By participating in this Online Auction:
(a)
you consent to be bound by these Terms and Conditions (“Terms and
Conditions”), the User Agreement, the Liquidity Services Privacy Policy. By
accepting these Terms and Conditions, you acknowledge that some GoIndustry
DoveBid Services may have additional terms that will be notified by us, including
within the Notice to Purchasers or set forth on individual asset Lot pages; and
(b)
if you are the successful buyer upon the Announcement of Sale, you consent
that you will also immediately be bound by and subject to separate terms and
conditions imposed by the seller governing the purchase of the relevant Lot
under the Asset Sale Agreement.
For the purposes of these Terms and Conditions, we refer to any person or entity
registering to offer or offering to buy goods as a "buyer" regardless of whether any
contract of sale is concluded.
1. Order of Precedence
In the event of any ambiguity, discrepancy or inconsistency between these Terms and
Conditions and:
(a)
the User Agreement, the provisions of these Terms and Conditions will prevail;
(b)
the Asset Sale Agreement, the provisions of the Asset Sale Agreement will
prevail.
2. Auctioneer's role in Online Auctions
For the purpose of the Online Auctions the relevant GoIndustry DoveBid Group
Company named in the Notice to Purchasers or its agent will be the auctioneer and
agent for the seller (the "Auctioneer") and will offer for sale (and sell) goods to a
buyer on behalf of the seller.
You acknowledge and agree that the seller is not liable personally or in any other capacity
under or in respect of this Online Auction or the Services provided in respect of this Online
Auction, and that the seller's only obligations and liabilities to a buyer are as set out in the
Asset Sale Agreement.
The Auctioneer may at its discretion or upon the instruction of the seller:
(a)
alter or withdraw all or any Lots up to the moment at which such Lot(s) are
indicated as "SOLD" (the "Announcement of Sale");
(b)
where a Reserve Price has been placed on any Lot, withdraw that Lot in the
event that the highest bid price at the end of the Online Auction does not
meet the Reserve Price;
(c)
bid for any Lot or Lots offered for sale at the Online Auction on its own account
or on behalf of third parties (including on behalf of the seller but, if on behalf
of the seller, not at or in excess of the Reserve Price); and
(d)
combine (including in bulk), sub-divide or amend a Lot or Lots as the
Auctioneer deems appropriate.
[GoIndustry DoveBid, any GoIndustry DoveBid Group Company or an Associated
Auctioneer may participate as sellers in Online Auctions from time to time.]
Buyers agree that GoIndustry DoveBid and/or, where applicable, the Auctioneer may
at any time and from time to time without notice:
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(a)
discontinue an Online Auction either temporarily or permanently; or
(b)
extend an Online Auction beyond the period indicated on the Website.
3. Sale
Unless otherwise indicated, all Lots are offered subject to a Reserve Price, which is the
confidential minimum price below which a lot will not be sold. The Reserve Price may
be decreased by the Auctioneer or seller at any time before or during the Online
Auction. The Reserve Price may be decreased to the level of the highest Autobid if that
bid is below the current Reserve Price with the effect that the highest Autobid may be
accepted.
Subject to the Reserve Price (if any) being met, each Lot shall be sold to the highest
bidder. All sales are final (subject to any right of the seller to rescind a sale). Without
limiting clause 19 of the User Agreement, in the event of any dispute arising between
buyers such dispute shall be dealt with in such manner as the Auctioneer may in its
absolute discretion determine. The Auctioneer reserves the right to resell any lot in
dispute by putting it up for auction again. The Auctioneer reserves the right to rescind
any sale for any reason in which case the buyer’s sole remedy shall be the refund of
the amount of the purchase price and any Buyer’s Premium actually paid.
The completion of a sale shall be indicated on the Website by showing the item as
"SOLD" online - if an Online Auction for a Lot closes without the Lot being sold, it will
show as "CLOSED", if a Lot is withdrawn, it will show as “WITHDRAWN".
4. Regulation
The Auctioneer may regulate bidding in such manner as it thinks fit and, without
prejudice to the generality of the foregoing, the Auctioneer may, without ascribing any
reason therefore, refuse to accept any bid or may facilitate Autobids on behalf of
buyers during the Online Auction process.
