Terms and Conditions for Online Bidding & Sales

1. USE OF WEBSITE

1.1 Access to Online Sales

1.1.1 Your viewing and use of the Website and the Online Sales System is governed by and subject to You agreeing to the terms and conditions set out in this Agreement.

1.1.2 By applying to become a Registered Bidder, logging onto this site, making or purporting to make a Bid at any Auction Sale or submitting or purporting to submit a Tender at any Tender Sale, You irrevocably submit to and are bound by this Agreement.

1.1.3 You acknowledge and agree that ManheimFowles provides you with access to the Website and Online Sales System in consideration for and in reliance upon Your agreement to be bound to the terms of this Agreement.

1.2 Provider of Website and Online Sales System.

The Website and the Online Sales System are provided by ManheimFowles and by entering into this Agreement You are entering into a legally binding contract with ManheimFowles.

2. REGISTRATION OF BIDDERS

2.1 Bidders must be Registered to Participate in Sales

A person may not participate in a Sale as a bidder at an Auction or by submitting a Tender unless they are a Registered Bidder under clause 2.2.

2.2 Applications for Registration

2.2.1 A person (the Applicant) may apply to ManheimFowles to become a Registered Bidder to participate in Sales by completing the Online Application Form.

2.2.2 By submitting an application to ManheimFowles, the Applicant represents and warrants to ManheimFowles that all information provided by it to ManheimFowles is complete, true and correct to its knowledge.

2.2.3 ManheimFowles may accept or reject an application under clause 2.2.1 in its absolute discretion by notice to the Applicant. If ManheimFowles accepts the application the Applicant becomes a Registered Bidder for the purposes of this Agreement.

2.3 Use of login and password

If ManheimFowles provides You (or an individual who You nominate) with a login and password to use the Online Sales System You:

2.3.1 acknowledge that the login and password are for the personal use of the named entity;

2.3.2 agree to maintain the confidentiality of the login and password both separately and as a pair;

2.3.3 agree not to disclose the login or password to any other person; and

2.3.4 agree, where a login and password are provided to an individual at Your request, to ensure that the individual complies with each of their obligations under paragraphs 2.3.1 to 2.3.4.

2.4 Security Deposit

2.4.1 ManheimFowles may require a Registered Bidder to pay to it an amount of money determined by ManheimFowles as a Security Deposit to be held by ManheimFowles (without any obligation to pay interest) as security for the payment of any amounts owed or payable to ManheimFowles under this Agreement or as a result of a Sale.

2.4.2 The Parties acknowledge and agree that ManheimFowles holds the Security Deposit as a legal debt owed to the Registered Bidder subject to the terms of this clause 2.4 and not as trustee for, agent of or in any other fiduciary relationship with the Registered Bidder.

2.4.3 ManheimFowles may apply the Security Deposit against any amounts owed or payable to it under this Agreement or as a result of a Sale without prior notice to the Registered Bidder.

2.4.4 ManheimFowles may from time to time vary the amount of a Registered Bidder's Security Deposit by notice to the Registered Bidder.

2.4.5 The Registered Bidder must ensure that it maintains the required balance of the Security Deposit with ManheimFowles at all times.

2.4.6 ManheimFowles may refuse to allow a Registered Bidder to participate in a Sale or reject any Bid or Tender made by the Registered Bidder if the balance of the Security Deposit falls below the required amount.

2.4.7 Subject to clause 2.4.8, following termination of this Agreement for any reason, ManheimFowles must repay the balance of the Security Deposit less any amounts owing or payable to ManheimFowles to the Registered Bidder within 5 Business Days.

2.4.8 Without limitation, ManheimFowles may retain the balance of the Security Deposit for so long as is reasonably necessary to finally resolve any claim or dispute between any or all of ManheimFowles Group, the vendor of a Lot, a Registered Bidder and any other person.

2.4.9 Without limitation to paragraphs 2.4.1 to 2.4.8 above, ManheimFowles may at its discretion agree to accept a different form of security from a Registered Bidder.

3. TERMS AND CONDITIONS OF SALE

3.1 Definition of Auction or Tender Sales

Prior to the commencement of the Sale Process for a Lot, ManheimFowles may nominate that the Lot is for sale by Auction Sale or Tender Sale.

3.2 Auction Sales

All Auction Sales conducted by or in conjunction with the Online Sales System are subject to the Terms and Conditions then in force and set out at Annexure A.

