This is version 8 of our User Agreement, which took effect at 5pm UTC on 11 March 2021.
Welcome to AirAuctioneer!
If you do not understand any of the terms of the User Agreement, please contact us before using our 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 but is not a Seller, 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 (including a Charitable 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 (subject to any Seller’s Terms) set by the Seller.
- Claim includes a claim, notice, demand, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, actual, consequential, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this User Agreement or otherwise (and including, but not limited to, legal costs).
- Indemnified Parties means AirAuctioneer, including our affiliates and related bodies corporate, as well as our and their respective officers, directors, employees and agents.
- 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, rights in circuit layouts, plant breeder's rights, inventions, product 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 Property and
industrial property rights conferred by statute, at common law or in equity and wherever existing, including but
not limited to:
- 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 (i); and
- all renewals and extensions of these rights.
- Item means a good or service offered by the Seller pursuant to this User Agreement and, for the avoidance of doubt, includes a Donated Item (defined below).
- 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.
- Our Pricing and Features Page is located at https://airauctioneer.com/pricing-and-features.
- Recipient means a nominated charity or not-for-profit registered with the Australian Charities and Not-for-profits Commission, or an equivalent body in another territory, or a nominated Person, body, entity or cause, which receives Charity Proceeds or Donations.
- 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 lists an Item on the Site or proposes to list an Item on the Site.
- Seller’s Charges means any premiums, commissions, fees (including, for the avoidance of doubt, delivery fees referred to in clause 4(h) of this User Agreement), royalties or other charges applicable to the sale of an Item which are specified in the Seller’s Terms.
- Seller’s Terms means 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) or donation page, and any other conditions of sale included in the Item’s description, as determined by the Seller, including, for the avoidance of doubt, any Seller’s Charges.
- 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 Bidder who placed the highest bid, subject to the Seller’s Terms and this User Agreement, 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 17(c), 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 the Site for any reason, including, but not limited to, those who have Registered, those who have not Registered, Item Donors, Donors, Recipients and, for the purposes of this User Agreement, will include a reference to you. For the avoidance of doubt, a User does not include AirAuctioneer. If a word or phrase is defined, its other grammatical forms have corresponding meanings.
- Please check this User Agreement periodically as we reserve the right to change the terms of this User Agreement (or any part of this User Agreement) at any time.
- Any amendments to this User Agreement (or any part of this User Agreement) are automatically effective from the date on which they are posted on the Site.
- In the event of a change to this User Agreement (or any part of this User Agreement), a User’s continued use of our Services following the posting of any changes constitutes acceptance of such changes.
- AirAuctioneer is a platform through which Bidders, Buyers, Sellers and other Users connect for the purpose of browsing, bidding on, buying and selling Items, as well as making Donations, in an online auction format. We do not act as a traditional auctioneer and do not perform the role of a traditional auctioneer, but simply provide the technological infrastructure through which Users can connect and transact with each other. The Seller, and not AirAuctioneer, is the “auctioneer”.
- Additionally, AirAuctioneer is not a seller. We have no information to verify or contradict the information or content posted by Users (including, but not limited to, information or content regarding Items or Recipients), or any information as to any Bidder’s or Donor’s needs. If you believe another User has done something misleading or improper, please contact us at email@example.com and refer to the disputes process in clause 30.
- 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 and/or User’s content;
- the ability of Sellers to sell Items or the ability of Buyers to buy Items;
- the ability of Buyer’s to pay for Items; or
- the ability of a Bidder, Buyer or Seller to actually complete a transaction, return an Item or act lawfully when using our Site.
- AirAuctioneer does not take ownership of or title in Items or Donations at any time, and does not transfer in part or whole any legal ownership of Items from Seller to Buyer (or from Donor / Item Donor to Seller or from Seller to Recipient). AirAuctioneer does not have any control whatsoever over when title and risk in an Item or a Donation will pass from the Seller to the Buyer or from Seller to Recipient.
- AirAuctioneer does not act as the agent or representative of a User for any purpose in relation to this User Agreement or the Services.
- 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.
- Any person wishing to use our Services for the purposes of selling, bidding or buying, must first Register.
- Our Services are available only to individuals if they are over 18 years of age. Individuals Registering confirm that they are over 18 years of age.
- If an account is created on behalf of a User which is not an individual, that person who created the account represents and warrants to AirAuctioneer that they are over 18 years of age and authorised to act on behalf of the User and bind the User to this User Agreement. In providing the Services to the User, AirAuctioneer relies on the representation and warranty in this clause.
