Mining, Earthmoving and Transport Auction

Terms and Conditions of Use – Martin Auctions

1. 1. General Conditions
      1. The terms and conditions of use set out in this agreement govern how you use the website and services of Chalrow Pty Ltd ACN 635 070 996 t/a Martin Auctioneers and Valuers (‘Martin Auctions’).
      2. By registering for an account with Martin Auctions, you expressly agree to the terms and conditions set out within this document and agree to be bound by them.
      3. Should you breach any of the obligations under this agreement, Martin Auctions reserves the right to make any claim for loss, damages or other and/or terminate your registration.
      4. Martin Auctions reserve the right to amend these terms and conditions from time to time by posting an updated version to the website. Your continued use of the website or services after this point will be deemed to be express acceptance of the updated agreement.
      5. Additional terms and conditions may apply to particular sales and will be set out in the sale page. No additional sale terms and conditions remove, alter or make invalid any terms and conditions set out in this agreement.
   2. Governing Law
      1. This agreement is governed by the laws of Queensland and will be subject to the jurisdiction of the courts of Queensland.
   3. Eligibility
      1. You must not use the Website or service if you are:
         1. Under the age of 18 years of age;
         2. An undischarged bankrupt; or
         3. Acting on behalf of a company under any type of insolvency proceeding or administration.
2. Registration
   1. Registration
      1. You must register online to use the service.
      2. You must not use any false or misleading information when registering for an account or using the service.
      3. All accounts created by businesses must use a valid ABN.
      4. You must update your account if your details change. Martin Auctions will not be held responsible for any loss, damage or other which is a result of incomplete or incorrect information in your account.
      5. By registering, you agree to be added to our marketing database. You may receive marketing communications relating to Martin Auctions only and will not receive any third-party marketing from us. You can opt out of this database by clicking the “unsubscribe” button at the bottom of any marketing communication, or by contacting our staff via the details supplied on the website.
3. Sale
   1. Bidding (Auctions)
      1. A Bidder who makes a bid is making an offer to purchase the Lot at the price of that bid, subject to any additional fee, buyers’ premium and GST (if applicable)
      2. A bid cannot be withdrawn
      3. A bid may be placed at auction by
         1. Using the online bidding function, or
         2. Placing a valid bid in person using the assigned bidder’s paddle
      4. An absentee bid can be made by using the max bid feature online at any point during the auction period.
      5. At the conclusion of the auction, subject to any reserve price, and at the sole discretion of the Auctioneer, the highest Bidder who is not in breach of these Terms and Conditions or any other terms set out by the Auctioneer, will be the Purchaser.
      6. Please make sure you understand the delivery and payment terms, including any amendment to those terms and conditions as outlined in the item's description or in the auction page. Generally, a Buyer's Premium, and other charges including a delivery fee, will apply to all Auctions.
      7. You must not engage in any form of bid manipulation or betting.
      8. For Online Auctions, the Auction will close at the end of the specified time, unless bids are placed during the final 5 minutes of the auction. In the case of bids within the final 5 minutes, the lot which has received bids will be extended by five minutes from the last successful bid (“final call period”).
   2. Reserve Prices (Auctions)
      1. The vendor may nominate a reserve price
      2. If the item does not reach the reserve price
         1. Martin Auctions are not obliged to accept the highest bid below the reserve price.
         2. Martin Auctions are not obliged to negotiate with the highest bidder exclusively and reserves the right to negotiate and sell the item to any party without notice.
   3. Other Sale Methods (Expressions of Interest, Private Treaty or Tender)
      1. Offers which do not conform to the required format and conditions may be deemed a “non-conforming bid” and not accepted by the auctioneer.
      2. All offers are subject to approval by the vendor
         1. Martin Auctions is not bound to negotiate exclusively with one party and reserves the right to negotiate with other parties.
         2. Martin Auctions and the Vendor are not obliged to accept the highest offer and may accept a lower offer if it is deemed more suitable.
         3. No sales are final until approved by the vendor and a valid invoice is issued.
   4. Condition of item
      1. All items are sold “as is, where is with all faults (if any)” with no guarantees or warranties with regards to their condition or working order.
      2. The catalogue provides a description based on a basic visual inspection of the item only and is not a representation of working order or condition.
      3. Pictures are also provided to assist the buyer in their assessment of the item.
      4. Where Martin Auctions expressly knows of an issue with the item, it will be added to the description.
      5. In any case, it is the sole responsibility of the buyer to inspect the item and as far as is possible under Australian Consumer Law, Martin Auctions accepts no liability for the condition of any item. For more information on your rights refer to section 7.1.
4. Payment
   1. Martin Auctions will send an invoice to the successful purchaser after the completion of the Auction or Sale.
   2. The full amount is payable within 48 hours of the invoice being sent to the buyer
   3. Payment may be made by the following methods
      1. EFT
         1. An EFT payment may be made to the bank account noted on the invoice. Please ensure the invoice number is added as a reference to ensure correct allocation to your invoice
      2. Credit Card and Debit Card
         1. Credit card and Debit Card payments are accepted either in person (at our premises) or over the phone
         2. Please note that for credit and debit card payments incur a surcharge which will be added to your invoice and amounts to the fee charged by our merchant supplier. The fee may vary according to the credit card used.
      3. Cash
         1. Cash is not accepted in person but may be deposited directly into our trust account at any ANZ branch. The details of our trust account can be found on the invoice.
   4. Finance
      1. By purchasing an item, you warrant to Martin Auctions that you have the funds available to pay for the item in full or have obtained finance approval prior to purchasing.
      2. Payment terms may not be extended due to the inability to obtain finance
   5. Default
      1. If you default by not meeting the specified payment terms of a sale, Martin Auctions reserves the right to charge a default fee equal to 2% of the purchase price or $100, whichever is greater.
5. Collection
   1. No items will be released until
      1. full payment is cleared into our account; and
      2. an invoice showing nil balance payable is provided to Martin Auctions staff, and
      3. photo identity is provided, confirming your identity.
   2. Authorisation to collect on your behalf
      1. Items will only be released to third parties if they are provided with an authority to collect which includes
         1. A copy of the paid invoice
         2. A photocopy of the purchaser’s drivers’ license
         3. A signed statement authorizing the third party to collect on your behalf.
   3. Any collection times stated in the sale page are estimates only. We will not be liable to you for any loss or damage you suffer as a result of our failure to comply with such times.