3.3 Tender Sales

All Tender Sales conducted by or in conjunction with the Online Sales System are subject to the Tender Terms and Conditions then in force.

3.4 Modification to Online Rules

At any time prior to the commencement of a Sale Process for a Lot, ManheimFowles may modify the Online Sales Terms and Conditions. Please check this page of the site periodically.

4. SUSPENSION OF SERVICE

4.1 No Warranty or Representation of Availability

ManheimFowles makes no and expressly disclaims any representation or warranty that Online Sales System will be available for use by You at all times or at any particular time, during and for the duration of any particular Sale Process or at all.

4.2 Interruption to Service during Sale Process

If the Online Sales System is interrupted (either generally or to particular Bidders or Tenderers) for any reason during a Sale Process (whether by way of suspension by ManheimFowles under clause 4.3 or otherwise) ManheimFowles may, but is not obliged to, declare the Sale Process void and recommence the Sale from the beginning.

4.3 Suspension of Service

4.3.1 ManheimFowles may from time to time suspend the provision of the Online Sales System.

4.3.2 Where possible, ManheimFowles will notify You in advance of the time and duration of any suspension of the Online Sales System, but do not represent or warrant that it will do so on every occasion, on any particular occasion or any occasion at all.

5. LIABILITY AND INDEMNITY

5.1 Necessary Authority

If You make use of the Online Sales System, whether for Yourself or another person, You acknowledge and warrant to ManheimFowles that:

5.1.1 You have the full authority to engage in the transactions You undertake;

5.1.2 You will be liable for all costs, fees, charges and other amounts which may become payable to ManheimFowles or any other person as a result of the use of the Online Sales System;

5.1.3 You are properly authorised to provide ManheimFowles with any information which You provide;

5.1.4 You are not breaching any obligation of confidence or any requirement of any applicable law relating to the privacy of personal information by providing the information to ManheimFowles; and

5.1.5 all information You provide to ManheimFowles is true and complete to the best of Your knowledge.

5.2 No Exclusion of Legislation

Nothing in this Agreement, whether express or implied, shall be taken to exclude, restrict or modify any non-excludable conditions, warranties or rights set out in any legislation.

5.3 Limitation of Liability

Subject to clause 5.2, you agree and acknowledge that ManheimFowles Group accepts no liability or responsibility arising for any indirect or consequential loss, damage or expense of any kind or nature and You release and forever discharge ManheimFowles Group from any such liabilities and any claims, demands or causes of action in respect thereof.

5.4 Indemnity

You agree to indemnify ManheimFowles Group for the full amount of any claim, suit or demand and ManheimFowles Group's costs of such a claim, suit or demand (including, without limitation, ManheimFowles' legal costs on a full indemnity basis) made by You or any other person in relation to Your use of the Online Sales System or the Website. This clause 5.4 survives termination of this Agreement for any reason and does not merge upon completion.

6. PRIVACY

6.1 ManheimFowles will comply with its Privacy Statement and the Privacy Act 1988 in relation to any personal information about any natural person You provide to ManheimFowles.

6.2 Without limitation, You consent to ManheimFowles collecting personal information about You for the purpose of ManheimFowles providing the Online Sales System under this Agreement.

6.3 You consent to ManheimFowles providing your personal information to the vendor of any Lot for which You Bid or submit a Tender.

6.4 You warrant to ManheimFowles that any personal information You provide to ManheimFowles about a natural person has been collected with that person's consent for it to be:

6.4.1 provided to ManheimFowles for the purpose of this Agreement; and

6.4.2 provided by ManheimFowles to the vendor of any Lot for which You Bid or submit a Tender.

7. TERMINATION

7.1 Termination by ManheimFowles

ManheimFowles may terminate this Agreement and cease to providing access to the Online Sales System to You immediately by notice to You.

7.2 Termination by You

You may cease to remain a Registered Bidder by notice in writing to ManheimFowles, provided that You do not have any active or outstanding Bid or Tender in the Online Sales System. Any purported termination of this Agreement by You does not release You from, or affect, any accrued obligation under this Agreement.

7.3 Consequences of Termination

Upon termination of this Agreement for any reason:

7.3.1 You must immediately cease to use the Online Sales System;

7.3.2 Any amounts You owe to ManheimFowles, whether under this Agreement or otherwise become immediately due and payable; and

7.3.3 You must destroy or delete any copy of the Online Sales System or any information collected from the Online Sales System You have in Your possession or under Your Control.