- Immediately after Registering, each User must complete the user profile administration section
on the Site. In that section, the User must:
- provide accurate information regarding itself;
- specify the capacity in which the User will use the Services (that is, whether the User will be using the Services as an individual, a corporate entity, a partnership or otherwise);
- if the User is not an individual, nominate up to (but not exceeding) three individuals (and specify their email addresses) who are authorised to use the User’s account on the User’s behalf (Specified Individuals). Each Specified Individual must be over 18 years of age; and
- if the User is not an individual, nominate one of the Specified Individuals to be the “Super Administrator”, who is authorised to maintain the User’s account on the User’s behalf. For the avoidance of doubt, the Super Administrator will not be an additional Specified Individual; a User may have a maximum of three Specified Individuals, of whom one must be the Super Administrator.
- Each User must ensure that at all times the information provided in the user profile administration section on the Site remains true and correct, and that it does not use the Services in any capacity other than that specified in the user profile administration section on the Site.
- If a User does not complete and maintain the user profile administration section on the Site in accordance with this User Agreement, then in addition to all other rights in this User Agreement, AirAuctioneer may, in its sole discretion, immediately limit, suspend or terminate that User’s account.
- If a User nominates Specified Individuals under clause 5(d), then only those Specified Individuals may use that User’s account, and only the Super Administrator may maintain that User’s account. A User may change its Specified Individuals from time to time (but at no time may the number of Specified Individuals exceed 3), by updating the information set out in the user profile administration section on the Site. A User may also change its Super Administrator from time to time, by updating the information set out in the user profile administration section on the Site.
- In addition to the above, if a User nominates Specified Individuals under clause 5(d), then that User:
- must procure that each Specified Individual agrees to be bound by each part of the User Agreement (as if they were the User which nominated that Specified Individual);
- represents to AirAuctioneer that each Specified Individual is authorised to act on behalf of the User;
- must ensure each Specified Individual complies with all parts of the User Agreement which apply to or are binding on the User which nominated that Specified Individual;
- will be responsible for the actions of each Specified Individual, such that a breach of this User Agreement by a Specified Individual will be deemed to be a breach of this User Agreement by the User; and
- indemnifies the Indemnified Parties, in relation to any and all Claims incurred by an Indemnified Party, arising from an action of, or a Claim made by, a Specified Individual.
- Each account created on the Site may only have one User.
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.
Credits, payments and refund policy
- All prices on the Site are cited in US Dollars (US$) unless otherwise stated.
- AirAuctioneer uses a system of credits to allow Users to list Items (Item Credits). Item Credits may be purchased through the Site in bundles or granted free of charge from time to time by AirAuctioneer, at its sole discretion.
- To list an Item on the Site, the Seller must redeem one Item Credit. To redeem one Item Credit,
the Seller must have a positive Item Credit balance, that is, the Seller must have at least one Item Credit
available to be redeemed. Once an Item Credit has been redeemed in respect of an Item, that Item Credit is
non-refundable except in the following circumstances:
- the Item Credit has been used in respect of an Item which is subsequently withdrawn or removed from the Site for any reason prior to the first bid being placed, including reasons under clause 15(e);
- AirAuctioneer decides to refund the Item Credit, in its sole discretion; or
- AirAuctioneer exercises its discretion under clause 17(d)(v) for any reason which is not related to an act or omission of the Seller.
- Item Credits have no cash value and are not exchangeable for cash. The accumulation of Item Credits does not entitle a User to any vested rights and AirAuctioneer does not guarantee that a Seller will be able to use its Item Credits.
- Unused Item Credits expire at the earlier of:
- a User’s account being cancelled or otherwise terminated or closed under this User Agreement; and
- the expiry date (if any) displayed next to the Item Credits on the User’s account page.
- Except as permitted by AirAuctioneer from time to time, Item Credits cannot be assigned, exchanged, traded, bartered, purchased or otherwise transferred or sold. Any Item Credits so acquired are void.
- From time to time, AirAuctioneer may advertise or offer to select Users the ability to upgrade to an “Unlimited Account” for a fixed period for a fixed price, whereby the User is granted unlimited Item Credits for the relevant period. Such advertisements and offers are at AirAuctioneer’s sole discretion and a User cannot apply for such an upgrade. Once an Unlimited Account expires, the relevant Seller will need to purchase Item Credits in order to list an Item.
