Terms and Conditions
PART I – GENERAL AND INTERPRETATION
1.1 Welcome to the Aylward Auctioneers & Valuers Online and Onsite Auction Website. The following are the Terms and Conditions under which you may use our Online Auction Website for both Bidders and Sellers. These online Terms and Conditions are in addition to our general onsite Terms and Conditions (as set out in full in Part 3 below).
1.2 Your use of our Online Auction Website and registration for our Services constitutes your agreement to all terms, conditions, and notices contained herein and otherwise posted on the Website (the content of such agreement, inclusive of the Terms and Conditions and all such additional conditions and notices, are together referred to herein as the “Agreement.”). The Website acts as an online venue to allow Aylward to Auction Items online (in accordance with applicable laws and regulations) and to provide you with the opportunity to Bid for and buy such Items. If you do not accept these Terms and Conditions, you must refrain from using our Website and Services.
1.3 Aylward may, at its sole discretion, modify or revise the Terms and Conditions at any time by updating the text of the Website. You are bound by any such modification or revision and you are responsible for ensuring you are familiar with the latest Terms and Conditions. The Terms and Conditions current at the start of a Transaction will apply until that Transaction is completed.
1.4 We reserve the right to modify or withdraw the Website (or any part) at any time without notice to you.
2.1 In these Terms and Conditions, unless the context otherwise requires, the following words shall have the following meanings:
Agreement means the your acceptance of all terms, conditions, and notices contained herein and otherwise posted on the Website (the content of such agreement, inclusive of the Terms and Conditions and all such additional conditions and notices);
Auction means an auction conducted by Aylward;
Auction Period means the term of an Auction or Online Auction
Auction Sale means the the auction of all of the Lots listed in an online Catalogue. The auction sale will be deemed complete after all of the Lots listed in the online Catalogue have been put to the Auction irrespective of whether or not all Lots have been sold;
AUD the lawful currency of Australia being the Australian Dollar;
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
AVAA means the Auctioneers & Valuers Association of Australia, of which Aylward is a member (249 & 279);
Aylward means Aylward Auctioneers & Valuers (ABN 42 097 447 026) or any person conducting an Online Auction sale for, or on behalf of, Aylward Auctioneers & Valuers;
Bid means an offer by a Bidder to purchase an Item;
Bidder(s) means an individual person or corporate entity who participates in an Auction or Online Auction by placing a Bid;
Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made;
Catalogue means a list containing some or all of the Lots available and provided by Aylward from time to time;
Competition & Consumer Act means the Competition and Consumer Act 2010 (Cth), which is an act of law relating to competition, fair trading and consumer protection, and for other purposes;
Eligible Persons means a person who meets the eligibility criteria set out in these Terms and Conditions;
GST means the goods and service tax as imposed by the GST Act;
GST Amount means any Purchase Price (or the relevant part of the Purchase Price) multiplied by the appropriate rate of GST (i.e.: 10%);
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Highest Bid means the highest AUD Bid for an Item as specified on the Website throughout the Auction Period;
Item(s) means a product(s) or service(s) offered for sale through an Auction or Online Auction
Loss means any claim, delay, loss, liability, damage, expense, penalty, outgoing or cost whatsoever and however arising, whether present, unascertained, immediate, future or contingent and includes indirect and consequential losses;
Lot means any goods available for purchase at the Auction or Online Auction Sale;
Member means a registered member of Aylward Online Auctions;
Online Auction means an online auction conducted by Aylward on our Website;
PDH Goods means goods which, for the purposes of section 3(1) of the Australian Consumer Law, are a kind ordinarily acquired for personal, domestic or household use or consumption;
Personal Information has the same meaning as under the Privacy Act 1988 (Cth);
Privacy Act means the Privacy Act 1988 (Cth), which regulates ‘information privacy’;
Purchase Price means the Highest Bid in AUD accepted by Aylward for a Lot;
Reserve Price means the minimum Bid for each Item as specified by Aylward on the Website;
Seller(s) means the owner of a Lot or the person authorising Aylward to sell that Lot on the owner’s behalf, and includes any person placing a listing;
Services means the content, features and functionality provided via the Website to facilitate the Online Auction through which Aylward can sell and you can buy Items;
Successful Bidder means the Bidder who has submitted the Highest Bid at the end of the Auction Period;
Successful Bidder’s Premium means the percentage of the Highest Bid amount as identified by Aylward and payable by the Successful Bidder of an Online Auction. The Successful Bidder’s Premium is payable in addition to and at the same time as the Highest Bid amount and other relevant charges, and will form part of the total Tax Invoice amount to be paid by the Successful Bidder for the purchase of the Lot. The Successful Bidder’s Premium may be GST inclusive or exclusive, and will be clearly marked which one;
Tax Invoice means a tax invoice as defined in the GST Act;
Terms and Conditions means these terms and conditions as may be varied or amended from time to time and any additional terms and conditions or disclaimers with reference to or displayed on the Website whether by hypertext link or otherwise;
Transaction means any transaction effected through the Services including but not limited to the contract of purchase and sale between the Bidder and the Seller;
Website means this Online Auction website located at http://www.aylwardauctioneers.com.au or any other URL used by us from time to time;
we/us means Aylward, whose head office is at 9 Hi Tech Drive, Toormina (Coffs Harbour South), New South Wales, 2450;
you means the person accessing and using this Website and/or the legal entity you represent during the course of employment or engagement by that entity.
