Terms and Conditions
1. Definitions
In these Terms and Conditions, unless the context otherwise requires or implies:
Auctioneer means Boat Auctions Pty Ltd (ACN 673876152)
Auction Sale means a sale of Lots conducted by way of auction, facilitated by the Auctioneer and designated with a Sale Number.
Australian Consumer Law means the Australian Consumer Law set out in Schedule Two of the Competition and Consumer Act 2010 (Cth).
Bidder means a registered bidder.
Buyer means the successful Bidder for a Lot, as determined by the Auctioneer.
Damage and Description Disclaimer means the damage and description disclaimer contained within the online listing/advertisement of a Lot.
GST means the goods and service tax as imposed by the GST Act.
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 a Boat and any goods available for purchase at an Auction Sale, which are designated with a Lot Number.
Lot Number means the number designated to a Lot in an Auction Sale.
Pre-Purchase Inspection means the inspection organised by the Seller and made available to prospective purchasers.
Purchase Price means the highest bid accepted by the Auctioneer for a Lot.
Sale Number means the number designated to an Auction Sale.
Seller means the person authorising the Auctioneer to sell that Lot on the owner’s behalf.
Taxable Supply has the meaning given to that term by the GST Law.
Tax Invoice means a tax invoice as defined in the GST Act.
2. Auction contract particulars
(a) The Auctioneer is acting as an agent for the Seller.
(b) The sale contract for the purchase of a Lot is made directly between the Seller and the Buyer.
(c) The Buyer’s registration, these Terms and Conditions and the sale record constitute the entire relationship between the Auctioneer, the Seller and the Buyer.
(d) If any dispute arises in relation to a Lot, the dispute is between the Buyer and the Seller. The Buyer agrees to release the Auctioneer from any claim, action, tribunal or court proceeding in respect of that Lot and to indemnify the Auctioneer, on a full indemnity basis, from all liability, including all costs incurred by it in relation to any such claim.
3. Bidding for a Lot at the auction
(a) All Bidders must be 18 years of age or older.
(b) All Bidders must register for the Auction Sale. Bidders register upon signing in to the Auctioneers website and verifying their identity. Bidders must provide us with details of a valid Credit Card in order to register for, and use, the Service. We may, on registration, charge a nominal amount of $1 to your Credit Card and then re-credit that amount to the same Credit Card. This process usually takes no more than one week. By registering for the service, you authorise us to process these transactions.
(c) Upon registration Bidders agree to be bound by these Terms and Conditions.
(d) A Bidder will be deemed to be bidding on their own behalf unless prior to the sale it disclosed to the Auctioneer 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 the Auctioneer requires.
(e) Subject to any reserve price, and at the sole discretion of the Auctioneer, the highest Bidder who is not in breach of these Terms and Conditions or any other terms set out by the Auctioneer, will be the Buyer.
(f) From time to time, Boat Auctions Online may place bids on behalf of the Vendor for a Lot, in accordance with the Vendor’s instructions. Any such bids will appear in the bidding history in the same manner as bids submitted by other registered Bidders. Vendor Bids will not satisfy or trigger the reserve price set by the Vendor.
4. Online Bidding
(a) Bidders bidding Online:
(i) acknowledge that the Auctioneer is not responsible for bids that were not processed due to technical problems and/or delays;
(ii) agree that they will not make any claims against the Auctioneer from any loss or damage arising as a result of the use of the Boat Auctions Online platform, including but not limited to, losses resulting from errors or problems on the internet, service or any issues beyond the Auctioneers’ control or losses arising from Buyer’s use of or inability to use the service;
(iii) acknowledge that the Auctioneer cannot prevent inappropriate use of the system or Bidder information stored in the system; and
(iv) acknowledge that in the event of human error, technology failure or system malfunction, the Auctioneer with authority and on behalf of the Seller has the discretion to do any of the following:
(A) extend the Auction Sale by any time the Auctioneer deems fit; or
(B) suspend the Auction Sale or end the Auction Sale early; or
(C) reschedule the Auction Sale; or
(D) cancel the Auction Sale and/or any Lot(s) sold in the Auction Sale and any bids made by Bidders and refund any amounts paid.