   4. Where items are not held by us on our premises, you must strictly observe and comply with any collection times and arrangements. If you do not comply with the collection times and arrangements, there is a risk that the item will be removed from the premises, after notice to you, and in such circumstances we will not be liable to you for the unavailability of the item and we may not refund the purchase price to you.
   5. If you visit any place where goods are stored to inspect or collect them, you must comply with:
      1. any relevant laws regarding occupational health and safety;
      2. any directions or warnings about the goods or their location; and
      3. any directions given by us or anyone authorised by us when inspecting or collecting goods from any location.
   6. You acknowledge that you inspect or remove goods at any location at your own risk.
   7. You acknowledge that some sites may not have suitable loading facilities for your items and that it is your responsibility to send suitable transport to load your items safely.
   8. If you do not collect your items within the stipulated collection timeframe, we may
      1. charge a storage fee
      2. Deem the items abandoned
      3. Relocate the items to another storage yard and charge a storage fee
      4. Subject to any applicable legislation governing the disposal of uncollected goods, if you do not collect or take delivery of an item within 7 days of a sale, and after 3 months’ notice to you, we may sell or otherwise dispose of the item, without refund to you.
   9. Risk and title
      1. If an item is to be delivered to a delivery address nominated by you, the risk in it will pass to you:
         1. when it is delivered; or
         2. if we are unable to deliver the item to the address nominated by you, in accordance with your instructions (for example if no one is present to accept delivery), when we or our carrier first attempts to deliver the item.
      2. The address nominated for delivery must be a valid residential or commercial street address, and not a PO box or storage facility.
      3. Receipt of the item must be acknowledged by signature.
      4. You cannot change or request to change your nominated delivery address details, or arrange to collect an item, after a ‘Buy Now’ Sale, Online Auction or Make an Offer has closed. We are not responsible if an item is not delivered where the arrangements or delivery address details are changed in this way.
      5. Title in any item will only pass to you when we receive the Invoice Amount in cleared funds.
   10. OH&S site safety
       1. All site requirements must be adhered to and you must follow all directions regarding OH&S while attending any site under the control of Martin Auctions, it’s contractors or the vendor.
       2. Any person under the age of 18 must always be accompanied by an adult and comply with the direction of Martin Auctions staff, it’s contractors or vendors.
       3. Items may only be inspected visually and cannot be tested. Some items may be started with the express authorisation of Martin Auctions staff, contractors or the vendor.
       4. As a minimum, you must wear enclosed shoes at all sites. Any site-specific clothing or PPE requirements must also be adhered to.
       5. If site OH&S requirements are not met, Martin Auctions reserves the right to deny access to the individual or group.
   11. Chain of Responsibility
       1. Martin Auctions operates under Chain of Responsibility Laws, and as such, all loads must be safely loaded and secured prior to exiting the site
       2. It is the collecting parties’ responsibility to safely load and secure all items
          1. Loads must meet all transport regulations including (but not limited to) height, width, length, weight and securely tied down
          2. If a load is deemed not suitable by Martin Auctions representatives, the item may not be loaded until compliance with regulations can be ensured.
6. Returns and Refunds
   1. Unless required under Australian Consumer Law, returns and refunds will be approved at the sole discretion of Martin Auctions
      1. All items sold via Martin Auctions are sold on an “as is, where is, with all faults (if any)” basis and it is the sole responsibility of the buyer to inspect the item prior to purchasing
      2. Refunds will not be approved on the basis that you
         1. Did not inspect the item;
         2. Incorrectly bid on the wrong item; or
         3. You change your mind
      3. Once items are collected, no refunds or returns will be considered as the item is no longer under the control of Martin Auctions
7. Rights and Obligations
   1. Your Rights
      1. Australian Consumer Law
         1. You acknowledge the following consumer guarantees in the Australian Consumer Law do not apply to the sale of goods by auction when conducted by an agent:
            1. section 54, relating to acceptable quality;
            2. section 55, relating to fitness for any disclosed purpose;
            3. section 56, relating to the supply of goods by description;
            4. section 57, relating to the supply of goods by way of sample;
            5. section 58, relating to repairs and spare parts; and
            6. section 59, relating to express warranties.
         2. The following consumer guarantees in the Australian Consumer Law do apply to the sale of goods by auction when conducted by an agent:
            1. section 51, relating to title;
            2. section 52, relating to undisturbed possession; and
            3. section 53, relating to undisclosed securities
         3. Nothing in this agreement restricts or excludes any rights you may have under the Australian Consumer Law.
   2. Your Obligations
      1. Inspection of items
         1. It is your responsibility to inspect any item prior to bidding or purchasing to determine the exact details and condition of the item. Martin Auctions provides a description and photos based on a basic visual inspection only and accepts no liability for incorrect or incomplete descriptions.
         2. Nothing in this clause (or any other provision of these terms and conditions) should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of the Australian Consumer Law.
      2. False, misleading or incorrect conduct
         1. You must not use any false or misleading information when registering for an account or using the service.
         2. You must use the service in good faith and for the intended purpose for which the service is supplied.
         3. You must not take any action, or engage any third party to take an action, which places an unnecessary burden on the system or servers.
      3. Security of your account
         1. You must keep your account and login details secure and not disclose to any third party.
         2. You must log out of your account while not present on any device. You accept responsibility for all bids placed via your account, regardless of whether you placed the bid or it was accidentally placed by a third party or other.
   3. Martin Auctions’ Rights
      1. Suspension or Termination
         1. Martin Auctions reserves the right to suspend, block or terminate your account if Martin Auctions has reasonable suspicion that you have breached any of your user obligations or your account is being used incorrectly.
         2. Martin Auctions reserves the right to remove or deny access to any premises if any of your obligations are not met.
      2. Rights as Agent
         1. Martin Auctions reserves the right to postpone, restart or remove an item or sale at any point of the auction or sale period for any reason including (but not limited to):
            1. fraudulent bidding activity;
            2. system integrity issues;
            3. auctioneer, bidder or system error;
            4. incorrect details or photos being listed;
            5. damage to the item after the item has been catalogued;
            6. the item being misplaced or stolen;
            7. a claim or dispute as to ownership or clear title;
            8. further details or information have been discovered about an item; or
            1. the vendor removing the item from sale.