PART II – ONLINE AUCTION SALES
3 Specific Warnings
3.1 At Your Own Risk: Transactions on this Website and the Services are conducted entirely at your own risk. You agree that Aylward no responsibility or liability for any misconduct of any of its Members or users including, without limitation, Members or users that have registered under false pretences or who attempt to defraud you. Aylward gives no undertakings, representations, or warranties in relation to Items sold or listed on the Website including:
(i) about ownership of any Item;
(ii) as to the content, safety, description, worthiness, quality, or legality of the Items that are listed for Auction on the Website;
(iii) as to the accuracy of the description of Items provided for Auction;
(iv) that any Item will meet your requirements or expectations; or
(v) about the ability of Members or users to complete a Transaction, including credit card transactions.
3.2 Disclaimer: You expressly understand and agree that:
(i) your use of the Website and the Services is at your sole risk. The Website and Services are provided on an “as is” and “as available” basis. To the maximum extent permitted by law and without limiting clause 3.1, Aylward disclaims and excludes all implied conditions or warranties, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, and non-infringement;
(ii) Aylward does not warrant that (a) the Website and Services provided will be uninterrupted, timely, secure, or error free, or (b) that any information (including feedback) provided on the Website is error-free or reliable;
(iii) no advice or information that is obtained by you from Aylward or anyone else shall create any warranty by Aylward that is not expressly stated in the Terms and Conditions;
(iv) responsibility for the content of advertisements appearing on this Website (including hyperlinks to advertisers’ own websites) rests solely with the advertisers. The placement of such advertisements on the Website does not constitute Aylward’s recommendation or endorsement of the advertised product or service. Each advertiser is solely responsible for any representation made in connection with its advertisement;
(v) while Aylward has systems in place to reduce the risk of credit card fraud, Aylward is not responsible for protecting Members and users from credit card fraud. Aylward’s fraud protection systems may from time to time block legitimate credit card payments. In these cases payment will need to be made by other means.
3.3 Liability: You agree that, to the maximum extent permitted by law, any and all liability and responsibility of Aylward to you is excluded regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise. Aylward’s liability and responsibility is excluded in respect of any and all loss or damage, whether direct or indirect, including, without limitation, loss of profits or data, loss of business or anticipated savings, general and special damages, and consequential and incidental loss.
3.4 Indemnity: You agree to release, indemnify and keep us indemnified from and against all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities, or demands suffered or incurred by us to any person arising out of or in connection with your failure to comply with these Terms and Conditions, your failure to complete a Transaction, your sale or attempted sale of an Item prohibited under the law, or arising out of any content or Item you submit, post, transmit, or make available through the Services.
3.5 Breach: Without limiting any other rights and remedies available to Aylward, Aylward may limit your activities on the Website, remove your Bids or Items provided for Auction, warn other Members or users of your actions, issue a warning to you, suspend or terminate your membership, or refuse to provide our Services to you if you breach these Terms and Conditions or where Aylward considers it appropriate.
4.1 Eligibility to participate in the Online Auction is open to the following individuals who are:
(i) aged 18 years and over (and by registering and accepting these Terms and Conditions you represent to Aylward that you are not a minor and can form legally binding contracts under the applicable law);
(ii) not undischarged bankrupts or, where you are a business entity, you are not under any type of insolvency administration.
4.2 If you are registering on behalf of a business entity, you represent and warrant that you have authority to bind the business entity to these Terms and Conditions. Without prejudice to your warranty, we reserve the right to ask you for written authority from the business entity before registering any business entity.
4.3 Employees of Aylward and their immediate families and employees are ineligible to participate in the Online Auction.
5 Registration and Participation in the Online Service
5.1 You can browse the Website at any time without registering. To use the Services, the Bidder is required to register as a Member by completing the online “User Registration Form” on the Website and submitting it to Aylward by clicking on the “Register” link. You should only register if you qualify for membership. Registration and use of the Services to Bid for Items via the Website is free.
5.2 You agree to ensure that your registration details are up to date and accurate, and you will update any details when necessary using the “Edit Registration” link on the Website. You may not take any action that might interfere with the functioning of the Services.
5.3 You must not use any device, software or instruction to interfere or attempt to interfere with the proper working of the Website or any Online Auction being conducted on the Website.
5.4 You warrant and undertake to Aylward that all the information supplied to Aylward on the User Registration Form is true and accurate.