- If a User holds a “Paid Account” (which formed part of our previous pricing and features policy) which has not reached the end of its “Account Period”, then that User will be granted an Unlimited Account for the remainder of the relevant Account Period. At the expiry of the Account Period, the User’s Paid Account will end and the User must purchase Item Credits if it intends to continue using the Services.
- 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.
- Payments processed using Stripe will be subject to the following fees (together, the Card Processing
- a processing fee determined by Stripe, variable from time to time at Stripe’s discretion and published on Stripe’s website here; and
- for User accounts created prior to 5 January 2021, an application fee of 1% of the transaction value.
- Sellers opting to use Stripe to collect payments agree to pay the Card Processing Fees, and agree that such fees will be deducted from the 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 (including the making of a Donation). 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 (or the making of a Donation), 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 (or Donation amount) 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.
- Additional policies on Item Credits, payments and refunds are set out on the Pricing and Features Page.
Cancellation of accounts
- AirAuctioneer reserves the right to cancel a User’s account for:
- breach of this User Agreement;
- non-use by a User of their account for a period of 12 months or longer; or
- any other reason specified in this User Agreement.
- If a User’s account is cancelled:
- a User will not be entitled to a refund of any Item Credits still held by that User, or any fee paid for an upgrade to an Unlimited Account; and
- any content related to that User’s account (including, but not limited to, Item listings, other auction-related content, the User’s bids and bids on the User’s Items) may be deleted from the Site or otherwise modified so as to be permanently inaccessible by the User.
- AirAuctioneer reserves the right to cancel a User’s account for:
- A Seller may, from time to time, set up an auction page on the Site to auction Items or donated items (either of which being a Donated Item) for the purpose of sending the proceeds from the sale of those Donated Items (Charity Proceeds) to a Recipient (the auction conducted in respect of a Donated Item being a Charitable Auction).
- By setting up a Charitable Auction, a Seller represents and warrants that they are authorised to conduct a Charitable Auction on behalf of the Recipient and that all Charity Proceeds will be paid to the Recipient. In providing the Services, AirAuctioneer relies on the representation and warranty in this clause.
- Following creation of the Charitable Auction, the Seller may invite Users or other third parties to propose Donated Items for the benefit of the Recipient (Item Donors). If an Item Donor is not a User, the Seller must direct that Item Donor to this User Agreement and ensure the Item Donor is aware of and agrees to the terms of this User Agreement. Donated Items may not take the form of cash. The Seller may then determine which of the potential Donated Items it wishes to accept from the Item Donors, and which of the potential Donated Items it wishes to reject. The Seller is not obligated to accept a potential Donated Item from an Item Donor.
- If the Seller decides to accept a Donated Item from an Item Donor, then the terms of that arrangement between that Seller and that Item Donor are directly between that Seller and that Item Donor – AirAuctioneer is not involved, and plays no part, in the arrangement between the Seller and the Item Donor (including, but not limited to, the nature and terms of the arrangement and/or the Donated Items) or the subsequent arrangement between the Seller and the Buyer or the Seller and the Recipient. The Seller, the Item Donor, the Buyer and the Recipient are responsible for making their own enquiries about the other and the nature and conduct of the Charitable Auction.
- Bidders make bids on a Charitable Auction at their own risk. When a Bidder makes a bid through a Charitable Auction, it is the Bidder’s responsibility to understand how the Bidder’s money will be used. AirAuctioneer is not responsible for any promises made or offered by the Seller. AirAuctioneer is under no obligation to review or verify the information that Sellers supply, nor do we represent or guarantee that the Charity Proceeds will be used in the manner promised by the Seller or in accordance with applicable laws.
- Charity Proceeds will be paid from the Buyer’s bank account to the Stripe account of the Seller. The Seller is responsible for ensuring the Charity Proceeds are paid to the nominated Recipient.
- A User (Donor) may make monetary donations (Donation) to a Recipient through a donation page, which is set up by a Seller on the Site (Donation Page). On the Donation Page, the Donor will have the ability to nominate a Donation amount, which can be paid through the Donor’s “Cart”.
- By setting up a Donation Page, a Seller represents and warrants that they are authorised to receive Donations on behalf of the Recipient and that all Donations will be paid to the Recipient. AirAuctioneer is not involved, and plays no part, in the arrangement between the Seller and the Recipient or the arrangement between the Seller and the Donor. In providing the Services, AirAuctioneer relies on the representation and warranty in this clause.
