PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, AS THEY FORM A LEGALLY BINDING AGREEMENT SHOULD YOU SIGNUP AS A MEMBER AND BID ON ITEMS OFFERED FOR SALE.
You should also access and read the information contained in the other pages and websites referred to in this document, as they contain further terms and conditions that apply to you as a Member.
We may amend this Agreement at any time in our discretion by posting the amended terms on its Website. If we amend the User Agreement, you will be informed by electronic communication. All amended terms shall apply 14 days after they are initially posted on our Website. You should terminate your membership if you do not accept the altered terms and conditions. You are not able to alter these terms and conditions unless we agree to do so in writing.
“Bid” Includes a Bid placed during an Auction or intent to purchase for a Retail item and any other offer to purchase placed on the Website.
“Buyer” A Member who has registered to purchase or place bids for items on the Website and has the ability to purchase an item.
“G.S.T.” means the Goods and Services tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Com) (as amended).
“Member” Anyone who registers on the Website as a Buyer or a Seller.
“Personal Information" is defined as any information you provide to us or other users in the registration, bid or listing process, in any public message area including the Bulletin Board) or through any email feature. Your Personal Information includes the descriptions and images of items you list for sale or display on our Website as well as any content you post on other web pages held within the Website. You are solely responsible for your Personal Information.
“Seller” A Member who has listed items for sale on the Website.
“Service Provider” We use third parties to provide services associated with the maintenance and operation of its Website and the payment systems available to Buyers. Each of them is a Service Provider.
“User” Anyone who accesses the Website.
1. Buyer Registration
1.1 To register, you must first complete the online registration form and complete all fields in the form accurately and honestly.
1.2 By completing the Buyer Registration process and indicating in the relevant declaration that “I hereby declare that” you are confirming your acceptance of same.
1.3 Non compliance with these Terms and Conditions will result in your temporary or permanent suspension as a Member.
1.4 Our services may only be used by individuals who can form legally binding contracts by law. For instance, our services are not available to persons under 18 years of age or to temporarily or indefinitely suspend Members. If you do not qualify, please do not use our services. Your account may not be transferred or sold to another party.
1.5 Your credit card details are only used upon successfully winning an item offered at auction through the Empire Auctions Website. Payment for won items is processed through Paypal. Empire Auctions Pty Ltd and their staff do not have access to your credit card details and do not hold details on file.
1.6 In the event that you wish to close your account please email your request using the Contact Us page. Naturally you will be liable for bids or transactions that are still pending at the time of closure.
2. Personal information
Your Personal Information (including but not limited to any items listed) must not:
(i) be false, inaccurate or misleading, fraudulent, or involve the sale of counterfeit or stolen items;
(iii) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights of publicity or privacy.
(iv) violate any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, criminal law, anti discrimination or trade practices/fair trading laws);
(v) be offensive, obscene, pornographic, vulgar, derogatory, libelous, unlawfully threatening or unlawfully harassing.
(vi) contain any content that may be considered to be prohibited or potentially prohibited content for the purposes of the Broadcasting Services Act 1992 (Commonwealth).
(vii) contain any computer programming routines that may damage, modify, delete, detrimentally interfere with, unlawfully intercept, access without authority or copy any system, data or personal information.
(viii) expose us to liability to others or cause us to lose (in whole or in part) the services of our suppliers; and
(ix) offer for sale, goods or services that are prohibited under this Agreement;
Any Seller who wishes to sell liquor via our Website acknowledges that where required, they are licensed to sell such products and that under your local Liquor Control law it is an offence: -
to supply alcohol to a person under the age of 18 years; and for a person under the age of 18 years to purchase or receive liquor.
2.2 Your email and contact details must be kept up to date and all changes reported within 5 working days of change.
2.3 You are solely responsible for the security of your user name and password. We are entitled to assume that anyone using your user name and password is you or someone authorised by you to do so. You must notify us as soon as possible if you have lost or suspect that your username and/or password details may have been compromised. We will not be held responsible for any unauthorised use.
3. Fees and Services.
3.1 For Sellers, there may be a charge for listing items for sale through us. Before you list an item with us, you should ensure that you have received written confirmation of the fees applicable for each of our services
3.2 Before you list an item with us you should review these fees. By using our service, you acknowledge acceptance of these fees that you will be charged for the use of our services (such as ‘Sellers Commission’ and ‘Listing Fee’).