5.5 You are solely responsible for your transmissions through the Service. You must:-
(i) not forge communications or take any other action which would disguise the origin of the communications transmitted by you through the Service;
(ii) not allow another person to transmit communications that falsely identifies your account as the origin of such a communication;
(iii) not interfere with or disrupt networks connected to the Services;
(iv) not use the Services for illegal purposes; and
(v) comply with all regulations, policies and procedures of networks connected to the Services which either apply by operation of law or are referred to in the Website.
5.6 We reserve the right in our sole discretion to refuse any application to register and access the Services and to temporarily or indefinitely suspend any registered Members. However, in exercising our rights, we do not intend to act unreasonably.
6 User Name and Passwords
6.1 You will receive a user name and password upon completing the registration process to use the Services. You are solely responsible for keeping your personal user name and password secure and confidential. You should not share, display, disclose or permit your user name or password to be disclosed to any other party.
6.2 You are responsible for use of the Services when access to the Services is obtained through the use of your user name and password whether authorised or unauthorised by you.
6.3 You agree not to impersonate any other person or entity or use any false name or use any other person’s user name and password to access the Services.
6.4 If you believe that your user name and/or password has become known to another person or you are aware of any other breach of security regarding the Services, then you must notify Aylward immediately.
6.5 You agree and warrant that you will implement and comply with the above procedures.
6.6 We reserve the right to withdraw user names and passwords at any time without notice and in our sole discretion including but not limited to where Aylward has reason to believe that such user name and password have been discovered and/or used by any person or organisation other than you.
7 Your Obligations as a Seller
7.1 Sellers should be located in Australia. Sellers should not send Items to an address that is outside Australia, unless otherwise agreed between the Seller and Aylward.
7.2 You will provide Aylward with Item descriptions that are accurate, current, complete, and you will include all relevant information about the terms of sale, payment terms, shipping methods and who bears the cost of shipment.
7.3 You will only provide Aylward with Items for Auction that exist, are to be sold, and that you are legally entitled to sell. You will only provide Items for Auction that are in your possession, except where Aylward has approved otherwise in writing. In the case of motor vehicles and other such goods that are offshore, they must be in transit to Australia, and you must be a registered motor vehicle trader, and hold clear authority to sell such vehicles before being able to provide such Items for Auction.
7.4 You must not provide for Auction any Item that is illegal, offensive (including anything of a defamatory, pornographic, or racially or ethnically objectionable nature), stolen, or unsafe, anything which infringes copyright or other intellectual property rights, Items which have been illegally imported or which would require illegal import or export in order to complete the Transaction, or any Item of which the sale is prohibited by, or violates any, law. You are responsible for ensuring that any Item provided for Auction by you does not breach this clause. You agree that Aylward may disclose your Personal Information, including your name and contact details, to the relevant authorities, parties and/or the applicable intellectual property right holders (or their representatives) if we consider that you are in breach of this clause at any time.
7.5 When you provide an Item for Auction with Aylward’s, you should do so with the intention of selling this Item through the Website. Therefore, you should not advertise your Item through another forum. If you remove an Item for an Auction you may incur a non-refundable withdrawal fee, regardless of the reason.
7.6 You must not use Aylward’s Online Auction Website to try to promote a business or website other than one relating to the Item you are proving for Online Auction
7.7 You must not use the Services or the Website to sell Items that are of a speculative nature including, but not limited to, pyramid, surf-for-free, or similar schemes.
7.8 You must not manipulate prices through ghost-bidding or assuming multiple roles in a single Transaction.
7.9 The Item must be sold to the Successful Bidder if the Reserve Price is met. An Item can only be sold to a Bidder who is not the Successful Bidder after reasonable attempts have been made to contact the Successful Bidder without success.
7.10 You will only provide for Auction Items with adult rated content (videos, magazines, DVD’s, etc) which have been approved under the relevant and applicable State and Commonwealth laws.
7.11 Aylward reserves the right to remove any Auction Item that it deems unsuitable or in breach of the Terms and Conditions.
7.12 You agree to your email address being supplied to the Successful Bidder when your Auction closes.
7.13 You must promptly forward the Item to Aylward in a timely manner for the Auction.
7.14 You must not charge unreasonable amounts for shipping and packaging costs.
8 Your Obligations as a Bidder and/or Successful Bidder
8.1 Bidders may be located either in Australia or in other countries. Successful Bidders will be responsible for payment of postage and delivery of Items.
8.2 Your Bids are not retractable once the Auction has closed. You must only place a Bid if you intend to buy the relevant Item at the Purchase Price entered. Reasonable allowances should be made for postage where applicable, especially international postage.
8.3 If you are notified that your Bid has been successful (i.e.: you are the Successful Bidder), you must complete the Transaction in the manner specified. By making a Bid, you warrant and represent that you have the legal right to enter into and complete the Transaction.
8.4 You must make full and prompt payment for any Item you buy.
8.5 You agree to your username and the amount of your Bid being publicly shown on the Aylward Website. You also agree to your email address being supplied to the Seller when you win an Auction.
8.6 You may not Bid on an Auction that has been provided by a family member, flatmate, friend or any member that is personally known to you, in order to raise the Purchase Price of that Auction.
