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CLICKING THE ACCEPT BUTTON UPON REGISTRATION OR BIDDING CONSTITUTES YOUR ACCEPTANCE OF THIS USER AGREEMENT. IF YOU DO NOT AGREE TO ANY TERM IN THIS USER AGREEMENT, DO NOT CONTINUE TO ACCESS AND USE THIS SITE OR BID ON ANY ITEMS.
1.1 This Agreement contains the terms and conditions for access to and use of the Ross's website and online marketplace ("Site") and a breach of this Agreement may give rise to a cancellation of your access rights and/or a claim against you by Ross's for any loss including costs and damages.
1.3 The terms "Ross's", "we", and "our", refers to Dodd & Dodd Consolidated Pty Ltd (ACN 149 299 427) [Please confirm the correct entity] trading as Ross's Auctioneers and Valuers of 453 Orrong Road Welshpool, Western Australia 6106 and its affiliates and subsidiaries.
1.5 We will always endeavour to act reasonably in the application of this Agreement and in the exercise of any power or discretion granted to us in this Agreement.
2. AMENDMENTS AND CHANGES
2.1 We have the right at any time to change or discontinue any aspect or feature of the Site, including, but not limited to, services, products, content, hours of availability, and equipment needed for access or use.
2.3 All modifications, additions or deletions ("Changes") shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on the Site, by electronic or conventional mail, or by any other means by which you obtain notice thereof.
2.4 Your ongoing use of the Site following any Changes constitutes your acceptance of all Changes.
3.1 We operate an online marketplace that enables Members to view, bid on and purchase products ("Marketplace").
3.2 Generally each product or group of products available on the Marketplace ("Lot") is offered for a defined and limited period of time determined by us and is sold to the Member who proposed the highest purchase price during that limited selling period.
3.3 In addition, we may, from time to time, make available to Members opportunities to purchase a Product either in multiples of more than one (1) or at the highest purchase price they proposed even if that purchase price was not the highest proposed during the selling period.
3.4 Only Ross's Members may participate in the Marketplace.
3.5 You may be given the opportunity to inspect items for sale prior to or during the auction at the time and place set out on the Lot description or Site. If you or any person acting on your behalf or as your agent enters onto our premises or the premises where the Lot is held, including for the purpose of inspection or collection, then that person does so at their own risk and they must comply with all reasonable directions and warnings, and occupational health and safety laws.
3.6 We do not warrant to you that items sold are fit for a particular purpose of for your intended purpose.
3.7 Ross's accepts no responsibility or liability for any manufacturer's warranty that may accompany an item you purchased and you are responsible for contacting and dealing with the manufacturer directly in relation to any such warranty or claim.
4.1 To become a Member, you must agree to this Agreement and all terms and agreements incorporated in this Agreement, pay all required registration fees, and provide us with your name, address, phone number, and email address, as well as any other identification information required by us or that we may request from time to time, and you must keep us updated with any change in such details.
4.3 Any person who is under the age of eighteen (18) years, an undischarged bankrupt or under legal incapacity, or any company that is insolvent or under external administration, is not permitted to become or remain as a Ross's Member, use the Site, bid on or purchase any Lot. In the event a person or entity falling within any of these restrictions manages to be the winning bidder on a Lot, the sale will either be voidable or enforceable at the discretion of Ross's.
4.4 Additional requirements or conditions may be imposed by Ross's from time to time, or the payment of ongoing fees may be required by Ross's, which you will be required to agree to or pay to maintain your Membership.
4.5 You are responsible for maintaining the confidentiality of your password and for restricting access to your computer and you must notify us immediately if you are aware of reasonably suspect that unauthorised use of your Membership details has or may occur.
4.6 You agree that you are solely responsible for all activities that occur under your user name and password.
4.7 The right to use Ross's is personal to the Member and is not transferable to any other person or entity.
4.8 Without the prior written consent of Ross's, no person or entity may have more than one (1) Ross's Membership or user name.
