBid shall be 9am on the date falling nine days after the date on which the contract between the Buyer and Seller for the sale and purchase of the Lot was entered into in accordance with Clauses 7.1 or 7.2;
(b) it is the case that all of the following applies: (i) the Buyer requested the re-examination of the Lot pursuant to paragraph 3; (ii) the Buyer claimed that the Lot failed its re-examination; and (iii) the Buyer's claim was referred to adjudication in accordance with paragraph 10, then, the deadline for the Notice of Complaint to be received by ThoroughBid shall be 9am on the date falling five days after the date upon which ThoroughBid informed the Buyer and Seller of its decision in favour of the Seller pursuant to paragraph 10.6(a).
8.3 Where ThoroughBid receives a Notice of Complaint from the Buyer in accordance with paragraph 8.1, the Buyer's claim shall be referred to adjudication by ThoroughBid in accordance with the procedure set out at paragraph 10 and the consequences of ThoroughBid's adjudication shall be as set out in that paragraph.
8.4 Where the Buyer submits to ThoroughBid a valid Notice of Complaint pursuant to paragraph 8.1 which states that the Lot is a habitual Boxwalker or habitual Weaver in accordance with paragraphs 9.1(r) or 9.1(s), then, in order to assist ThoroughBid to adjudicate the Buyer's claim in accordance with the adjudication procedure set out at paragraph 10, the Buyer shall, by no later than 5pm the day falling 14 days after the date on which the contract for the sale and purchase of the Lot has been entered into pursuant to Clauses 7.1 or 7.2, provide to ThoroughBid by email to salesoffice@thoroughbid.co.uk a veterinary certificate signed by a Veterinary Surgeon stating that, as a result of observation between 7 and 14 days after the date on which the contract for the sale and purchase of the Lot has been entered into, it is believed that the Lot is a habitual Boxwalker or habitual Weaver. For the avoidance of doubt, failure by the Buyer to comply with this paragraph 8.4 shall result in the Buyer forfeiting the right to seek cancellation of the sale.
9 Complaints
9.1 The Buyer shall only be entitled to submit a Notice of Complaint under paragraph 8 where any one or more of the following issues (each a "Complaint") applies in relation to the Lot unless the applicable issue was identified in the Pre-Sale Veterinary Certificate or veterinary certificates supplied by the Seller under paragraphs 2.2, 2.3 or 2.4 as may be applicable or in any other part of the Listing Page:
(a) the Lot is not registered with a Stud Book Authority approved by the International Stud Book Committee;
(b) the pedigree or description of the Lot does not correspond with the pedigree or description as stated in the Catalogue;
(c) the Lot has run at an unrecognised meeting or is on the forfeit list maintained by a recognised Turf Authority;
(d) the Lot is described as a Colt, Horse or Stallion and does not at such time have both testes palpable (this provision is to apply only to any horse offered for sale after 1st July of their yearling year) and may be so described by ThoroughBid as a rig;
(e) the Lot is described as unbroken and should have more properly been described as broken and ridden prior to the sale. For the avoidance of doubt, a Lot described as driven in long reins will not be returnable under this provision;
(f) the Lot is described as untried and should have more properly been described as tried prior to Sale in the opinion of ThoroughBid or their appointee. A Lot will be considered tried if it:
(i) has run in any race;
(ii) has been catalogued in any previous Breeze-Up Sale;
(iii) has appeared on any published Trainer’s or Permit Holder’s List;
(iv) is deemed to have been galloped “upsides” prior to Sale; or
(v) is deemed to have been broken & tried prior to Sale.
