This is version 4 of our User Agreement, which took effect at 11:30am UTC on 30 July 2020.
Welcome to AirAuctioneer!
If you do not understand any of the terms of the User Agreement, please contact us before using the Services.
Who we areAirAuctioneer is the trading name of AirAuctioneer Pty Ltd (ABN: 13 630 621 215) of 6/1 Chifley Square, Sydney NSW 2000, Australia, an Australian proprietary company that operates the website airauctioneer.com (the “Site”).
- The terms “AirAuctioneer”, “we”, “us” and “our” refer to AirAuctioneer Pty Ltd.
- “Bidder” refers to a Person who has Registered an account with AirAuctioneer, regardless of their activity or inactivity on the Site. A User does not need to have made a bid on the Site in order to be classed as a Bidder.
- “Buyer” refers to a User who has made the highest bid at the end of an auction or a User who exercises the Buy Now Option.
- The “Buy Now Option” allows a Buyer to purchase an Item immediately at a fixed price set by the Seller.
- “Intellectual Property” means any intellectual or industrial property including:
- all copyright and rights in the nature of copyright, design rights, patents, trademarks, data base rights, applications for any of the foregoing, rights in trade names, business names, brand names, get-up, logo, Moral Rights, rights in know-how, domain names and URLs, database rights, publication rights, confidential information, trade secrets or any other intellectual or industrial property rights (and any licences in connection with any of the same) whether or not registered or capable of registration and whether subsisting in Australia or any other part of the world having equivalent or similar effect to any of the foregoing;
- any licence or other right to use or to grant the use of or to be the registered owner or user of any of them.
- “Intellectual Property Rights” means all present and future intellectual and industrial
property rights conferred by statute, at common law or in equity and wherever existing, including:
- patents, designs, copyright, rights in circuit layouts, plant breeder's rights, trade marks, know how, brand names, domain names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
- any application or right to apply for registration of any of these rights;
- any registration of any of those rights or any registration of any application referred to in paragraph (ii); and
- all renewals and extensions of these rights.
- “Item” means a good or service offered by the Seller pursuant to this User Agreement.
- “Moral Rights” means rights of integrity, rights of attribution and other rights of an analogous nature which may now exist, or which may exist in the future, in respect of the Works under the Copyright Act 1968 (Cth) or under the law of a country other than Australia.
- “Person/s” means a person or a legal entity.
- To “Register” or be “Registered” means creating or having a username and password for an account for use on the Site, such account being created either manually through entering details into a registration form on the Site, or automatically by connecting via a Third Party Service, and “Registration” or “Registering” means the process of doing so.
- A “Seller” is a User who is Registered and posts an Item on the Site.
- “Simple Auction” means an auction carried out online through the Site for a specified period of time as set by the Seller. At the conclusion of the auction, the highest bid immediately becomes the Buyer.
- “Two-Phase Auction” means an auction split into two phases:
- “Phase One” of the auction is carried out online through the Site for a specified period of time as set by the Seller. At the conclusion of Phase One, the highest bid immediately becomes the opening bid of Phase Two.
- “Phase Two” of the auction is carried out offline in accordance with clause 12(b), with bids being recorded manually without using the Site. At the conclusion of Phase Two, the highest bid overall is determined and a contract between Buyer and Seller is formed. Typically, Phase Two will occur shortly after the conclusion of Phase One, and will take place in a single location with bidders being physically present, although none of these are conditions for an auction to be considered a Two-Phase Auction.
- “User” refers to a Person accessing this Site for any reason, including those who have not Registered and, for the purposes of this User Agreement, will include a reference to “you”.
- AirAuctioneer is a platform through which Buyers and Sellers connect for the purpose of browsing, bidding on, buying and selling Items in an online auction format, and for making and collecting online donations. We do not act as a traditional auctioneer, but simply provide the technological infrastructure through which Bidders and Sellers can connect and transact with each other.
- Any person wishing to use our Services for the purposes of selling, bidding or buying, must first Register. Our Services are available only to persons over 18 years of age. By Registering, Users confirm that they are over 18 years of age.