9 Items in the Online Auction
9.1 The Items will be determined by Aylward (in conjunction with the Seller) in its absolute discretion and will be specified on the Website during the relevant Auction Period.
9.2 It is the Bidder’s responsibility to evaluate the accuracy and completeness of any description of an Item on the Website, and the merchantability and fitness for purpose of any Item prior to placing their Bid.
9.3 Aylward (in conjunction with the Seller) will endeavour to provide accurate descriptions to fairly reflect each Item listed for sale on the Online Auction, but takes no responsibility for an Item that is incorrectly described on the Website due to any fault of Aylward.
10 Auction Period
10.1 Each Auction Period will be determined by Aylward.
10.2 Aylward will display the remaining time for each Auction or Online Auction on the Website.
10.3 Aylward reserves the right to extend an Auction Period in its absolute discretion.
11 How to Bid
11.1 Only Eligible Persons may place a Bid for an Item on the Website.
11.2 All Bids must be submitted in AUD and must be greater than the Reserve Price and the Highest Bid displayed on the Website at the time the Bid is placed. All Bids are inclusive of GST.
11.3 Each Bid will represent the amount that the Bidder is willing to offer to pay for the Item. Please take care when making a Bid as once your Bid is placed, it cannot be withdrawn.
11.4 Once a Bid has been submitted, the Bidder will receive a notification by email that their Bid has been successfully lodged in the database and that it is currently the Highest Bid. Bidders will also be sent a notification by email upon their Bid being out-bidded by another Bidder.
11.5 There is no limit on the number of Bids an Eligible Person may place on an Item.
11.6 All Bids are processed in the order that they are received by Aylward in the database. Aylward accepts no responsibility for any late, delayed or misdirected Bids as a result of technical disruptions or for any other reason.
11.7 Please make sure you understand the delivery and payment terms, including any amendments to the Terms and Conditions as outlined in the Item description. A buyer’s premium, and other charges including a delivery fee, will apply to Online Auctions.
11.8 You must not engage in bid manipulation.
11.9 Aylward reserves the right to change the Bid increment in its absolute discretion.
12 Offer and Acceptance
12.1 By placing a Bid in an Auction or Online Auction, the Bidder is offering to buy the Item at that Bid (i.e.: the Bidder makes an offer to purchase the Item at the Bid price).
12.2 If the Bidder is declared the Successful Bidder for that Item in accordance with the Terms and Conditions and Aylward accepts the Bid, a legally binding contract will arise between the Successful Bidder and Aylward (acting as agent for the Seller) for the Successful Bidder to purchase the Item at the Successful Bidder’s last Bid.
13 Successful Bidders
13.1 The Bidder who has placed the Highest Bid at the end of the Auction Period will be declared the Successful Bidder.
13.2 The Successful Bidder will receive an email confirmation and/or a telephone call within  Business Days after the end of the Auction Period advising them that they are the Successful Bidder and confirming Aylward’s acceptance of the Successful Bidder’s offer to buy the Item at the Successful Bidder’s last Bid.
14 Payment of Items
14.1 Unless otherwise agreed between Aylward and the Successful Bidder, the Successful Bidder must provide full payment for the Item to Aylward within  Business Days after notification of Aylward’s acceptance of its offer in accordance with these Terms and Conditions.
14.2 Full payment for the Item will include the Highest Bid amount, GST and any other fees (including a Successful Bidder’s Premium) and charges as specified in the Item description.
14.3 Payment for the Item(s) must be made by way of PayPal, acceptable credit card, bank cheque or telegraphic transfer to the account nominated in writing by Aylward.
14.4 If your account remains unpaid after the specified due date, we may charge you an additional 1% of the Highest Bid price (excluding GST) per day late payment charge.
15 Collection and/or Delivery of Items
15.1 Where applicable, Aylward will use all reasonable endeavours to despatch the Item to the Successful Bidder within  Business Days from the date Aylward receives full and final payment for the Item in accordance with these Terms and Conditions. The cost of delivering the Item to the Successful Bidder must be paid by the Successful Bidder.
15.2 The Successful Bidder may collect the Item within  Business Days from the date Aylward receives full and final payment for the Item in accordance with these Terms and Conditions. The cost of collecting the Item by the Successful Bidder will be borne by the Successful Bidder.
15.3 Where applicable, title to and risk in an Item will pass to the Successful Bidder when the Item is despatched for delivery to the Successful Bidder by Aylward or collected by the Successful Bidder from Aylward in accordance with these Terms and Conditions.
15.4 For the avoidance of doubt, delivery insurance will be at the option and cost of the Successful Bidder. The Successful Bidder must notify Aylward that it wants to exercise this option at the time it receives notification that it is the Successful Bidder. The Successful Bidder must pay Aylward for the cost of the delivery insurance at the same time as it makes full and final payment for the Item in accordance with these Terms and Conditions.
16 Non Payment for Items
16.1 In the event the Successful Bidder fails to pay for an Item in accordance with these Terms and Conditions, Aylward will, in its absolute discretion, offer the Item for sale to the Bidder who submitted the second Highest Bid at the end of the Auction Period at a price determined by Aylward.