4.9 Ross's may, in its absolute discretion, refuse to register any person or entity as a Member or, acting reasonably, cancel the Membership of any person or entity, and such person or entity shall not then attempt to again register as Member or bid on or purchase any Lot without the prior written consent of Ross's.
4.10 Our communications with you or notifications to you will generally be by way of email to email address provided by you, however we do not accept any responsibility or liability for loss if you such notifications are not actually received or read by you.
4.11 You may request termination of your Ross's Membership by emailing us at [Insert appropriate Ross's email address] and we will attend to the processing of this as soon as reasonably practicable if there are no active or outstanding matters, including unpaid amounts, with your user name and Membership.
5. BASIC USAGE RULES
5.1 The Site and Marketplace may only be used for lawful purposes and in a lawful manner and you agree to comply with all applicable laws, statutes and regulations regarding use of the Site and Marketplace, including in regard to bidding, and purchasing Lots.
5.2 You are responsible for obtaining and maintaining all telephone, internet, computer hardware and other equipment needed for access to and use of the Site and all charges related thereto.
5.3 You must not post or transmit through the Site any language, image or material that violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, pornographic, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, gives rise to civil liability or otherwise violates any law.
5.4 You must not upload, post or otherwise make available on the Site any information or material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right.
5.5 You hereby grant Ross's the right to edit, copy, publish and distribute any material made available on the Site by you.
5.4 You may not use the Site to advertise or perform any commercial solicitation, including, but not limited to, the solicitation of users to become subscribers of other on-line services.
5.5 The Site contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the contents of the Site are subject to Ross's intellectual property rights and you may use such intellectual property without our prior written consent.
5.6 You must not place bids or cause bids to be placed on any Lot for the purpose of artificially increasing or otherwise manipulating the bidding process or the bid price of any Lot listed on the Site, or influencing user behaviour on the Site.
5.7 Ross's does not tolerate any acts of fraud and will notify and assist the appropriate law enforcement agencies in any case where there is suspicion of fraudulent use of our Site or Marketplace.
5.8 Every time you log in to the Site, your IP address may be recorded and this information may be used to identify you.
5.9 You must not register, bid on or purchase Lots under a false name or user name, impersonate another person or Member, use another Member's password, or use an invalid or unauthorised credit card.
5.10 You must not interfere with the proper operation of the Site and Marketplace or place an unnecessary burden on our operating and computer systems or the Site.
6. PRIVACY AND DISCLOSURE
6.4 Ross's reserves the right to report any activity that it reasonably suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties, and in doing so Ross's may access and disclose any information it considers reasonably necessary or appropriate, including, without limitation, user contact details, IP addressing and traffic information, usage history and posted content.
7. ROSS'S ADDITIONAL RIGHTS
7.1 We may, at our discretion, at any time withdraw or add items for sale, or vary the terms, cancel, stop, restart, delay or extend an auction, either before, during or after, for any reason including and not limited to irregularities or issues relating to technology, computer systems, servers, data, power supply, force majeure, staff, internet service, banking facilities, identity, multiple Lot listing, Lot availability, Lot description, Lot ownership, Lot pricing, bidding or the bidder's ability to pay, and we shall not be liable to compensate you for any such action taken by us.
7.2 Without limiting other rights and remedies herein, we may at any time at our discretion, issue a warning, temporarily suspend, indefinitely suspend or terminate your Membership and access to the Site and refuse to provide services to you if they are of the opinion that you have or may have breached this User Agreement, if Ross's is unable to verify or authenticate any information you provide to Ross's, or if Ross's believes that your actions may cause legal liability for you, other Ross's users, or Ross's.
8. BIDDING TERMS AND AUCTION PROCEDURES
8.1 You acknowledge and agree that a bid or a request to buy a Lot is a legally binding offer to buy the Lot at that price.