- A Donation will be paid from the Donor’s bank account to the Stripe account of the Seller. The Seller is responsible for ensuring the Donation is paid to the nominated Recipient.
- All Donations are made at the Donor’s risk. When a Donor makes a Donation, it is the Donor’s responsibility to understand how the Donation will be used. AirAuctioneer is not responsible for any promises made or offered by the Seller or the Recipient (or on behalf of the Recipient). AirAuctioneer is under no obligation to review or verify the information that a Donor, Seller or Recipient supplies, nor do we represent, warrant or guarantee that the Donation will be used in accordance with any particular purpose or any applicable laws.
Recipients, Donations and Charity Proceeds
- AirAuctioneer does not recommend, review or endorse any Recipient.
- AirAuctioneer is not responsible for, and does not make any warranties, representations or guarantees as to the conduct of, or information or other material provided by, a Seller, an Item Donor, a Donor or a Recipient, or whether any portion of the Charity Proceeds or any Donations is tax deductible or eligible for tax credits.
- To the maximum extent permitted by law, the Indemnified Parties are released from all Claims of every kind and nature, arising out of or in any way connected with a Charitable Auction or a Donation. For the avoidance of doubt, this release extends to the use and direction of funds by the Seller, as well as compliance with all laws.
- Item Donors, Donors and other Users acknowledge and agree that Donated Items and Donations are non-refundable.
- If you are the authorised representative of a Recipient, and you do not wish for the Recipient to be available for Charity Proceeds or Donations on the Site, you may contact us at firstname.lastname@example.org to request that the Recipient be removed from our Site. Your email should include your full name, title, and an email address and phone number associated with the Recipient. Please note that if the Recipient is removed from the Site, it will not be eligible to receive contributions through the Site.
Intellectual property rights
- For all content that is listed on, or disseminated from, 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 content, in any media known now or in the
future. The User represents and warrants that:
- it owns (or otherwise controls) all such Intellectual Property Rights in the content;
- it has the right to grant the licence referred to in this clause; and
- our use of such content will not infringe any Intellectual Property Rights of any third party, and AirAuctioneer relies on the representation and warranty in this clause in providing the Services.
- Subject to clause 12(a), the copyright to all content on, or disseminated from, 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, or disseminated from, 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, disseminate from 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 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 our Services.
- For all content that is listed on, or disseminated from, 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 content, in any media known now or in the future. The User represents and warrants that:
- By using our Services, 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 Services, 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, distribute, disseminate, publish any content or post on our Site any information that is not correct, such as an incorrect name, address, capacity, email address, auction price listing or any other incorrect information.
- Users will not distribute, disseminate or publish any content that contains sexually related text, photographs or other content, or content that is defamatory, offensive, obscene, indecent, threatening, abusive, hateful or otherwise unlawful.
- Users will not post any materials or content on our Site, distribute, disseminate or publish materials or content, or include any materials or content in any presentation, in violation of any other party’s rights, including, but not limited to, Intellectual Property Rights 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 will not distribute or post spam, unsolicited or bulk electronic communications, or distribute viruses or any other technologies that may harm AirAuctioneer or the interests or property of Users.
- 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.
- Users may not transfer their account or account ID to another party without AirAuctioneer’s consent.
- Users will comply with all laws and regulations.
- To use our Services, including, but not limited to, using our Services as a Buyer or Seller of
Items such as alcohol, plants, animals and real estate, you may require a Permit in one or more territories.
Each User confirms and represents to AirAuctioneer that it:
- holds all necessary licences, accreditations, approvals, consents, permits, certificates or authority issued or required by any authority (Permit) to use our Services;
- in the case of a Seller, will display all Permits on the auction page; and
- will answer any queries from AirAuctioneer or any other User or third party in relation to the User’s Permits and the status of those Permits.
- The Seller is free, as part of its Seller’s Terms, to moderate the bidding process by imposing any criteria it sees fit in respect of who can and cannot bid in an auction for the Seller’s Item. If a Bidder does not meet the Seller’s criteria, then that Bidder may be blocked from participating in the auction and any bid placed by that Bidder will be disregarded and cancelled.
- Users agree to the following:
Your obligations as a Bidder or Buyer
- Subject to the Seller’s Terms and this User Agreement, Buyers are obligated to purchase an Item from the Seller (and complete all ancillary arrangements to that transaction, and in whatever capacity) if the Buyer is the highest bidder at the end of an auction unless that transaction is prohibited by law.