17 Exchange of Items
17.1 The Successful Bidder cannot exchange, cancel or refund an Item. Furthermore, other than required under the applicable law, Aylward will not under any circumstances accept the return of any delivered or collected Item.
17.2 If an Item comprises an event or service that for any reason is required to be cancelled or cannot be performed, Aylward will refund to the Successful Bidder the proportion of any money paid in respect of that Item that is reasonably attributable to the event or service.
17.3 Aylward accepts no liability for any loss or damage (including consequential loss) arising out of the cancellation of any event or the inability of Aylward to provide any service in accordance with these Terms and Conditions.
18 Legal Compliance
18.1 Bidders must comply with all applicable laws, statutes, ordinances and regulations regarding the Bidder’s use of the Website and the Bidder’s participation in the Online Auction.
19 Irregular Activity
19.1 Bidders are prohibited from using any method, device or software to affect the correct functioning of the Online Auction. In the event where Aylward believes that irregular activity has taken place in an Online Auction, Aylward may, in its absolute discretion and without notice, terminate, suspend or bar the right of any Bidder or user of the Website to participate further in any Online Auction.
20 Disputed Bid
20.1 Aylward will determine any dispute as to the validity of any Bid and the Successful Bidder. All decisions made by Aylward are final and binding.
21 Cancellation of Online Auctions and Bids
21.1 Aylward reserves the right in its absolute discretion to cancel, withdraw, reject, suspend or bar a Bidder and any Bid at any stage during an Online Auction.
21.2 If for any reason an Online Auction is not capable of running as planned due to any reason (including but not limited to infection by computer virus, bugs, tampering, unauthorised intervention, fraud, technical failures or any other causes), including anything which may corrupt the integrity or proper conduct of an Online Auction, Aylward reserves the right to cancel, terminate, modify or suspend the Online Auction.
21.3 In an event of war, terrorism, state of emergency, disaster or, without limitation, any other event outside the control of Aylward occurs, Aylward is entitled to cancel, terminate, modify or suspend the Online Auction.
22.1 The Competition and Consumer Act (which includes the Australian Consumer Law at Schedule 2) and all corresponding State and Territory legislation imply terms, conditions and warranties into some contracts for the supply of goods and services and prohibit the exclusion, restriction and modification of such terms (Prescribed Terms).
22.2 Except as provided for by the Prescribed Terms:
(i) any Auction or Online Auction and all information and data provided on any Auction or Online Auction is provided on an “as is” basis without any warranties of any kind;
(ii) Aylward expressly disclaims all warranties of any kind, including implied warranties of merchantability and fitness for a particular purpose;
(iii) Aylward (including its directors, officers, employees and agents) does not warrant that the Bidder’s access to an Online Auction will be uninterrupted or that an Online Auction will operate error free, that any defects will be corrected or that an Online Auction and its servers are free of computer viruses and other harmful data, code, components or other material; and
(iv) Aylward (including its directors, officers, employees and agents) does not warrant or make any representations about the correctness, accuracy, timeliness, completeness, reliability, quality or otherwise of an Online Auction and all information and data provided in an Online Auction.
22.3 Aylward is not responsible for any Bids that fail due to any technical difficulties whatsoever including but not limited to telecommunications, network, hardware or software failures, however caused.
22.4 Under the Australian Consumer Law, where an entity supplies goods to a consumer (except by way of auction), there is a guarantee that the goods are of acceptable quality.
23 Limitation of Liability
23.1 To the extent permitted by law, Aylward excludes all liability for any loss or damage, including without limitation:-
(i) any loss or damage arising in relation to:
(a) use of the Website;
(b) participation in an Online Auction;
(c) unauthorised Bids;
(d) any technical failure of systems which may prevent or delay Bids from registering;
(e) the Items offered;
(f) the content displayed;
(g) a Bidder’s access or inability to access any Online Auction; or
(h) the cancelation of an Online Auction; or
(ii) any consequential loss or indirect loss, loss of data or loss of profits,
whether or not caused by Aylward’s negligence, and whether or not the possibility of loss was known to Aylward.
23.2 To the extent permitted by law, Aylward’s liability for breach of any of the Prescribed Terms is limited at the option of Aylward to the following:
(i) in the case of services supplied or offered by Aylward, the supply of the services again or the payment of the cost of having services supplied again; and/or
(ii) in the case of goods supplied or offered by Aylward, the replacement of the goods or the supply of equivalent goods, the repair of such goods, the payment of the cost of replacing the goods or acquiring equivalent goods or the payment of the cost of having the goods repaired; and/or
(iii) where no amount is paid or payable the maximum sum of AUD1,000.00.
23.3 Aylward’s does not warrant that the Website and the Services will operate error-free, continuously or without interruption, or that the Website or its server are free of computer viruses or other harmful content. If your use of the Website or the Services results in the need for servicing or replacing equipment or data, Aylward is not responsible for those costs.
