Terms and conditions of sale and sale by public auction
1.1 What these terms cover. These are the terms and conditions on which we supply a horse (our Product) to you by Private Sale or by Public Auction.
1.2 Why you should read them. Please read these terms carefully, these terms tell you who we are, how we will provide our products to you, and other important information.
1.3 Limitation of liability and your liability to us - Your attention is specifically drawn to the following clauses 2.1, 4.4, 8.2 and 11.
1.4 Are you a business customer or a consumer? In some areas you will have different rights under these terms depending on whether you are a business or consumer. You are a consumer if:
1.5 If you are a business customer this is our entire agreement with you. If you are a business customer these terms constitute the entire agreement between us in relation to your purchase. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in these terms and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
2.1 Who we are. We are William Funnell of Cobbetts Farm, Lyefield Lane, Forest Green, Dorking, Surrey RH5 5SN and Donal Barnwell of Mereside Farm, Scratchings Lane, Balls Cross, Petworth, West Sussex GU28 9JY who trade as sole traders under the trading name of The Billy Stud. We are each individually VAT registered. The Billy Stud is a trading name only and is not a legal entity, we are not a partnership and accordingly where a contract for sale is with one of us individually there is no liability on the part of the other.
2.2 Who the contract of sale is with.
(a) Private Sales - when you purchase a horse privately the contract of sale will be with one of us individually based and the invoice in respect of the sale will be raised to you accordingly.
(b) Public Auction - when horses are sold in The Billy Stud Public Auction the contract of sale will be with Donal Barnwell.
2.3 How to contact us. You can contact us by telephoning on the phone numbers on our website, by email or by writing to us at the above address.
2.4 How we may contact you. If we have to contact you we will do so by telephone or by writing to you at the email address or postal address you provided to us.
2.5 "Writing" includes emails. When we use the words "writing" or "written" in these terms, this includes emails.
3.1 How we accept your order and a contract for sale arises
(a) In the case of a Public Auction sale, our acceptance of your order will take place when we email you an invoice to accept the highest bid following the close of bidding at which point a contract will come into existence between you and us on these Terms and Conditions.
(b) In the event of a Private Sale we will accept your order when this is specifically confirmed to you confirming acceptance of an agreed price in writing, by email or text or in the absence of this when it is verbally confirmed to you by us.
4.1 Pictures and videos. Our horses may vary slightly from the pictures and videos used in our advertising. The images and videos of the horses on our website are for illustrative purposes only. Although we have made every effort to display the pictures and videos of horses accurately, we cannot guarantee that a device's display of a picture or video or that the picture or video itself accurately reflects how the horse looks or moves in the case of video.
4.2 Suitability of our horses. Other than the warranty provided at clause 4.3 below, no representation is made as regards suitability for a specific purpose unless a clear statement is made to this effect in the description of that specific horse. Where additional information is provided by description this intended to be a guide and is not a statement amounting to suitability for any specific purpose or a guarantee.
4.3 Our warranty. We warrant that our horses may be returned within 14 days in any of the following specific circumstances and at our sole discretion in other circumstances:
(a) it is established that the pedigree is inaccurate;
(b) is a wind sucker;
(c) is a crib-biter where this is associated with wind-sucking;
(d) is a weaver;
(e) exhibits box walking;
(f) has been tubed, fired, unnerved or operated upon for unsoundness of any other kind (and this was not specifically disclosed to you);
(g) is a male horse (other than a foal, a yearling before the 1st July of its yearling year) which does not have two testes fully descended to and fully palpable within the scrotum at the time of the Sale is or shall be deemed to be a rig or cryptorchid; and if the horse has not been described as such on the pre-sale Veterinary Certificate or announced from the rostrum or in catalogue;
(h) a broodmare is described in foal or believed to be in foal and is found not to be in foal.
4.4 X-Rays. Horses to be sold by Public Auction will be x-rayed prior to the auction. All x-rays will be available for potential purchasers to study online prior to the day of the auction. The x-rays of each horse Do Not Constitute A Warranty Or Guarantee Of Any Kind and we have not obtained our own veterinary opinion on the x rays, the only guarantee provided in respect of the x-rays is that they relate to the horse to which they are stated to. You should obtain your own veterinary opinion on the x-rays provided. Unless otherwise specifically agreed the x-rays will remain our property when the horse is sold.
4.5 Vetting Certificates. ( Pre-Purchase Examinations)
(a) In the case of a Public Auction Vetting Certificates will be available in respect of each horse and will be dated within 14 days of the auction date. A blood sample is taken at the time of the vetting and is retained by the examining vet for future analysis should this be required.