- AirAuctioneer is not involved in transactions among Users. In particular, the contract for sale of an Item is directly between the Buyer and Seller.
- AirAuctioneer makes no representation, does not warrant, and has no control whatsoever over:
- the quality, safety, fitness for purpose or legality of the Items or content posted by Users;
- the truth or accuracy of Item listings;
- the ability of Sellers to sell Items or the ability of Buyers to buy Items;
- the ability of a Bidder, Buyer or Seller to actually complete a transaction or act lawfully when using our Site.
- AirAuctioneer does not take ownership of or title in Items at any time, and does not transfer in part or whole any legal ownership of Items from Seller to Buyer. Subject to clause 24(f), AirAuctioneer does not have any control whatsoever over when title and risk in an Item will pass from the Seller to the Buyer.
- AirAuctioneer does not act as the agent or representative of a User for any purpose in relation to this User Agreement.
- Users acknowledge that AirAuctioneer collects only limited information about Buyers and Sellers, which may be only an email address. Therefore, we recommend Bidders, Buyers and Sellers undertake their own enquiries and ensure they collect sufficient details regarding of the Person(s) with whom they are transacting on this Site to ensure they are satisfied that the Person(s) is properly identified to your satisfaction. Buyers can initiate contact with Sellers by using the contact form provided on the auction page, and Sellers can communicate with Buyers using the Buyer’s email address provided on the Site.
- AirAuctioneer is neither involved in nor responsible for the delivery of an Item. The method of, and any charges for, delivery of an Item is determined by the Seller. The Seller may post instructions on the Site regarding delivery or collection of an Item, and such instructions may be contained within automated emails sent by the Site on behalf of the Seller. However, AirAuctioneer is not responsible for the content of these instructions and in the event of any difficulty in receiving an Item, the Buyer’s sole recourse is to seek redress from the Seller.
- AirAuctioneer reserves the right to withdraw any Item from the Site at any time without notice and in our sole discretion (which shall be exercised reasonably, having regard to the circumstances). Circumstances which may lead to us exercising our right under this clause include, but are not limited to, if a Seller has breached the User Agreement, we are unable to verify or authenticate any information provided to us by the Seller, we believe that the Seller’s actions may cause loss or damage to or otherwise unlawfully harm or otherwise harm the reputation of the Seller, our Users, third parties or us, our related bodies corporate or affiliates, our directors, employees or agents, or if we reasonably believe that any of the Seller’s information (which includes an Item listed on the Site) is inappropriate or of an offensive nature.
Third Party Services
- Certain aspects of our Services are provided through integration with services provided by parties other than AirAuctioneer (the “Third Party Service” or “Third Party Services”).
- For Registration and authentication we provide access to the Google+ API provided by Google, Inc. of the United States, and the Facebook Login application provided by Facebook, Inc. of the United States.
- For accepting card payments we provide access to Stripe Connect, operated by Stripe, Inc. of the United States (“Stripe”).
- We provide access to Third Party Services for the convenience of our Users, and the integration or inclusion of such services does not imply an endorsement or recommendation by us.
Fees and refund policy
- All prices on the Site are cited in US Dollars (US$) unless otherwise stated.
- A User may set up a single free trial auction (the “Trial Auction”) in order to evaluate the Site for a limited period. Trial Auctions have certain restrictions, which are set out on the Features and Pricing page, linked to here and incorporated into this User Agreement (the “Pricing and Features Page”).
- On expiration of a Trial Auction, a User wishing to continue to use the Site as a Seller must pay a fee, so that their account becomes a “Paid Account”. The price (the “Account Fee”), validity period (the “Account Period”) and other features (together, the “Account Features”) of a Paid Account are set out on the Pricing and Features page. We reserve the right to vary the Account Features from time to time and from User to User. The Account Features applicable to your Paid Account are those that are displayed on the Features and Pricing page at the time that you pay the Account Fee.
