Hilco Global (Australasia) Pty Ltd, ACN 634 803 973 of Melbourne VIC 3000 (Hilco Global Australasia) operates the Website.
This Buyer Agreement:
(a) governs the Service we offer at the Website, including Online Auctions, Traditional Auctions, Make an Offer sale and Buy Now Purchases; and
(b) constitutes an agreement between the relevant Hilco Global Australasia Entity and you and sets out the terms and conditions which apply to the sale of Goods by a Hilco Global Australasia Entity to you in connection with a Service.
In this Buyer Agreement, a reference to:
(c) we, us and our is a reference to the relevant Hilco Global Australasia Entity; and
(d) you and your is a reference to any person or entity that accesses or uses the Service or the Website.
You must read this Buyer Agreement carefully.
Despite any other term of this Buyer Agreement, you must comply with our written directions and guidelines while attending our premises to inspect or collect any goods. We reserve the right to refuse you entry if you do not comply with our written directions and guidelines. We reserve the right to update our directions and guidelines from time to time to comply with Government orders and social distancing requirements in response to COVID-19 (or any other epidemic or pandemic). You attend our premises to inspect or collect items solely at your own risk.
1 General
1.1 General Conditions
(a) Capitalised terms used in this Buyer Agreement are defined in clause 2.1.
(b) By visiting the Website and using any Service, you agree to be bound by and abide by this Buyer Agreement and any other applicable terms and conditions that we require you to agree to. If you do not accept this Buyer Agreement, or any other applicable terms and conditions, you must not use the Website and the Service.
(c) We may amend this Buyer Agreement from time to time. Amendments will be notified by uploading the amended Buyer Agreement to the Website and the amended Buyer Agreement will take effect from your continued use of the Website and any Service following such notification will represent an agreement by you to be bound by the amended Buyer Agreement.
(d) Together with the Website Terms of Use and any other terms and conditions we require you to agree to, this Buyer Agreement sets out the entire agreement and understanding between you and us with respect to the subject matter of this Buyer Agreement and supersedes all prior agreements, understandings and representations. If there is any inconsistency between the Buyer Agreement and the Website Terms of Use, the Buyer Agreement will prevail to the extent of the inconsistency. For the avoidance of doubt, the Website Terms of Use do not apply to Private Sales.
(e) The Terms and Conditions of Sale for Motor Vehicles will apply to sales of Motor Vehicles in connection with any Service, in addition to the terms of this Buyer Agreement.
(f) Further terms and conditions may apply in relation to particular Services, and will be set out in this Buyer Agreement and/or on the Sale Overview or Item Page.
2 Interpretation
2.1 Definitions
In this Buyer Agreement:
(a) Absentee Bid means a bid for an Item in a Traditional Auction or Webcast Auction which you submit to us for us to execute on your behalf during the auction;
(b) Auctioneer means the auctioneer at a Traditional Auction;
(c) Business Days means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Victoria;
(d) Buyer Agreement refers to these terms and conditions as amended from time to time in accordance with clause 1.1(c);
(e) Buyer's Premium means:
(i) with respect to an Online Auction, the percentage of the Successful Bid Amount that is identified on the Sale Overview and Item Page and which is payable by the Successful Bidder of an Online Auction in addition to and at the same time as the Successful Bid Amount; and
(ii) with respect to Make an Offer, the percentage of the Successful Offer Amount that is identified on the Sale Overview and Item Page and which is payable by the Successful Offeror of Make an Offer in addition to and at the same time as the Successful Offer Amount;
The Buyer's Premium may be inclusive or exclusive of GST as identified in the Sales Overview and Item Page;
(f) Buy Now Purchase means a sale of any Item located in the “Buy Now” section of the Website;
(g) Card Surcharge means the fee payable to us in respect of payment made using Visa, Mastercard or American Express, which is currently:
(i) 1% of the Transaction Amount for payments made using Visa or Mastercard; and
(ii) 1.75% of the Transaction Amount for payments made using American Express;
(h) Goods means goods offered for sale by a Hilco Global Australasia Entity in connection with the provision of Services;
(i) GST means the goods and services tax payable under the GST Law;
(j) GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and all related legislation;
(k) Hilco Global Australasia Entity means any one of:
(i) Hilco Global Australasia;
(ii) Hilco Australasia (VIC) Pty Ltd;
(iii) Hilco Australasia (NSW) Pty Ltd;
(iv) Hilco Australasia (QLD) Pty Ltd; or
(v) Hilco Australasia (SA) Pty Ltd;
(l) Invoice Amount means the Transaction Amount plus any applicable Card Surcharge;
(m) Item means an item of Goods made available for sale by a Hilco Global Australasia Entity on the terms and conditions of this Buyer Agreement;
(n) Item Information means any information posted by us on the Website or contained in the sale catalogue in relation to any Item posted for sale on the Website;
(o) Item Page means the specific page on the Website that describes a particular Item for sale and may contain any special sale terms and conditions for a particular Item;
(p) Make an Offer means a sale or prospective sale of an Item on the Website by way of the process known as ‘Make an Offer’ which requires you to click the ‘Make an Offer’ button when offering to purchase an Item;
(q) MaxBid means the process by which you submit a maximum bid amount and our Online Auction system will automatically incrementally increase your existing bid if your existing bid is exceeded by another bidder up to your maximum bid amount;
(r) Motor Vehicle has the meaning given to that term in the Terms and Conditions of Sale for Motor Vehicles;
(s) Private Sales means a sale of Goods by private negotiation between a Hilco Global Australasia Entity and you and which does not occur via the Website or at a Traditional Auction;
(t) Online Auction means a sale or prospective sale of an Item by auction on the Website, including a Webcast Auction;
(u) Refresh Period means the time between four minutes and one second and four minutes and fifty nine seconds (inclusive), being the period that the Website’s timing mechanism has entered the fifth minute. For example:
(i) where a bid is placed at 2:42:00 pm, assuming there are no further bids placed, the auction will close at 2:47:00 pm;
(ii) where a bid is placed at 2:42:45 pm, assuming there are no further bids placed, the auction will close at 2:47:45 pm;
(iii) where a bid is placed at 2:44:00 pm, assuming there are no further bids placed, the auction will close at 2:49:00 pm;
(v) Sale Overview means any special terms and conditions and product specifications attached to a particular sale;
(w) Service means any of the services offered by Hilco Global Australasia (including Online Auctions, Traditional Auctions, Make an Offer sales and Buy Now Purchases);