5. Notice to Purchasers
The Website will show a separate Notice to Purchasers for each Online Auction which
will include:
(a)
the date by which payment of the deposit must be made (“Deposit
Payment Date”);
(b)
the date by which payment of the balance of the full purchase price must be
made ("Sales Completion Date");
(c)
the date by which the purchased Assets must be removed from the location
nominated in the Asset Sale Agreement by the successful buyer ("Removal
Date");
(d)
certain other terms and conditions which form part of these Terms and
Conditions;
(e)
a copy of the Asset Sale Agreement.
6. Buyer's Premium
The successful buyer will pay to the Auctioneer a premium of 16% of the purchase price
of the relevant Lot ("Buyer's Premium") by no later than the Sales Completion Date,
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to which will be added any applicable value added tax or the equivalent or similar sales
taxes in the relevant jurisdiction at the current rate (which tax is separate from any
taxes imposed with respect to the purchase price of the relevant Lot). The Buyer's
Premium is not negotiable and is payable by all successful buyers.
7. GST
Collection of applicable taxes will be in accordance with the laws of the jurisdiction in
which the purchased asset is located.
Buyers acknowledge and agree that; if the sale price is GST exclusive, where applicable
GST will be calculated on and added to the sale price, the Buyer's Premium will be
calculated on the sale price exclusive of GST and payable by the buyer at the same
time
as the sale price.
8. Buyer's obligations
(a) Payment
Unless otherwise provided for in the Notice to Purchasers for the Online Auction in
question, immediately after the Announcement of Sale and in any case within 3
business days, the successful buyer shall pay a 25% deposit towards the purchase
price. Where applicable, buyers expressly authorise GoIndustry DoveBid and/or the
Auctioneer to charge buyers’ credit cards for the amount of such deposit. In addition,
unless otherwise provided for in the Notice to Purchasers, the successful buyer shall
pay the full purchase price of the Lot (in addition to the Buyer's Premium and any
value added tax or the equivalent or similar sales taxes) to the Auctioneer on behalf of
the seller (in cleared funds) on or before the Sales Completion Date. More information
about the applicable taxes may be given in the Notice to Purchasers for the Online
Auction in question, however, buyers should seek their own tax advice. The buyer
agrees that invoices may be issued in electronic form by email. The deposit and
purchase price must be paid by bank cheque or electronic bank transfer in accordance
with the seller’s payment instructions. If a successful buyer fails to pay any amounts
due under these Terms and Conditions, the Auctioneer and the seller may resell the item
in question without notice and any monies that have been paid (whether on account
of the purchase price or Buyer’s Premium) by the successful buyer will be forfeited.
Payment shall be made in AUD dollars. Any bank charges in respect of conversion or
transfer of monies shall be met by the buyer. If goods are exported, tax refunds or
zero rating may apply. Tax refunds (if any) will be made by the Auctioneer, subject to
receipt of:
(i)
satisfactory proof of export by the buyer;
(ii)
the corresponding amount of tax refund from the relevant tax authority or
the seller; and
(iii)
the (duly completed) relevant tax forms (if applicable).
(b) Collection/Removal
Notwithstanding clause 13 of the User Agreement, the successful buyer must comply
with all terms and conditions of the Asset Sale Agreement for the removal and
transportation of the purchased Assets from the seller's premises, including all site
access requirements and disclaimers and the successful buyer must not remove or
transport the Assets until full payment of all monies due has been received in cleared
funds.
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Without prejudice to any claims that the Auctioneer and/or the seller may have against
the successful buyer for breach of contract or otherwise, the successful buyer will
become liable from the Removal Date for all expenses and costs arising out of or
incidental to the re-selling or otherwise disposing of uncleared items.
9. Buyer's responsibilities and conduct
The buyer will be responsible for all damage and/or loss incurred as a result of it, its
carriers or its agents may do to the Lot(s), the property of any third party (and, in
particular, to the seller's premises and property (including other auctioned Lots) and to
third party vehicles) in removing (including disconnecting, dismantling, packaging,
preparing for collection and loading of) the purchased Lot(s) (once loaded) from the
removal point nominated under the Asset Sales Agreement ("Removal Point").