24.1 You agree to defend, indemnify, and hold harmless Aylward, its officers, directors, employees and agents, from and against any losses, liabilities, damages, costs, and expenses, including, without limitation, reasonable legal, expert and accounting fees, incurred in connection with any claims, actions or demands alleging or resulting from your use of the Website and/or the Online Auction, your breach of this Agreement, or your violation of law or of the rights of any third party. Aylward shall provide notice to you promptly of any such claim, suit, or proceeding and, if it is one asserted by a third party, shall provide reasonable assistance to you, at your expense, in defending any such claim, suit or proceeding.
25.1 Aylward is committed to maintaining your privacy. Aylward does, however, gather certain Personal Information that you provide to the Website. To the extent permitted by law, Aylward will comply with the Privacy Act in relation to any Personal Information provided to Aylward. If you do not agree to the collection of this Personal Information, then do not register for our Services and/or do not use the Website.
25.2 Without limitation of these Terms and Conditions, Bidders consent to Aylward collecting Personal Information about Bidders for the purpose of Aylward conducting the Online Auction in accordance with these Terms and Conditions.
25.3 As no data transmission over the Internet can be guaranteed as totally secure, Aylward does not warrant and cannot ensure the security of any information which is transmitted to it. Accordingly, any information transmitted to Aylward is transmitted at a Bidder’s own risk.
26 Intellectual Property
26.1 The contents of the website, such as text, graphics, images, audio, video, data, coding, scripts, computer programs and other material, are protected under the intellectual property laws of Australia. Unless otherwise indicated, Aylward owns or is licensed to use all intellectual property rights (including copyright, trade mark and designs) subsisting in the Online Auction. Aylward authorises Bidders to reproduce and download the information and data generated by the Online Auction exclusively for use in the participation in the Online Auctions as contemplated by the Online Auctions and these Terms and Conditions. Otherwise, to the extent permitted by law, no part of the Online Auction may be reproduced, reused, retransmitted, adapted, published, broadcast or distributed without Aylward’s prior written consent.
26.2 All names, logos and trade marks on the Online Auctions are the property of their respective owners. Nothing related to the Online Auction or in these Terms and Conditions should be interpreted as granting any rights to use or distribute any names, logos or trade marks without the express written agreement of the relevant owners.
27 Governing Law
27.1 The law of the State of New South Wales governs the Agreement, the use of the Website and these Terms and Conditions. The parties submit to the non-exclusive jurisdiction of the courts of the State of New South Wales and of the Commonwealth of Australia.
28 Dispute Resolution Procedure
28.1 In the event of any dispute with Aylward arising in relation to these Terms and Conditions you agree to follow the following dispute resolution procedures:
(i) you will notify Aylward of the nature of the dispute as soon as possible at the address set out in these Terms and Conditions;
(ii) if any dispute is not resolved with 30 days from the date on which a notice setting out the nature of the dispute is received by Aylward, we may request a meeting within 14 days with the relevant parties who have the power to resolve the dispute; and
(iii) if any dispute is not resolved within 14 days following the meeting referred to in sub-clause (b) above, any party may then take such steps as it feels are necessary to resolve the dispute.
29.1 Except as otherwise stated, any notices that you wish to send to Aylward should be emailed to firstname.lastname@example.org. Any notices that Aylward may wish to draw to your attention will be displayed on the Website.
29.2 Notices will be deemed received upon confirmation of a complete receipt being given by Aylward.
30 General Information
30.1 You may not use any part of the Website on any other website or link to the Website without our prior written consent, except that you may link to the Website provided that you do not misrepresent your involvement with the Website and that you do nothing in our opinion that may bring the Website into disrepute or in our sole discretion is detrimental to the Services.
30.2 We reserve the right to transfer, assign or sub-contract all or any of our rights and duties and responsibilities set out in these Terms and Conditions to another party.
30.3 Headings have been included for convenience only and will not be used in construing any provision of these Terms and Conditions.
30.4 No delay or failure by Aylward to exercise any powers, rights or remedies under these Terms and Conditions will operate as a waiver of them nor will any single or partial exercise of any such powers, rights or remedies include any other or further exercise of them.
30.5 If any provision of these Terms and Conditions shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of these Terms and Conditions and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
30.6 The Website may contain links to third-party websites that are maintained by others. These links are provided solely as a convenience to you and not as an endorsement by Aylward of the contents of such third-party websites. Aylward is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third-party websites. If you decide to access linked third-party websites, you do so at your own risk.
30.7 If you violate any provision of the Agreement, your permission to use the Website and the Services will automatically terminate and you must immediately destroy any copies you have made of the Website. Aylward reserves the right, in its sole discretion, to expel users and prevent their further access to the Website and/or the Services for breaching this Agreement or any law.