(x) Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth);
(y) Seller means the seller of any Goods sold on the Website who is not a Hilco Global Australasia Entity;
(z) Successful Bid Amount refers to the:
(i) the highest bid amount;
(ii) where two or more bids are for the same price, the bid amount that is for the greater quantity of Items; or
(iii) where two or more bids are for the same price and for the same quantity of Items, the bid that was submitted first;
(aa) Successful Bidder means the bidder who has the highest bid at the conclusion of the Online Auction;
(bb) Successful Offer Amount means the amount offered by a person and accepted by a Hilco Global Australasia Entity during a Make an Offer;
(cc) Successful Offeror means a person whose offer has been accepted by a Hilco Global Australasia Entity during a Make an Offer;
(dd) Terms and Conditions of Sale for Motor Vehicles means the terms and conditions applicable to the sale of Motor Vehicles;
(ee) Traditional Auction means an auction held at a physical location with a spruiking auctioneer conducting the auction;
(ff) Traditional Auction Conditions means the terms and conditions that apply to the Traditional Auction available at the location of the Traditional Auction;
(gg) Transaction Amount means:
(i) for an Online Auction:
(A) the Successful Bid Amount;
(B) the Buyer’s Premium; and
(C) any other fees and charges specified in the Sale Overview and Item Page, including but not limited to GST, delivery and insurance charges; and
(ii) for a Make an Offer:
(A) the Successful Offer Amount;
(B) the Buyer’s Premium; and
(C) any other fees and charges specified in the Sale Overview and Item Page, including but not limited to GST, delivery and insurance charges; and
(iii) for Buy Now Purchases, the purchase price plus GST together with any other applicable charges, for example delivery charges;
(hh) Website means this website, being www.hilcoapac.com;
(ii) Webcast Auction means a live broadcast of a Traditional Auction on the Website with both online and physical bidding made available; and
(jj) Website Terms of Use means the terms available at https://www.hilcoapac.com/terms.
2.2 Construction
In this Buyer Agreement, unless the subject or the context otherwise requires:
(a) singular includes the plural and vice versa;
(b) words denoting one gender include other genders;
(c) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(d) a reference to a person includes that person's successors and permitted assigns;
(e) a reference to a statute, ordinance or other legislation includes any amendment, replacement or re-enactment for the time being in force and includes all regulations, by-laws and statutory instruments made under that statute, ordinance or other legislation;
(f) a reference to this or any other agreement, schedule, attachment or document includes a reference to that agreement, schedule, attachment or document as amended, supplemented, novated or replaced from time to time;
(g) a reference to a clause, attachment or schedule is a reference to a clause, attachment or schedule of this Buyer Agreement;
(h) a reference to writing includes all means of reproducing words in a tangible and permanently visible form;
(i) the use of the words ‘includes’ or ‘including’ is not to be taken as limiting the meaning of the words preceding it;
(j) a reference to time is a reference to time in the State of Victoria, Australia;
(k) a reference to ‘$’ or ‘dollar’ is a reference to Australian dollars;
(l) a reference to a person includes a natural person, company, corporation, partnership, trust, estate, joint venture, government or governmental agency, association, co-operative and any other entity recognised by law;
(m) an agreement, representation or warranty on the part of two or more persons binds them and is for the benefit of them jointly and severally; and
(n) the headings in this Buyer Agreement do not affect its interpretation.
3 The Service
3.1 Use of the Service
(a) The Service is provided to you personally and you must not re-sell, sub-licence or permit access to the Service to or by another person.
(b) We may at our discretion suspend or terminate your access to the Service and the Website without notice to you if:
(i) we reasonably suspect that you have engaged in fraudulent or criminal activity in connection with the Website or use of the Service;
(ii) do not pay for an Item and/or refuse delivery of an Item;
(iii) give information which is untrue, inaccurate or incomplete; or
(iv) engage in any form of bid manipulation.
(c) This Buyer Agreement, the Website Terms of Use and any other applicable terms and conditions will survive any such termination.
3.2 Your Obligations
(a) You must not:
(i) interfere or attempt to interfere with the proper functioning of the Website, the Service or any Online Auction, Make an Offer or sale being conducted on or through the Website;
(ii) take any action which imposes an unreasonable or material burden on our system or the Website; and
(iii) use your account for an unauthorised, unlawful or illegal purpose (including for commercial or criminal use).
(b) You are solely responsible for your transmissions through the Website and the Service. You must:
(i) not allow another person to send communications that falsely identify your account as the origin;
(ii) not interfere with or disrupt networks connected to the Website or the Service; and
(iii) comply with all applicable regulations, policies and procedures of networks connected to the Website or the Service.
4 Accounts
4.1 Creating and maintaining an account
(a) You must not create an account or use any Service if you are:
(i) under 18 years of age;
(ii) an undischarged bankrupt; or
(iii) (if you are a company) under any type of insolvency proceedings or administration.
(b) You must create an account with us to use the Service. Creating an account is free. If you register for a Webcast Auction under clause 7.2, your details will be registered with us and an account created with us to use the Service after the Webcast Auction.
(c) You must not use any false or misleading information when registering for an account or using the Service.
(d) All accounts created by companies must include a valid Australian Company Number (ACN). All accounts created by trustee companies or sole traders must include a valid Australian Business Number (ABN). You must ensure that the ACN and ABN details we hold are current and accurate at all times.
(e) You must update your account if any of your details change. We are not responsible for any loss or damage (including misdirected emails or deliveries) which may occur because you do not provide us with complete or accurate information.
(f) You are solely responsible for protecting and securing the secrecy of your account details (including your username and password and for any activity that occurs under or using your account as a result of failing to keep your account details secure and secret. You must tell us immediately if anyone else uses your account without your consent, or any security breach that relates to your account.
(g) You must provide us with details of a valid credit card in order to register for, and use, the Service. You must ensure that the details we hold are current and accurate at all times.
(h) When you create your account, we may charge an amount of $1 to your credit card and then re-credit that amount to the same credit card within approximately 7 days.