3.3 Details of general charges are available from the Help Guide, accessible from the Home Page.
3.4 We may change our Fees from time to time. Our changes to fees are effective after we provide you with at least fourteen (14) days' notice on our Bulletin Board or via direct correspondence.
3.5 Unless otherwise stated, all fees are quoted in Australian Dollars.
3.6 You are responsible for paying all fees associated with using our service and our Website and all applicable taxes (including any goods and services tax, which will be added to amounts billed to you).
4.1 Due to the nature of dealing over the internet, we have limited control over the quality, safety or legality of the items or content placed on the Website by our Members. Information may be untruthful or inaccurate. Sellers may not have a right to sell items. Buyers may not be able to pay for items and you may not be able to enforce them to do so.
4.2 Buyers have no guaranteed right to download images found on the Website free of copyright. Copyright may exist in the images in favour of third parties. Sellers are prohibited from uploading images where an appropriate license to do so is not held by the Seller. We are unable to verify whether an appropriate license is held by the Seller and transferable to any person who downloads the image.
4.3 There are inherent risks involved when conducting business over the internet. We are unable to confirm the identity or location of every person using this site or whether such users are under 18 years of age or acting under false pretence. We will not tolerate fraudulent practice by people using our Website or abusing the system. However it cannot guarantee that such conduct will not happen.
4.4 We do not guarantee continuous, uninterrupted or secure access to its services. The Website may not be accessible for reasons beyond its control.
4.5 Where payment is made by credit or debit card, BPay or other similar online means, we cannot guarantee payment if fraud or misuse of the card, customer identity and passwords occurs and the Seller’s rights are restricted to those rights or protection offered by the Card Issuer or Payment Facility Provider (if any) only.
5. Sales Method
The Website allows members to offer, sell, and buy approved items using Auction and Retail means. Different rules and procedures apply in some cases to each of these three sales methods. For further information regarding rules and procedures, refer to the Help Guide accessible from the Home Page.
6. Bidding in an Online Auction
6.1 Once a Member has registered as a Buyer successfully they may commence bidding on items on the Website. From time to time some special, unique or restrictive terms and conditions may apply to particular items or sales. This will be noted on the listing of the item on the Item Page.
6.2 Bids must increase by the bid increments set out in the Help Guide.
6.3 As no bid can be withdrawn once placed, we recommend that Members consider each bid carefully prior to making a bid.
6.4 We reserve the right to cancel, close or extend any auction without notice. Auction closing times can be extended when further bids are made near the closing time.
6.5 The Seller determines the reserve price (if any) and no bid below the reserve price will be accepted.
6.6 The highest bidder at the conclusion of the auction (subject to any reserve price or special conditions) will be the Buyer.
6.7 All Bidders agree not to engage in any practice that may hinder free and open competition between bidders. This includes but is not limited to any conduct which unfairly induces other users to make bids or control the bid price, or the use of secondary registrations, associates or aliases to artificially raise the bidding of an item. Bidders are also prohibited from communicating with each other for the purpose of manipulating the final price of any item.
6.8 It is the Bidder’s responsibility to read the description, view any special terms and conditions that may apply to any item. All the information provided is intended to be used as a guide only. Should a Member require any clarification or confirmation about anything at all please contact us using the Contact Us page. By Bidding on an item a Member agrees to be bound by the conditions of sale included in the item's description so long as those conditions of sale are not in violation of this Agreement or otherwise unlawful.
7. What must a Buyer do if successful?
7.1 If a Member purchases an item, the Member is obligated to complete the transaction unless the transaction is prohibited by law or by this Agreement.
7.2 Upon the conclusion of an Auction or Retail item, Buyers (successful Bidders) will be notified via a “Confirmation of Purchase email”. This notification will include, item reference number, description of item/s, final bid price/s, Buyers Premium applicable, proposed means of delivery and handling fees (if applicable). If for reasons beyond the control of us you do not receive the Confirmation of Purchase email you are still responsible for the completion of the purchase.