- We reserve the right to cancel a User’s account for breach of this User Agreement, in which case a Seller will not be entitled to a refund of the Account Fee.
- Sellers agree that no refund by AirAuctioneer of the Account Fee will be given to a Seller with a Paid Account for change of mind.
- Sellers accept the responsibility to provide an exchange or refund to Buyers at their own discretion and in accordance with applicable laws. Buyers acknowledge and agree to submit all requests for return or exchange of an Item directly to the Seller concerned. AirAuctioneer is not responsible for, nor involved in processing, such requests.
- Bidders and Buyers acknowledge and agree that donations made to a Seller are non-refundable.
- Payments processed using Stripe will be subject to the following fees (together, the “Card Processing Fees”):
- Sellers opting to use Stripe to collect payments agree to pay the Card Processing Fees, and agree that such fees will be deducted from Buyer’s payments before being credited to their Stripe account.
- Users are solely responsible for collecting and remitting any applicable taxes, fees or charges resulting from
the sale or purchase of an Item or the use of our Services or this Site. However, Users acknowledge and agree
that if an applicable tax, fee or charge is payable in respect of a particular sale or purchase of an Item, and
if AirAuctioneer is required to collect such tax, fee or charge and pay it to the relevant governmental agency:
- the sale or purchase price for the Item may appear higher;
- AirAuctioneer will add the amount of such tax, fee or charge at checkout and remit that amount to the governmental agency; and
- AirAuctioneer will not report to a User the amount of such tax, fee or charge collected, although we will indicate at checkout if such tax, fee or charge was collected by us. The Users jointly and severally agree to indemnify AirAuctioneer for any loss or expense incurred by AirAuctioneer or a related body of AirAuctioneer, in relation to any tax, fee or charge payable in respect of a particular sale or purchase of an Item, if AirAuctioneer is required to collect such tax, fee or charge and, for any reason whatsoever, AirAuctioneer is unable to or does not take steps to complete the items set out in items (i), (ii) and (iii) above.
Intellectual property rights
- For all content that is listed on the Site, Users hereby grant us a non-exclusive, worldwide, royalty-free, transferrable, perpetual, sub-licensable and irrevocable right to exercise the Intellectual Property Rights that the User holds in the Intellectual Property, in any media known now or in the future.
- The copyright to all content on the Site, including the underlying software of the Site, graphics, images, layouts and text, belongs to us, or we have a licence to use those materials. No unauthorised use of any such copyright materials is permitted.
- Each User consents in favour of AirAuctioneer, its assignees, sub-licensees, successors in title and any person authorised by AirAuctioneer that they may carry out any activity, including any acts or omissions to act, in respect of any content that is listed on the Site, the performance or non-performance of which would otherwise infringe the Moral Rights of that User.
- Any comment, feedback, idea or suggestion (collectively referred to as “Comments”) which Users provide to us through the Site or email to us becomes our Intellectual Property. Users agree that we are entitled to use such Comments for the purposes of promoting our Site or AirAuctioneer’s services without compensation to Users or to any other person who has transmitted such Comments. If Users provide us with Comments, Users hereby acknowledge to be responsible for the content of such material including its legality, it not being defamatory or vilification, originality and copyright.
- Sellers authorise us to use any auction created by the Seller as a sample on any of our promotional material relating to the Site or the services of AirAuctioneer.
- By using the Site, Users acknowledge and agree that Internet transmissions are never completely private or secure. Users understand that any message or information Users send to the Site may be read or intercepted by others.
- We will use reasonable efforts to take all due care with any information which Users may provide to us when accessing our Site, however we do not warrant and cannot ensure the security of any information which Users may provide to us. Information Users transmit to us is entirely at the Users’ own risk, although we undertake to take reasonable steps to preserve such information in a secure manner.
- Sellers must be aware of, and comply with, any privacy laws which apply to their activity on the Site.
Rules of use
Users agree to the following:
- Users agree that the intention of the bidding process is to create a binding agreement between the Buyer and Seller, and is not an invitation to treat.