(b) In the case of a Private Sale you are welcome to obtain your own pre-purchase examination/, sales may be agreed to be subject to the horse passing a 3 or 5 stage examination. Unless otherwise agreed the vetting must be carried out within 7 days of the agreed sale otherwise we may sell the horse to another prospective purchaser without reference to yourself.
5. Provision of the Horse to you
5.1 Delivery costs. The costs of transportation are your responsibility.
5.2 When we will provide the horse. Unless otherwise specifically agreed we will make the horse available for collection from Jordans Farm, Forest Green, Surrey upon receipt of payment.
5.3 Collection by you. You can collect horses from us at any time during our working hours of 8:30-4:30pm weekdays (excluding public holidays) and also 8:30-2:30 on Saturdays - other times only available with express agreement. We require 24 hours prior notice of your wish to collect a horse you have purchased to make suitable arrangements on site.
5.4 When you become responsible for the horse. A horse will become your responsibility from the time you or a carrier organised by you collect it from us or we receive payment in full, which ever occurs first.
5.5 When you own the horse You will own the horse you have agreed to purchase once we have received payment in full, transfer of ownership to you will only occur upon our receipt of payment in full in cleared funds.
6.1 You can always end your contract with us. Your rights when you end the contract will depend on whether there is anything wrong with the horse, how the sale was agreed, when you decide to end the contract and whether you are a consumer or business customer:
(a) If the horse you have bought is faulty or misdescribed you may have a legal right to end the contract (or to get the horse replaced or to get some or all of your money back;
(b) If you want to end the contract because of something we have done or have told you see clause 6.2 below;
(c) If you are a consumer and have just changed your mind about the horse, see clause 6.3. You may be able to get a refund if you are within the 14 cooling-off period applicable to sales when you have not visited our business premises, but this may be subject to deductions and you will have to arrange, at your own cost, return transportation of the horse;
(d) In all other cases (if we are not at fault and you are not a consumer exercising your right to change your mind), see clause 6.5.
6.2 Ending the contract because of something we have done or are going to do. If you are ending a contract for a reason set out at (a) to (c) below the contract will end immediately and we will refund you in full for any horse which has not been provided (collected or delivered) to you. The reasons are:
(a) we have told you about an error in the price or description of the horse and you do not wish to proceed;
(b) there is a risk that supply of the horse may be significantly delayed because of events outside our control;
(c) you have a legal right to end the contract because of something we have done wrong.
6.3 Exercising your right to change your mind if you are a UK consumer (Consumer Contracts Regulations 2013). If you are a consumer then for most products, including horses, bought online (and not by Public Auction) you have a legal right to change your mind within 14 days and receive a refund if you have not visited our business premises as part of the sale process and the contract between us is therefore not an 'on-premises contract' for the purposes of the legislation.
6.4 When consumers do not have a right to change their minds. Your right as a consumer to change your mind does not apply in respect of:
(a) products bought by Public Auction - (regulation 28(1)(g), Consumer Contract Regulations 2013);
(b) the contract for sale is an 'on-premises contract' meaning you visited our business premises as part of the sale.
6.5 Ending the contract where we are not at fault and there is no right to change your mind. Even if we are not at fault and you are not a consumer who has a right to change their mind (see clause 6.1), you can still end the contract but you may have to pay us compensation. A contract for goods (as a horse is) is completed when the product is and paid for in full.
(a) If you want to end a contract before it is completed where we are not at fault and you are not a consumer who has a right to change their mind, just contact us to let us know.
(b) Subject to our agreement the contract will end immediately and we will refund any sums paid by you but we may deduct from that refund or, if you have not made an advance payment, charge you reasonable compensation for the net costs we will incur as a result of your ending the contract.
(c) If you wish to end a contract after it is completed but within 14 days of collection/delivery where we are not at fault and you are not a consumer who has a right to change their mind, contact us to let us know and we will consider the request, albeit we will make a deduction from the refund in respect of any loss of value in the horse since the time of sale.
7.1 Tell us you want to end the contract. To end the contract with us, please let us know in writing.
7.2 Returning a horse after ending the contract. If you end the contract for any reason after horses have been collected or delivered you must return the horse to us at our address above. If you are a consumer exercising your right to change your mind you must deliver back to us the horse within 14 days of telling us you wish to end the contract. You must pay the costs of the return.