7.3 A Buyer must pay the Final Bid price, Buyer’s Premium, any Delivery and applicable GST and handling fees.
7.4 Final payment for all items must be received within 48 hours from the completion of the sale. We accept the following methods of payment :-
(i) Authorised and valid credit card being Visa and MasterCard only.
(ii) Direct deposit to our nominated account of cleared funds. That is to say payment by Electronic Funds Transfer, credit card, BPay of cleared funds including cash deposit.
7.5 As a registered Buyer, a Member authorises us to deduct a sum (up to $3,000 on their nominated credit card) to satisfy the amount due with respect to each purchase transaction. For amounts unsettled, the Member must deposit the balance in cleared funds directly into the nominated bank account shown on the invoice within 48 hours from date and time of invoice.
7.6 The Buyer is responsible for ensuring that any tax or similar declarations are correct. The Buyer must carefully assess whether input tax or other credits for any G.S.T. component of the purchase price will be available. We recommend Buyers contact their accountant or lawyer should they require further advice.
7.7 Some of the Buyers Personal Information will be used to enable the Seller to complete obligations of delivery, invoicing etc and the Buyers consents to this disclosure. Refer to the Privacy Statement for further details.
8. Sellers Listing and Selling
8.1 Binding Bids.
If a Seller receives at least one bid at or above the stated minimum price (or in the case of reserve auctions, at or above the reserve price), the Seller is obligated to complete the transaction with the successful Buyer unless
(i). the Buyer fails to make payment in the correct manner; or
(ii). comply with other terms and conditions of the purchase.
(i) The purchase price to the Buyer is based on representations made by the Seller and Buyer. Both the Buyer and Seller undertake to provide their correct tax status during the registration phase.
(ii) We will invoice the Buyer for the winning price. Any fees such as Listing Fees, Buyer’s Premium payable by the Buyer or similar will be subject to GST and must be paid by the Buyer together with the prescribed fees (unless a rebate applies).
(iii) The Seller will be responsible to pay out of the sale price any G.S.T. on items sold to the Australian Tax Office.
(v) Any overseas Buyer eligible for exemption from G.S.T. may be required to produce satisfactory proof to the Seller that the property purchased has or will leave the country as an export within 60 days of its purchase. This must be clearly identified by the Buyer upon registration.
We may in addition to any other remedies available to it, in its sole discretion, suspend or terminate your account if it suspects that you have engaged in fraudulent activity in connection with its Website.
Sellers must not manipulate the price of any item, nor interfere with other users' items listed for sale.
9. Refund in case of Forgery
9.1 In the event of proven forgery, we will refund the Buyer the purchase price together with any fees paid. This refund will only occur provided the following conditions are met:
(i) The Buyer must produce evidence from two independent experts who both agree that the item is a forgery. We reserve the right to request further expert evidence if, in its sole discretion, it is not satisfied with the findings of either expert.
(ii) The Buyer must provide written notification to us within 2 years of the date of purchase of the forgery allegations.
(iii) The Buyer must return the allegedly unauthentic item within 14 days of notifying us of any lack of authenticity.
9.2 No refund will occur if there is any conflict of opinion among accepted experts in the field or if it can be demonstrated that the items sold is a forgery only by means of scientific process that could damage or otherwise jeopardise the condition of the items sold and which scientific techniques were not commonly employed until after the sale occurred.
9.3 This guarantee is for the benefit of the Buyer only and cannot be assigned. The Buyer therefore must have remained the owner of the property without disposing of any interest in it to any third party up until the time the alleged forgery was discovered.
10. Breach and Remedies
(ii) We are unable to verify or authenticate any information a User provides to it; or
(iii) We believe that a User’s action may cause legal liability for another Member, our Service Providers or similar; then
We may in our sole discretion either:-
10.2 If the Buyer is in breach of any of the conditions of sale including a failure to pay the final invoice amount in full within 48 hours from the date and time of invoice, then we with the consent of the Seller may in addition to any other remedies available at law, in its absolute discretion and without prejudice to any other rights or remedies available, be entitled to enforce one or more of the following:-
(i) Cancel the sale, retaining as liquidated damages an amount not exceeding 20 percent of the value of the final invoice amount from any payment made by the Buyer.
(ii) Commence proceedings against the Buyer for breach of contract.
