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Terms & Conditions This “Users Agreement” sets out the terms and conditions for online auctions by Hillview Machinery Pty Ltd (Hillview). When you register as a customer, place a bid, or take any action on the Website, you acknowledge that you have read and accepted the terms of this Users Agreement. 1. Definitions “Auction” means the auction of Lots listed on the website. “Auction Detail Page” is the page on the website containing specific information regarding a particular auction. “Auctioneer” means the person nominated by Hillview to conduct the Auction. “Bidder” means any person who registers with Hillview and includes any user, buyer, purchaser, bidder, customer or other party who interacts with any of the Auctions hosted by, or Lots listed with Hillview on its website or in person. “Buyer’s Premium” means the percentage of the winning Bid Amount as identified on the Lot Detail Page. The Buyer’s Premium is payable in addition to and at the same time as the Bid Amount and will form part of the total invoice amount to be paid. The GST component of your purchase will be clearly displayed on your invoice. “Lot” means any assets, goods or items available for purchase at the Auction. “Lot Detail Page” is the page on the website that contains all the information about a particular lot. “Purchase Price” means the highest bid accepted by Hillview for a Lot or the price as agreed between Hillview (under instruction from the Vendor) and the Bidder. “Purchaser/you” means the successful bidder for a Lot as determined by Hillview, or purchaser by way of private agreement with Hillview (under instruction from the Vendor). “Sale Proceeds” means the net amount payable to the Vendor, being the Purchase Price less any amount payable to Hillview by the Vendor as agreed between Hillview and the Vendor. “Us/we/Hillview” means Hillview Machinery Pty Ltd. “User’s Agreement” means this User’s Agreement and includes all the Terms and Conditions and any amended terms or special conditions that Hillview may incorporate. “Vendor” means the owner of a Lot or the person authorising Hillview to sell that Lot on the owner’s behalf. “Website” means the Hillview website found at www.hillviewauctions.com.au 2. Rules for Use 2.1 This Users Agreement sets out the rules for use of the Hillview Website. A breach of the Users Agreement (among other things) may result in us disabling your account and preventing you from being able to use this service. 2.2 Hillview may, from time to time, be required by law, industry standard or company policy to update and amend this Users Agreement. These changes will be updated on the Hillview Website and will take effect, automatically and immediately, from the time of publication of this User’s Agreement on the Hillview Website. By continuing to use this Website, you are taken to have accepted the terms of the User’s Agreement. You should review the User’s Agreement on a regular basis and prior to taking any action on the Hillview Website. 2.3 You acknowledge that Hillview acts as authorised agent of the Vendor and that any rights of action the Purchaser may have regarding the Lots purchased lie against the Vendor, not Hillview. 2.4 The service is provided to you and you alone, personally and (if applicable) in your capacity as a director or authorised representative for the bidder that you register under on our website. You acknowledge and undertake that all actions taken on Hillview’s website, while registered are taken with your express authority and that you will be held liable for those actions personally. 2.5 If you engage in fraudulent activity or activity which Hillview considers to be fraudulent, likely to deceive or offend, then Hillview may disable your account and take any such further action as it may deem appropriate (in its absolute and sole discretion) to remedy any damage caused. 2.6 Hillview cannot guarantee continuous or secure access to its website. While Hillview will use all reasonable methods to maintain uninterrupted services, Hillview offers no guarantee or promises as to same. 2.7 In the event of a software failure, system failure, technological, processing problems or general faults which do not give all Bidders and Vendors the intended opportunities to either bid on or sell a Lot listed on the Hillview website, then Hillview may, in its sole discretion, cancel any specific bids, an auction, a sale, an invoice or otherwise not deliver Lots. 2.8 Hillview will notify the Purchaser of the cancellation of the transaction due to any software failure, system failure, technological, processing problems or general faults. In that event, Hillview reserves the right to cancel any bids. Hillview will cancel, reverse or refund any Buyers Premium on any bid cancelled by Hillview due to any software failure, system failure, technological, processing problems or general faults. 3. Registration 3.1 You warrant that you can form a legally binding contract. 