- Unless otherwise specified in the Seller’s Terms, a Buyer must arrange for payment of an Item within one business day of the Buyer being notified that it has made the winning bid for that Item. Payment may be made by any lawful mechanism which is acceptable to the Seller or as otherwise set out in the Seller’s Terms.
- If a Buyer fails to complete a transaction for any reason, then the Seller may cancel the Buyer’s winning bid and either offer the Item the subject of the winning bid to the second-highest Bidder or re-list the Item the subject of the winning bid for auction.
- Subject to the Seller’s Terms and this User Agreement, Buyers must arrange payment for the Item with the Seller directly.
- By bidding on an Item, a Buyer agrees to be bound by the Seller’s Terms. The Seller can delete a bid if the Buyer doesn’t comply with the Seller’s Terms.
- Bids are not retractable, except in the circumstances described in clause 15(g) of this User Agreement.
- In accordance with clause 16(n) 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. The Seller is responsible for the accuracy and content of the listing and the Item offered.
- None of the Indemnified Parties are liable whatsoever for any Claims however caused to any User arising from the Seller’s Terms. The Seller represents and warrants to AirAuctioneer that all Seller’s Terms comply with all laws. The Seller acknowledges that AirAuctioneer relies on this representation and warranty and agrees that if AirAuctioneer has cause to believe the representation and warranty is untrue or misleading, then AirAuctioneer may, at its sole discretion, limit, suspend or terminate the User’s account.
- The Seller indemnifies each of the Indemnified Parties in relation to any and all Claims incurred by an Indemnified Party, arising from the Seller’s Terms.
- In the event of an inconsistency between the Seller’s Terms and this User Agreement, the terms of this User Agreement will prevail.
- 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 the Seller’s Terms and this User Agreement, 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.
- Subject to the Seller’s Terms and this User Agreement, 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, subject to the Seller’s Terms and this User Agreement, the Seller is obligated to compete the transaction with the Buyer on the auction’s completion.
- Where the Seller runs a Two-Phase Auction, subject to the Seller’s Terms and this User Agreement, where the highest bid was made during Phase One, 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 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 clauses 16(n) and 17(d), 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 15(g) 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 6 of this User Agreement are the “Platform Services”.
- Two forms of auction may be conducted on the Site: Simple Auctions, Two-Phase Auctions.
- In relation to Simple Auctions, Bidders, Buyers and Sellers acknowledge and agree that the highest bid is determined at the conclusion of the Simple Auction and subject to the Seller’s Terms and this User Agreement, the Buyer will be the Bidder with the highest bid. No contract of sale is formed between the Buyer and the Seller until the conclusion of the Simple Auction.
- In relation to Two-Phase Auctions, Bidders, Buyers and Sellers acknowledge and agree that in a
- 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.
- Online auction process
- An auction conducted on the Site will start at the time specified by the Seller and will close at the end
of the time period specified for that auction by the Seller (End Time). If the Seller so
chooses, it can nominate for automatic extensions to apply whereby:
- Where there are no new bids for a particular Item during a period of time set by the Seller immediately preceding the End Time (Refresh Period), then the auction will conclude at the End Time and no extensions will be granted.
- If there are any further bids on a particular Item within the Refresh Period, the auction will be extended for the period nominated by the Seller. The Seller may choose to permit a set amount of extensions, or continue to extend the auction until there are no more further bids within the Refresh Period.
- Due to circumstances beyond our control, the Refresh Period may vary from time to time. We accept no responsibility for any circumstances or incidents arising as a result of any slight variations that may occur in the Refresh Period.
- A Seller may vary the End Time:
- before the first Bid is placed, at any time; and
- after the first Bid is placed, provided that variation is not made within two hours of the previously determined End Time. The Seller will notify such variation of the End Time on the Item’s page.
- A Seller may withdraw an Item from an auction (or disable an Item so that bidding is suspended):
- at any time prior to the End Time; or
- prior to the Buy Now Option being exercised by a Bidder or Buyer,
- The Seller may choose to make an Item subject to a confidential minimum valuation specified by a Seller
below which it is not obligated to sell an Item (Reserve). If bidding does not reach an
Item’s Reserve at the close of an auction, the Seller may, at its sole discretion:
- sell the Item to the highest bidder at his or her highest bid amount, even though the bid amount is below the applicable Reserve;
- refuse to sell the Item; or
- take any other action in relation to the Item deemed reasonable by 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), 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, 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, or if AirAuctioneer otherwise reasonably determines that the Item should not be listed on the Site.