(v) acknowledge and agree that the rights conferred upon and exercisable by the Auctioneer in clause 4(iv)A-D may be exercised at any time, including after the conclusion of the Auction Sale.
5. Reserve prices and Seller’s bids
(a) The auction of a Lot may be subject to a reserve price specified to the Auctioneer by the Seller.
(b) The Seller reserves its right to bid on a Lot
6. Risk falls with the hammer
(a) All Lots are bid on and purchased on an ‘as is, where is’ basis.
(b) The Buyer assumes all risk in relation to a Lot from the fall of the hammer in respect of that Lot, and neither the Auctioneer nor the Seller will be accountable for any deficiency, damage or loss to the Lot which may arise, occur, or become apparent thereafter.
(c) The Buyer agrees to release and indemnify the Auctioneer and Seller from any claim, action, tribunal or court proceeding in respect of any such deficiency or damage and to indemnify the Auctioneer, on a full indemnity basis, from all liability, including all costs incurred by it in relation to any such claim.
7. Payment upon completion of sale
(a) The Buyer of a Lot must pay the Purchase Price to the Seller within 7 days following the fall of the hammer for the Lot.
(b) Payment of the above must be in clear funds by electronic funds transfer unless otherwise agreed by the Seller. If payment is made by cheque or credit card and the cheque or credit card payment is dishonoured, challenged or clawed back by the Buyer, their financier or a merchant, the Buyer will be deemed to be in fundamental breach of its obligations pursuant to these Terms and Conditions.
(c) In the event of late payment the Auctioneer reserves the right to charge the Buyer interest which will accrue at the rate of the lower of 2% of the Purchase Price per month or the highest rate allowed by law.
8. Title of the Lot
(a) The Seller represents and warrants to the Buyer and the Auctioneer that:
(i) it has good title to the Lot;
(ii) it has proper authority to sell the Lot; and
(iii) there are no undisclosed encumbrances, liens or security interests (as defined in the Personal Property Securities Act 2010 (Cth)) over the Lot, at the time of delivery of a Lot.
(b) The Seller acknowledges that the Auctioneer relies on this representation and warranty in auctioning the Lot on behalf of the Seller.
(c) The Buyer 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 Lot to ensure that there is no undisclosed encumbrance over the Lot.
(d) If, subsequent to the fall of the hammer but before the delivery of a Lot, the Auctioneer becomes aware that the Seller does not have good title to the Lot sold, it has the discretion to cancel the sale of that Lot and refund to the Buyer any moneys paid. The Buyer agrees that it will not make a claim against the Auctioneer in such an instance. If it does so, it agrees to indemnify the Auctioneer from any, and all, costs, on a full indemnity basis that the Auctioneer incurs as a result.
(e) Title in any Lot does not pass 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.
(f) Any guarantee made by the Seller or Auctioneer under this clause 9 is in addition to and is not intended to replace or detract from any rights or remedies a Buyer may have under the Australian Consumer Law or any other applicable laws.
9. Warranties and consumer guarantees
(a) The Buyer 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, the Auctioneer and the Seller make no warranties and give no guarantees regarding:
(i) the goods being of acceptable quality;
(ii) the goods being fit for any disclosed purpose or any purpose for which the supplier represents they are fit;
(iii) the goods matching their description or corresponding to any sample or demonstration model;
(iv) the availability of repairs or spare parts for the goods; or
(v) express warranties in respect of the goods made by the manufacturer being complied with.
(c) Nothing in this clause 11 or clause 12 (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 the Auctioneer 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.
10. Limitation of liability
Where the Buyer suffers Loss as a result of its purchase of any Lot 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 the Auctioneer will not be liable for any such Loss suffered by the Buyer. This clause applies even if the Seller and/or the Auctioneer knew or ought to have known that the relevant Loss would be suffered.
11. Finance
The Buyer expressly acknowledges and warrants to the Auctioneer and to the Seller that prior to making an offer for a Lot or successfully negotiating the purchase of a Lot by private agreement, that it has the either cash resources immediately available to complete the purchase or has obtained approval for financial assistance on reasonable terms which are satisfactory to the Buyer.