30.8 Aylward is a member of the AVAA and, as such, adopts the AVAA Code of Ethics.
PART III – ONSITE AUCTION SALES
31 The Onsite Auction contract particulars are as follows:-
(i) Aylward’s is acting as an agent for the Seller;
(ii) the sale contract for the purchase of a Lot is made directly between the Seller and the Bidder; and
(iii) if any dispute arises in relation to a Lot, the dispute is between the Bidder and the Seller. The Bidder agrees to release Aylward from any claim, action, Tribunal or court proceeding in respect of that Lot and to indemnify Aylward, on a full indemnity basis, from all liability, including all costs incurred by it in relation to any such claim.
32 Bidding for a Lot at the Onsite Auction:-
(i) all Bidders must be 18 years of age or older;
(ii) all Bidders must register to Bid at the Auction Sale by providing Aylward with their full name and residential address and evidence of identification;
(iii) all Lots are bidded on and purchased on an “as is” and “as available” basis;
(iv) upon registration Bidders agree to be bound by the Terms and Conditions;
(vi) if a Bidder does not register, Aylward may choose not to accept their Bid;
(vii) a Bidder will be deemed to be the principal, unless prior to the sale it discloses to Aylward’s that it will be bidding as agent on behalf of a principal and has supplied a copy of a written authority to that effect and any other documents that Aylward duly require; and
(viii) subject to any Reserve Price, and at the sole discretion of Aylward, the Bidder with the Highest Bid who is not in breach of these Terms and Conditions, will be the Successful Bidder.
33 The Role and procedure for Reserve Prices and Seller’s bids:-
(i) the Auction of a Lot may be subject to a Reserve Price as specified to Aylward by the Seller;
(ii) the Seller reserves its right to Bid on a Lot once prior notification has been provided to Aylward;
(iii) Aylward may Bid for the Seller and any such Bid, if the Highest Bid, will be clearly evidenced if and when recorded in Aylward’s sale book;
(iv) before any bidding starts, Aylward will declare at the Auction of a Lot that Aylward may make a Bid on behalf of the Seller; and
(v) immediately before making the Bid, Aylward will announce in a clear and precise manner that the Bid is being made on behalf of the Seller.
34 The Fall of the Hammer and Procedures:-
(i) the Successful Bidder assumes all risk in relation to a Lot from the fall of the hammer in respect of that Lot, and neither Aylward or the Seller will be accountable for any damage or loss to the Lot which may arise, occur, or become apparent thereafter; and
(ii) the Successful Bidder agrees to release and indemnify Aylward and Seller from any claim, action, Tribunal or court proceeding in respect of any such damage or loss and to indemnify Aylward on a full indemnity basis, from all liability, including all costs incurred by it in relation to any such claim.
35 The Payment for the Lot upon Completion of Sale:-
(i) the Successful Bidder is not entitled to remove the Lot from the site until the Purchase Price has been paid in full;
(ii) the Successful Bidder of a Lot must pay the Purchase Price, or a deposit, to Aylward upon completion of the Auction;
(iii) if the Successful Bidder pays a deposit, it must pay the balance of the Purchase Price within 5 days of completion of the Auction or as otherwise specified by Aylward;
(iv) payment of the above must be in cash unless otherwise agreed with Aylward; and
(v) in the event of late payment, Aylward reserves the right to charge the Successful Bidder interest which will accrue at the rate of 2% of the Purchase Price per month.
36 The Removal of the Lot from the Site upon Completion of Sale:-
(i) Items may be removed by Successful Bidder without the express consent of Aylward;
(ii) the Auction will be deemed complete after all of the Items listed in the Auction Catalogue have auctioned, irrespective of whether or not all Items have been sold;
(iii) the Successful Bidder must remove the Items from the site immediately after the completion of the Auction or as otherwise specified by Aylward; and
(iv) if the Successful Bidder does not immediately remove the Items, Aylward may remove the Items from the site. The Successful Bidder is required to pay all reasonable costs incurred by Aylward or the Seller in relation to the relocation and storage prior to removing the Items.
37 Good Title of the Items:-
(i) the Seller represents and warrants to the Successful Bidder and Aylward that it has good title to the Items, it has proper authority to sell the Items and there are no undisclosed encumbrances, liens or security interests (as defined in the Personal Property Securities Act 2010 (Cth)) over the Items;
(ii) the Seller acknowledges that Aylward relies on this representation and warranty in auctioning the Items on behalf of the Seller;
(iii) the Successful Bidder acknowledges that it is its responsibility to conduct a search of the Register of Encumbered Vehicles or the Personal Property Securities Register (as applicable) and that search must be undertaken no earlier than the day prior to the day it Bids for the Items to ensure that there is no undisclosed encumbrance over the Items;
(iv) if, subsequent to the fall of the hammer but before the delivery of the Items, Aylward becomes aware that the Seller does not have good title to the Items, it has the discretion to cancel the sale of the Items and refund to the Successful Bidder any moneys paid; and
(v) title in any Items do not pass to the Successful Bidder until the Purchase Price (and if applicable, any other Governmental charges or fees payable pursuant to these Terms and Conditions, including, but not limited to any taxes, levies, duties, imposts, deductions and charges) has been paid in full.