Should the Auctioneer consider such damage likely to occur, it may require the buyer
to deposit such sum of money with the Auctioneer, by way of security for the costs of
reinstating that part of the premises likely to be damaged by the transportation of a Lot
from the Removal Point, as the Auctioneer may require. Should the buyer refuse to
deposit such monies, the Auctioneer may refuse the buyer access to the seller's
premises for the purpose of collecting all or any of the Lots it has purchased (in which
case any costs incurred by the seller or Auctioneer in transporting the relevant Lot
from the Removal Point will be a debt due and payable by the buyer to the seller or
Auctioneer, as the case may be), or rescind the sale of such Lot.
By placing a bid on a Lot, the buyer represents, warrants and undertakes that it has
the authority and capacity to make such bid and close the transaction and that any bid
that it makes constitutes an irrevocable binding offer to buy the Lot in question for the
full amount of the bid. A buyer agrees that once the Auctioneer accepts a buyer's
offer, the buyer is obligated to complete the purchase as accepted by the Auctioneer
including payment of the deposit, the purchase price, Buyer’s Premium and any other
monies payable. Byers agree that any price or bidding manipulation is prohibited and
in breach of these terms and conditions.
10.
International statutory compliance exclusion
Buyers must comply with the terms and conditions of the Asset Sale Agreement with
respect to any dangerous or hazardous chemicals and other materials in the Lots,
including all acknowledgements, discharges and releases.
Buyers agree to comply with all applicable export or import control or related laws or
regulations and not to violate any applicable local, state, national or international law,
statute, ordinance, rule or regulation. Buyers acknowledge that the Auctioneer is not
the exporter of any asset unless expressly stated. The Auctioneer gives no
representation or warranty concerning and has not conducted any investigation to
ascertain whether the export of certain items may be restricted under applicable law. The
Auctioneer and the seller reserve the right to cancel or rescind any sale in an Online
Auction at any time (prior to the buyer paying the purchase price in full) if either of
them determines, in its absolute discretion, that the sale does or may violate
applicable export or import control or related laws and regulations.
11.
Intellectual Property Rights
The buyer acknowledges that any software or intellectual property rights attaching to
a Lot or Lots may not be the property of the seller or capable of transfer by the seller.
Neither the seller nor the Auctioneer is in any way authorising the use by the buyer of
such software or intellectual property rights and any use of such software or
exploitation of such intellectual property rights shall be at the buyer's sole risk.
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12. Transfer of risk
Without limiting the Asset Sale Agreement, the buyer shall assume all risks in and
relating to such Assets on the date of Announcement of Sale, and property and title in
such Assets shall pass to the successful buyer on the date the buyer removes all the
Assets from the seller’s premises, provided all monies payable in respect of the Assets
and Buyer’s Premium have been received in cleared funds. Without limiting the
insurances required to be effected and maintained by the successful buyer under the
Asset Sale Agreement prior to accessing the seller's premises (if any), the buyer is
advised to effect in respect of all such risks arising thereafter any insurance it may
consider necessary as from the date of Announcement of Sale. The duty of the
Auctioneer and/or the seller to make purchased Assets available shall be deemed
performed upon the loading of the purchased Assets at the Removal Point, even if the
Asset is subsequently damaged and/or part thereof has been lost.
13. As Is
Without limiting clause 16 of the User Agreement, the Asset Sale Agreement or any
other applicable terms and conditions, all assets are sold "AS IS, WHERE IS, SUBJECT
TO ALL FAULTS AND DEFECTS WHETHER OR NOT THEY ARE APPARENT, AND WITHOUT
RECOURSE".
Illustrations, pictures or videos posted on the Website are for the convenience of the
buyers only and buyers must not in any way rely on such as representations of the
condition or otherwise of the assets.
Each of the seller, the Auctioneer and, where applicable, GoIndustry DoveBid has used
its reasonable endeavours to ensure that the description of each Lot(s) appearing on
the Website are accurate, but the buyer relies upon such description at its own risk.
Buyers should satisfy themselves prior to the participating in an Online Auction as to
the condition of the Lot and should exercise and rely on their judgment as to whether
the Lot accords with its description at their own risk.
A sale will be deemed valid and enforceable notwithstanding any fault, defect or error
of description of the Lot and the successful buyer remains bound to take delivery
without any allowance or reduction in purchase price.
Subject to the obligations accepted by GoIndustry DoveBid and, where applicable, the
Auctioneer under these Terms and Conditions neither the seller nor GoIndustry
DoveBid nor, where applicable, the Auctioneer nor any of their respective employees
or agents are responsible for faults or defects or errors of description or for the
genuineness or authenticity of any Lot and no warranty whatever is given by
GoIndustry DoveBid or, where applicable, the Auctioneer, or the seller or their
respective employees or agents to the buyer in respect of any Lot and any express or
implied conditions or warranties are hereby excluded to the greatest extent permitted
by law.