8.2 Once Ross's accepts your offer, you are obligated to complete the transaction as accepted by Ross's including payment of the purchase price and any other monies payable.
8.4 Your submission of a bid or request to buy a Lot constitutes your acknowledgement that you have read and understand this Agreement, payment and delivery terms, all amounts that will be payable including a Buyer's Premium, the Lot description, and all other information relating to the sale of the Lot. Any Lot heading or title on the Site and any Lot photograph may be for illustrative purposes only and should not be solely relied upon as a description of the Lot.
8.5 Ross's may set a minimum acceptable bid increase increment ("Minimum Increment") for each bid on a Lot and your bid must exceed the current highest bid by at least this increment.
8.6 Price or bidding manipulation is prohibited and is a breach of this Agreement.
8.7 Once you have submitted a bid to purchase any Lot, it cannot be retracted and you cannot lower you bid.
8.8 Lots may have a minimum nominated commencement price for bidding.
8.9 To be able to bid on a Lot you must first provide us with the requested details for a credit card acceptable to us together with your authority for us to charge a specified amount to this card. In the event you are not the successful bidder on a Lot, we will refund this amount to you as soon as reasonably practicable.
8.10 Bids will take priority over other bids in an auction in the following order of precedence: 1. highest bid price; then 2. highest bid quantity (where relevant); and then 3. earliest time bid is received by us.
8.11 The Site will generally set out the period of time remaining for an auction, however, each time there is a successful bid with less than ten (10) minutes remaining for the auction ("Extend Period"), the period of time remaining for the auction will be extended to be equal to the Extend Time. This mechanism extending the remaining auction period back to the Extend Time may happen on multiple occasions and lead overall to a substantial increase in the final auction closing time. Extend Period is an approximate time only and may vary slightly on each occasion, and we accept no responsibility or liability for loss for any variations in the Extend Period.
8.12 Any time period or timing mechanism shown or referred on the Site or in this Agreement, refers to Ross's time, which is approximate to but may vary slightly from current official times and time periods in Western Australia.
9. MULTIPLE QUANTITY LOTS
9.1 Unless indicated otherwise by us, the items in a Lot are not divisible and must be bid on collectively.
9.2 Where there are multiple items or quantities in a Lot and our bidding page on the Site allows you to specify a quantity, you may not lower your bid quantity until your existing highest bid is exceeded by another bidder, or if you not the highest bidder for the entire quantity you bid on but are the highest bidder for a lesser quantity then we will recognise you as the winning bidder for that lesser quantity.
9. AUTO BID SYSTEM
9.1 We may have an auto bid system available for Members to activate which will automatically place bids on your behalf on a Lot up to your maximum prescribed bid amount ("Auto Bid").
9.2 Your use of Auto Bid represents your irrevocable offer to purchase the applicable Lot or items at (or below) the highest bid amount designated by you in Auto Bid and such offer may not be cancelled or retracted by you after submission. If you are the highest bidder, whether you are or are not using Auto Bid, you are obligated to complete the purchase transaction with us.
9.3 If Auto Bid is available and activated by you then for your convenience, Ross's automatically sets each of your next bid amounts by adding the applicable Minimum Increment, or such other amount you manually prescribe, to the current bid amount.
10. RESERVE PRICE
10.1 We may set a minimum price at which a Lot will be sold ("Reserve Price") and if the Reserve price is not met then we are under no obligation to sell the Lot.
10.2 The Reserve Price will generally not be revealed to you.
10.3 We reserve the right to remove or introduce a Reserve Price at any time.
10.4 If you bid on a Lot and the Reserve Price is not met and then we may contact you with an offer to enter into further negotiations for the sale of the Lot to you.
11. RETAIL PRICES
11.1 You should make your own enquiries about the value of a Lot and must not rely on any manufacturer's recommended retail price, manufacturer's original retail price or comparable retail price ("Retail Prices") set out on the Site. Retail prices do not represent our estimate of the value of a Lot or the price that buyers have previously purchased items similar to or the same as the Lot.
