DEFINITIONS
i. The following words shall have the meanings set out below:
“ business”
the business of forming, marketing and managing racehorse syndicates
as carried on by the company under the trading name Axom.
“ company”
Axom Limited (company no: 3319164) whose registered office is at 29 High
Street, Littleton Panell, Devizes, Wiltshire,
SN10 4EN.
“ general
terms and conditions”
the terms and conditions set out in this document which govern all syndicates.
“ horse” or “racehorse”
any horse acquired by the company for the purpose of forming a syndicate.
“ Intellectual
Property”
all industrial and intellectual property rights now or subsequently owned
by or licensed to the company (including without limitation) domain
names, patents, trade marks and service marks (whether registered or
unregistered), registered designs, unregistered designs and copyrights
(and any applications for any of the same) which are used in connection
with the business and all confidential information so owned and used.
“ Members”
all such persons in one syndicate who own shares in the same horse
for whom that syndicate was formed. The term “Member” shall
relate to one person in such a syndicate.
“ Share”
means an equal division of the ownership of a racehorse as determined
by the company at its absolute discretion.
“ syndicate”
a racehorse syndicate formed, marketed or managed by the company for
the purpose of the business.
“ syndicate
terms and conditions”
all such terms and conditions issued by the company that govern one specified
syndicate alone and are described by the company as being specific
to that syndicate.
“ Terms and Conditions”
means both the general terms and conditions and syndicate terms and conditions
in relation to any one syndicate.
THE COMPANY
ii. The company carries on the business of forming, marketing and managing
racehorse syndicates under the trading name Axom.
CONTRACT
iii. The Terms and Conditions form the basis of the contract between
the company and the Member. An application by a person to join a syndicate
shall be deemed to be an offer to become a Member pursuant to the Terms
and Conditions and such application shall only be deemed to be accepted
when the company issues a written acknowledgement confirming that the
person is a Member and that the syndicate has been formed.
THE SYNDICATE
iv. The syndicate and all matters associated with it shall be managed
by the company whose decisions shall be final, binding on the syndicate’s
Members and not open to query or appeal. If any person considering
becoming a Member is not happy with this, they should please not proceed
with their application to become a Member.
(Note: The company will normally seek advice and guidance from the trainer
and/or vet in reaching decisions).
v. The choice of racing silks and syndicate name will be the company’s
decision alone.
vi. The company owns the business and the Intellectual Property. The
company derives its income from managing the syndicate. The Members are
the valued clients of the business and all client information is strictly
confidential. The data relating to the company’s clients are protected
by, and subject to The Data Protection Act 1998. Any attempt to access
the client database or to obtain any personal information relating to
the Members (including for example names, addresses or other personal
information) by any means is prohibited.
(Note: it is important that the company protects itself from any possibility
of any person or persons taking the syndicate away. It also helps protect
clients being approached by anyone who offers a personal view, claiming
expertise in matters relating to the business of training, racing and
keeping, a racehorse).
THE SHARES
vii. An offer of a Share is not an investment opportunity, it is primarily
an entertainment opportunity.
viii. A Share cannot be sub-divided but can be absorbed in accordance
with paragraph xxii.
ix. A Share cannot be purchased by a person under the age of 18.
x. The company alone determines how many Shares are to be offered in
a racehorse or racehorses.
xi. When the company accepts an applicant’s offer to purchase a
Share, it shall grant the ownership of that Share to that applicant,
subject to the Terms and Conditions.
xii. Shares shall not in any way be transferred, transmitted, given,
offered for sale or offered as a gift or otherwise disposed of except
as expressly provided in the Terms and Conditions. The Shares may not
be charged or offered or granted as security to anyone other than to
the company. The Shares may not be subject to any third party rights
or interests.
xiii. In acquiring a Share a Member does not acquire a share in the company
or the company’s business. The legal and beneficial ownership of
the business shall at all times remain vested with the company absolutely.
xiv. A Member must only use his Share for personal enjoyment and must
not use the Share for any commercial purpose.
xv. Where the syndicate is in the process of being formed and the number
of Shares allocated to Members is less than the number required to form
the syndicate (as determined by the company) the company reserves the
right not to proceed with forming the syndicate and shall return all
monies paid by the applicants. Alternatively, the company may decide
to re-advertise the syndicate, and or to change the structure/financing
of the proposed syndicate. No person shall own a Share or have any other
right to or interest in the horse until the company notifies that person
that he is a Member and that the syndicate has been formed.
xvi. During the term of the syndicate any Member who wishes to sell his
Share may apply to the company and the company may entirely at its discretion
either advertise the Member’s Share for sale on behalf of that
Member, or buy the Share outright from the Member (either at a price
agreed between the company and that Member or at such price determined
by a bloodstock agent appointed by the company).