12. Default
(a) If the Buyer is in default of any of its obligations under these Terms and Conditions or any interdependent or separate agreement with the Auctioneer or Seller:
(i) The Auctioneer and/or the Seller may:
(A) cancel and rescind the sale of a Lot or Lots;
(B) forfeit any monies paid by the Buyer in consideration of a Lot or Lots;
(C) without notice to the Buyer, resell the Lot or Lots 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 Buyer by way of damages, whether or not that amount exceeds the Purchase Price that was to be paid by the Buyer for the Lot or Lots (and including all legal costs) and the amount of any commission lost on the original sale as the result of the Buyer’s default and the cost of advertising in respect of any such resale; and
(D) recover damages from the Buyer on an indemnity basis.
(b) If the Seller defaults on the delivery of a Lot or Lots, or part thereof, the Seller must refund any money which the Buyer had paid to the Auctioneer on account of its purchase.
13. General law
(a) The proper law governing the interpretation and enforcement of these conditions including all substantive rights and obligations hereunder and the manner mode and method of performance is the law of Western Australia.
(b) All rights and remedies available to the parties against each other under the general law are subject to these conditions.
(c) 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, those Terms and Conditions are to be severed and the remaining conditions will not be affected thereby, and will remain in full force and effect.
(d) The Auctioneer and/or Seller does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy.
14. Further special conditions
The Auctioneer may prior to the commencement, or during an Auction Sale, announce further special conditions applying to that Auction Sale or a particular item put up for auction in which event such further special condition or conditions will be deemed to be incorporated into and form part of these Terms and Conditions.
15. Goods and Services Tax (GST)
(a) The Seller will elect whether the Purchase Price of the goods is inclusive or exclusive of GST. If applicable, GST will be added to all charges and fees payable.
16. Auction of used boats
(a) The Buyer acknowledges that:
(i) the Auctioneer is unable to, and does not carry out detailed inspections of the Lots offered for sale, including structural, mechanical, electrical, hydraulic or underwater inspections.
(ii) the information that the Auctioneer has in relation to each Lot is information provided to the Auctioneer by the Seller of each Lot (including the Pre-Purchase Inspection).
(iii) the information provided by the Seller in relation to each Lot is not guaranteed by the Auctioneer;
(iv) it must satisfy itself as to the condition, description and state of repair of the Lot prior to the commencement of an Auction Sale;
(v) the Damage and Description Disclaimer forms part of these Terms and Conditions; and
(vi) if a dispute arises in relation to this information, the Buyer will exclude and indemnify the Auctioneer from any such dispute (including costs on a full indemnity basis for any costs incurred by the Auctioneer in relation to such dispute).
17. Cancellation
(a) Notwithstanding any other clause in these Terms and Conditions, the Auctioneer with authority and on behalf of the Seller, has the right to cancel and rescind any Auction Sale and/or any Lot(s) sold from an Auction Sale.
(b) The Auctioneer may exercise the right referred to a clause 17(a) at any time before collection of the Lot(s), including after the conclusion of the Auction Sale and following the fall of the hammer or referral, and in circumstances where a system generated Tax Invoice has been issued to a Buyer and paid in part or in full. If the Auctioneer exercises this right on behalf of the Seller, the Auctioneer will refund to the Buyer the Purchase Price and any part thereof that the Buyer has paid.
(c) The rights conferred to a Buyer pursuant to clauses 6, 7, 8 and 9 do not apply in circumstances where the Auctioneer has exercised any right on behalf of the Seller pursuant to clause 17(a).
(d) If a dispute arises in relation to this clause 17, the Buyer will exclude and indemnify the Auctioneer and Seller from any such dispute (including costs on a full indemnity basis for any costs incurred by the Auctioneer and Seller in relation to such dispute).
18. Severability
If any part of these Terms and Conditions is held by a court of competent jurisdiction to be invalid or unenforceable, then that term, clause or part thereof will be excluded from these Terms and Conditions and the remainder of these Terms and Conditions will continue with full force and effect.