14. Liability
The Auctioneer is acting as agent of the seller in an Online Auction and is not responsible
for acts and omissions of the seller or any of the seller's principals, officers, directors,
employees or other agents.
15. Limitation of liability
Without limiting clause 17 of the User Agreement or the Asset Sale Agreement, and
to the maximum extent permitted by law, neither GoIndustry DoveBid nor, where
applicable, the Auctioneer shall be liable, in contract, tort (including negligence) or
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for breach of statutory duty or in any other way for:
(a)
any loss arising from or in connection with loss of revenue, profits, contracts
or business or failure to realise anticipated savings or profits;
(b)
any loss of goodwill or reputation; or
(c)
any indirect or consequential losses suffered or incurred by the buyer,
arising out of or in connection with these Terms and Conditions and any of the actions
or events contemplated within them or deriving from a sale of goods pursuant to them
(“Relevant Events”).
The aggregate liability of GoIndustry DoveBid in respect of any other loss or damage
suffered by a buyer and arising out of or in connection with these Terms and Conditions
or arising out of or in any way connected with any Relevant Events, whether in
contract, tort (including negligence) or for breach of statutory duty or in any other way,
shall not exceed the Buyer’s Premium paid by the buyer, in respect of the goods which
are the subject of the claim.
The buyer undertakes to defend (by counsel satisfactory to GoIndustry DoveBid) and
indemnify GoIndustry DoveBid and the seller and hold GoIndustry DoveBid and the
seller harmless from and against any claim, demand, cause of action, liability or
expense (including attorneys' fees and costs) asserted against or incurred by
GoIndustry DoveBid, the seller or any third party in connection with the sale, removal
from the Removal Point, shipment or use of any purchased assets or a breach by the
buyer of these Terms and Conditions.
Nothing in this clause 15 shall limit or exclude liability for death or personal injury
resulting from the negligence of GoIndustry DoveBid or their respective employees or
agents.
16. Choice of Law and Venue
All disputes relating to these Terms and Conditions between buyers and the Auctioneer
shall be exclusively governed by and interpreted in accordance with the laws of South
Australia.
Buyers and the Auctioneer hereby irrevocably submit to the exclusive jurisdiction of
the courts exercising jurisdiction in South Australia and any courts which have jurisdiction to
hear appeals from any of those courts over any claims, dispute or matter arising under or
in connection with these Terms and Conditions or their enforceability. Each buyer
acknowledges that GoIndustry DoveBid would not permit the buyer to register as a
buyer if the terms of this clause 16 were not valid, binding and enforceable.
Buyers irrevocably consent to any process in any legal action or proceedings arising
out of or in connection with these Terms and Conditions or its enforceability being
served in accordance with the provisions of these Terms and Conditions relating to the
service of notices. Nothing contained in these Terms and Conditions shall affect the
right to serve process in any other manner permitted by the laws of the country in
which service is to be effected.
These Terms and Conditions are drawn up in the English language. If these Terms and
Conditions are translated into another language, the English language text prevails.
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17.
Definitions
In these Terms and Conditions, unless the context requires otherwise, defined terms have
the meaning given to them in the GoIndustry DoveBid Glossary and the following terms have
the following meanings:
Asset Sale Agreement means the asset sale agreement to be entered into by the
successful buyer and the seller, the terms of which are set out at Attachment 1 to these
Terms and Conditions and included in the Notice to Purchasers,
GoIndustry DoveBid Glossary means the glossary available at www.godove.com/en/c/help-glossary-of-auction-terms.html, as may be updated from time to time.
Liquidity Services Privacy Policy means the privacy policy available at
https://www.liquidityservices.com/privacy-policy/, as may be updated from time to time.
Notice to Purchasers means the notice to purchasers described in clause 5.
User Agreement means the "User Terms and Conditions Agreement" accepted by buyers
upon registration to use the Liquidity Services website and services, available at
http://www.go-dove.com/en/c/terms-conditions.html, as may be updated from time to time.
Website means the Liquidity Services or GoIndustry DoveBid Group company website
GoIndustry DoveBid [May 2016]
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