1. CONTRACTUAL RELATIONSHIPS
(a) These Buyer’s Terms & Conditions of Business constitute the entire contractual relationship between Mechle.com and the Buyer.
(b) Mechle.com acts as agent for the Seller in relation to the sale of a lot (except where it is expressly stated in writing to be selling as principal) and is not responsible for any default by the Seller to the Buyer. A sale contract is deemed made directly between the Seller and the Buyer.
(c) A Bidder making a bid on-line, whether successful or unsuccessful in the bid, is deemed to have accepted these Buyer’s Terms & Conditions of Business and agrees to be bound by them.
2. COMMON TERMS.
In these Buyer’s Terms & Conditions of Business:
‘AUD’ means Australian dollars;
'Bidder' is any person considering, making or attempting to make a bid, by whatever means and includes a Buyer;
'Buyer' is the Bidder who makes the highest bid or offer for a lot that is accepted and includes such person's principal when bidding as agent;
‘Buyers Premium’ means the commission payable by the Buyer on the Hammer Price at the rate of 20% in accordance with Condition 15;
'GST' means a tax payable under the GST Act;
'GST Act' means a New Tax System (Goods and Services Tax) Act 1999 as amended;
'Hammer Price' is the highest bid accepted from a Bidder for a lot on the fall of the hammer;
'Mechle.com' means Mechle Pty Ltd (ACN 121 157 800);
‘On-Line Site’ means the website owned and managed by Mechle.com and called www.mechle.com;
‘On-Line Privacy Policy/Statement’ means the Mechle.com On-Line Privacy Policy/Statement as it appears from time to time as available on the On-Line site;
‘Purchase Price’ means the Hammer Price (plus GST if any) plus the applicable Buyers Premium (inclusive of GST);
'Reserve' is the minimum price at which the Seller has agreed to sell a lot, which is at all times disclosed;
'Seller' is the person offering a lot for sale through Mechle.com (including any agent, executors, administrators or personal representatives);
‘Storage Fee’ is the AUD $50.00 (inclusive of GST) fee per month or part thereof payable by the Buyer for storage and handling for sold and unclaimed lots remaining in the possession of Mechle.com;
'Tax Invoice' means a tax invoice as defined in the GST Act.
3. TERMS FOR SALE
(a) Mechle.com's sole knowledge in relation to each lot for sale is dependent on information provided to it by the Seller.
(b) Mechle.com only accepts items of value of not less than AUD $50.00. In case of any doubt as to the quality and standard, Mechle.com experts will carryout such necessary examination and valuation as may be required in its absolute discretion.
(c) Each lot offered for sale by Mechle.com is available for inspection by Bidders prior to the sale. Mechle.com accepts bids on lots solely on the basis that Bidders (and independent experts on their behalf, to the extent appropriate given the nature and value of the lot and the Bidder's own expertise) have fully inspected the lot prior to bidding and have satisfied themselves as to both the condition of the lot and the accuracy of its description. Mechle.com does not warrant or guarantee the lot offered for auction.
(d) Bidders acknowledge that many lots are of an age and type which means that they are not in perfect condition. All lots are offered for sale in the condition they are in at the time of the auction. Condition reports or lot descriptions may be available to assist Buyers when inspecting lots. Condition reports and lot descriptions may on occasions make reference to particular imperfections of a lot, but Bidders should note that lots may have other faults not expressly referred to in the condition report or the lot description. Illustrations are for identification purposes only and will not convey full information as to the actual condition of lots.
(e) Information provided to Bidders in respect of any lot, including any estimate, whether written or oral and including information in any condition report or lot description, commentary or valuation, is not a representation of fact but rather a statement of opinion genuinely held by Mechle.com. Any estimate may not be relied on as a prediction of the selling price or value of the lot and may be revised from time to time in Mechle.com’s absolute discretion.
4. EXCLUSIONS & LIMITATIONS OF LlABILITY TO BUYERS
(a) Mechle.com:
- (i) is not liable in contract or in tort or otherwise arising by statute or otherwise for any errors or omissions in information (whether oral or in writing) provided to Bidders by Mechle.com save to the extent that this exception cannot be excluded by law;
- (ii) will not give any guarantee or warranty to Bidders and any implied warranties and conditions are excluded (save in so far as such obligations cannot be excluded by law); and
- (iii) will not accept responsibility to any Bidders in respect of acts or omissions howsoever arising in contract, tort or by statute by Mechle.com in connection with the conduct of online auctions for any matter relating to the sale of any lot (save to the extent that this exception cannot be excluded by law).