3.2 You must register with Hillview to use the services offered on the Hillview Website. A valid registration must include your name, address, email, password and phone number. Additionally: i. you must not provide false or misleading personal information. ii. you will ensure your personal information is accurate at all times, updating your address and contact information as and where applicable iii. you undertake to keep your login details and password secret to avoid any unauthorised use of our service. iv. you warrant that you are over 18 years of age. 3.3 Hillview may disable your account at any time, and for any reason. 4. Buyer’s Premium 4.1 You acknowledge that every Lot will attract a Buyer’s Premium that is payable by the Purchaser without set off. 4.2 The Buyer’s Premium must be paid in addition to the Purchase Price and any other Governmental charges or fees. 4.3 Hillview will determine the Buyer’s Premium to be paid by the Bidder on each Lot and list the Buyer’s Premium on the Website. 5. Agency Relationship 5.1 Hillview acts as an agent for the Vendor and is not responsible for any default or failure to perform obligations by the Vendor. 5.2 You acknowledge that all Vendors instruct and authorise Hillview to: i. sell the Lot as the Vendor’s agent in accordance with these Terms and Conditions; ii. receive and hold all Sale Proceeds on the Vendor’s behalf; iii. sign on the Vendor’s behalf any documentation necessary to transfer ownership of the Lot to the Purchaser; and iv. allow the Lot to be inspected by prospective Purchasers prior to the auction, at a time, manner and/or location suitable to Hillview. 5.3 If any dispute arises in relation to a Lot, the dispute is between you and the Vendor. You agree that Hillview is in no way involved or party to any claim, action, tribunal or court proceeding in respect of that Lot and you indemnify Hillview, on a full indemnity basis, from all liability, including all costs incurred by you in relation to such claim. 6. Governing Law 6.1 In using Hillview’s services, you must abide by all applicable laws, statutes, and regulations, including those in relation to bidding for and purchasing Lots. 6.2 The proper law governing the interpretation and enforcement of these Terms & Conditions including all substantive rights and obligations are the laws of Australia and the State of Victoria. 6.3 All rights and remedies available to the parties against each other are subject to these Terms & Conditions. 6.4 If any of the terms or conditions in these Terms & Conditions are to any extent held by any court of competent jurisdiction to be invalid or unenforceable, the remaining terms and conditions will not be affected, and will remain in full force and effect. 7. The Auction 7.1 You must register with Hillview to bid on any auction. 7.2 In placing a bid, you are taken to have accepted the specific terms and conditions of that particular auction and that particular Lot. 7.3 Every auction has a specified auction date and starting time. 7.4 The Bidder acknowledges that any software or subscriptions attached to equipment may be under licence to the Vendor and that the terms and conditions of the License may restrict the use and transfer of the software. The Bidder acknowledges that Hillview does not offer title to any such software and subscription, and it may or may not remain the property of the Vendor. The inclusion or non-inclusion of any particular software or subscriptions will not void the sale of the Lot. 7.5 Hillview may, at its sole discretion, cancel an auction, close it early, or reschedule an auction for any reason, including where a Lot is sold after the falling of the hammer. If Hillview terminates the sale after the Lot(s) have been sold by auction, the Purchaser will be entitled to a refund of any deposit or payments it has made towards the purchase of the Lot(s); however, the Purchaser will not be entitled to enforce the sale of the Lot(s). 7.6 Upon becoming the successful bidder, the Purchaser assumes all risks against loss or damage of the Lot won. Hillview accepts no responsibility after the fall of the hammer for insuring against loss or damage of any lots purchased by the Purchaser. 7.7 Ownership and title shall not pass to the Purchaser until all lots are paid for in full. Lots will not be available for removal upon part payment. 7.8 Prior to placing a bid, it is your responsibility to make yourself aware of the specific auction conditions surrounding each Lot, especially, but not limited to, its condition, payment options and the time in which it must be collected. 7.9 A bid placed at auction online via the Hillview auction bidding portal, or in person, is an offer to purchase. Once a bid has been accepted by the auctioneer there is a binding contract between you and the auctioneer to purchase the Lot at the final bid amount plus any additional fees and charges associated with that Lot. 7.10 Photographs and descriptions of Lots are provided by Hillview as guidance only and you should avail yourself of the inspection times, manner, and/or location to assure yourself of the exact nature and condition of the Lot you are bidding on before placing a bid on the Lot. 7.11 If you engage in any activity, either solely or in concert with another, aimed at manipulating the final bid price or corrupting the bidding process, Hillview may immediately, in its sole discretion, terminate your registration and right to bid. You cannot cancel, withdraw or amend a bid once placed. Hillview reserves the right to commence proceedings or otherwise enforce its rights against you in respect of any loss or damage caused to Hillview as a result of such manipulation or corruption of the bidding process. Further, by placing a bid or purchasing a Lot, you agree that Hillview may also claim from you on an indemnity basis any costs incurred in enforcing Hillview’ rights against you arising from such conduct. 