- Users will not reprint, republish or distribute, in any way, any information or materials found on our Site.
- Users will not provide to us or post on our Site any information that is not correct, such as an incorrect name, address, email address, auction price listing or any other incorrect information.
- Users will not publish any content that contains sexually related text, photographs or other content, or content that is defamatory, obscene, indecent, threatening, abusive or hateful.
- Users will not post any materials on our Site or include any materials in any presentation in violation of any other party’s rights, including, but not limited to, intellectual property or privacy rights.
- Users will not attempt to reverse engineer, decompile or derive the source code of any of the software comprising or in any way used on our Site.
- Users agree not to use any device, software or routine to interfere or attempt to interfere with the proper functioning of our Services including any transaction being conducted on the Site, or with any other person’s use of our Services.
Your obligations as a Bidder or Buyer
- Buyers are obligated to complete the transaction with the Seller if the Buyer is the highest bidder at the end of an auction unless the transaction is prohibited by law or by this User Agreement.
- By bidding on an Item, a Buyer agrees to be bound by any additional terms and conditions posted by the Seller on the respective auction page (accessible by clicking the “All items“ link when viewing an individual Item), and any other conditions of sale included in the Item’s description, as determined by the Seller.
- Bids are not retractable, except in the circumstances described in clause 10(d) of this User Agreement.
- In accordance with clause 11(k) of this User Agreement, Sellers may upload additional images for an Item and provide updates to the description of an Item after the first bid has been made on that Item by a Bidder. In such circumstances, Bidders have the right to retract any or all of their bids on that Item that were made prior to such a modification.
Your obligations as a Seller
- Sellers agree to describe all Items and terms of sale on the listing page of their auction accurately and truthfully.
- Sellers agree that listings may only include text descriptions, graphics, pictures, and any other content relevant to the sale of that Item only.
- Subject to clauses 11(e) – (g), should the Site register one or more bids on an Item, the Seller is obligated to complete the transaction with the highest bidder on the auction’s completion.
- Should the Seller make available a Buy Now Option on an Item, the Seller is obligated to complete the transaction when a Buyer exercises the Buy Now Option.
- Where the Seller runs a Simple Auction, the Seller is obligated to compete the transaction with the Buyer on the auction’s completion.
- Where the Seller runs a Two-Phase Auction, and where the highest bid was made during Phase One, then the Seller is obligated to complete the transaction with the Buyer on the auction’s completion, being the end of Phase Two.
- Should the Seller conduct a Two-Phase Auction, using the Site’s services to conduct Phase One, the Seller
undertakes to inform all Users of this fact by stating in the auction description of the following information:
- that the Seller intends to conduct a Two-Phase Auction;
- the date, time and location of Phase Two;
- that the conclusion of Phase One is not the end of the auction, but rather the highest bidder at the conclusion of Phase One automatically becomes the starting bid of Phase Two; and
- that the highest bid will be determined at the end of Phase Two.
- Sellers warrant, covenant and agree that they shall not manipulate the price of an Item operated by the Seller including by way of using a secondary account, an alias or third party to bid for the Item.
- Sellers warrant, covenant and agree not to engage in bid siphoning by way of email or contact by any other means with a Bidder in an auction being run by a different Seller on the Site offering the same or similar Items at any price level.
- Subject to clause 11(k), Sellers agree and undertake not to make any material modifications or changes to any Item that has been listed once the first bid has been made on that Item by a Bidder.
- Sellers may upload additional images for an Item and provide updates to the description of an Item after the first bid has been made on that Item by a Bidder. In accordance with clause 10(d) of this User Agreement, Bidders have the right to retract any or all of their bids on that Item that were made prior to the time of such a modification. Sellers agree to delete any bids so retracted from the Item.
- Sellers using Stripe for payment processing agree at all times to comply with the terms and conditions of their Stripe account, including the Stripe Services Agreement and the Stripe Connected Account Agreement. For the purposes of those agreements, AirAuctioneer acts as the “Connect Platform” and the services described in clause 5 of this User Agreement are the “Platform Services”.