(b) Unless Mechle.com owns a lot offered for sale, it is not responsible for any breach of these conditions.
(c) Nothing in these terms and conditions is intended to limit or exclude any liability on the part of Mechle.com where and to the extent that applicable law (eg the Trade Practices Act) prohibits such exclusion or limitation.
5. BIDDING AT AUCTION
(a) A Bidder must register online through the online registration procedures to open an account. The Bidder acknowledges that by registering to use the Mechle.com online auction, the Bidder will not use a false or misleading name or give false or misleading information, and notwithstanding which, the Bidders obligation to purchase at the fall of the hammer shall not be abrogated by reason of the provision by the Bidder of any false or misleading information. Bidders are personally liable for their bid and are jointly and severally liable with their principal if bidding as agent.
(b) Mechle.com has the absolute discretion, at the end of the auction bidding time to further extend the bidding time by intervals of three (3) minutes each after each active bid and shall continue to further extend the time by three (3) minute intervals until all online bidding on the lot stops and the lot is sold on the fall of the hammer.
6. CONDUCT OF THE AUCTION
(a) All bids for lots placed on Mechle.com are disclosed and are visible to those who access the On-Line Site. The lot estimate and the reserve (if any) are also disclosed and visible. Unless otherwise specified, all lots are offered subject to a Reserve, which shall not be higher than the low presale estimate at the time of the auction as disclosed in the lot description prior to the sale of any lot.
(b) Mechle.com has the absolute discretion at any time to refuse any bid, withdraw any lot, re-offer a lot for sale (including after the fall of the hammer) if in its absolute opinion it believes there may be an error or dispute, an error in the description or mis-description of a lot, and take such necessary remedial action as it thinks fit in its absolute discretion.
(c) If Mechle.com rescinds a sale because the lot offered for auction is proved to its reasonable satisfaction to be a forgery or not consistent with its description or the claim made in relation to it and Mechle.com has accounted to the Sellers for the Sale Proceeds, the Seller must immediately refund the Sale Proceeds to Mechle.com, which will then refund the Purchase Price to the Buyer.
(d) In respect to Mechle.com returns policy on lots sold at the on-line auction please CLICK HERE TO READ ABOUT MECHLE.COM ONLINE AUCTION RETURNS POLICY.
7. PAYMENT AND COLLECTION
(a) Unless otherwise agreed, payment of the Purchase Price for a lot is due in Australian dollars within two (2) business days of the conclusion of the auction (the "Due Date") notwithstanding any requirements for export, import or other permits for such lot. If payment is not received, Mechle.com will give one written notice (the “Notice”) to the Buyer informing the Buyer that within ten (10) business days of the Notice the lot will be re-auctioned at Mechle.com’s absolute discretion.
(b) Title in a purchased lot will not pass to the Buyer until Mechle.com has received the Purchase Price for that lot in cleared funds. Mechle.com is not obliged to release a lot to the Buyer until appropriate identification has been provided buy the Buyer.
(c) The Buyer is obliged to arrange collection of purchased lots within three (3) business days of the conclusion of the auction. Purchased lots are at the Buyer's sole risk and therefore it is the Buyer’s sole responsibility for arranging collection and transportation (if necessary) and any necessary insurance, unless an alternative arrangement has been made in writing between the Buyer and Mechle.com.
(d) The supply of an authority to release any lot to a third party by the Buyer shall constitute collection by the Buyer.
(e) All packing and handling is at the Buyer's risk. Mechle.com will not be liable for any acts or omissions by either, itself, its agent or third party packers or shippers.
(f) Payment must be made by credit card only, through the online merchant facilities. Credit card payments carry a 3% premium plus GST.
(g) Mechle.com reserves the right to withhold any lot from collection until funds paid for all lots purchased by the Buyer have cleared into Mechle.com’s bank account.
(v) Mechle.com reserves the right to charge interest at 12% per annum from the Due Date to the date the Purchase Price is received in cleared funds.