(g) the Lot is subject of a Starting Stalls Test as ordered by the BHA/ I.H.R.B;
(h) the Lot is a Broodmare/Filly which has been covered and/or subsequent to any covering has slipped the foal;
(i) the Lot does not correspond to the video footage uploaded for the Lot by the Seller prior to the Sale;
(j) any Mare described as “believed in foal” that:
(i) does not have the relevant Covering Certificate uploaded to the Lot’s Listing Page; or
(ii) have a Covering Certificate registered electronically with a Stud Book Authority approved by the International Stud Book Committee;
in each case by 9am on the day bidding commences;
(k) the microchip number, markings or vaccinations for the Lot do not correspond to the microchip number passport or vaccinations uploaded for the Lot by the Seller prior to the Sale;
(l) the Lot has been tubed or otherwise operated on for unsoundness in wind (Operations to treat the displacement of the soft palate, including the operations tie forward, cautery of the soft palate, trimming of the soft palate and myectomy are not operations for the correction of unsoundness in wind within the meaning of this condition);
(m) the Lot has impaired vision or injury to the eye;
(n) the Lot is a wobbler;
(o) the Lot has been unnerved.
(p) the Lot which is a Wind-sucker (i.e. gulps or swallows air whether in association with grasping fixed objects with incisor teeth or not) (unless described without qualification as a Wind-sucker, Crib-biter or Cribber in which event the Lot is not returnable);
(q) the Lot which has been operated on for the correction of Wind-sucking as defined above, including Crib-biting, is returnable in accordance with paragraph 8 unless so described;
(r) the Lot is an habitual Weaver (i.e. habitually swings its head and neck to and fro and transfers weight from one forelimb to the other alternately); or
(s) the Lot is an habitual Boxwalker (i.e. habitually walks either backwards and forwards or round and round the box repeatedly in an aimless manner), is returnable in accordance with paragraph 8 unless so described.
9.2 The Buyer and Seller acknowledge and agree that Crib-biters and Cribbers are not returnable unless the Crib-biting is associated with Wind-sucking in which case the Lot is returnable as a Wind-sucker unless it is described without qualification in the Lot’s Listing Page as a Wind-sucker, Crib-biter or Cribber.
10 Adjudication Procedure and Consequences
10.1 Where a claim brought by a Buyer is to be adjudicated by ThoroughBid in accordance with paragraphs 3.8, 5.7, 6.7 or 8.3 as may be applicable, paragraphs 10.2 to 10.6 shall apply.
10.2 ThoroughBid shall be entitled to take such steps as ThoroughBid sees fit, in order to decide, in its absolute discretion, whether the Buyer has a valid claim to cancel the sale. ThoroughBid's decision shall be final and binding on the Buyer and the Seller. In coming to its decision, ThoroughBid may have regard to the opinion of the ThoroughBid Panel, but the opinion of the ThoroughBid Panel shall be advisory and ThoroughBid shall not be bound by any opinion or recommendation that may be provided by the ThoroughBid Panel. Subject to Clause 18.2, ThoroughBid shall under no circumstances have any Liability for any findings made by the ThoroughBid Panel.
10.3 The Buyer and the Seller shall comply without delay with all requests for co-operation, assistance or information that ThoroughBid may make of them in relation to ThoroughBid's investigation into, and deciding upon, the Buyer's claim. Such co-operation, assistance or information may include:
(a) responding to any questions that ThoroughBid might have in relation to the Buyer's claim; and
(b) providing any documentary or other forms of evidence as ThoroughBid might request;
(c) bringing the Lot to a particular location that is specified by ThoroughBid so that, for such time period as ThoroughBid may require, the Lot can be inspected by the ThoroughBid Panel. Any obligation to bring the Lot to a particular location pursuant to this 10.3(c) will fall on:
(i) the Seller, and shall be at the Seller's sole expense, where, without breaching these Terms and Conditions, the Buyer has not yet collected the Lot from the Seller; or
(ii) the Buyer, and shall be at the Buyer's sole expense, where, without breaching the Terms and Conditions, the Buyer has already collected the Lot from the Seller.
For the avoidance of doubt, if ThoroughBid requests that a Lot is brought to a particular location, the Lot shall remain at all times at the Buyer's risk, unless ThoroughBid's decision pursuant to paragraph 10.2 is to uphold the Buyer's claim in which case risk in the Lot shall pass from the Buyer to the Seller in accordance with paragraph 10.5(b).