7.12 No employee or agent of Hillview is authorised to waive, add to or vary these conditions without the written authority of Hillview’s Director. 7.13 Lots listed for Auction may have reserve prices. The reserve price is not met unless an email or text is sent confirming a successful purchase. If the bidding has not reached the reserve, then the Auctioneer will refer the highest bid to the Vendor. If the vendor declines the under-reserve top bid or makes a counteroffer, the highest bidder may be contacted and offered the first right of increasing their final bid to meet the reserve, vendor counteroffer or first right of refusal in any referred bids process. Once the bidder has refused any further counter offers or negotiations then the Auctioneer shall declare the goods open for negotiations with other potential underbidders or purchasers. 7.14 Subject to any reserve price, the highest bidder shall be the Purchaser and in the event of any dispute arising, the Lot may be reoffered. The Auctioneer shall be the sole arbitrator and the Auctioneer’s decision shall be final in all matters relating to the Auction. 7.15 The Purchaser must sign a purchase contract. In the Purchaser fails to sign, the Auctioneer reserves the right to immediately resell or re-lot such Lots as they deem fit, in a subsequent Auction and recover from the defaulting bidder any and all lost Buyers Premium, Commission and other associated costs including debt recovery and legal fees on an indemnity basis together with any shortfall on the subsequent sale price which the Vendor suffers as a result of the default. 7.16 Hillview warns Bidders that Lots offered for sale at Auction may not be fit for use in any workplace and that the Bidder is responsible to ensure compliance with all necessary requirements under the relevant legislation, and that the Lot is fit for its intended use in the workplace prior to being used for its intended purpose. Lots must be given a safety inspection prior to operation in any workplace when it is purchased at auction. A Lot not meeting the requirements of a particular workplace, safety inspection, or any law regarding workplace safety will not void the sale. 8. Collection of Goods 8.1 All Lots purchased must be paid for and removed by the date and time specified in the conditions of sale for the Auction. In the absence of a date and time specified, all Lots purchased must be paid for and removed within three (3) days of the end of the Auction. 8.2 Should the Purchaser leave their asset(s) at Hillview and not communicate with Hillview for over 60 days, Hillview reserves the right to re-sell the Purchaser’s asset(s) unreserved at a public Auction, recouping any outstanding costs, fees, charges, legal fees, and communication costs from the sale, with remaining funds held in trust until they can be legally transferred to the Purchaser. 8.3 No purchases may be removed from Hillview’s premises until goods have been paid for and the collection has been arranged with a Hillview team member, marking off the Lot as having been collected from the Hillview auction system. 8.4 The Purchaser acknowledges that they are responsible for the safe collection of all Lots purchased. The Lots are the property of the Purchaser upon settlement of all monies owed to Hillview, and it is the sole responsibility of the Purchaser to provide adequate & appropriate equipment and labour to safely collect any Lots purchased. 8.5 Hillview’s employees or representatives are provided by Hillview to assist in identifying Purchaser’s goods. These team members are not responsible for loading or securing goods onto the Purchaser’s transport, which is the duty of and at the risk of the Purchaser. 8.6 Storage charges may apply at Hillview’s discretion for Lots that have been paid for but remain uncollected.
9. Vendor Warranties 9.1 The Vendor represents and warrants to you and Hillview that: i. it has good title to the Lot; and ii. it has proper authority to sell the Lot. 9.2 You acknowledge that Hillview relies on this representation and warranty in auctioning the Lot on behalf of the Vendor. 9.3 Hillview will cooperate with the Purchaser to provide the known details of the Vendor so that the Purchaser may pursue the Vendor for any alleged loss or damage to the extent allowed by law, or directed by a court or tribunal. 10. Warranties and Disputes 10.1 Hillview hereby disclaims all express or implied representations, warranties, guarantees, and conditions, including but not limited to any implied warranties or conditions of merchantability, quality, accuracy, completeness, and fitness for a particular purpose, except to the extent that such disclaimers are held to be legally invalid in Australia. 