- Simple Auctions
- Bidders, Buyers and Sellers acknowledge and agree that the highest bid is determined at the conclusion of the Simple Auction. No contract of sale is formed between the Buyer and the Seller until the conclusion of the Simple Auction.
- Two-Phase Auctions
- Bidders, Buyers and Sellers acknowledge and agree that in a Two-Phase Auction:
- No contract of sale is formed between the Buyer and the Seller until the conclusion of Phase Two.
- AirAuctioneer is in no way involved in Phase Two, and has no control over where or how Phase Two is conducted by the Seller. Phase 2 is not conducted on the Site.
- The conduct of Phase Two (including the location of the live event during Phase Two, if applicable) is determined at the sole discretion, and is the sole responsibility, of the Seller.
- Bidders, Buyers and Sellers acknowledge and agree that in a Two-Phase Auction:
- Simple Auctions
Disclaimer of warrantiesExcept as expressly set forth herein, and to the full extent permitted by law, the material on this Site (including all content, software, functions, services, materials and information made available herein or accessed by means thereof) and the Services are provided as is, without warranties of any kind, either express or implied, including but not limited to, warranties of merchantability and fitness for a particular purpose, identity of Users or completion of the sale of an Item.
Limitation of liability
- To the full extent permitted by law
- AirAuctioneer (and our affiliates and related bodies corporate, and our and their respective officers, directors, employees and agents) is not liable whatsoever for any loss or damage however caused which a User may directly or indirectly suffer in connection with their use of the Site. Users assume full responsibility and risk of loss resulting from use of the Site and the Services.
- Each User hereby releases AirAuctioneer (and our affiliates and related bodies corporate, and our and their respective officers, directors, employees and agents) from all liabilities, claims, demands and damages (actual and consequential) of every kind and nature, arising out of or in any way connected with any dispute between Users.
- While AirAuctioneer strives to maintain a safe trading environment, you accept that there are risks when trading online and using our Site and our Services, including dealing with underage or fraudulent Persons. Users acknowledge that the Site is an online platform which allows anyone to offer, sell, buy any Items at any time and from any territory (whether in Australia or elsewhere). Users acknowledge that we are not directly involved in the actual transaction between Buyer and Seller. AirAuctioneer has no control over and does not guarantee the quality, safety or legality of Items advertised, the truth or accuracy of Users' content or listings, the ability of Sellers to sell Items, the ability of Buyers to pay for Items or that a Buyer or Seller will actually complete a transaction or return an Item.
- AirAuctioneer bears no responsibility for any loss or damage caused directly or indirectly by inaccurate or misleading information published on the Site.
- Under no circumstances shall we or any of our related bodies corporate or our or their directors, officers, employees or representatives be liable for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits.
- This User Agreement is to be read subject to any legislation which prohibits or restricts the exclusion,
restriction or modification of any implied warranties, conditions, guarantees or obligations. If such
legislation applies, to the extent possible, we limit our liability in respect of any claim to, at our option,
- the supply of the Services again; or
- the payment of the cost of having the Services supplied again.
- The terms and conditions of Third Party Services may include giving consent for the provider to collect, use, store and disclose information in relation to the User’s activity on the Site. The manner in which the Third Party Service collects, uses, stores and discloses such information is governed solely by the policies of the third parties operating the Third Party Services, and AirAuctioneer shall have no liability or responsibility for the privacy practices or other actions of any Third Party Service that the User accesses.
- AirAuctioneer is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Third Party Services. As such, AirAuctioneer shall not be liable for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Third Party Service.
- To the full extent permitted by law
- Each User hereby indemnifies and agrees to hold each of the Indemnified Parties harmless from any and all claims, expenses, costs, liabilities and losses (including, but not limited to, legal fees) incurred by an Indemnified Party, resulting from any claims that are asserted, or may be asserted, based on or relating to the User’s use, or the use by any individual using the User’s password, of our Services.