38 Warranties and Guarantees in respect of the Items:-
(i) the Successful Bidder acknowledges that the consumer guarantees stipulated in sections 54, 55, 56, 57, 58 and 59 of the Australian Consumer Law do not apply to the sale of goods by Auction. As a result, Aylward and the Seller make no warranties and give no guarantees regarding:
(a) the Items being of acceptable quality;
(b) the Items being fit for any disclosed purpose or any purpose for which the Seller represents they are fit; or
(c) express warranties in respect of the goods made by the manufacturer being complied with.
(i) nothing in this clause (or any other provision of these Terms and Conditions) should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of the Australian Consumer Law, or the liability of Aylward or the Seller for failing to comply with these provisions of the Australian Consumer Law or the right of a consumer to make a claim in respect of these guarantees or under any other provision of the Australian Consumer Law.
39 The Limitation of Liability:-
(i) where the Successful Bidder suffers Loss as a result of its purchase of any Lot and (a) the goods forming part of a Lot are Non-PDH Goods with a purchase price of more than $40,000, or (b) the Successful Bidder suffers the Loss other than as a result of any breach by the Seller or Aylward of the consumer guarantee or other similar provision of the Australian Consumer Law, then, subject to any other laws which may apply and may not be excluded, or in respect of which liability cannot be limited by these Terms and Conditions, the Seller and Aylward will not be liable for any such Loss suffered by the Successful Bidder. This clause applies even if the Seller and/or Aylward knew or ought to have known that the relevant Loss would be suffered.
40 GST Liability:-
(i) the Seller will elect whether the Purchase Price of the Items is inclusive or exclusive of GST. If applicable, GST will be added to all charges and fees payable; and
(ii) if the whole or any part of the Purchase Price on the Items is consideration for a taxable supply, the Successful Bidder must pay to the Seller via Aylward, an amount equal to the GST amount applicable to the Purchase Price. Aylward will provide to the Successful Bidder a Tax Invoice at that time.
41 Other Important Matters:-
(i) if the Successful Bidder is in default of any of its obligations under these Terms and Conditions, Aylward and/or the Seller may (a) recover damages from the Successful Bidder, or (b) without notice to the Successful Bidder resell the Items in any manner upon such terms and conditions as it may think proper and recover all losses, costs and expenses incurred from any such resale from the Successful Bidder by way of damages, whether or not that amount exceeds the Purchase Price that was to be paid by the Successful Bidder for the Items (and including all legal costs) and the amount of any commission lost on the original sale as the result of the Successful Bidder’s default and the cost of advertising in respect of any such resale; and (c) forfeit any monies paid by the Successful Bidder in consideration for the Items.
(ii) if the Seller defaults on the delivery of the Items or part thereof, the Seller must refund any money which the Successful Bidder had paid to the Aylward on account of its purchase.
(iii) Aylward and/or Seller reserve their right to withdraw any Items listed in the Catalogue from the Auction.
(iv) Aylward may refuse to accept any Bid which in its opinion is not in the best interest of the Seller.
(v) in the event of a disputed Bid, Aylward shall be the sole arbitrator and its decision shall be final.
42 General Law:-
(i) The law of the State of New South Wales governs the Agreement, the use of the Website and these Terms and Conditions. The parties submit to the non-exclusive jurisdiction of the courts of the State of New South Wales and of the Commonwealth of Australia.
(ii) All rights and remedies available to the parties against each other under the general law are subject to these Terms and Conditions.
(iii) If any of the conditions in these Terms and Conditions are to any extent held by any court of competent jurisdiction to be invalid or unenforceable, the remaining conditions will not be affected thereby, and will remain in full force and effect.
(iv) In the event of any dispute with Aylward arising in relation to these Terms and Conditions you agree to follow the following dispute resolution procedures:
(a) you will notify Aylward of the nature of the dispute as soon as possible at the address set out in these Terms and Conditions;
(b) if any dispute is not resolved with 30 days from the date on which a notice setting out the nature of the dispute is received by Aylward, we may request a meeting within 14 days with the relevant parties who have the power to resolve the dispute; and
(c) if any dispute is not resolved within 14 days following the meeting referred to in sub-clause (b) above, any party may then take such steps as it feels are necessary to resolve the dispute.
43 AUCTIONEERS AND AGENTS ACT, 1941 – WARNING:-
(i) SECTION 45
It is an offence against the Auctioneers and Agents Act, 1941, for any person to engage in, or to induce or attempt to induce another person to engage in, any collusive practice which may hinder free and open competition at an auction sale, whether by –
(a) restricting the bidding;
(b) abstaining from bidding; or
(c) any other activity which may hinder free and open competition.
(ii) SECTION 85c
The actual Successful Bidder at an Auction sale must give to the auctioneer or an employee of the auctioneer on the day of the auction his name or, where he acts as an agent, the name of his principal. It is an offence not to do so.
(iii) PAYING FOR GOODS PURCHASED AT AUCTION
Payments can be made by –
(b) Credit Card
(c) Personal or Company Cheque – Prior arrangement with the Auctioneer must be made before bidding on any items.
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