(i) By creating an account, you irrevocably authorise us to process the transactions described in clause 4.1(h) above and all other amounts payable by you to us (including the Transaction Amount and any applicable Card Surcharge) under this Buyer Agreement.
(j) We will send any notices and communications that are relevant to your account to the email address you have provided to us, including information regarding:
(i) confirmation of a successful purchase for Buy Now Purchases;
(ii) the status of an Online Auction in which you participate, such as emails confirming that ‘you have been outbid’ e-mails, or ‘you are the Successful Bidder’;
(iii) the status of a Make an Offer in which you participate, such as emails confirming that ‘your offer has not been accepted’ emails, or ‘you are the Successful Offeror’;
(iv) if applicable, the status of your delivery;
(v) if applicable, a copy of your invoice;
(vi) newsletters, offers and promotional events (unless you opt out from receiving these communications); and
(vii) requests for feedback.
(k) We accept no responsibility for any loss or damage incurred if you do not receive a notification or communication from us.
4.2 Closing your account
(a) You can request to close your account by emailing us at customersupport@hilcoapac.com.
(b) If make a request to close your account, we will only action that request and close your account if:
(i) any Online Auction in which you have bid has closed;
(ii) any Make an Offer in which you made an offer has closed;
(iii) any Buy Now Purchase in which you have participated is finalised; and
(iv) we have received, in cleared funds, all amounts you owe us.
4.3 Information provided
You must ensure that any information you provide to us at any time:
(a) is not contrary to any applicable law;
(b) is not defamatory, threatening, infringing, obscene, pornographic indecent, false, inaccurate, misleading or harassing; and
(c) is free of any viruses or malware, (including ‘Trojan horses’, ‘worms’, ‘time bombs’, ‘cancelbots’ or any other computer software that may damage or interfere with our systems).
5 Using the Service
5.1 Seller of Goods
The seller of Goods offered for sale in connection with a Service may be:
(a) the Seller, where a Hilco Global Australasia Entity is acting as the agent of the Seller; or
(b) otherwise, the Hilco Global Australasia Entity as identified on the Item Information for the relevant Good/tax invoice issued to you.
5.2 Sale of Motor Vehicles
If a sale of Goods in connection with a Service includes the sale of the Motor Vehicle, the Terms and Conditions of Sale for Motor Vehicles will apply to that sale in addition to the terms of this Buyer Agreement.
5.3 Our rights as agent and seller
(a) We may at any time withdraw and/or re-offer an Item for sale at any time if the Item:
(i) becomes unavailable due to damage;
(ii) in the case of auction Items, has uncertain ownership, or is withdrawn by the manufacturer, distributor or Seller;
(iii) in the case of a Buy Now Purchase, is no longer in stock or has uncertain ownership;
(iv) has been erroneously listed twice;
(v) is incorrectly described or priced.
(b) With respect to Webcast Auctions, we may re-offer an Item for sale at any time the Auctioneer, acting reasonably, determines the Item should be re-offered for sale.
(c) We may remove certain Items and/or information from the Website to comply with our legal obligations or if requested by a law enforcement agency or government body.
(d) We reserve the right to change any of the following, at any time before a sale, Online Auction or Make an Offer is completed:
(i) the quantity of any Items posted;
(ii) the maximum number of Items which you may buy, bid or make an offer for; or
(iii) with respect to Online Auctions, the set bid increment amount during an auction.
5.4 Terms that apply to Online Auctions and Make an Offer
(a) Goods offered by auction in an Online Auction and by way of Make an Offer are, to the extent permitted by law, sold on an “as is, where is” basis. It is your responsibility to read the Item Information, Sale Overview, Item Page and any other information we provide relating to any Item listed for sale on the Site. You must not rely solely on the title summary or any photographs of the Item. You must read the information provided and attend any advised physical inspections, to assess the suitability of an Item for you before bidding in an Online Auction or making an offer for a Make an Offer sale. We make no warranty or representation that an Item you purchase is fit for your purposes or appropriate for your particular circumstances.
(b) When purchasing Goods by auction in an Online Auction or by way of Make an Offer you must ensure you understand the delivery and payment terms, including any amendment to those terms and conditions as outlined in the Item Information or in the Sale Overview and Item Page. A Buyer's Premium, and other charges (including a delivery fee), will apply to each Item purchased through an Online Auction and Make an Offer.
(c) You must not engage in any form of bid manipulation, offer manipulation or betting.
5.5 Online Auctions - Bidding
(a) When you bid at an Online Auction, you are making an offer to buy the Item at your bid price. Once your bid is placed, it cannot be withdrawn.
(b) If you have set up the MaxBid function on your account, once your MaxBid is placed, it cannot be altered or withdrawn.
(c) If your bid price is the Successful Bid Amount, you will be the Successful Bidder and must purchase the Item for the Successful Bid Amount and pay any applicable additional fees and charges.
(d) At a Webcast Auction, you may bid both online on the Website and in person at the Traditional Auction.
5.6 Make an Offer - making an offer
(a) When you use the Service to submit an offer for Make an Offer, you are making an offer to buy the Item at your offer price. Once your offer is placed for Make an Offer, it cannot be withdrawn and you are irrevocably bound to purchase the Item at the offer price.
(b) If your offer price is the Successful Offer Amount, you will be the Successful Offeror and you must purchase the Item for the Successful Offer Amount and pay any applicable additional fees and charges.
(c) There is no MaxBid function, or equivalent, for Make an Offer.
5.7 Online Auctions, Make an Offer and Buy Now Purchase - payment
(a) If you are the Successful Bidder in an Online Auction or the Successful Offeror in a Make an Offer, or your purchase an item in a Buy Now Purchase, we will issue you with a tax invoice for the Invoice Amount (by saving that tax invoice in your account) and you must pay the Invoice Amount to us by:
(i) credit card using the details which are stored in your account; or
(ii) if the Invoice Amount exceeds $5,000, direct deposit, in full to our nominated bank account within two (2) Business Days from the closing date of the Online Auction or the Make an Offer or the date on which you purchase the item in a Buy Now Purchase (as applicable).