- Each User hereby indemnifies and agrees to hold each of the Indemnified Parties harmless from any and all
claims, expenses, costs, liabilities and losses (including, but not limited to, legal fees) incurred by an
Indemnified Party, arising out of:
- a breach of this User Agreement by the User;
- a warranty and/or representation provided by the User (or another person on behalf of the User) under this Agreement being untrue or misleading;
- a breach of an undertaking given by the User under this User Agreement;
- any arrangement between the User and another User;
- any claim from a third party arising from the User’s conduct;
- the User’s improper use of our Services;
- the User’s breach of any law;
- the User’s breach of any rights of a third party.
- Each indemnity contained in this User Agreement will survive the termination of a User’s account and/or the expiry or termination of this User Agreement. An Indemnified Party may recover a payment under an indemnity in this User Agreement before it makes the payment in respect of which the indemnity is given.
- For the purposes of this User Agreement, “Indemnified Parties” means AirAuctioneer, including our affiliates and related bodies corporate, as well as our and their respective officers, directors, employees and agents.
Responsibility for use of password
- Users are entirely responsible for maintaining the confidentiality of the information on their accounts with us and with Third Party Services, including their password, and for any and all activity that occurs under a User’s account as a result of failing to keep this information secure and confidential.
- Users agree to notify us immediately of any unauthorised use of an account or password, or any other breach of security at firstname.lastname@example.org.
- Users may not use another User’s AirAuctioneer password or account at any time without the express permission and consent of the holder of that AirAuctioneer password or account.
- We cannot and will not be liable for any loss or damage arising from the User’s failure to comply with these obligations.
Abuse of the Site and AirAuctioneer’s ServicesAirAuctioneer may, among other options, limit, suspend or terminate a User’s account, prohibit access to AirAuctioneer services, remove hosted content, and/or take technical and legal steps to keep Users off the Site if AirAuctioneer reasonably believes, at its sole discretion, that the User is conducting itself in an improper manner, abusing the services offered by the Site, or creating a possible legal liability. AirAuctioneer also reserves the right to cancel any User’s account that has been inactive for over twelve months.
AssignmentsUsers may not assign, license or sub-license any rights hereunder.
ExclusionWe shall not be liable for any delay or failure in performance of any part of this User Agreement or the Services from any cause, whether beyond our control or not, and with or without our fault or negligence, such as power blackouts, acts of hackers and other illegal activities of third parties, or acts or omissions of telecommunications common carriers or acts, omissions, overloading or reduced speed over the Internet or any third party Internet service providers.
Compliance with law
- Users may not use our Services for any purpose that is unlawful or prohibited by this User Agreement, or to solicit the performance of any illegal activity or other activity which infringes the rights of us or others whether intellectual property or otherwise.
- Sellers warrant and undertake to AirAuctioneer and all Users not to offer for sale any Item which a Seller cannot sell to the Buyer free from all charges, liens and encumbrances.
- Buyers and Sellers warrant and undertake to comply with all laws and regulations of the territory in which the Buyer and Seller of the transaction respectively resides or conducts business, including but not limited to export and import laws. Buyers and Sellers are responsible for making sure that the transaction of an Item is lawful in both the country of the Buyer and Seller.
- Sellers are responsible for complying with all laws and regulations applicable to the sale and delivery of Items to Buyers, regardless of where the relevant Sellers and Buyers are located, and are responsible for paying all fees and applicable taxes or charges associated with AirAuctioneer, its Services, and this Site, including but not limited to goods, services and value added taxes.
