Lot #32011 Hitachi ZX330-3 Excavator

Terms and Conditions

1. Definitions

In these terms and conditions, unless the context otherwise requires or implies:

Auctioneer means Example Auctioneer Pty. Limited (ACN 003 417 650) trading as Example Auctioneer.

Auction Sale means the auction of all of the Lots listed in a Catalogue.

Auction Site means premises at which an Auction Sale is conducted.

Australian Consumer Law means the Australian Consumer Law set out in Schedule Two of the Competition and Consumer Act 2010 (Cth).

Catalogue means a list containing some or all of the Lots available and provided by the Auctioneer from time to time.

GST means the goods and service tax as imposed by the GST Act.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

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 Sale.

Motor Vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle.

Non PDH Goods means any goods which are not PDH Goods.

OH&S Legislation means the Occupational Health & Safety Act, Regulations and codes of practice which govern occupational health and safety of workers and workplaces in the State in which the Auction Sale takes place.

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.

Purchaser means the successful bidder for a Lot, as determined by the Auctioneer.

Purchase Price means the highest bid accepted by the Auctioneer for a Lot.

Seller means the owner of a Lot or 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

 

1. The Auctioneer is acting as an agent for the Seller.
2. The sale contract for the purchase of a Lot is made directly between the Seller and the Purchaser.
3. The sale book, the Purchaser’s identification form and these terms and conditions constitute the entire relationship between the Auctioneer, the Seller and the Purchaser.
4. If any dispute arises in relation to a Lot, the dispute is between the Purchaser and the Seller. The Purchaser 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

1. All bidders must be 18 years of age or older.
2. All bidders, except those using Example Auctioneer Live Bidding (which is governed by clause 4), must register to bid at the Auction Sale by providing the Auctioneer with their full name and residential address and evidence of identification. Bidders who use Example Auctioneer Live Bidding register upon signing in to the Example Auctioneer Live Bidding Site.
3. All Lots are bid on and purchased on an ‘as is, where is’ basis.
4. Upon registration bidders agree to be bound by these Terms and Conditions.
5. If a bidder does not register, the Auctioneer may choose not to accept their bid.
6. 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.
7. 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 Purchaser.
8. The entry of the Purchaser’s details in the sale book or record by the Auctioneer or its clerk is binding on the Purchaser, and is prima facie evidence that the Purchaser has agreed to purchase the Lot.

 

4. Example Auctioneer Live and Example Auctioneer Online Bidding

1. Bidders bidding via Example Auctioneer Live and Example Auctioneer Online Bidding:

1. acknowledge that the Auctioneer is not responsible for bids that were not processed due to technical problems and/or delays;
1. 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 Example Auctioneer Live and Example AuctioneerOnline Bidding, 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 Purchaser's use of or inability to use the service; and

(iii) acknowledge that the Auctioneer cannot prevent inappropriate use of the system or bidder information stored in the system.

 

5. Reserve Prices and Seller’s bids

 

1. The auction of a Lot may be subject to a reserve price specified to the Auctioneer by the Seller.
2. The Seller reserves its right to bid on a Lot.
3. Subject to clause 5(d), the Auctioneer may bid for the Seller or for any prospective purchaser with or without disclosure and any such bid, if the highest bid, will be sufficiently evidenced if recorded in the Auctioneer’s sale book.
4. In respect of an auction of a Motor Vehicle in VIC and QLD, the Auctioneer may only make a bid on behalf of the Seller if:

1. before any bidding starts, the Auctioneer orally declares at the auction of a Lot that the Auctioneer may make a bid on behalf of the Seller; and
2. immediately before, or in the process of, making the bid, the Auctioneer states that the bid is being made on behalf of the Seller.

 

6. Risk Falls With The Hammer

 

1. The Purchaser 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.
2. The Purchaser 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

 

1. The Purchaser is not entitled to remove the Lot from the Auction Site until the Purchase Price has been paid in full.
2. The Purchaser of a Lot must pay the Purchase Price, or a deposit as agreed by the Auctioneer, to the Auctioneer upon completion of the Auction Sale.
3. If the Purchaser pays a deposit, it must pay the balance of the Purchase Price within 1 day of completion of the Auction Sale or as otherwise specified by the Auctioneer.
4. Payment of the above must be in cash unless otherwise agreed by the Auctioneer. If payment is made by cheque and the cheque is dishonoured, the Purchaser will be deemed to be in fundamental breach of its obligations pursuant to these Terms and Conditions.
5. In the event of late payment the Auctioneer reserves the right to charge the Purchaser 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. Removal of a Lot from the Auction Site