11.2 Retail Prices may be based on information supplied to us by the seller or supplier and Ross's accepts no responsibility for or liability to you for the accuracy or currency of Retail Prices.
11.3 Manufacturer's original retail price may not be representative of the current manufacturer's recommended retail price for the Lot.
11.4 Comparable retail price may relate to a different but reasonably similar product/s to the Lot which may or may not be available for sale in Australia.
11.5 Retail Prices vary between locations of sale and may be affected by fluctuations in exchange rates.
12. WINNING BIDDER OBLIGATIONS
12.1 If you are the winning bidder in an auction on the Site then you are immediately liable to pay to us the amount of the winning bid, the Buyer's Premium, any delivery fees, any insurance fees, any credit card usage fees, all taxes including GST (if payable) and any other fee or amount payable as set out in this Agreement or on the Site ("Invoice Amount").
12.2 A buyer's premium is payable on all auction sales ("Buyer's Premium") being the winning bid amount multiplied by the buyer's premium percentage rate set out on the Lot description page or elsewhere on the Site.
12.3 If you are the winning bidder and the Invoice Amount is below five thousand dollars $2,000.00) then the Invoice Amount is immediately payable by you to us by way of charge on your registered credit card, and you hereby authorise us to process such payment upon issuing you with a tax invoice.
12.4 If you are the winning bidder and the Invoice Amount is or exceeds two thousand ($2,000.00) then the nominated card will be charged $2000 as a deposit. The balance of the Invoice Amount is immediately payable by you to us by way of online payment (member tools), direct deposit or deposit of bank cheque into our nominated bank account representing cleared funds within one (1) business day of the auction closure, and should you fail to comply with this then you hereby authorise us to process such payment from your credit card and charge you up to an additional three percent (3%) credit card processing fee on the Invoice Amount.
12.4 If your nominated credit card has insufficient credit to allow payment of the full Invoice Amount then you hereby authorise us to debit the maximum amount possible from this credit card, to repeatedly debit further amounts from this card for unpaid amounts, and to debit any unpaid amounts from any other credit card you have registered with us.
12.5 Even if you are the winning bidder we may, in our absolute discretion, withdraw from and not proceed with the sale of the Lot to you at any time, without liability to you, if there has been a technical error with the auction or sale, we are unable to contact you, or we do not receive full payment for the Invoice Amount and any other monies payable by you immediately after the auction or sale, or in the case over an Invoice Amount of five thousand dollars ($5,000.00) or more within two (2) business days of the auction or sale.
12.6 If you are the winning bidder and refuse or are unable to proceed with the purchase of the Lot for any reason, including and limited to having insufficient credit or funds to pay all monies due to us, you will forfeit any deposit paid potential loss and we may, in our absolute discretion, terminate or suspend you Membership, resell the Lot to mitigate our loss, seek an order for specific performance against you, claim against you all monies due including recovery of all our costs (including and not limited to administration, storage, advertising and legal costs) and/or charge you a cancellation fee of the higher of two hundred and fifty dollars ($250.00) or twenty percent (20%) of the Invoice Amount, and you hereby authorise us to process any such amounts against your registered credit card/s. We will act reasonably in the application of this clause and will seek to be put back into the position we would have been had you completed the purchase, including recovery of all our reasonable costs and expenses and administration charges.
12.7 It is your responsibility to monitor each auction you have bid on, including when using Auto Bid, to determine if you are the winning bidder. If you are the winning bidder we will attempt to email you notification of this to the email address you have registered with us, however we accept no responsibility or liability if this notification is not received or read by you and you are not released from the purchase by any failure to receive or read such an email from us.
13.1 Ross's auctions are generally conducted on an 'as is, where is' basis and items may not be returned, including in circumstances where you have changed your mind or purchased the same or a similar item from Ross's or elsewhere.