7. 1. 1. 2. Martin Auctions reserves the right to regard the sale of multiple lots as interdependent and treat default under a contract for any lot as default under all such contracts.
8. Warranties
   1. Vendor Warranties
      1. The vendor has warranted that they have authority to sell the item; and
      2. Clear title will only be passed to the buyer once payment in full has been received by Martin Auctions.
      3. Martin Auctions has relied upon their representation and warranty in selling the lot as agent for the vendor.
   2. Martin Auctions Warranties
      1. Subject to our obligations under the Australian Consumer Law, Martin Auctions makes no representation or warranty as to the description or condition of any lot. All items are catalogued based on a visual inspection only and no mechanical inspection is undertaken.
      2. Martin Auctions makes no representation as to the validity, fulfillment or enforceability of any manufacturer’s warranty.
      3. All items are sold as is, where is with all faults (if any).
      4. Martin Auctions make no warranty or representation that the item is fit for purpose or appropriate for your particular circumstances. It is your responsibility to inspect the item prior to bidding or purchasing to determine the exact details and condition of the item.
      5. Martin Auctions makes no warranty as to continuous, uninterrupted or secure access to the service or the site. Operation of the site may be restricted by factors outside of our control or maintenance.
9. Liability and Indemnities
   1. Limitation of Liability
      1. Martin Auctions accepts no liability for any loss suffered by you as a result any of these terms and conditions.
      2. We are not responsible for any loss, damage or liability incurred by you as a result of bids not received, processed or accepted which are due to technical difficulties, including bids placed using the Max bid feature.
      3. Martin Auctions, it’s directors, officers, vendors, contractors, employees and suppliers are not liable for any loss profits or consequential damages arising out of or in connection with the delivery of the service or the sale of goods.
      4. Martin Auctions accepts no liability for the content, fulfillment or enforcement of any manufacturers’ warranty. It is your responsibility to contact the relevant manufacturer with regards to any manufacturers’ warranties.
   2. Indemnities
      1. You waive, release, discharge and relinquish any and all claims that you now have or may have against us, our affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives which are connected with, arise out of, relate to or are incidental to the use of the service.
      2. Nothing within this clause restricts your claim arising directly from our fraud, gross negligence or willful misconduct.
      3. You further agree to indemnify and hold us, and the indemnified parties harmless from any claim or demand, including legal fees on a full indemnity basis, made by any third party due to or arising out of:
         1. a breach of these terms and conditions by you