 

1. No Lot may be removed by the Seller during the Auction Sale without the express consent of the Auctioneer.
2. The Auction Sale will be deemed complete after all of the Lots listed in the auction catalogue have auctioned, irrespective of whether or not all Lots have been sold.
3. Subject to clause 13 the Purchaser must remove the Lot from the Auction Site immediately after the completion of the Auction Sale or as otherwise specified by the Auctioneer, but no later than one day after the completion of the Auction Sale.
4. If the Purchaser does not immediately remove the Lot, the Auctioneer or Seller may remove the Lot from the Auction Site and store it in an alternate location. The Purchaser is required to pay all reasonable costs incurred by the Auctioneer or the Seller in relation to the relocation and storage prior to removing the Lot.
5. The Purchaser will be strictly liable for any damage to the Auction Site, or other goods, caused by the removal of any Lot from the Auction Site.

 

9. Title of the Lot

 

1. The Seller represents and warrants to the Purchaser and the Auctioneer that:

 

1. it has good title to the Lot;

 

2. 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 Purchaser 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.

4. Except in respect of the sale of Motor Vehicles in QLD where the Seller is not a motor dealer or other auctioneer, the Purchaser acknowledges that such guarantee is given by the Seller and not by the Auctioneer.
5. In respect of the sale of Motor Vehicles in QLD where the Seller is not a motor dealer or other auctioneer, the Auctioneer provides guarantee of title at the time that the property passes to the Purchaser. This guarantee does not pass or extend to any third parties or to any subsequent purchaser or successor in title.
6. 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 Purchaser any moneys paid. The Purchaser 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.
7. 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.
8. 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 Purchaser may have under the Australian Consumer Law or any other applicable laws.

 

10. Rights Reserved

 

1. The Auctioneer and/or Seller reserve their right to withdraw any Lot or Lots listed in the Catalogue from the Auction Sale;
2. The Auctioneer reserves its rights:

 

1. to offer for sale part only of any Lot listed in a Catalogue;

 

2. to offer two or more separate Lots listed in a Catalogue for sale together as one Lot and if that Lot is not sold, to offer those Lots for auction as separate Lots;

 

(iii) to refuse any person admission to, or eject them from the Auction Site;

 

(iv) to not disclose the existence and/or quantum of the reserve price (if any) of a Lot prior to the close of bidding or withdrawal of the Lot;

 

5. in the event that any Purchaser successfully bids for more than one Lot at the Auction Sale:

1. to allocate any monies received from that Purchaser between the Lots as it sees fit; and
2. to regard the sale of multiple Lots as interdependent and treat default under a contract for either Lot as default under all such contracts;

 

(vi) to (whether or not a Lot has been knocked down as sold) in its sole discretion resubmit it for sale by auction at the Auction Sale in progress or as soon as practicable thereafter; and

 

7. to offer and sell a Lot that is not sold at an Auction Sale immediately thereafter by private agreement. Any such private agreement is also subject to these conditions unless otherwise agreed in writing by the Auctioneer.

 

11. Warranties and consumer guarantees

 

1. The Purchaser 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:

 

1. 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

 

5. express warranties in respect of the goods made by the manufacturer being complied with

 

2. If the goods forming part of a Lot are:

 

1. PDH Goods; or

 

2. Non PDH Goods and the purchase price of the Lot is $40,000 or less (or such other amount specified in or prescribed under section 3 of the Australian Consumer Law from time to time);

then certain guarantees may apply in respect such goods purchased by that Purchaser including (without limitation):

 

3. guarantees as to title to the Lot passing to the Purchaser;

 

(iv) guarantees regarding the Purchaser having undisturbed possession of the Lot; and

 

5. guarantees regarding the Lot being free from undisclosed encumbrances.

 

 

3. 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.

 

 

12. Limitation of liability

 

Where the Purchaser suffers Loss as a result of its purchase of any Lot and:

 

 

1. the goods forming part of a Lot are Non PDH Goods with a purchase price of more than $40,000; or
2. the Purchaser suffers the Loss other than as a result of any breach by the Seller or the Auctioneer 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 the Auctioneer will not be liable for any such Loss suffered by the Purchaser. This clause applies even if the Seller and/or the Auctioneer knew or ought to have known that the relevant Loss would be suffered.

 

 

13. Finance

 

The Purchaser 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 Purchaser.