13.2 You acknowledge and agree that when a Lot is described as being used, marked, damaged, faulty, or in a particular condition, you have no claim or recourse or right to return the Lot to us on the basis of such Lot actually having such marking, damage, fault or condition.
13.3 Items purchased from us at auction may ONLY potentially be returned to us if we are directly responsible for delivery and the items are sufficiently damaged in transit.
13.4 If you believe you have a valid reason to return an item to us then you must email us as at email@example.com within three (3) days of the auction conclusion with your full details, details of the item purchased and details of the reason for you proposed return. We may contact you to request further information or evidence to support your claim.
13.5 If we, acting reasonably, accept that you have valid grounds to return an item to us then we will email you a returns form, and within ten (10) business days of this being emailed to you, you must either return the completed form (with the item to follow within a short and reasonable period) or the item (together with the completed form) to us, and if you fail to follow this procedure and comply with this timeframe then you will be deemed to have waived your right to return such item or claim any refund.
13.4 If the above procedures are followed by you then we will inspect the item once back in our possession to determine if it was damaged, faulty or materially incorrectly described as claimed, and if we agree with your claim then we will either repair or replace the item, or refund you the Invoice Amount, as we determine reasonable in the circumstances, or if we disagree with claim then the item will be returned to you and we will be entitled to recover our reasonable handling and delivery costs which you hereby authorise us to process against any credit card you have registered with us.
13.5 When items are returned to us all parts, manuals and original packaging must also be returned to us.
14. COLLECTION AND DELIVERY
14.1 Before bidding on any Lot you should determine whether collection and/or delivery is available if you are the winning bidder, whether you will be in a position to collect and/or receive delivery of such Lot if you are the winning bidder, and ensure that you are familiar with all procedures, timeframes, risks and costs associated with collection (where available) and delivery (where available) of the Lot.
14.2 Generally items may not be collected or will not be delivered until we have received full payment of all monies due as cleared funds.
14.3 The delivery of bulky or heavy items is based on easily accessible front door, ground floor delivery, at reasonable times of day. We accept no responsibility and generally do not accept return of the goods if you are unwilling or unable to accept delivery.
14.4 Any stated collection or delivery time, day or period is an approximation only and we not accept any liability for any variation in this.
14.5 If you fail to comply with the specified collection or delivery arrangements then we may charge you reasonable additional fees for transport, storage (at our premises or elsewhere), insurance and administration, and we may move the goods or deliver the goods to another location and we accept no responsibility or liability for loss if the goods are damaged or lost in such process or from such location. You hereby authorise us to process the payment of any such reasonable amount against any credit card you have registered with us.
14.6 If an item is not collected by you within two (2) days of auction closing or you fail to accept delivery within two (2) days after first attempted delivery then we reserve the right to re-sell the item and deduct from the proceeds of sale the Buyer's Premium and all reasonable costs and expenses including and not limited to those relating to transport, storage, insurance, administration, re-advertising and re-selling. If there is a shortfall in funds from the sale of the Lot to cover all of these amounts then we will be entitled to recover any shortfall from you as an additional amount immediately due and payable and you hereby authorise us to process such amount against any credit card you have registered with us. If there are surplus funds remaining from the sale of the item after satisfaction of all these amounts then we will attempt to return such surplus to you either by refund to your registered credit card or by cheque sent to your address listed with us, and this will constitute sufficient return of funds to you.
14.7 Generally any variation in delivery instructions will not be accepted by us and delivery will occur in accordance with your initial instructions. In the event we accept your request for a delivery variation, which we are not obligated to do, you will not be entitled to any refund of delivery costs but may be required to pay reasonable additional delivery costs.
15.1 Title to goods will only pass to you when the Invoice Amount and any other monies due are fully paid by you as cleared funds and accepted by us.
15.2 If an item is to be delivered to you then risk in that item passes to you when our carrier first attempts to make delivery of that item to you, regardless of whether you do or are able to accept delivery of the item at that first attempt.