(Note: when a Share is offered or advertised for sale, all rights and
liabilities attached to that Share remain with the Member alone until
completion of the transfer of the Share to a new owner).
xvii. In the event of the death of a Member, prior to the dissolution
of the syndicate, all rights and liabilities attached to that Share shall
pass to the personal representatives of that Member’s estate.
xviii. The price payable by the Member for the Share covers all costs
associated with racing and training the racehorse, for the duration of
the initial term of the syndicate, save for any costs involved in racing
outside of Great Britain and Group/Listed race entry fees, which shall
be charged at cost to the Members. Where the syndicate continues after
the initial term then the Members shall pay an ongoing syndicate fee
at such rate determined by the company from time to time to cover the
continuing costs and charges of the company.
(Note: decisions to race abroad would normally only be made when the
trainer considers the horse to be of a high enough standard and having
a reasonable chance of recouping costs via prize money won, however,
for obvious reasons, no guarantee can be made that any horse will win
sufficient prize money in the race to cover the cost of racing abroad).
xix. Where one or more Members choose not to continue at the end of a
syndicate term, the company may, at its discretion give any such Members
an opportunity to instruct the company to advertise the sale of their
own Shares or, at the company’s discretion offer to buy the Shares
outright from the Members at a value specified by a bloodstock agent
appointed by the company (subject to paragraph xx below).
xx. The company reserves the right to offer the horse for sale at public
auction in the following instances:
(a) if the company does not agree with the valuation by the bloodstock
agent under paragraph xix; or
(b) for any other reason whatsoever and at any time;
and the company is deemed irrevocably appointed as the Member’s
agent to carry out the above.
xxi. Where the horse is offered for sale at a public auction the company
reserves the right to buy that horse on its own behalf. Alternatively
the company may take instructions from those Members who wish to continue
with the syndicate or form a new syndicate to attempt to buy the horse
at public auction on their behalf up to an agreed maximum sum.
xxii. Where the company buys or acquires any Share under the Terms and
Conditions it reserves the right at its discretion to give any continuing
Members of that syndicate the opportunity to increase their shareholding
by an equally divisible amount to absorb that Share.
xxiii. Where less than 100% of the continuing Members agree to absorb
the Share(s) in accordance with paragraph xxii, then the company may
at its discretion offer a whole Share or Shares to the continuing Members
of that syndicate. The continuing Members must submit an application
to the company by a date specified by it and if the company deems it
necessary a draw will take place to allocate the Share(s).
xxiv. Where no Members within the syndicate concerned choose to buy the
Share(s) offered for sale in accordance with paragraphs xxii and xxiii,
the company will give other clients of the company or associated companies
of the company an opportunity to buy a Share.
xxv. Where a horse is bought at public auction in accordance with paragraph
xxi, the new value of the horse will be the total sum incurred in purchasing
the horse (eg price paid for the horse itself, auction house commission
and incidentals plus transport costs).
xxvi. For the avoidance of doubt, where any one or more Shares are offered
for sale and have not been purchased upon the expiry of such period of
time specified by the company, the company reserves the right to do any
of the following at its discretion:
(a) where the company offered the Share on its own behalf (for example
because it has purchased the Share or the horse) it may retain that Share
and or sell it at a future date;
(b) where the company offered the Share on behalf of a Member it may
purchase it in accordance with the Terms and Conditions and retain it
and or re-sell it at a future date.
xxvii. Where the syndicate is closed and no buyer is found for the horse,
the Members of that syndicate (as co-owners of the horse) shall remain
solely responsible for the horse after closure of the syndicate. The
horse simply cannot be left abandoned. The company will continue to manage
and to take all decisions regarding the horse’s welfare but no
administration costs will be charged to the Members. However, the Members
will be liable to pay the company the costs incurred for keeping the
horse on their behalf until it has been re-homed. An invoice will be
raised and issued to the Members on a monthly basis.