(b) If the Invoice Amount is $5,000 or less, you irrevocably authorise us to use the credit card stored in your account to process payment of the Invoice Amount upon you becoming the Successful Bidder in an Online Auction or the Successful Offeror in a Make an Offer.
(c) If you do not pay the Invoice Amount by direct debit within the period specified in clause 5.7(a)(ii), you irrevocably authorise us to use the credit card stored in your account to process payment of the Invoice Amount immediately on the expiry of that period.
(d) We must receive the total Invoice Amount in cleared funds in our bank account before Goods will be released for delivery or pick up. We do not accept cheques (bank, personal or business) and cash payments.
(e) If you make a payment by credit card and it is declined for any reason (including due to insufficient funds), we will contact you and will attempt to process that payment again the following day.
(f) Even if you have been notified that you are a Successful Bidder or Successful Offeror, we may at our discretion, elect not to proceed with completion of the sale of an Item if:
(i) your credit card payment cannot be processed because you have provided us with incorrect details (including an incorrect or expired card expiry date);
(ii) credit card payment is declined due to insufficient funds or the credit limit on your credit card is insufficient to cover the Invoice Amount;
(iii) you do not pay the Invoice Amount into our nominated bank account within 2 Business Days of the closing date of the Online Auction or the Make an Offer or the date on which you purchase the item in a Buy Now Purchase (as applicable); or
(iv) we have endeavoured, but are unable to contact you.
(g) If:
(i) any of the events described in clause 5.7(f) occurs;
(ii) you otherwise refuse to pay or fail to complete the purchase of an Item when you are the Successful Bidder or the Successful Offeror in accordance with the terms of this Buyer Agreement (for example, if your credit card payment is declined due to insufficient funds); or
(iii) you do not comply with this Buyer Agreement in a material respect,
we may, in our discretion and without notice to you, do any or all of the following:
(iv) take all steps we consider necessary (including commencing legal action against you) to recover all outstanding amounts you owe us, including any Buyer’s Premium and all reasonable costs (including legal costs and expenses) incurred by us as a result;
(v) resell the Item in any manner and on such conditions as we see fit;
(vi) enforce any Security Interest granted to us in Goods pursuant to clause 15;
(vii) make a claim against you for the losses we incur if the resale price is less than the Invoice Amount;
(viii) suspend or cancel your use of your account; or
(ix) charge you a cancellation fee of up to an amount equal to 30% of the Invoice Amount to cover the actual and reasonable costs (which include cost of resale of the Item, any lost commission and Buyer’s Premium (if any), administration costs, restocking costs) we incur because of your failure to complete the purchase;
(h) If we enforce our rights under clause 5.7(g)(ix), you irrevocably authorise us to deduct from the credit card stored in your account any amount owing to us under clause 5.7(g)(ix). We will notify you of the amount deducted and provide you with reasonable details of the charge.
6 Online Auction - the process
6.1 Process
(a) An Online Auction will start at the time and at the minimum starting price we nominate.
(b) You may bid in an Online Auction by:
(i) placing a manual bid; or
(ii) using MaxBid.
(c) All bids placed at an Online Auction:
(i) must be made on a per-Item basis; and
(ii) may only increase by multiples of the nominated bid increment amount (for Webcast Auctions, the multiples of the nominated bid increment amount will be set by the Auctioneer).
(d) If you bid at an Online Auction using MaxBid, you are responsible for monitoring the Online Auction in which you are participating.
(e) We may close an Online Auction before the scheduled closing time if:
(i) we suspect there is or may be fraudulent or malicious bidding;
(ii) there are or may be processing or systems errors;
(iii) there are or may be technological errors or Website failure; or
(iv) we are not satisfied as to the proof of ownership of the Item the subject of that auction.
(f) Bids made for an Online Auction will be ranked in the following order:
(i) bid price; and
(ii) bid quantity.
(g) If two or more bids are for the same bid price, the higher quantity bid will take precedence.
(h) If you are the current highest bidder, you are not permitted to lower your bid amount or your bid quantity with a new bid.
(i) We will process the winning bid placed at an Online Auction even if the bid is successful only in respect of some of the Items in the lot. For example, if a bidder bids on 10 units in a lot and is successful in relation to 2 of those units, but is outbid on the other 8 units in the lot, we will recognise the Winning Bid Amount placed by that bidder with respect to the 2 units only.
6.2 Reserve Prices
(a) We or the Seller may nominate a minimum reserve price on an Item. If your bid is lower than the reserve price, your bid will be accepted as a valid bid, but a notification of ‘Reserve not met’ will appear on the Website. Once bidding meets or exceeds the reserve price, the ‘Reserve not met’ label will be removed and the highest bid for each Item on the lot at the end of the auction will win.
(b) If the reserve price has not been met at end of the auction, the highest bidder below the reserve price may be contacted or a Make an Offer for the Item may commence in accordance with clause 8.1.
6.3 Online Auction - conclusion
(a) An Online Auction (excluding a Webcast Auction) will close at the end of the time period specified for that Online Auction, provided there are no new successful bids during the 5 minutes immediately preceding the end of the time period specified. If there are any successful bids on a particular lot or Item within 5 minutes of the time specified for the close of the Online Auction (the Refresh Period), the auction will continue to be extended until there are no more bids within the Refresh Period for that particular lot or Item. We accept no responsibility for any missed or unsuccessful bids resulting from any slight variations that may occur in the length of the Refresh Period.
(b) If you are the Successful Bidder for an Item at an Online Auction, you must complete the transaction and purchase that Item.
(c) We will notify you of this by e-mail, including the amount of your winning bid and the Item number and description when the Online Auction closes. If you do not receive an email from us pursuant to clause6.3(b), you are not released from your obligation to complete the purchase of the Online Auction sale Item.
7 Webcast Auctions
7.1 Process
(a) You may bid in a Traditional Auction by:
(i) on the Website:
(A) placing a manual bid during a Webcast Auction; or
(B) placing an Absentee Bid on the Website in accordance with clause 7.3(b); or
(ii) attending the Traditional Auction in person and:
(A) placing a bid in person in accordance with the Traditional Auction Conditions; or
(B) placing an Absentee Bid in person in accordance with clause 7.3(c).
(b) The Traditional Auction Conditions will apply to sales of Goods at a Traditional Auction in addition to the terms of this Buyer Agreement.