8. GENERAL

8.1 Notices

8.1.1 ManheimFowles may give You notice of any matter or thing required or permitted to be notified to You under this Agreement by either:

8.1.1.1 sending You an electronic mail message to an electronic mail address nominated by You; or

8.1.1.2 posting the notice to the Website.

Such notice takes effect and is deemed served from the time the electronic mail message leaves ManheimFowles system or is visible on the Website, as the case may be.

8.2 Governing Law

8.2.1 This Agreement and any Sale taking place utilising the Online Sales System shall be governed by and construed in accordance with the laws of Victoria, Australia, irrespective of the physical location of any Lot.

8.2.2 You and ManheimFowles agree to submit to the exclusive jurisdiction of the Victorian Courts in respect of any dispute arising out of or in connection with this Agreement or a Sale and agree that any proceedings commenced by You in any other Court may be permanently stayed upon application by ManheimFowles.

8.2.3 The only exception to this jurisdiction is bidding by Simulcast Auction, where the sale is considered to take place in the state of the physical auction and thereby this Agreement and any Sale shall be governed by and construed in accordance with the laws of that State or Country.

8.3 Personal Knowledge

A reference to a matter being to the knowledge of a person means the matter is to the best of the knowledge and belief of the person after making proper enquiry including enquiry which a reasonable person would be prompted to make by reason of knowledge of a fact.

8.4 Severance

If any provisions of these terms and conditions are found to be invalid or unenforceable, then that provision will be read down or severed and that invalidity or unenforceability does not affect the validity or enforceability of the other terms and conditions.

8.5 Whole Understanding

These terms and conditions represent the entire understanding between You and ManheimFowles.

8.6 Variation

8.6.1 ManheimFowles may vary these terms and conditions from time to time by making an updated set of terms and conditions available at this Website.

8.6.2 Any new terms and conditions take effect from the date stated or, where no date is stated, from the beginning of the next day after they become available.

8.7 Waiver and Exercise of Rights

8.7.1 A single or partial exercise or waiver of a right relating to this document does not prevent any other exercise of that right or the exercise of any other right.

8.7.2 No party will be liable for any loss or expenses incurred by another party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.

8.8 No Relationship

No party to this document has the power to obligate or bind any other party. Nothing in this document will be construed or deemed to constitute a partnership, joint venture or employee, employer or representative relationship between any of the parties.

8.9 Survival of Indemnities

Each indemnity in this document is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this document.

8.10 Enforcement of Indemnities

It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this document.

8.11 No Merger

The warranties, undertakings, agreements and continuing obligations in this document do not merge on completion.

8.12 Rule of Construction

In the interpretation of this document, no rule of construction applies to the disadvantage of the party preparing the document on the basis that it put forward this document or any part of it.

9. DEFINITIONS

In these terms and conditions, unless expressed or implied to the contrary:

Agreement means this document and includes all Schedules and Annexures to it.

Auction Sale means a sale or prospective sale by auction of a Lot conducted by way of the Online Sales System in accordance with this Agreement including the Online Auction Terms and Conditions.

Bid means an offer to purchase a Lot at a specified price in an Auction Sale.

Bidder means a person who has made or purported to make a Bid.

ManheimFowles means ManheimFowles Pty Ltd ACN 089 074 206

ManheimFowles Group means both jointly and severally ManheimFowles and each related body corporate (as that term is defined in section 50 of the Corporations Act 2001) of ManheimFowles and any agent, officer or employee of any of them.

Lot means any good made available for purchase by Auction Sale or Tender Sale under the terms of this Agreement.

Registered Bidder means a person who has agreed to be bound by the terms of this Agreement and been accepted by ManheimFowles to participate in Sales under clause 2.

Sale means a sale, agreement to sell or prospective sale of a Lot by Auction Sale or Tender Sale under this Agreement.

Sale Process means the process by which an Auction Sale or Tender Sale is conducted until the successful purchaser's Bid or Tender (if any) is accepted by or on behalf of the vendor of the Lot or the Lot is withdrawn by ManheimFowles.

Online Sales Terms and Conditions means the terms and conditions under which Auction Sales under this Agreement will be conducted set out in Annexure A.

Security Deposit means an amount paid to ManheimFowles by a Registered Bidder under clause 2.4,.

Tender means an offer to purchase a Lot at a specified price in a Tender Sale.