(Note: cases of horses not being sold are uncommon but when they do arise,
the company does often have the ability to locate a willing suitable
person to take the horse at no cost, normally within 1 – 4 months.
At that point, the Members’ liability shall cease).
xxviii. When a horse sells for more than the overall sum paid by the
Members for their Shares, the company will charge and deduct a commission
of 7.5% (plus VAT) of the excess and (subject to the Terms and Conditions)
the sum received by the company for the horse less the commission will
be distributed equally among the Members and all other costs will cease
to be payable.
THE COSTS
xxix. Where the company’s costs incurred in managing a syndicate
amount to a sum less than the fees paid by the Members to the company
during a term of the syndicate the Members shall not be entitled to any
refund. In addition, Members are not asked for any additional payments
where the company incurs costs greater than the sum due from the Members
during each term of the syndicate (save for horse racing abroad and Group/Listed
race entry fees as provided under paragraph xviii).
(Note: expenses covered under the syndicate fee/Share price include vet,
blacksmith, race entries, mortality insurance, administration and any
other costs commonly incurred in the day to day running of the syndicate).
xxx. The Share price payable by the Members for a horse includes certain
capital expenses such as the cost of the horse at auction (or other valuation
if not bought at auction), plus other costs which relate to the period
up to the date that the syndicate is formed including without limitation
maintenance, marketing/advertising and insurance (hereinafter defined
as “Capital Expenses”).
xxxi. Where the syndicate closes prematurely and any future instalments
of the Share price remain payable by a Member those monthly instalments
that remain payable by the Member for his Shares (and which have yet
to fall due) shall be reduced pro rata to cover only the Capital Expenses
defined in paragraph xxx). Notwithstanding this, the Member shall still
be liable to pay the following:
(a) those instalments that have already fallen due in full plus any accrued
interest; and
(b) those costs referred to in paragraph xxvii.
xxxii. Under current HM Revenue & Customs provisions, VAT is normally
recoverable and refunds (where applicable) will be paid to the syndicate
Member upon termination of the term of the syndicate.
(Note: recoverable VAT involves all costs incurred by the syndicate as
a whole, including charges made by the company for management of the
syndicate).
MISCELLANEOUS
xxxiii. The company endeavours to obtain a racecourse (owner’s)
badge for each Member every time the horse of that syndicate horse runs.
Please note that most racecourses impose restrictions on the number of
people allowed into the paddock and winner’s enclosure for health
and safety reasons.
xxxiv. All Intellectual Property including without limitation all intellectual
property rights relating to the image and name of any racehorse, syndicate,
the Axom name and logo, the Axom registered racing colours are and shall
remain legally and beneficially vested with the company alone.
RACE PRIZE MONEY / TROPHIES
xxxv. Race prize money (the sum paid by Weatherbys in accordance with
the rules of horse racing) is distributed amongst the Members of the
syndicate concerned at the end of each syndicate term, save where a
sum in excess of £20,000 accrues, in which case distribution
shall be made within a reasonable period from the date of the company’s
receipt from Weatherbys.
xxxvi. Where a perpetual trophy is won by a winning horse, it shall be
awarded to one Member by means of a draw conducted by the company, regardless
of whether or not that person was presented with it at the racecourse.
(Note: some perpetual trophies are charged for by the racecourse. It
is the company’s policy not to pay a racecourse for a trophy, and
indeed such sales are becoming less common. An annual trophy may be awarded
by draw, depending on the value and whether or not the recipient is prepared
to insure it for the period).
THE HORSE
xxxvii. Where applicable, a colt may be gelded, normally upon the advice
of the trainer. The company will make the final decision following
such advice without calling for a vote from the Members.
xxxviii. Occasionally a racehorse may fail to reach a reasonable racing
standard and the company may recommend entry in claiming or selling races.
Such a decision will require approval from the Members of that syndicate.
Where more than 50% of the Members vote against such entry, the option
shall be discounted. Votes may be repeated at future intervals at the
company’s discretion.
(Note: Entry in a claiming or selling race will mean that any member
of the general public may offer to purchase the horse after the race
and, save for an instruction from more than 50% of the Members of the
syndicate to make a friendly claim (ie an attempt to buy the horse back)
or to bid at auction after winning a selling race, the syndicate will
close prematurely and (subject to the Terms and Conditions) the sum received
by the company for the horse will be distributed equally amongst the
Members and all other costs will cease to be payable).
xxxix. Where a horse does not live up to expectations on the racecourse,
or prolonged training is not in the best interest of the welfare of the
horse, the company may recommend premature closure of the syndicate and
in some cases may decide to call for a vote amongst the Members of that
syndicate.