- In any auction, the Seller may give Bidders the choice between “Standard” bidding and “Proxy” bidding for an auction. With Standard bidding, the Bidder who submits the highest bid will, subject to the Seller’s Terms and this User Agreement, be the Buyer and the price of the Item will be the price of that highest bid. With Proxy bidding, a Bidder may submit a bid that represents the highest price which they are willing to pay for the Item (Maximum Bid). If a Bidder chooses to submit a Maximum Bid, the Site will automatically bid by proxy, bidding (against the other Bidders) as favourably as possible on the Bidder’s behalf up to their Maximum Bid. The winning proxy bid may therefore be lower than the winner’s Maximum Bid. If an Item has an unmet Reserve when a Bidder submits a Maximum Bid, the Site will place a proxy bid for that Bidder at the lower of the Reserve and the Maximum Bid.
- All bids placed are binding for the Bidder. After the auction has ended, subject to the Seller’s Terms and this User Agreement, the winning Bidder having submitted the highest bid will have entered into a binding agreement with the Seller. A Bidder who chooses Proxy bidding but decides to place a bid higher than their Maximum Bid after proxy bidding commences may do so.
- If an auction ends with two equally high bids, the first bid that was submitted to the Site will win.
- Notwithstanding any other clause in this User Agreement, a Seller may, as part of its Seller’s Terms, specify Seller’s Charges which will apply in addition to the final price at an auction. If the Seller intends to impose any Seller’s Charges, then that Seller must expressly state the Seller’s Charges, as well as any terms and conditions regarding the Seller’s Charges, in the Seller’s Terms.
- An auction conducted on the Site will start at the time specified by the Seller and will close at the end of the time period specified for that auction by the Seller (End Time). If the Seller so chooses, it can nominate for automatic extensions to apply whereby:
Disclaimer of warrantiesExcept as expressly set forth herein, and to the full extent permitted by law, the material on, or disseminated from, the 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 our Services. Users assume full responsibility and risk of loss resulting from use of our Services.
- Each User hereby releases the Indemnified Parties from all Claims 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 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, between Item Donor or Seller, between Donor or Seller or between Seller and Recipient.
- Users acknowledge that AirAuctioneer has no control over and does not guarantee the quality, safety, fitness for purpose or legality of Items advertised or content posted or disseminated by Users, the truth or accuracy of Users' content or listings, the ability of Sellers to sell Items, the ability of Buyers to buy Items, the ability of Buyers to pay for Items or that a Bidder, Buyer or Seller will actually complete a transaction, return an Item or act lawfully when using our Services.
- Users acknowledge that AirAuctioneer has no control over and does not guarantee the manner by which Charity Proceeds or Donations are used, handled or directed.
- Users acknowledge that AirAuctioneer bears no responsibility for any Claims caused directly or indirectly by inaccurate or misleading information published on, or disseminated from, the Site. Further, AirAuctioneer bears no responsibility for any loss or damage arising out of a User’s use of our Services, inability to use the Site, any websites linked to the Site, any materials, information or content posted on, or disseminated from, the Site (including any materials, information or content that is defamatory, offensive, obscene, indecent, threatening, abusive, hateful or otherwise unlawful).
- 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 agree to hold each of the Indemnified Parties harmless from any and all Claims 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 agree to hold each of the Indemnified Parties harmless from any and all
Claims incurred by an Indemnified Party, arising out of:
- a breach of this User Agreement by the User (or the User’s Specified Individuals);
- a warranty and/or representation provided by the User (or another person on behalf of the User) under this User 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 or regulation;
- 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.
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 email@example.com.
- Users may not use another User’s AirAuctioneer password or account at any time.
- 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 Services
- AirAuctioneer 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, has breached (or is about to breach) the User Agreement, is abusing the Services, 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.
- If AirAuctioneer exercises its powers under clause 23(a) and the User has reasonable cause to disagree with the exercise of that power, then we encourage that User to contact us to request a review. The User may submit evidence to support its request for a review and the outcome of that review will be in AirAuctioneer’s sole discretion. If, following the review process, the User still disputes AirAuctioneer’s decision, then clause 30 of this User Agreement applies
Reporting violationsIf a User becomes aware that any other person is violating any of the terms and conditions of this User Agreement please notify us immediately by email at firstname.lastname@example.org.