(c) To the extent of any inconsistency between the Buyer Agreement, the Website Terms of Use, the Traditional Auction Conditions and the Terms and Conditions of Sale for Motor Vehicles, the documents need read in the following order of priority:
(i) Terms and Conditions of Sale for Motor Vehicles
(ii) Buyer Agreement;
(iii) Traditional Auction Conditions; and
(iv) Website Terms of Use.
(d) The Auctioneer regulates the bidding at the Traditional Auction. The Auctioneer may exercise his or her reasonable discretion to refuse to accept any bid or to exclude any person from placing a bid, including bids made through a Webcast Auction. In the event of any dispute arising during a Webcast Auction, the Auctioneer’s decision is final.
(e) If the Auctioneer receives a bid by a person at the Traditional Auction at or around the same time that a bid is made through a Webcast Auction, the Auctioneer may at his or her discretion give the person at the Traditional Auction priority.
7.2 Webcast Auctions - registration
You must register for each Webcast Auction where you wish to make a bid prior to the auction commencing.
7.3 Absentee Bidding
(a) An Absentee Bid may be placed for a Webcast Auction if you are unable to:
(i) attend the Traditional Auction; or
(ii) bid live online on the day of the Webcast Auction.
(b) For Absentee Bids placed on the Website, these Absentee Bids may be submitted on the Website before the Webcast Auction begins or during the Webcast Auction, provided that the relevant lot is not currently being offered or has not already been sold. We are not responsible for Absentee Bids which are not received because of technical issues.
(c) For Absentee Bids placed in person, these Absentee Bids may be submitted in person before the Traditional Auction begins provided that the relevant lot is not currently being offered or has not already been sold. Absentee Bids can be placed by attending the premises at which the Traditional Auction is to be held and placing an Absentee Bid by completing a hard-copy absentee bid form and lodging it with us in accordance with any requirements set out in the Traditional Auction Conditions. We are not responsible for Absentee Bids which have not been completed in accordance with any requirements set out in the Traditional Auction Conditions.
(d) If you have placed an Absentee Bid on a lot and another bidder has placed a higher Absentee Bid on the same lot, we may send you a notification that you have been outbid, so that you have the opportunity to increase your Absentee Bid.
8 Make an Offer - the process
8.1 Make an Offer
We may, in its discretion, hold Make an Offer for certain Items that have not been sold during an Online Auction (including a Webcast Auction) or for any other reason.
8.2 How to make an offer
(a) You may make an offer to purchase an Item through Make an Offer by submitting a manual offer on the Website.
(b) All offers placed during a Make an Offer must be made on a per-Item basis and any offer made may be increased by any amount unless Make an Offer has closed.
(c) Offers made by offerors during Make an Offer will not be displayed on Sale Overview.
(d) Make an Offer will start at the time and minimum starting price we nominate.
(e) We may close a Make an Offer before the scheduled closing time if:
(i) an offer has been accepted in accordance with clause 8.3(b) or 8.3(b)(i);
(ii) there are or may be processing or systems errors;
(iii) there are or may be technological errors or Website failure; or
(iv) we are not satisfied as to the proof of ownership of the Item the subject of that Make an Offer.
(f) Offers will be ranked in the following order:
(i) offer price; and
(ii) offer quantity.
If two or more offers are for the same offer price, the higher quantity offer will take precedence.
(g) All offers made on Make an Offer are made on a per-Item basis. If you are the current highest offeror on a Make an Offer, you will not be permitted to lower your bid amount or your offer quantity with a new offer. You may however decrease your offer if your current highest offer is exceeded by another offeror (and you are no longer the highest offeror).
(h) We will process the winning offer made during Make an Offer even if the offer is successful only in respect of some of the Items in the lot. For example, if an offeror makes an offer on 10 units in a lot and is successful in relation to 2 of those units, but is out-offered on the other 8 units in the lot, we will recognise the Winning Offer Amount placed by that offeror with respect to the 2 units only.
8.3 Reserve Prices
(a) We or the Seller may nominate a minimum reserve price for an Item.
(b) If an offer is made for an Item that is lower than the reserve price that is, in our view acting reasonably, a reasonably competitive offer (Negotiable Offer), then:
(i) a notification of ‘Unsuccessful offer’ may appear;
(ii) we may contact that offeror in order to negotiate or further discuss the Negotiable Offer (Negotiation Period) and the offeror may increase its Negotiable Offer during the Negotiation Period;
(iii) any other offer(s) for the Item may be made by other offerors during the Negotiation Period and we may negotiate each Negotiable Offer;
(iv) we are not bound to negotiate exclusively with any one offeror at any one time;
(v) subject to clause 8.3(b) , we may accept a Negotiable Offer and if it does:
(A) the offeror that has made the Negotiable Offer will immediately win the Make an Offer for that Item and the offer will be the Winning Offer;
(B) the relevant Make an Offer will immediately close, even if such closure occurs before the scheduled closing time, and no further offers will be accepted by us notwithstanding clause 8.4(a); and
(C) a notification of ‘Make an Offer closed’ may appear.
(c) If at the end of the Make an Offer period there has been no Winning Offer in accordance with clauses 8.3(b) or 8.3(b)(v), the highest Negotiable Offer for each Item on the lot may be the Winning Offer.
(d) If we contact an offeror in relation to a Negotiable Offer, any negotiations or discussions undertaken during the Negotiation Period may be on instruction by the Seller.
(e) We determine the Winning Offer.
(f) When you confirm your offer, it will be accepted as a valid offer, even when the ‘Unsuccessful offer’ label is shown.
(g) If the reserve price has not been met at the end of the Make an Offer, the highest bidder below the reserve price may be contacted by us to discuss a sale of the Item, but hawse have no obligation to sell the Item below the reserve price.
8.4 Make an Offer - conclusion
(a) We may extend the end time of the sale period for a Make an Offer in our discretion, including if there are multiple offerors submitting offers. At our discretion we may close Make an Offer prior to the time period specified on the Website for any reason including if an offer has been accepted.
(b) If you are the Successful Offeror for an Item at a Make an Offer, you must complete the transaction and purchase that Item.