(iii) Resell the item(s) in any manner and upon such terms and conditions as we consider is appropriate.
(iv) Rescind the sale of that or any other item(s) sold to the Buyer that have not been completed.
(v) Sue the Buyer for damages.
(vi) Deduct or charge to the Buyer all costs incurred in the event of non completion including but not limited to storage, advertising, cartage, relocation costs, dishonor fees, management fees, legal fees, unspecified costs, etc.
(vii) Apply any proceeds due to the Buyer from other sales to the outstanding amount.
(viii) Exercise a lien on any property of the Buyer that is or comes into our or the Seller’s possession. Any deficiency that may exist between the purchase price and the price paid upon re-sale shall be to the account of the defaulting Buyer including all costs and expenses, warehousing and expenses of both sales and solicitors costs on a solicitor/client basis.
(iii) Take any other action we may deem necessary.
10.3 Where a defaulting Buyer has made a part payment against more than one item, we reserve the right to apply such payment to any one or more of the items purchased at its sole discretion. Any defaulting Buyer will also be deemed to have granted the Seller and us a security interest in the nature of a charge or lien in any property subject to the agreement to purchase.
10.4 We are entitled to charge a fee to the defaulting Buyer for a cancelled sale of 20% of the value of the final invoice amount and deduct or otherwise recover this sum from the defaulting Buyer.
10.5 If the Buyer fails to pay for the property within 7 days, or if extended payment terms have not been granted, penalty interest at the rate of 18% per annum may be charged on a daily basis on the unpaid balance until paid.
11. Member’s Remedies
We shall not be responsible for any indirect or consequential loss or damage including loss of profits for any acts or omissions that have occurred before during or after the course of the selling process. The Buyer in particular acknowledges that a Buyer’s damages shall be limited to the original purchase price paid for the items.
12. Internet Down Time
12.1 What do we consider to be a Down Time?
A Down Time occurs when items are not accessible or no one can purchase items as a result of unscheduled system Down Time. This may occur through technology fault, delays or circumstances outside the control of us.
12.2 During a Down Time
Updates will be posted on the Bulleting Board during a Down Time where possible. Please check there for details about the Down Time.
12.3 If a Down Time occurs, we reserve the right to withdraw items from sale and re offer the item or not do so at its sole discretion.
12.4 We will not be responsible for any loss or damage sustained as a consequence of a Down Time.
We periodically schedule system Down Times for maintenance and other purposes. Notice of these scheduled system Down Times will be placed on the Bulletin Board.
13. Choice of Law
New South Wales law shall in disputes between Empire Auctions Pty Ltd and Members apply to this User Agreement and all other terms and conditions incorporated by reference into the relationship of Members. Members are deemed to have consented to the exclusive jurisdiction of the Courts of New South Wlaes in such matters.
15. No Warranty
We provide our Website and services without warranty or condition, express, implied or statutory, to the extent permitted by law.
16. Limit Liability
16.1 We shall not be liable for lost profits or any special incidental or consequential damages arising out of or in connection with its Website, its services or this User Agreement and its incorporated terms and conditions (however arising, including negligence).
16.2 Members agree that wehave no responsibility for the legality of Member’s conduct.
16.3 Subject to Clause 11 of this User Agreement, we expressly limit our liability for breach of a non-excludable condition or warranty implied by virtue of any legislation to the following remedies).
(A) In the case of goods, any one or more of the following:
i. replacement of the goods or the supply of equivalent goods;
ii. repair of goods;
iii. payment of the cost of replacing the goods or of acquiring equivalent goods; or
iv. payment of the cost of having the goods repaired; and
(B) in the case of services:
i. supply of the services again; or
ii. payment of the cost of having the services supplied again.
Notwithstanding the above provisions, nothing in this User Agreement is intended to limit or exclude any liability on the part of Empire Auctions Pty Ltd to the extent that applicable law prohibits such exclusion or limitation.
(i) A purchased item shall be at the Buyer’s Risk in all respects from date payment is due to Seller whether or not payment has been made.
(ii) We advise all Buyers to arrange for their own ‘all risks’ insurance to cover their purchased items effective from date payment is due to protect their interests as we cannot warrant that the Seller has insured its interests in the item sold.