10.2 Any statement as to the quantity of goods is approximate only. Hillview gives no warranty that quantities as stated are correct. 10.3 Lots are generally open for inspection prior to the commencement of the auction. It is assumed that the Lots that have been made available for personal inspection have in fact been inspected and are sold with all faults, if any. You assume the sole responsibility for determining whether the products/services are sufficient for your purposes regardless of whether or not a personal inspection is available. The Lots are sold on an “as-is, where-is” basis. 10.4 Except as otherwise provided by State or Federal law, no compensation, refund or discount shall be made in respect of any fault or error in the description of any Lots sold. No Lot shall be sold or deemed to be sold by description or photos on the website. 10.5 You acknowledge 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, Hillview and the Vendor 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. 10.6 You acknowledge that it is your responsibility to conduct a search of the Personal Property Securities Register (as applicable) and that search must be undertaken no earlier than the day prior to the day you bid for the Lot to ensure that there is no undisclosed encumbrance over the Lot. 10.7 Unless expressly stated in any online or physical auction catalogue, listing, database, lot listing, or register, Hillview makes no assurances, warranties or guarantees that any Lot complies with the provisions of any applicable State, Territory or Commonwealth laws. The Purchaser of a Lot who intends to use it on a public road shall be responsible for ensuring that it complies with the provisions of any road traffic Acts and Regulations. 11. Default 11.1 The Bidder must pay the final bid price plus the fees and charges associated with that purchase in the time limit specified for each auction and Lot. At Hillview’ discretion, the Bidder may be required to pay a deposit upon the fall of the hammer or upon successful negotiation equal to the amount of the Buyer’s Premium payable. 11.2 In circumstances where Hillview requires the Bidder to pay a deposit, the Bidder will be required to provide their credit card or debit card details to take the deposit on the Lot as and where required by Hillview within 24 hours of the hammer falling. Hillview is entitled to regard the failure to do so as a breach of these Terms and Conditions by the Bidder. 11.3 If any Bidder shall fail to comply with any of these Terms & Conditions or if any payment is dishonoured, any monies which such Bidder shall have paid to Hillview on account of the purchase or purchases shall be absolutely forfeited to the Vendor and the Vendor and Hillview shall be at liberty to sue such Bidder for damages, or at their option to resell the Lot in any manner and upon such terms and conditions as they think proper. 11.4 If the Bidder is in default of any of its obligations under these Terms & Conditions or any interdependent or separate agreement with Hillview or the Vendor, Hillview and the Vendor may: i. commence proceedings against the Bidder (without notice) for monies owing and/or to recover damages from the Bidder, including legal fees, debt collection costs and associated disbursements incurred by Hillview, on an indemnity basis; ii. without notice to the Bidder, 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 you by way of damages (including administration costs, marketing costs and other costs associated with relisting and negotiating with potential purchasers of a Lot), whether or not that amount exceeds the Purchase Price that was to be paid by you for the Lot or Lots and the amount of any commission lost on the original sale as the result of your default, and the cost of advertising in respect of any such resale; iii. forfeit any monies paid by you in consideration for a Lot and/or Lots; and iv. pursue the Bidder for the difference between the default bidding price and the subsequent sale price (if there is a loss to Hillview), including the difference in the Buyer’s Premium. 11.5 Hillview will be entitled to recover interest on any amounts owed to Hillview by the Bidder under these Terms and Conditions. Interest will accrue at the rate of 2% per annum plus the rate for the time being fixed by section 2 of the Penalty Interest Rates Act 1983. 12. Returns 12.1 Lots purchased at auction may not be returned. No allowances, refunds or warranties are offered with any lot whatsoever whether express or implied. 12.2 A refund on an item may be approved if it has been significantly misrepresented and an inspection was not available. Minor differences, damage (including scratches, dents or impairments), and/or aftermarket parts that cannot be easily verified does not qualify as misrepresentation. Change of mind does not constitute grounds for a refund. 12.3 If a Bidder is entitled to a refund under these Terms and Conditions, Hillview will not be responsible for the transport of the Lot back to Hillview’ premises.
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