(c) We will notify you of this by e-mail, including the amount of your Successful Offer Amount and the Item number and description when the Make an Offer closes. Non-receipt of a Successful Offeror (or any other) email from us will not release you from your obligation to complete the purchase of the Make an Offer sale Item.
9 Technology errors
If any errors or delays arise in respect of an Online Auction or Make an Offer as a result of or in connection with technological difficulties, including technological difficulties associated with our Website, servers, data hosting centre or internet service provider, we may, acting reasonably and on notice to you:
(a) prior to or after the original time set for conclusion of the relevant Make an Offer or Online Auction:
(i) extend the relevant Make an Offer or Online Auction for a period of time we choose;
(ii) re-open a relevant Make an Offer or Online Auction for a period of time we choose; or
(iii) retract any Successful Offeror's emails which may have been sent out to bidders;
(b) prior to or during the relevant Online Auction or Make an Offer, amend the start price allocated to an Item for sale online; and/or
(c) cancel the relevant Make an Offer or Online Auction and conduct the Online Auction or Make an Offer again.
10 Time on Website
The time displayed on the Website will be approximately equal to Australian Eastern Standard Time (AEST or AEDT).
11 GST
11.1 Interpretation
In this clause 11, unless the context indicates otherwise, a word or expression defined in the GST Law has the meaning given to it in that Act.
11.2 GST Inclusive and Exclusive Sales
(a) The Sale Overview or Item Page will state whether the sale price of an Item is inclusive or exclusive of GST.
(b) You acknowledge and agree that:
(i) if the sale price is stated to be GST Inclusive, any Buyer's Premium will include GST and will be calculated as a percentage of the sale price (inclusive of GST); and
(ii) if the sale price is stated to be GST Exclusive, GST will be calculated on and added to the sale price, and in the case of an Online Auction or Make an Offer, the Buyer's Premium exclusive of GST will be calculated on the sale price.
(c) If a sale price is not expressed to be inclusive or exclusive of GST, the sale price will be exclusive of GST.
(d) Unless otherwise specified on the Website, all bids and offers that are submitted are exclusive of GST.
11.3 GST gross up
If a party (Supplier) makes a supply under or in connection with this agreement on which GST is payable, the consideration payable or to be provided for that supply but for the application of this clause 11.3 (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable on the taxable supply (GST Amount). The GST Amount must be paid to the Supplier by the Recipient at the same time and in the same manner (as the case may be) as the GST exclusive consideration is payable or to be provided.
11.4 Reimbursements
If a payment under this Buyer’s Agreement is a reimbursement or indemnification or otherwise calculated by reference to a loss, cost or expense of any party, the payment must be reduced by the amount of any input tax credit to which that party is entitled in respect of the loss, cost or expense.
12 Consumer rights and returns
12.1 Your statutory rights
(a) If you are a consumer or acquire consumer goods within the meaning of the Australian Consumer Law:
(i) Goods sold by us in our capacity as agent in connection with a Service come with certain consumer guarantees that cannot be excluded under the Australian Consumer Law, including:
(A) section 51, relating to title;
(B) section 52, relating to undisturbed possession; and
(C) section 53, relating to undisclosed securities; and
(ii) for the avoidance of doubt, the following consumer guarantees do not apply to sales of Goods by us in our capacity as agent in connection with a Service:
(A) section 54, relating to acceptable quality;
(B) section 55, relating to fitness for any disclosed purpose;
(C) section 56, relating to the supply of goods by description;
(D) section 57, relating to the supply of goods by way of sample;
(E) section 58, relating to repairs and spare parts; and
(F) section 59, relating to express warranties.
(iii) Goods sold by us as seller are subject to all consumer guarantees to the extent applicable under the Australian Consumer Law.
(b) Nothing in this Buyer Agreement restricts or excludes any rights you may have under the Australian Consumer Law.
(c) Your rights in this Buyer Agreement are in addition to any rights you may have under the Australian Consumer Law.
(d) If an Item is described on the Website or sold by a Traditional Auction is faulty or in a damaged or used condition, you acknowledge that condition when choosing to purchase that Item. To the extent permitted under the Australian Consumer Law, we accept no liability for the condition of such Goods.
12.2 Returning Goods
(a) This clause 12.2 is subject at all times to clause 12.1.
(b) If you wish to return an Item in accordance with clause 12.4(c), you must contact our customer service team by email at customersupport@hilcoapac.com within 5 Business Days of the date of the sale. You should provide full details of your purchase and the reason for returning the Item. We will endeavour to email you a returns advice form (which will state the address to which the Item must be sent), and, to assist with processing the return, please include the returns advice form with the returned Item.
(c) Goods should be returned in their original packaging where possible.
(d) When we receive the returned Item, we will inspect and test it to determine whether it was damaged in transit. If we reasonably determine that the Item was not damaged in transit, we will notify you of this, we will return the Item to you and you will be charged the freight charges actually and reasonably incurred by us in returning the Item to you. In these circumstances, we may charge (and you authorise us to) your credit card with the freight charges.
12.3 Return of Goods - Buy Now Purchases, Online Auctions and Make an Offer where we are the seller
(a) This clause 12.3 applies to Buy Now Purchases, Online Auctions and Make an Offer sales where we are the seller of the relevant Items, but does not apply to sales of Motor Vehicles through Buy Now Purchases. In addition to this clause 12.3, the Terms and Conditions of Sale for Motor Vehicles apply to returns of Motor Vehicles sold in Buy Now Purchases.
(b) Subject to your rights under the Australian Consumer Law, you may not return Goods to which this clause applies because you change your mind.
(c) In addition to any rights you have as a consumer under the Australian Consumer Law, you may return an Item you have purchased to us if:
(i) the description of the Item on the Website was materially different to the Item delivered to you; or
(ii) we are responsible for delivery and the Item was delivered to you in a damaged state.
(d) Subject to our obligations under the Australian Consumer Law, if we determine that your Item does not meet an applicable consumer guarantee, we will endeavour, within 21 days of receiving the Item from you, to replace, repair or refund your Item.
12.4 Return of Goods - Online Auctions where we are agent for the Seller
(a) This clause 12.4 applies to sales by Online Auction where we are an agent of the Seller.