7.3 How we will refund you. If you are entitled to a refund under these terms we will refund you the price you paid for the product by the method you used for payment. However, we may make deductions from the price, as described below.
7.4 When we may make deduction from refunds if you are a consumer exercising your right to change your mind. If you are exercising your right to change your mind, we may reduce your refund of the to reflect any reduction in the value of the horse, if this has been caused by your handling them in a way which would not be permitted in our business and to maintain the condition of the horse.
7.5 When your refund will be made. We will make any refunds due to you as soon as possible and your refund will be made within 14 days from the day on which we receive the horse back from you.
8.1 We may end the contract if you break it. We may end the contract for a product at any time by writing to you if:
(a) you do not make any payment to us when it is due and you still do not make payment within 7 days of us reminding you that payment is due;
(b) you do not, within a reasonable time, allow us to deliver the products to you or collect them from us.
8.2 You must compensate us if you break the contract. If we end the contract in the situations set out in clause 6.5, 7.4 or 8.1 we will refund any money you have paid in advance for horses we have not provided but we may deduct or charge you reasonable compensation for the net costs and losses incurred as a result of you breaking the contract. In the event of an online auction this includes a failure to make payment in accordance with clause 10.4(b) following a successful winning bid and our offering the horse to the 2nd highest bidder, in this instance you will be responsible for the difference between the two bids.
9.1 How to tell us about problems. If you have any questions or complaints about the product, please contact us in writing.
10.1 Where to find the price. The price of the horse shown is in GBP Sterling and EXCLUDES VAT, the price will;
(a) in the case of a Public Auction be the highest bid at the close of bidding; PLUS VAT at 20% which will be added to the successful bid price
(b) in the case of a Private Sale the advertised price of a horse as offered for acceptance by you in the absence of another price being specifically agreed between us;
(c) we use our best efforts to ensure that the price of the product advised to you is correct. However please see clause 10.3 for what happens if we discover an error in the price of the product you order or there is disagreement over a verbally agreed price.
10.2 We will pass on changes in the rate of VAT. If the rate of VAT changes between your order date and the date we supply the horse, we will adjust the rate of VAT that you pay, unless you have already paid for the horse in full before the change in the rate of VAT takes effect.
10.3 What happens if we get the price wrong. It is always possible that, despite our best efforts, some of the horses we sell may be incorrectly priced or there is confusion over the price when agreed verbally. If we accept your order and prior to collection of the horse (or delivery if we have agreed to do this) a pricing error is recognised, we may end the contract, and refund you any sums you have paid.
10.4 When you must pay and how you must pay.
(a) We accept payment by cash, cheque or bank transfer, when paying by cheque we will not release horse to you until we are in receipt of cleared funds - please allow 5-7 working days from our receipt of your cheque for us to be in receipt of cleared funds, the transfer of ownership to you will not occur until we are in receipt of cleared funds.
(b) In the case of a Public Auction payment must be made within 48 hours by cleared funds unless by other agreement.
10.5 Our right of set-off if you are a business customer. If you are a business customer you must pay all amounts due to us under these terms in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10.6 We can charge interest if you pay late. If you do not make any payment to us by the due date we may charge interest to you on the overdue amount at the rate of 8% a year above the base lending rate of Barclays from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount.
10.7 What to do if you think an invoice is wrong. If you think an invoice is wrong please contact us promptly to let us know.
11.1 We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process.
11.2 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of your legal rights in relation to the products and for defective products under the Consumer Protection Act 1987.
11.3 We are not liable for business losses. If you are a consumer we only supply the products for to you for domestic and private use. If you use the products for any commercial, business or re-sale purpose our liability to you will be limited as set out in clause 12.
12.1 Nothing in these terms shall limit or exclude our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
(d) any matter in respect of which it would be unlawful for us to exclude or restrict liability.
12.2 Except to the extent expressly stated in clause 12.1 all terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982 are excluded.
12.3 Subject to clause 12.1:
(a) we shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with any contract between us; and
(b) our total liability to you for all other losses arising under or in connection with any contract between us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total sums paid by you for the product.
14.1 We may transfer this agreement to someone else. We may transfer our rights and obligations under these terms to another organisation.
14.2 You need our consent to transfer your rights to someone else You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing.
14.3 Nobody else has any rights under this contract This contract is between you and us. No other person shall have any rights to enforce any of its terms.
14.4 If a court finds part of this contract illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
14.5 Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
14.6 Which laws apply to this contract and where you may bring legal proceedings. These terms are governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.