(iii) To avoid any doubt, no insurance cover is offered by us or its agents whilst items are in transit to a Buyer.
(iv) We recommend that Seller’s insurance cover should be maintained until payment in full is received.
18. Survival of Provisions
Sections 2.4 (License), 3 (Fees and Services) with respect to fees owed for services provided, 4 (Limitations), 9 (Refunds in Case of Forgery), 11 (Buyers’ Remedies), 16 (Limit Liability), 21 (Indemnity) and 25 (Mediation) shall in particular survive any termination or expiration of this User Agreement.
19. Handling and Packing.
If the Buyer is offered a pickup option, a Seller is notified of the Buyers details automatically via email. An Acceptance of Delivery document must be signed by the Buyer on delivery of item(s) to the Buyer.
20. Export Licensing Regulations
The export of any item sold from Australia or its import into another country may require both export or import licenses. It is the Buyer’s responsibility to inform themselves with respect to those licenses and where necessary, to obtain the appropriate licenses.
21.1 Members agree to indemnify and hold us and (as applicable) its Service Providers, officers, directors, agents, and employees, harmless from and against any claims, demands, proceedings, losses and damages (actual, special and consequential) of every kind and nature, known and unknown, including reasonable solicitors’ fees, made by any third party due to or arising out of a Member’s breach of this User Agreement and other the terms and conditions that are incorporated into this User Agreement by reference, or your violation of any law or the rights of a third party.
21.2 We will not accept responsibility for loss sustained by Sellers or Buyers who breach copyright and are held to account for doing so. Buyers and Sellers expressly agree to indemnify and hold indemnified us with respect to any loss or damage it sustains as a consequence of the conduct of Sellers and Buyers that breaches copyright.
22. Legal Compliance
Members shall comply with all applicable domestic (including common law) and international laws, statutes, ordinances and regulations regarding your use of our service and your bidding on, listing, purchase, solicitation of offers to purchase, and sale of items
23. No Agency
No agency, partnership, joint venture relationship is intended or created by this User Agreement.
All Notices must be in writing; addressed to the recipient at the address or facsimile number or to such other address or facsimile number as a Party may from time to time notify to the other; or sent to the recipient by hand, prepaid post (airmail if outside Australia) or facsimile; and signed by a person duly authorised by the sender.
25.1 If Dispute occurs, the parties will arrange for their respective nominees to meet within seven (7) days from the date on which the dispute occurred to resolve the Dispute.
25.2 If the Dispute is not resolved by the respective nominees of the parties to the Dispute at the meeting held, the matter shall be referred as soon as possible and in any event within seven (7) days to a single Mediator to be agreed upon between the parties to the Dispute and failing such agreement within that seven (7) day period to be nominated by the President for the time being of the Law Institute of New South Wales or by any person nominated by him as his lawful deputy. The Mediator so appointed shall be requested to recommend a means by which the Dispute is to be resolved and to serve notice of his recommendation upon the Parties.
25.3 Within seven (7) days of being served with the Mediator’s recommendation, the parties may either accept the Mediators recommendation or if they fail to do so within that time any party may pursue remedies available at law including commencing proceedings in a Court or Tribunal with jurisdiction to deal with the claims made by that party.
If any provision of this User Agreement and the terms and conditions included by reference is held to be unlawful, void or unenforceable, it shall be deemed to be deleted from this agreement and shall be of no force and effect and this User Agreement shall remain in full force and effect as if such provision had not originally been contained in this User Agreement. In the event of any such deletion the parties shall negotiate in good faith in order to agree to the terms of a mutually acceptable and satisfactory alternative provision.
Members agree that this User Agreement and all terms and conditions included by reference therein may be automatically assigned by us, in our sole discretion, to a third party in the event of a merger or acquisition.
Any failure by us to act with respect to a breach by a Member or others does not waive its right to act with respect to subsequent or similar breaches.
Liquor Act 2007: IT IS AGAINST THE LAW TO SELL OR SUPPLY ALCOHOL TO, OR TO OBTAIN ALCOHOL ON BEHALF OF, A PERSON UNDER THE AGE OF 18 YEARS. Licence Number: LIQXN920010375. E & OE.