- Sellers hereby acknowledge that it is the sole responsibility of the Seller to ensure that the Seller is fully
aware of, complies and continues to comply with any and all laws and regulations of the territory in which the
Seller resides pertaining to auctions, gaming and charitable funding, including but not limited to (in the case
of transactions in Australia):
- Australian Charities and Not-For-Profits Commission Act 2012 (Cth)
- Australian Charities and Not-For-Profits Commission Regulation 2013 (Cth)
- Charities Act 2013 (Cth)
- New South Wales: Charitable Fundraising Act 1991 (NSW); Charitable Fundraising Regulations 2008 (NSW); Gaming and Liquor Administration Act 2007 (NSW)
- Victoria: Fundraising Act 1998 (VIC); Fundraising Regulations 2009 (VIC); Gambling Regulation Act 2003 (VIC);
- Queensland: Charitable and Non-Profit Gaming Act 1999 (QLD); Collections Act 1966 (QLD); Collections Regulation 2008 (QLD);
- South Australia: Charitable Purposes Act 1939 (SA), Collections for Charitable Purposes (Collection Bins) Regulations 1995 (SA); Lottery and Gaming Act 1936 (SA); Lottery and Gaming Regulations 2008 (SA);
- Northern Territory: Gaming Control Act 1993 (NT);
- Tasmania: Collections for Charities Act 2001 (TAS);
- Western Australia: Charitable Collections Act 1946 (WA); Charitable Collections Regulations 1946 (WA); Gaming and Waging Commission Act 1987 (WA);
- Australian Capital Territory: Charitable Collections Act 2003 (ACT); Gambling and Racing Control Act 1999; and
- Quarantine Act 1980 (Cth),
Prohibited and restricted Items
Users are solely responsible for making sure that the other Users are allowed to buy or sell an Item.
Each Seller warrants and undertakes to AirAuctioneer and its Users that it will not offer an Item for sale on the Site which is unlawful, restricted or prohibited in Australia or in the territory of the Seller.
Furthermore, prior to completing the sale of an Item to a Buyer, each Seller warrants and undertakes to AirAuctioneer that it will determine whether such sale would be unlawful, restricted or prohibited in the territory of the Buyer. If such a sale would be unlawful, restricted or prohibited in the territory of the Buyer then, notwithstanding anything to the contrary in this User Agreement, the Seller must cancel the Buyer’s winning bid and either offer the Item the subject of the winning bid to the second-highest Bidder, re-list the Item on the Site or withdraw the Item from the Site. For the avoidance of doubt, this clause applies to any transaction conducted on the Site, whether it be an auction, Buy Now Option or otherwise.
A User must not take any action to purchase an Item on the Site, where the purchase of that Item would be unlawful, restricted or prohibited in the territory of the User.
The following is a non-exhaustive list of Items which are explicitly prohibited from the Site, notwithstanding whether they may be lawfully offered for sale in any particular territory.
- Alcohol, except in the case that the Seller:
- holds a liquor licence and displays their licence number in the listing;
- offers the Item for domestic postage in Australia only;
- ensures that all sales of alcohol comply with any relevant laws;
- ensures that the Seller’s listing complies with relevant rules and guidelines relating to the advertisement of alcohol;
- complies with the Alcohol Beverages Advertising Code; and
- ensures that no alcohol is purchased by or delivered to any person under the legal drinking age to purchase alcohol; as adjusted for the laws and regulations of the territory in which the Buyer and Seller of the transaction respectively resides or conducts business.
- Adult related items which are inappropriate for people under 18 years of age
- Animal traps
- Animals: AirAuctioneer strictly prohibits use of the Site to auction:
- Australian native species;
- Internationally endangered species listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Please visit the CITES website for further information;
- turtles, snakes, crocodiles, lizards and amphibians;
- the trade of dogs or any other animal for the purposes of fighting or stud services.