15.3 If an item is to be collected by you then risk in that item passes to you at the time when the item is first made available for collection by you.
16. LIMITED LIABILITY
16.1 To the maximum extent permitted under law, we hereby exclude all express and implied conditions and warranties in connection with the Site, the Marketplace and sale of any Lot or item.
16.2 To the extent that we may not exclude our liability under law in relation to any condition or warranty, our liability is limited, in the case of the supply of services to either supply the services to you again, pay the cost of having the services supplied to you again, or provide you with a full refund, or in the case of the supply of goods to either relace the goods, supply equivalent goods, or provide you with a full refund.
16.3 We are not responsible for and accept no liability for any loss related to a failure to receive, accept or process your bid due to any timing or technical issues
16.4 We do not guarantee or warrant that the Site and Marketplace has any particular technical performance, stability or capacity, or that there will be uninterrupted continuous access available for you to the Site and Marketplace. We accept no responsibility or liability for loss arising from or related to any down time or failure of the Site or Marketplace.
16.5 We do not guarantee or warrant that any particular record or information you provide to us will be preserved over time, or that we be able to prevent or become aware of any illegal or inappropriate use of the Site or Marketplace.
17.1 You agree to defend, hold harmless, indemnify and keep indemnified, Ross's, our parents, subsidiaries, affiliates, officers, directors, shareholders, agents, employees and representatives ("Indemnified Parties") against all claims, losses, taxes, liabilities, damage, costs and expenses (including and not limited to legal fees) arising from or in connection with your breach of this Agreement (including any the terms set out on the Site or any supplemental document incorporated by reference), your breach of any third party rights including and not limited to infringement of intellectual property rights and invasion of privacy. This will include all costs and expenses, including all legal fees, of any of the Indemnified Parties defending themselves against any claim related thereto, on a full indemnity basis.
17.2 You further agree to and hold harmless, indemnify and keep indemnified, the Indemnified Parties against any action, claim or demand arising from or in connection with your user name or password, or by any third party arising from or in connection with your breach of this Agreement (including any the terms set out on the Site or any supplemental document incorporated by reference), on a full indemnity basis.
18. GOODS AND SERVICES TAX (GST)
18.1 Unless stated otherwise on the Lot description or Site, Australian Goods and Services Tax ("GST") as set out in the New Tax System (Goods and Services Tax) Act 1999 will be additionally payable by you on the purchase price of the Lot, the Buyer's Premium and all other monies payable by you under this Agreement or on the Site.
18.2 When an auction or sale is stated to be 'GST inclusive', GST is already included in the purchase price for the item.
18.3 We will issue you with a tax invoice setting out any GST paid by you.
19. FURTHER GENERAL PROVISIONS
19.1 This User Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes and cancels all prior and contemporaneous agreements, claims, representations and understandings of the parties in connection with the subject matter hereof.
19.2 Ross's is not your agent, fiduciary, trustee or other representative. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this User Agreement. This User Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of Ross's and you.
19.3 If any provision of this User Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
19.4 Ross's failure to enforce the strict performance of any provision of this User Agreement will not constitute a waiver of Ross's right to subsequently enforce such provision or any other provisions of this User Agreement.
19.5 The section headings used herein are for convenience only and shall not be given any legal import.
19.6 Any actions arising out of, or in any manner affecting the interpretation of, this Agreement as they pertain to the Marketplace, the Site, any service or any Lot, whether under this Agreement or otherwise shall be governed solely by, and construed solely in accordance with, the laws of Western Australia and you hereby consent to the exclusive jurisdiction and venue of courts located in Western Australia for litigation of disputes under the Agreement. Any references to business days are business days (Monday to Friday inclusive, excluding public holidays) in Western Australia.
19 .7 Unless indicated otherwise, all references to monetary amounts are to Australian dollars and all payments must be made in Australian dollars.