Tenderer means a person who has made or purported to make a Tender.

Tender Sale means a sale or prospective sale of a Lot by tender conducted by way of the Online Sales System in accordance with this Agreement including the Online Sale Tender Terms and Conditions.

You and Your means the user of the website or the person using the Online Sales System including, without limitation, a Registered Bidder.

Website means this website, located at the uniform resource locator http://www.manheimfowles.com.au, and includes any part of this website.

Participation of Online Sales - Terms and Conditions

(Annexure A to Terms and Conditions for Online Bidding & Sales)

Unless expressed or implied to the contrary, terms used in these terms and conditions which are defined in the Terms and Conditions for Online Bidding & Sales have the same meaning.

Conduct of Sale

1. Registered Bidders may submit Bids for Lots offered for Auction Sale during the Auction Period by using the Online Sales System. This is performed on this website by submitting a “BUY” request.

2. By making a bid at an auction the bidder accepts and agrees to be bound by these Terms and Conditions.

3. A Bid will only be accepted if it is higher than each preceding Bid.

4. The Online Sales System may incorporate a proxy bidding facility. The proxy bidding facility allows Registered Bidders to enter a minimum and maximum Bid amount for a particular Lot, and an incremental Bid amount which the proxy bidding facility will automatically submit to the Online Sales System on the Registered Bidder's behalf, in response to a higher Bid submitted by another Bidder for that Lot, until the maximum Bid amount specified by the Registered Bidder is reached.

5. Each Bid constitutes an irrevocable offer by the Bidder to purchase the Lot at the specified price which may be accepted or rejected by the Vendor or ManheimFowles. No Bid once made may be revoked and remains open for acceptance by the Vendor or ManheimFowles until the Sale Process is completed, despite a higher Bid being made subsequently.

6. Bidders must not collude with one another, provide information relating to their intended Bids or attempt to manipulate the Sale Process in any way. A Bid is taken to be a representation and warranty by the Bidder that the Bid is a genuine offer to purchase the Lot at the price specified.

7. The Auction Period for a Lot is completed upon the acceptance and declaration by the Auctioneer of the highest bid, whether by fall of the hammer or otherwise at the time and date nominated for that Lot in the Online Sales System.

8. The Bidder making the highest Bid at the end of the Auction Period will be the purchaser at the price specified in the Bid, subject to Vendor acceptance, but if any dispute arises as to the last or highest Bidder, at ManheimFowles' discretion the Auction Sale for the Lot in dispute may recommence from the beginning or ManheimFowles may negotiate with the next highest Bidder.

9. ManheimFowles may hold a Bid and refer such a bid to the Vendor before acceptance. In some circumstances further negotiations may be held with the highest Bidder.

10. All Bid prices are GST inclusive unless the owner of the goods is not registered or required to be registered for GST (in which case no GST is payable on the sale of the Lot). Lots to be sold on behalf of owners not registered or required to be registered for GST will be separately identified in the Online Sales System.

11. ManheimFowles may refuse to accept any Bid or withdraw any Lot from the Auction Sale.

Payment and Delivery

12. All purchasers must at the conclusion of the Auction Period, if required to do so by ManheimFowles, pay a deposit of approximately 10% of the purchase price in cash or bank cheque and pay the balance in cash or bank cheque, Bpay, Direct Debit, or Credit Card (over the counter only), by 4.00 pm (Melbourne Time) the Business Day after the sale. Dealers may purchase goods under a Finance Company Credit Plan where the plan has been pre-authorised and is acceptable to the seller.

13. In the case of non-payment of such a deposit, the Lot or Lots may at ManheimFowles' option be offered again and ManheimFowles may in its discretion refuse to accept a Bid by the defaulter.

14. A Buyer's Administration Fee may be payable by the purchaser on Lots sold at ManheimFowles Auction Group auctions. The Buyer's Administration Fee applicable to a Lot is described in the Online Sales System. Where a fixed dollar amount is specified, the Buyer's Administration Fee is inclusive of GST. Where a percentage is noted, the Buyer's Administration Fee is inclusive of GST and will be calculated on the purchase price of the Lot.

15. Stamp duty is to be paid by the purchasers where and when applicable under the relevant law.

16. Ownership of a Lot shall not pass to the purchaser until ManheimFowles has clear title to the monies constituting payment from the purchaser. You are not entitled to collect the goods from their relevant location until the purchase transaction is completed, and you have paid the full purchase price to us (or to the seller at our direction).