(b) Subject to clause 12.4(c) and any rights you have under the Australian Consumer Law, Items bought at Online Auction may not be returned to us for any reason, including if you change your mind (regardless of whether or not you had the opportunity to inspect the Items before bidding).
(c) In addition to any rights you have as a consumer under the Australian Consumer Law, you may return an Item purchased at Online Auction to us if we are responsible for delivering the Item to you and the Item was delivered to you in a damaged state due to the transit process.
12.5 Return of Goods – Buy Now Purchase and Make an Offer sales where we are agent for the Seller
Where a sale of Goods occurs in connection with a Service and we are acting as agent for the Seller of the Goods:
(a) you may have rights against the Seller, in addition to any rights you have against us;
(b) you may not return Goods purchased through the Buy Now Purchases process, where we are the agent for the Seller, because you change your mind;
(c) in respect of Goods sold through the Buy Now Purchases, where we are the agent for the Seller, and in addition to any rights you have under the Australian Consumer Law, we will permit an Item purchased to be returned to us if:
(i) the description of the Item on the Website was materially different to the Item delivered to you; and/or
(ii) we are responsible for delivery of the Item to you and the Item was delivered to you in a damaged state due to the transit process.
(d) If you wish to return an Item under clause 12.5(c), the procedure set out in clause 12.2 will apply.
13 Liability and indemnities
13.1 Our liability to you
(a) Your rights under this Buyer Agreement are in addition to any rights you have as a consumer under the Australian Consumer Law. Nothing in this Buyer Agreement is intended to restrict or exclude any rights you have under the Australian Consumer Law.
(b) In an Online Auction, we are not responsible for bids not received, processed or accepted which is reasonably due to technical difficulties, including bids placed by MaxBid. In particular, we are not responsible for any loss, liability or damage incurred by you as a result of a bid not received, processed or accepted which is reasonably due to technical difficulties.
(c) Without limiting clause 13.1(b), in respect of Webcast Auctions, we accept no liability for any loss or damage arising out of, or in connection with, the performance or failure of the Webcast Auction software. We do not warrant that the Webcast Auction software will meet your requirements, operate without interruptions, or operate without errors. We are not responsible for bids attempted to be placed on Webcast Auctions which are not received, processed or accepted due to technological or software issues. If you have concerns about the operation of the Webcast Auction software, there is usually the option of attending a Traditional Auction in person.
(d) In Make an Offer, we are not responsible for offers not received, processed or accepted which is reasonably due to technical difficulties. In particular, we are not responsible for any loss, liability or damage incurred by you as a result of an offer not received, processed or accepted which is reasonably due to technical difficulties.
(e) To the fullest extent permitted by law, and subject to 13.1(h), each Hilco Australasia Group Entity excludes all liability to you in respect of any loss or damage howsoever caused which may be suffered or incurred by you and which may arise directly or indirectly in respect of:
(i) your use of the Website or the Service;
(ii) your purchase of Goods;
(iii) any content published on the Website or conveyed or provided to you on the Website or as part of any Service;
(iv) your reliance, or the reliance of any third party, on any content published on the Website or conveyed or provided to you on the Website or as part of any Service;
(v) any failure or omission on our part to comply with our obligations under this Buyer Agreement, Traditional Auction Conditions and Terms and Conditions of Sale for Motor Vehicles;
(vi) any negligent act or omission by us in the provision of the Website or any Service or any other services to you; and
(vii) your use of any Goods or services supplied to you through this Website or any Service.
(f) We expressly exclude all liability for special, indirect or consequential loss or damage, including without limitation, loss of anticipated savings, pure economic loss, loss of or damage to reputation or goodwill, or loss or damage associated with:
(i) your use of this Website and the Service; and
(ii) your purchase of Goods,
howsoever caused.
(g) The Hilco Australasia Group Entities each make no representation or warranty in relation to:
(i) the operation or functionality of the Website;
(ii) any information published on the Website or conveyed or provided to you on the Website or any Service;
(iii) the fitness for purpose of the Website or any Service, or any products or services supplied to you through the Website or through or as a result of a Service;
(iv) that Goods you purchase are fit for your purposes or appropriate for your particular circumstances;
(v) in relation to the state of repair or maintenance or serviceability of any Goods;
(vi) that the Goods comply with any requirements of applicable law or regulation; and
(vii) in relation to the safety of, or absence of risk to health from, any Goods.
(h) To the extent that any warranties or guarantees implied by law are not capable of being excluded or modified, the total aggregate liability of the Hilco Australasia Group Entities, including each of their employees, servants, agents and Related Bodies Corporate, for breach of such warranties or guarantees is limited to one or the other of the following, at the option of the Hilco Australasia Group Entity:
(viii) if the breach relates to goods:
(A) the replacement of the goods supplied or the supply of equivalent goods; or
(B) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(ix) if the breach relates to services:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
13.2 Indemnities
You release, indemnify and will keep indemnified the Hilco Australasia Group Entities and each of their Related Bodies Corporate against all actions, claims, penalties and demands (including the cost of defending or settling any actions, claims, penalties and demands) which we may incur or which may be instituted against us arising out of:
(a) a breach of this Buyer Agreement by you;
(b) any wilful, unlawful or negligent act or omission by you; or
(c) your use of the Website and the Service.
13.3 Manufacturer's liability
(a) Subject to any rights you may have under any law (including the Australian Consumer Law), if Goods are sold with an accompanying manufacturer's warranty, we take no responsibility for the content, fulfilment or enforcement of that manufacturer's warranty. It is your responsibility to contact the relevant manufacturer in relation to the warranty.
(b) To the extent permitted by law, we do not provide any representation or warranty in relation to any manufacturer's warranty that accompanies any Goods. In particular, we do not represent that the manufacturer's warranty is compliant with the Australian Consumer Law. Any rights that you may have in respect of the manufacturer's warranty are against the manufacturer and not us.
14 Collection, delivery, insurance and risk
14.1 Title, Risk, Collection and Delivery
(a) We may withhold delivery or collection of Goods until you have paid all amounts owing to us.
(b) Title in any Goods will only pass to you when we receive the Invoice Amount in cleared funds.