- Animal products, organs, or body parts
- Chance listings – AirAuctioneer does not allow listings that sell an opportunity to win an item or a prize either by chance or in connection with a skill contest
- Counterfeit currency and stamps, as well as equipment designed to make such articles
- Currently active bank credit or debit cards, expired bank or store cards
- Drugs and drug paraphernalia, including prescription drugs
- Embargoed Items – Sellers must comply with Government trading restrictions in their country of residence
- Fireworks or other dangerous or hazardous materials
- Government documents, identification cards or licences
- Intellectual property-infringing, replica and counterfeit items
- Lock-picking or lock smithing devices including key cutters
- Mailing lists or items containing personal information
- Offers of credit or credit accounts
- OEM (Original Equipment Manufacturer) software
- Personal relationships, including in-person or online relationships
- Plants or seeds
- Police-related items
- Postage stamps or government related transit items unless vintage or collectible which are no longer in use or circulation provided that the Seller states this in the listing
- Any item covered by a government trading restriction in the User’s country of residence
- Radio communication devices such as mobile telephone jammers, GPS (Global Positioning System) jammers and mobile telephone boosters
- Real estate
- Recalled items
- Stocks and other securities
- Stolen goods
- Therapeutic goods
- Tickets over face value
- Used cosmetics or applicators
- Used undergarments
- Weapons, knives or firearms
- Alcohol, except in the case that the Seller:
AnimalsTo the extent a transaction occurs in Australia:
- Provided that the Buyer and Seller have complied with:
- all applicable laws in the territory of the Buyer and Seller;
- industry codes relating to the welfare of animals, including the safe handling of animals during loading and transport;
- the Australian Model Code of Practice for the Welfare of Animals; and
- this User Agreement,
- Sellers located in the State of Victoria warrant, undertake and agree that all dogs and cats listed on the Site are microchipped, and that the full microchip number is clearly stated on each listing.
- With respect to horses, a Seller warrants, undertakes and agrees that a comprehensive disclosure will be made to Users when listing horses on the Site about whether the horse has been subject to surgical procedures and/or any prohibitions or restrictions imposed by a horse racing authority.
- Sellers warrant, undertake and agree to ensure that all animals offered for auction on the Site are weaned and
fully self-sufficient. Minimum age of animals available for auction are as follows:
- Cats and Dogs: must be at least 8 weeks old;
- Rabbits: must be at least 6 weeks old;
- Guinea Pigs, Mice and Rats: must be at least 4 weeks old;
- Birds: must be fully feathered;
- Ferrets: must be at least 10 weeks old.
- If the Seller claims to be a breeder and registered as a member of a particular association, the Seller agrees to provide their membership details to the Buyer.
- In accordance with clause 4(h) of this User
Agreement, AirAuctioneer is neither involved in nor responsible for the coordination of delivery, or delivery
of, an Item or for insuring an Item. With respect to animals auctioned on the Site, Sellers and Buyers agree to
the following title and risk provisions:
- Delivery will occur when the Buyer collects the animal from the Seller (“Delivery”).
- Title to an animal will pass to the Buyer on Delivery.
- The Seller must (at the Seller’s cost) maintain the animal in the same condition as represented in the auction description until it is delivered to the Buyer.
- Provided that the Buyer and Seller have complied with:
Legal notices must be served on us by post at 6/1 Chifley Square, Sydney NSW 2000, Australia. Notice will be deemed given at 9:00am (AEST) on the fifth business day (being a day which is not a Saturday, Sunday, public holiday or bank holiday in Sydney, Australia) after the date of posting, whether delivered or not.
We will serve legal notices on you at the email address you provide to us during Registration. Notice will be deemed given 24 hours after the email is sent, unless we are notified that the email address is invalid or that the email has not been delivered.
AirAuctioneer does not participate in disputes between Users. If another User breaches any obligation to you, you – not AirAuctioneer – are responsible for enforcing any rights that you may have. In the event of a dispute between you and another User, we encourage you to resolve the dispute quickly and amicably, using the communication channels referred to in clause 4(g). If you have a dispute with another User, you release AirAuctioneer (and our affiliates and related bodies corporate, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
If a dispute arises between you and us, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. We strongly encourage you to first contact us to seek a resolution. If your dispute is not resolved by contacting us, all legal notices and formal disputes should be sent to us in accordance with clause 25) above. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
Jurisdiction and lawUsers agree that the terms of this User Agreement will be governed, construed and litigated in and in accordance with the laws of the State of New South Wales, Australia. Users irrevocably submit to the laws and jurisdiction of the State of New South Wales, Australia.
SeverabilityThe unenforceability or invalidity of any term, provision, section or subsection of this User Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this User Agreement. Such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.