17. All goods must be removed from the nominated storage premises by the purchaser no later than the nominated collection day as described on the Online Sales System. Storage charges may apply on Lots which remain uncollected after the sale. No parties will be allowed to remove their Lots or any portion thereof until the sale has been completed and the full purchase price received by ManheimFowles.

18. You are responsible for the payment of all delivery charges, if applicable.

19. Upon any purchaser failing to comply with any of the above conditions any money deposited in full or part payment or the Security Deposit shall be absolutely forfeited and all Lots uncollected may be resold and the deficiency (if any) on such resale, together with all costs and charges consequent upon such resale, shall be made

Exclusion of Warranties and Liability

20. ManheimFowles will not be responsible for any damage to property or injury to persons incurred during the removal of Lots purchased.

21. You accept that all Lots are offered for sale 'as is, where is' with all faults (if any). To the full extent permitted by law and notwithstanding the contents of or any description given on the Online Sales System or other materials issued by ManheimFowles in relation to a Lot, no express or implied condition, warranty or guarantee is made or given in relation to that Lot as to its condition, quality, fitness for purpose, merchantability or compliance with description. Without in any way limiting the foregoing, any description of a Lot described as including air bags or anti-lock braking system (ABS) does not indicate any warranty or representation that such air bags or ABS are fitted, complete, functioning or fit for the purpose for which they were designed.

22. You accept that the information provided describing the Lots included on this website may not always be reliable, accurate or complete. You are responsible for independently verifying any information which is important to your purchasing decision before submitting a “BUY” request.

23. You are not entitled to cancel any purchase transaction on the basis that the goods were not accurately described. We specifically exclude any implied warranty or conditions that we can lawfully exclude.

24. Road Test Reports (where provided and excluding Truck & Machinery Auctions and Salvage Vehicle Auctions), are prepared as a result of a brief road test undertaken prior to auction, and are intended as a guide only. No detailed inspection has been undertaken, and so absolutely no warranty or guarantee concerning known or unknown faults is given or implied. The report covers no items capable of visual inspection. Vehicles sold with a Road Test Report are still sold subject to Clause 21 of these Online Sales Terms and Conditions.

25. All Lots shall be at the purchaser's risk from the end of the Auction Period and neither the Vendor nor ManheimFowles shall be accountable for any deficiency, damage or loss which may arise thereafter.

26. To the full extent permitted by law, neither the Vendor nor ManheimFowles will be liable for any loss, damage, cost or expense suffered or incurred by a purchaser arising out of the sale and purchase of a Lot. Subject to all applicable laws, any liability of ManheimFowles shall be limited to a refund or credit of the charge made for services provided by ManheimFowles.

27. All vehicles are sold as unregistered unless expressly stated to the contrary.

28. Any deficiency in the goods sold shall not vitiate the sale, but neither the Vendors nor ManheimFowles shall be bound to deliver more than is in their possession.

Cancellation due to error

29. You accept that despite our reasonable precautions, goods may be listed at an incorrect price or with incorrect information due to typographical or other errors.

30. ManheimFowles reserve the right to cancel any purchase transaction, even if you have paid the purchase price for the goods. We reserve this right up until the time you collect the goods. If we exercise this right, we will refund to you any purchase price that you have paid.

Additional Term & Condition for Truck and Machinery Auctions:

31. In addition to the provisions of clause 21 of these conditions, ManheimFowles does not warrant that any electrical or mechanical appliance, plant and/or equipment complies with the requirements of any Federal or State Workplace Health and Safety laws. Where practical to do so and where the appliance, plant or equipment may be used in a workplace as defined under any Workplace Health and Safety law, ManheimFowles has requested the Vendor to display a statement with the various appliances, plant and equipment to indicate their present condition. The Vendor has also been requested to supply certificates, operation manual etc. which may exist for the particular appliance, plant or piece of equipment. The purchasers shall be solely responsible to ensure that the appliance, plant or equipment complies with the requirements of Workplace Health and Safety law before it is used in a workplace or for domestic use.

Additional Term & Condition for Salvage Vehicle Auction or non-mobile vehicles:

32. In addition to the provisions of Clause 21 ManheimFowles does not accept any responsibility for damage sustained to auction vehicles or equipment through the normal use of forklifts or other equipment to load, unload and shift damaged and non-mobile vehicles.