AssignmentsUsers may not assign, license, sub-license or otherwise dispose of or transfer 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.
- 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 or transfer in any particular territory:
- counterfeit currency and stamps, and equipment designed to make them;
- credit, debit and store cards, whether currently active or expired;
- financial instruments (including stocks and other securities) and other investment or financial products;
- government documents, passports, identification cards and licences;
- ivory, organs and body parts of endangered or protected species;
- narcotics, ‘legal high’ substances and related paraphernalia;
- prescription drugs;
- mailing lists and other lists of personal information;
- mobile telephone jammers, GPS jammers and similar devices;
- offers of credit and credit accounts;
- personal relationships and dating services;
- recalled products;
- sexually explicit materials and items of any kind;
- stolen goods;
- tickets over face value;
- used cosmetics and applicators;
- used undergarments; and
- weapons, knives or firearms.
- AirAuctioneer reserves the right to amend the list of prohibited Items in clause 27(a), or prohibit an Item, at any time in its sole discretion (including, for the avoidance of doubt, after the Item has been listed on the Site and/or bidding has commenced in relation to that Item). If an Item is (or becomes) a prohibited Item, AirAuctioneer reserves the right to withdraw that Item from the Site under clause 17(d)(v).
- 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 or transfer in any particular territory:
Compliance with law and regulations
- Users may not use our Services for any unlawful purpose or to solicit the performance of any illegal activity.
- Users must at all times comply with all laws and regulations (including government trading restrictions and embargoes), comply with the terms of this User Agreement and ensure they do not infringe the rights of AirAuctioneer or others (whether Intellectual Property or otherwise). A Bidder 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 Bidder.
- Sellers are responsible for complying with all laws and regulations applicable to the offer, sale and delivery of an Item to a Buyer, including, but not limited to, laws and regulations in the Seller’s territory, laws and regulations in the Buyer’s territory where this is different to that of the Seller and export and import laws and regulations.
- Each Seller warrants and undertakes to AirAuctioneer and all Users not to offer for sale on the Site any Item
- is unlawful, restricted or prohibited in the territory of the Seller or by this User Agreement;
- infringes Intellectual Property rights; or
- cannot be sold free from all charges, liens and encumbrances.
- Each Seller warrants and undertakes to AirAuctioneer that they are aware of, comply with and will continue to
comply with all laws, regulations and relevant industry codes and directives relating to their use of our
Services including, but not limited to, those pertaining to:
- charitable fundraising and other activities of not-for-profit organisations;
- gaming, gambling, chance listings and lotteries;
- the advertising and sale of alcohol, including, but not limited to:
- restrictions on the age of Users who are granted access to auction pages where alcohol is being offered for sale (such access being controlled through the use of password protection);
- restrictions on the age of Bidders;
- restrictions on the delivery, import and export of alcohol; and
- requirements for the advertising of alcohol;
- the sale and purchase of plants and animals, including, but not limited to:
- restrictions on the sale and purchase of native species;
- restrictions on the age or maturity of live animals;
- restrictions on the export and import of live animals;
- requirements for the handling of live animals during transport; and
- requirements for animal registration, microchipping and tagging;
- transactions in real estate, including, but not limited to:
- requirements for the conduct of real estate auctions; and
- requirements to hold professional qualifications.
- Prior to completing the sale of an Item to a Buyer, each Seller warrants and undertakes to AirAuctioneer and the respective Buyer that it will determine whether the transaction would be unlawful, restricted or prohibited in the territory of both the Seller and the Buyer, and if it is unlawful, restricted or prohibited in either territory, notwithstanding anything to the contrary in this User Agreement, the Seller must cancel the Buyer’s winning bid and withdraw the Item from the Site.
- Sellers are responsible for paying all fees and applicable taxes or charges associated with their use of our Services, including, but not limited to, sales taxes, goods and services taxes and value added taxes.
- 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 (or if you have not Registered, at any other reasonable location). 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. This includes, but is not limited to, any dispute in respect of the Seller’s Terms. 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 the Indemnified Parties from all Claims of every kind and nature, known and unknown, arising out of or in any way connected with such a dispute.
- 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 29 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.
WarrantiesIn providing the Services to the User, AirAuctioneer relies on the representations and warranties provided in this User Agreement.
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.