10.4 The Buyer and the Seller shall bear their own respective expenses in connection with complying with their respective obligations under this paragraph 10. ThoroughBid shall not be responsible for any costs or expenses incurred by the Buyer or the Seller in connection with complying with their respective obligations under this paragraph 10.
10.5 If ThoroughBid's decision made pursuant to paragraph 10.2 is to uphold the Buyer's claim and to cancel the sale:
(a) ThoroughBid shall inform the Buyer and the Seller in writing of its decision;
(b) as from the time that ThoroughBid informs the Buyer and the Seller of its decision in accordance with paragraph 10.5(a), risk in the Lot shall pass from the Buyer to the Seller;
(c) if applicable, the Seller shall, at its own expense, promptly, and within 24 hours of ThoroughBid informing the Buyer and the Seller of its decision in accordance with paragraph 10.5(a), collect the Lot from the Buyer or from any location to which ThoroughBid may have requested that the Lot be brought in accordance with paragraph 10.3(c);
(d) if applicable, the Seller shall within three Business Days of it having been informed of ThoroughBid's decision, return to ThoroughBid all or any part of the Purchase Price (together with the Seller's Boarding Fees in accordance with Clause 7.11) that may have been paid out to it in relation to the Lot;
(e) if the Seller knew or should have known that the reason for the Buyer having the right to cancel the sale was present in the Lot at the time when the Seller submitted the Lot to Auction, ThoroughBid shall be entitled to issue the Seller with an invoice for the applicable Commission Fee that ThoroughBid would otherwise have been entitled to receive from the Buyer had the Buyer not been entitled to cancel the sale. The Seller shall pay ThoroughBid's applicable invoice provided pursuant to this paragraph 10.5(e) within three Business Days of the date of receipt of ThoroughBid's invoice;
(f) where the Buyer has already paid the Purchase Price and the applicable Commission Fee to ThoroughBid, ThoroughBid shall, within 28 days of ThoroughBid's decision, return the Purchase Price and the applicable Commission Fee to the Buyer's Nominated Bank Account; and
(g) if the Seller knew or should have known that the reason for the Buyer having the right to cancel the sale was present in the Lot at the time when the Seller submitted the Lot to Auction, the Seller shall indemnify and keep indemnified ThoroughBid against all liabilities, losses, damages, injuries, costs, expenses (including legal expenses), fines, demands, claims and proceedings suffered or incurred by ThoroughBid arising (directly or indirectly) out of ThoroughBid's investigation into, and deciding upon, the Buyer's claim.
10.6 If ThoroughBid's decision made pursuant to paragraph 10.2 is to reject the Buyer's claim:
(a) ThoroughBid shall inform the Buyer and the Seller in writing of its decision;
(b) where the Buyer's claim was referred to adjudication pursuant to paragraph 3.8:
(i) the Buyer shall pay the Purchase Price and the applicable Commission Fee within 24 hours of ThoroughBid informing the Buyer of its decision or such later time as ThoroughBid may, in its absolute discretion, decide;
(ii) the Buyer shall, at its own expense, within 24 hours of ThoroughBid informing the Buyer of its decision or such later time as ThoroughBid may, in its absolute discretion decide collect the Lot from the Seller or, where applicable, from any location to which the Seller may have been requested to bring the Lot in accordance with paragraph 10.3(c); and
(iii) failure by the Buyer to comply with its obligations under paragraphs 10.6(b)(i) or 10.6(b)(ii) shall result in the Buyer forfeiting any right it may have under paragraphs 5, 6 or 8 of these Terms of Sale to seek the cancellation of the sale;
(c) where the Buyer's claim was referred to adjudication pursuant to paragraphs 5.7, 6.7 or 8.3, the Buyer shall, if applicable, collect the Lot, at its own expense, from any location to which the Buyer may have been requested to bring the Lot in accordance with paragraph 10.3(c); and
(d) the Buyer shall indemnify and keep indemnified ThoroughBid against all liabilities, losses, damages, injuries, costs, expenses (including legal expenses), fines, demands, claims and proceedings suffered or incurred by ThoroughBid arising (directly or indirectly) out of ThoroughBid's investigation into, and deciding upon, its claim.