(Note: when a horse is deemed to have little or no residual value, the
current policy is to gift the horse for re-homing to a racehorse rehabilitation
centre).
xl. If the company decides to retire a horse (normally with little or
no residual value) to a rehabilitation centre, full legal and beneficial
ownership in all shares in the race horse (ie all rights of ownership)
shall pass from all Members of that syndicate to the rehabilitation centre.
The company is deemed to be appointed as the Member’s agent irrevocably
to transfer the legal and beneficial ownership in the horse to the rehabilitation
centre.
xli. If a horse is sold by the company, the residual sum achieved (less
any sale commission and related expenses) shall subject to the Terms
and Conditions be divided equally amongst the Members of that syndicate.
THE TRAINER
xlii. Choice of trainer shall be vested with the company alone. The company
may decide to change trainer for any reason whatsoever.
xliii. All decisions relating to training and racing are normally placed
in the charge of the trainer whilst the horse is in his/her care.
(Note: the company believes that an appointed trainer will be best placed
to make assessments relating to racing and welfare issues. Indeed, the
company pays the trainer for his professional services and therefore
normally does not interfere; however, the company reserves the right
to override any decision made by the trainer).
VOTING / DECISION MAKING
xliv. When a vote relating to the syndicate is called for and a Member’s
voting slip is not received in the company’s office by the deadline
date specified by the company, the Member’s rights to vote is forfeited
in that instance.
(Note: if for example, 18 Members were asked to vote and only 16 responded,
only the 16 who responded may vote).
xlv. When all votes received result in a split vote, the company will
have the right to make a casting vote.
NON-PAYMENT
xlvi. All payments to the company are due immediately upon request. If
any Member of the syndicate fails to make a payment within 28 days
of the due date for payment, then:-
(a) The Member forfeits all rights in relation to the syndicate and the
horse until his account is brought up-to-date (save as provided under
sub-paragraph (b) below). Any costs incurred as a result of the default
are the responsibility of that Member who shall be solely liable. No
monies shall be credited or payable to such a Member whether in respect
of prize money or the relevant share in the value of the horse upon its
sale or dissolution of the syndicate, or anything else whatsoever, until
the company is satisfied that all liabilities of the Member have been
accounted for. The Member shall be liable to pay the company interest
which interest shall accrue at the rate of 10% per annum on all late
payments.
(b) Whilst a Member is in default, the company reserves the right at
its discretion to purchase that Member’s share for £1.00.
The company is deemed appointed as the Member’s agent irrevocably
for the purpose of effecting the transfer of the legal and beneficial
ownership of the Share to the company. No defaulting Member shall be
entitled to any compensation or further payment in respect of their Share,
other than the £1.00 aforementioned and the full amount due to
the company will still be properly recoverable by the company without
prejudice to any other rights or remedies that the company may have against
the Member by law.
ENFORCEABILITY
xlvii. If at any time one or more of the provisions of these Terms and
Conditions becomes invalid, illegal or unenforceable under any law
or is held by a court to be invalid, illegal or unenforceable the validity
and enforceability of the remaining provisions hereof shall not in
any way be affected or impaired thereby.
VARIATIONS
xlviii. The company reserves the right at its discretion to amend or
vary the Terms and Conditions from time to time and will supply the
syndicate Members with copies of the latest revised version which shall
apply with effect from the date stated in that latest version.
LAW AND JURISDICTION
xlix. The contract (including for the avoidance of doubt the Terms and
Conditions) shall be governed by and construed in all respects in accordance
with the laws of England, and the Member and the company hereby agree
to submit to the exclusive jurisdiction of the English Courts.
WAIVER
xlx. The failure by the company to enforce at any time or for any period
any one or more of the Terms and Conditions shall not be a waiver of
them or of the right at any time subsequently to enforce any or all
Terms and Conditions.
PREVAILING TERMS
xlxi. If any provisions of the general terms and conditions at any time
conflict with any provisions of the syndicate terms and conditions
the syndicate terms and conditions shall prevail.