8. REMEDIES FOR NON-PAYMENT
(a) If the Buyer, in the absence of any prior written agreement with Mechle.com, fails to make payment for the lot within two (2) business days of the conclusion of the auction and Mechle.com has given the Buyer one (1) written notice in that regard, Mechle.com may in its absolute discretion (having informed the Seller) exercise one or more of the following remedies:
- (i) store the lot at its premises or elsewhere at the Buyer's sole risk & expense;
- (ii) cancel the sale of the lot;
- (iii) set off any amounts owed to the Buyer by Mechle.com against any amounts owed to Mechle.com by the Buyer in respect of the lot;
- (iv) reject future bids from the Buyer or render such bids subject to payment of a deposit;
- (vi) exercise a lien over any of the Buyer's property which is in the possession of Mechle.com. Mechle.com shall inform the Buyer of the exercise of any such lien and within fourteen (14) days of such notice may arrange the sale of such property and apply the proceeds to the amount owed to Mechle.com;
- (vii) resell the lot by auction or private sale, with any estimate or reserve at Mechle.com’s discretion. In the event such resale is for less than the Purchase Price for that lot, the Buyer will remain liable for the shortfall together with all costs incurred in such resale; or
- (viii) commence legal proceedings to recover the Purchase Price for that lot, together with interest and the costs of such proceedings on a full indemnity basis.
9. FAILURE TO COLLECT PURCHASES
(a) If the Buyer pays the Purchase Price but fails to collect a purchased lot within ten (10) business days of the conclusion of the auction, the lot will be stored at the Buyer's expense (and risk) at Mechle.com’s premises or with a third party and will not be released until the payment of the Storage Fee has been received in cleared funds by Mechle.com.
(b) If a purchased lot is paid for but not collected the Buyer authorises Mechle.com, after having given the Buyer written notice, to arrange a resale of the item by auction or private sale, with estimates and reserves at Mechle.com’s discretion. The proceeds of such sale, less all costs and expenses incurred by Mechle.com, will be forfeited.
10. EXPORT AND PERMITS
It is the Buyer's sole responsibility to obtain any necessary export, import, firearm, endangered species, heritage or other permit for any lot. Mechle.com and the Seller make no representations or warranties as to whether any lot is subject to export or import restrictions or any embargoes. The denial of any permit or licence shall not justify cancellation or rescission of the sale contract or any delay in payment of any moneys due by the Buyer to Mechle.com for the purchase of any lot. The Buyer is specifically referred to the Australian Protection of Movable Cultural Heritage Act 1986 (the Act). It is the Buyer’s responsibility to comply with the Act.
11. FORGERY
(a) If a lot is proved to the reasonable satisfaction of Mechle.com to be a Forgery then Mechle.com may rescind the Sale as agent for the Seller in which case the Seller shall refund all monies paid to the Seller, in which Mechle.com will refund the Purchase Price to the Buyer and make the lot available to the Seller for collection provided that:
- (i) the Buyer provides written notice to Mechle.com within fourteen (14) days of the date of the auction of the Forgery allegations;
- (ii) the Buyer produces evidence from two independent experts who both agree that the lot is a Forgery, however, Mechle.com reserves the right to request a further expert evidence if, in the absolute discretion of Mechle.com, it is not satisfied with the findings of the experts;
- (iii) the Buyer returns the lot to Mechle.com in the same condition as it was at the date of the Sale;
- (iv) the Buyer warrants that it has not sold or transferred the lot nor created any rights in respect there of in favour of any third party;
- (v) the Seller has refunded all monies paid to the Seller to Mechle.com.
(b) If the conditions of Clause 11 (a) (i) to (v) are satisfied, the maximum liability of Mechle.com to the Buyer shall be the refund of the Purchase Price of the lot and shall not include a refund of any storage charges, insurance, interest and the like, or any consequential or direct loss or damages suffered or expenses incurred by the Buyer.
(c) Despite Clause 11 (b), Mechle.com has no obligation to rescind the Sale and the Buyer shall not be entitled to rescind the Sale if in the opinion of Mechle.com the description of the lot at the time of the Sale was accurate based on the opinion of an expert in the relevant area of the expertise at that time.