General Rules
1 You agree not to cause any other User any loss or liability or interfere with another User's use of the Platform, Services or Website except to the extent that ThoroughBid expressly permits.
2 You agree not to circumvent the Platform, Services or Website or the processes through which the Services are provided in order to avoid paying any Fees or other sums that are due, or that would otherwise be due, to ThoroughBid if you had used the Platform or Services in accordance with these Terms and Conditions.
3 Except to the extent you agree otherwise with a particular User, you agree to use another User's (or their representatives') information (including personal data) that you discover as a result of using the Services strictly for the purpose of using the Services yourself and for no other purpose.
4 Information provided by third party service providers on or through the Platform, Services or Website is facilitated by ThoroughBid solely for your convenience only. Your use of such information may be subject to additional terms and conditions of such third party service providers. You agree that sole responsibility for that third party information shall rest with that third party and not ThoroughBid.
5 You shall ensure that all User Material provided by or on behalf of you to ThoroughBid, the Platform, the Website and other Users (whether through the Platform or Website or not) is true, complete and accurate in all material respects. You agree to make any necessary changes to information relating to your agreements and arrangements with other Users directly with those other Users.
6 If the Services are accessed by you from outside the United Kingdom, this is entirely at your own risk. ThoroughBid makes no representation that the Services are available or otherwise suitable for use outside of the United Kingdom. If you choose to access or use the Services from or in locations outside the United Kingdom, you do so on your own initiative and are responsible for:
6.1 ensuring that what you are doing in that location is legal; and
6.2 your compliance with all applicable laws, regulations, byelaws, codes of practice, licences, registrations, permits and authorisations and the consequences of any non-compliance by you with any of the aforesaid.
7 You agree to comply at all times with any instructions for use of the Platform, Services or Website in these Terms and Conditions or which ThoroughBid display on the Platform or Website from time to time.
8 Nothing on the Platform or Website shall constitute advice specific to your circumstances or a recommendation.
9 ThoroughBid assumes no responsibility for the content or services of any other websites or services to or from which the Platform or Website has links. The links are provided "as is" with no warranty, express or implied, for the information provided within those sites.
10 No one is entitled to frame any of the Platform or Website onto another website without ThoroughBid's prior written consent (which may be withheld in ThoroughBid's absolute discretion).
11 The following uses of the Services (and Website) are expressly prohibited and you shall not do (or permit or encourage or entice or induce anyone else to do), directly or indirectly, any of the following:
11.1 directly or indirectly place Bids on Lots you offer for sale for the purpose of artificially inflating the Purchase Price or artificially manipulating the bidding in any other way (including by placing Bids on Lots offered by another in co-ordination with that other for the purposes of artificially inflating the Purchase Price);
11.2 provide any false User Material, including false names, false Catalogue Information, addresses or contact details;
11.3 use the Platform, Website or Services for any fraudulent, criminal or unlawful purpose or for inciting, encouraging or enticing any fraudulent, criminal or unlawful purpose (including using a payment card which is not yours to use);
11.4 make fraudulent use of any payment cards, payment systems or billing information (whether belonging to you or any third party);
11.5 send or receive any material which is grossly offensive, in contempt of court or in breach of confidence, or which may infringe any Intellectual Property Rights of a third party or any third party rights of any nature;
11.6 cause annoyance, inconvenience or needless anxiety;
11.7 intercept or attempt to intercept any communications transmitted by way of a telecommunications system;
11.8 use the Platform, Website or Services for a purpose other than which ThoroughBid has designed them or intended them to be used;
11.9 use the Platform, Website or Services in any way which breaches any laws, regulations, byelaws, codes of practice, licences, registrations, permits or authorisations;
11.10 impersonate any other person or body or misrepresent a relationship (or a lack of a relationship or a different relationship) with any person or body (including wrongfully suggesting ThoroughBid has endorsed or recommended you);
11.11 do anything in a way that ThoroughBid consider may be contrary to ThoroughBid's interests;
11.12 resell the Services, Platform or Website without ThoroughBid's prior written consent;
11.13 attempt to circumvent ThoroughBid's security or network including accessing data not intended for you, log into a server or account you are not expressly authorised to access, or probe the security of other networks (such as running a port scan);
11.14 use, deliver or transmit any Viruses or anything else which may have a harmful effect on any technology;
11.15 interfere or attempt to interfere with the proper working of the Platform, Services or Website;
11.16 execute any form of network monitoring which will intercept data not intended for you; or
11.17 harvest or otherwise collect any information or data about Users without their express consent.