9. 2. 1. 2. any willful, unlawful or negligent act or omission by you; or
         3. your use of the website or service
   3. Occupational Health and Safety (OH&S)
      1. You acknowledge that items sold without plant hazard reports are deemed to be sold for parts and/or salvage only. You also acknowledge and agree that for these items you will carry out, or cause to be carried out, a detailed plant hazard review of the item prior to operating and/or using the item.
      2. You acknowledge, accept and agree that all risk in connection with, and responsibility for, the item, it’s operation, the safety of all persons is and shall be solely yours upon completion of the auction or sale of the item.
10. Definitions

Auction – Includes Traditional auction, simulcast auction and online auction

Buyers’ Premium – The fee payable by the purchaser direct to Martin Auctions on top of the purchase price

Credit Card Surcharge – The fee payable by the purchaser on top of the invoice price if the purchaser pays by credit card.

Debit Card Surcharge – The fee payable by the purchaser on top of the invoice price if the purchaser pays by credit card.

GST – Goods and Services Tax as defined by the A New Tax System (Goods and Services Tax) Act 1999 (Cth)

Max bid – The function in the bidding platform which allows the system to bid on the bidder’s behalf up to a set limit.

PPSR – Personal Property Security Register

Martin Auctions – Chalrow Pty Ltd t/a Martin Auctioneers and Valuers ACN 635 070 996

Sale – Includes Auction, Private Treaty, Expression of Interest (EOI) or Tender

The Service – Auction, sale and agent services provided by Martin Auctions via the website

Us/We/Our – Chalrow Pty Ltd t/a Martin Auctioneers and Valuers ACN 635 070 996

Website – https://www.martinauctions.com.au  and/or https://martinauctions.bidsonline.com.au