(c) If Goods are:
(i) collected by you, risk in the Item will pass to you when you, or a person on your behalf, collects and signs to confirm receipt of the Goods; or
(ii) delivered to a delivery address nominated by you, the risk in the Goods will pass to you:
(A) when it is delivered; or
(B) if we are unable to deliver the Goods to the address nominated by you, in accordance with your instructions (for example if no one is present to accept delivery), when we or our carrier first attempts to deliver the Goods.
(d) If Goods are to be delivered:
(i) the address nominated for delivery must be a valid residential or commercial street address, and not a PO box or storage facility;
(ii) receipt of the Goods must be acknowledged by signature; and
(iii) you cannot change or request to change your nominated delivery address details, or arrange to collect Goods, after a Buy Now Purchase, Online Auction or Make an Offer has closed. We are not responsible if Goods are not delivered where the arrangements or delivery address details are changed in this way.
(e) In relation to Goods that are to be collected:
(i) any collection times stated in the Sale Overview, Item Page or tax invoice or otherwise are estimates only. We will use reasonable endeavours to comply with the stated collection times, but will not be liable to you for any loss or damage you suffer as a result of our failure to comply with such times.
(ii) Where Goods are not held by us on our premises, you must strictly comply with any collection times and arrangements we specify. We may have limited ability to access the Goods. If you do not comply with the collection times and arrangements that we specify, the Goods may be removed from the premises, after notice to you, and in such circumstances we will not be liable to you for the unavailability of the Goods and we will not refund the Invoice Amount to you. We will assist you to arrange access to the Goods again; and
(iii) when collecting Goods at the relevant address, you must comply with:
(A) any relevant laws regarding occupational health and safety;
(B) any directions or warnings about the Goods or their location in the Sale Overview or Item Page; and
(C) any directions given by us or anyone authorised by us when inspecting or removing any Goods from any location.
(f) You acknowledge that you inspect or remove Goods at any location at your own risk.
(g) If we are unable to deliver Goods or you do not collect it within 7 days of a sale we may charge a storage fee in accordance with our usual rates, as set out in clause 14.1(h), below, or at other rates we may reasonably specify. Unless otherwise agreed, our storage charges for motor vehicles and industrial equipment are $50 per day or $250 per week.
(h) Subject to any applicable legislation governing the disposal of uncollected Goods, if you do not collect or take delivery of Goods within 7 days of a sale, and after 3 months’ notice to you:
(i) where the Goods were purchased for $100 or more, we may sell the Goods on terms we consider reasonable and refund the proceeds of sale to you, less Buyer's Premium (if applicable), a storage charge of $5.00 per day and an administration fee of $40.00; and
(ii) where the Goods were purchased for less than $100, we may sell or otherwise dispose of the Goods, without refund to you.
15 PPSA
(a) In respect of Goods sold in connection with a Service of which you take possession before we receive the Invoice Amount in full:
(i) you acknowledge and agree that clause 14.1(b) applies to such Goods;
(ii) you undertake to store the Goods on its premises separately from your own goods or those of any other person and in a manner which makes the Goods readily identifiable as our Goods;
(iii) until you pay the Invoice Amount in full, you must not resell the Goods;
(iv) your right to possession of the Goods ceases if you do anything or fail to do anything which would entitle a receiver, a receiver and manager, an administrator, a liquidator or a trustee to be appointed in respect of you or your assets, undertaking or property or any part thereof, or entitle a person to present a creditor’s petition for your wind up;
(v) we may for the purpose of examination or recovery of the Goods enter upon any premises where the Goods are stored or where it is reasonably thought to be stored;
(vi) you must not use the Goods in any manufacturing or construction process of your own or of some third party.
(b) You acknowledge that this clause 15 constitutes a Security Agreement (as that term is described in the Personal Property Securities Act 2009 (PPSA)) in favour of the relevant Hilco Australasia Group Entity in all Goods supplied to you in respect of payment has not been received in full and all proceeds of such Goods. You acknowledge and agree that:
(i) relevant Hilco Australasia Group Entity may, without notice to you, seek registration of its Security Interest pursuant to the PPSA as a Purchase Money Security Interest;
(ii) pursuant to section 275(6) of the PPSA, you agree that relevant Hilco Australasia Group Entity is not required to disclose to an interested person information regarding its Security Interest unless required to do so pursuant to the PPSA or at law;
(iii) you will, upon request, promptly sign any documents, provide any further information and do anything else reasonably required to enable perfection of our Security Interest or registration of a Financing Statement or Financing Change Statement under the PPSA;
(iv) you will not register a Financing Statement or Financing Change Statement or make a demand to alter the Financing Statement pursuant to section 178 of the PPSA in respect of the Goods without the prior written consent of the relevant Hilco Australasia Group Entity;
(v) you will not grant any other Security Interest or any lien over the Goods; and
(vi) you will give the relevant Hilco Australasia Group Entity not less than 14 days written notice of any proposed change in your name or contact details.
(c) You waive your rights to receive any notices required under sections 95,118, 121, 130, 132, 135 and 157 of the PPSA.
16 General
16.1 If any provision of this Buyer Agreement is found to be unenforceable for any reason, then that provision shall be deemed deleted from this Buyer Agreement and all other provisions will remain in full force and effect.
16.2 Each Hilco Australasia Group Entity may assign its rights and obligations under this Buyer Agreement to any party at any time without notice to you.
16.3 No waiver by us of any breach of this Buyer Agreement operates as a waiver of any other breach, and the doing and/or omission of any act, matter or thing whatsoever by us, our Related Bodies Corporate, employees or agents (which but for this clause ought or might amount to a waiver of our rights in respect of any such breach or default) does not operate as a waiver in any way of our rights and powers in respect of such breach or default.
16.4 We are not liable for any delay or failure to perform our obligations under this Buyer Agreement if such delay or failure is due to circumstances beyond our reasonable control which results in us being unable to observe or perform on time an obligation under this Buyer Agreement, including, without limitation, acts of God, acts of government or acts of third parties (including war or other hostility, terrorism, national or international disaster, fire, explosion, power failure, Internet failure, equipment failure or strike or lockout).
16.5 This Buyer Agreement is governed by the laws of the State of Victoria, Australia, and the parties submit the exclusive jurisdiction of the courts of or in the State of Victoria, Australia and the courts of appeal therefrom.