Catalogue Information
The Initial Catalogue Information to be provided by the Seller shall consist of the following:
Horse’s Name with Suffix, Sire, Dam, Damsire, Colour, Sex, Date of Birth, Country of Birth
Microchip number (All Lots born in UK or Ireland after 2000 should have been microchipped at birth. Please note that all horses entered must be microchipped)
Height, Weight (optional), Covering Sire (where applicable), Animal Type (Foal, Yearling, Store, Mare, Stallion, Horse in training and Horse out of training)
Declarable Vices
As set out in the Entry Form (Further Information on this can be found in the Vendor Guide)
Upload a set of photographs of your entered lot along with one or more videos in the “My Entries” section of the Website. Please consult the Vendor Guide for further details.
Document Definitions
1 Flu Vaccinations- All Pages. Two primary injections to be given not less than 21 and 29 days apart. A booster injection should be given not less than 150 and not more than 215 days apart. Thereafter, one injection should be given annually.
2 Passport Pages/ Validation: The front page, markings page and flu vaccination pages are required for each lot’s profile and should be uploaded by going to the “My Entries” section of the Website. In order for a horse’s passport to be valid, it must contain the official pages which allow declaration to be made as to whether the horse is destined for human consumption or not.
3 Health Certificate: Stating that for 14 days prior to the sale the horse has not been in contact with equines suffering with contagious diseases. This should be uploaded by going to the “My Entries” section of the Website.
Additional Documents Required from Sellers
1 Foals: Passport pages in accordance with 2 and any relevant Flu Vaccinations. Health certificate in accordance with 3.
2 Yearlings: Passport pages in accordance with 2 and any relevant Flu Vaccinations. Health certificate in accordance with 3.
3 National Hunt Stores: Passport in accordance with 3. Flu Vaccinations up to date in accordance with 2.
4 Horses in Training: Passport in accordance with 2, flu vaccinations must be up to date in accordance with 1. Health certificate in accordance with 3.
5 Broodmares believed in foal: Broodmare Passport (registered with Weatherbys or another recognised International Stud Book) and in accordance with 2. Flu Vaccination up to date in accordance with 1. Health certificate in accordance with 3. Pre-Sale Certificate dated within 14 days. Pregnancy certificate dated within 14 days of sale. EVA Certificate dated within 30 days of sale CEM (Contagious Equine Metritus-Free) Certificate dated within 30 days of the sale stating that a negative clitoral swab (fossa and sinuses) has been obtained (the standard Horserace Betting Levy Board certificate should be used as this also refers to other venereal diseases).
6 Barren Mares: Broodmare passport (registered with Weatherbys or another recognised International Stud Book), and in accordance with 2. Flu Vaccination must be up to date in accordance with 1. CEM (Contagious Equine Metritus-Free) Certificate dated within 30 days of the sale stating that a negative clitoral swab (fossa and sinuses) has been obtained (the standard Horserace Betting Levy Board certificate should be used as this also refers to other venereal diseases), EVA Certificate dated within 30 days of the sale. Health certificate in accordance with 3 and passport validity in accordance with 2. Covering Certificate and Breeding Certificates are all compulsory.
7 Broodmares not covered this year: Same documents as Barren Mares except Covering Certificate is not required.
8 Broodmares never covered: Passport, Flu Vaccinations must be up to date in accordance with 2 and 1. Breeding certificate dated within 14 days. Health certificate in accordance with 3.