 

 

14. Default

 

1. If the Purchaser is in default of any of its obligations under these Terms and Conditions or any interdependent or separate agreement with the Auctioneer or Seller:

 

1. The Auctioneer and/or the Seller may:

1. recover damages from the Purchaser;
2. without notice to the Purchaser 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 Purchaser by way of damages, whether or not that amount exceeds the Purchase Price that was to be paid by the Purchaser 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 Purchaser’s default and the cost of advertising in respect of any such resale; and
3. forfeit any monies paid by the Purchaser in consideration for a Lot and/or Lots.

 

2. If the Seller defaults on the delivery of a Lot or part thereof, the Seller must refund any money which the Purchaser had paid to the Auctioneer on account of its purchase.

 

15. General Law

 

1. 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 the State in which the Auction took place.
2. All rights and remedies available to the parties against each other under the general law are subject to these conditions.
3. 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.
4. To the extent that they are applicable, the requirements stipulated in section 41 of Part 3 of the Motor Car Traders Act 1986 (Vic) and prescribed particulars in Schedule 3 of the Motor Car Traders Regulations 1998 are incorporated into these terms and conditions and to the extent that those provisions are inconsistent with these terms and conditions, the former will prevail. Please note that this part does not apply to sales of Motor Vehicles previously belonging to a government department.

 

16. 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 conditions.

 

17. Goods and services tax (GST)

 

1. 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.
2. If the whole or any part of the Purchase Price of a Lot is consideration for a taxable supply, the Purchaser must pay to the Seller via the Auctioneer, an amount equal to the GST amount applicable to the Purchase Price. The Auctioneer will provide to the Purchaser (if applicable) a Tax Invoice at that time.

 

18. Auction of Used Motor Vehicles and other goods

 

1. The Purchaser acknowledges that:

 

1. the Auctioneer is unable to, and does not carry out an inspection of the Lots offered for sale;
2. the information that the Auctioneer has in relation to each Lot is information provided to the Auctioneer by the Seller of each Lot (including, in the case of Motor Vehicles, any inspection, condition, pre-auction reports or other information as to the condition of the Motor Vehicle);
3. the information provided by the Seller in relation to each Lot is not guaranteed by the Auctioneer;
4. it must satisfy itself as to the condition, description and state of repair of the Lot prior to the Auction Sale;
5. in the case of Motor Vehicles, it may not rely on the category in which a Motor Vehicle is sold as a representation as to the condition or registrability of the Motor Vehicle; and it is the Purchaser’s responsibility to check the Written Off Vehicles Register prior to an Auction Sale to satisfy itself as to the registrability of the Motor Vehicle; and
6. if a dispute arises in relation to this information, the Purchaser will exclude and indemnify the Auctioneer from any such dispute (including costs on a full indemnity basis by any costs incurred by the Auctioneer in relation to such dispute).

 

19. Auction of Used Plant and Equipment

 

The Purchaser acknowledges that:

 

 

1. The OH&S Legislation imposes obligations in respect of safety for workers arising out of the design manufacture and supply of Plant and Equipment ("plant") for use in a workplace.
2. The Auctioneer and the Vendor have warned prospective purchasers that no plant is being offered for sale for use in any workplace and it is the Purchaser's or user's responsibility to ensure that if the plant is to be so used it is brought to a standard necessary to comply with the OH&S Legislation before being used for this purpose and testing and examination is carried out to ensure it is safe and fit for use in a workplace.
3. In so far as it is readily available, information prepared by the designer or manufacturer of the plant and any records kept by previous owners of the plant that were required to be kept under the OH&S Legislation ("the information and/or records") is made available for inspection to prospective purchasers and will be provided to the Purchaser.
4. Where no such information and/or records are available, no liability for the absence of same is assumed by the Auctioneer and/or the Vendor.
5. It is the responsibility of the Purchaser to ensure that the Purchaser seek to ascertain the information and/or records.
6. Safety inspections of all plant purchased at auction must be performed by the Purchaser as breaches of the OH&S Legislation carry very heavy penalties in the interest of health and safety for workers.

 

20. Cancellation due to error

The Auctioneer has the right to cancel any purchase transaction due to error even if the Purchase Price of the Lot has been paid. The Auctioneer may exercise this right up until the time the Purchaser collects the Lot(s). If the Auctioneer exercises this right, the Auctioneer will refund to the Purchaser the Purchase Price and any part thereof that the Purchaser has paid.