12. GENERAL
(a) All images and other materials produced for the auction of a lot are the copyright of Mechle.com and for use by Mechle.com at its discretion.
(b) Notices addressed to Mechle.com shall be in writing and addressed to the address of Mechle.com as published from time to time.
(c) Should any provision of these Buyers Terms and Conditions of Business be held unenforceable for any reason, that provision shall be deemed to be severed herefrom and the remaining provisions shall continue in full force and effect.
(d) These Buyer’s Terms and Conditions of Business are not assignable and are binding on the Buyer’s executors, administrators, successors, and legal personal representatives.
(e) No act, omission or delay by Mechle.com shall be deemed a waiver or release of any of its rights or the rights of the Buyer.
(f) Mechle.com reserves the right to charge the Buyer any bank fees, transaction fees, exchange rate fees, credit card fees or any other like charges or fees that may be incurred by Mechle.com in relation to any transaction.
(g) These Buyer’s Terms and Conditions set out the entire agreement and understanding between the parties with respect to its subject matter and it has not been entered into in reliance on any representation, warranty or undertaking which is not expressly referred herein.
13. GOVERNING LAW AND JURISDICTION
These Buyer’s Terms and Conditions of Business and all matters, transactions or disputes to which they relate or apply shall be governed, interpreted and adjudicated in accordance with the laws of and in the Courts of the State of New South
Wales, Australia (which shall have exclusive jurisdiction).
Service of Process: The Buyer hereby irrevocably consents to the service of Court process or any other documents in connection with any proceedings issued by Mechle.com in any court by facsimile transmission or by prepaid post to the last address of the Buyer known to Mechle.com.
14. GST
(a) The Purchase Price will state whether the lot purchased is inclusive of goods and service tax (GST inclusive) or exclusive of goods and services tax (GST exclusive)
(b) If the buyer provides a proof of export certificate (PEC), Mechle.com will within 30 days of the receipt of the PEC arrange for a GST refund. If the export is not made before the end of 60 days from the date of purchase, the GST free status of those goods will be lost unless the Commissioner of Taxation for Australia allows further time.
15. BUYER’S PREMIUM
A Buyer's Premium applies to each lot sold.
16. PRIVACY
(a) Mechle.com’s On-Line Privacy Policy/Statement (as it appears from time to time) is available on the On-Line Site. Mechle.com will take all reasonable steps to abide by this policy and all users of the On-Line Site hereby agree to its Terms and Conditions and agree to act in accordance with the policy when using this On-Line Site.
(b) By accepting these buyer’s Terms and Conditions the Buyer consents to the following:
- (i) Collection of a variety of personal information which is specified in greater detail in the Online Privacy Policy/ Statement. This information includes your address, date of birth and contact details; in some cases, bank account details, bidding and buying activity at online auctions; and your use of the On-Line Site.
- (ii) Use of the above personal information is specified in greater detail in the On-Line Privacy Policy/Statement. These purposes include internal use for improving the service; meeting Mechle.com’s obligations under State or Federal laws; statistical analysis of usage of the On-Line Site to improve the service; to utilise Mechle.com’s content and product offerings as well as to deliver promotional material; and administrative purposes connected with the On-Line Site (including for bidding at online auctions).
- (iii) Buyer may also have rights as a consumer under the Commonwealth Trade Practises Act (Australia) and other similar State laws.
17. PROCESSING AND TECHNOLOGY ERRORS
(a) In addition to Mechle.com’s absolute discretion contained in Clause 6 (b), if in the event of errors in processing and/or site downtime or any other errors or delays caused to the site and/ or Service as a result of unforeseen technological difficulties associated with our servers, data hosting centre, internet service provider or any other reason, Mechle.com hereby reserves the right to:
- (i) decide (prior to or after the original time set for conclusion of the online auction) to extend an online auction for a period of time (determined at our discretion); and/or;
- (ii) decide (prior to or after the original time set for conclusion of the online auction) to re-open an online auction for a period of time - to be determined at our discretion; and/or;
- (iii) retract any Bidder’s emails which may have been sent out to bidders prior to or following (as the case may be) the conclusion of an online auction; and/or;
- (iv) amend at any time prior to or during an online auction, the “start price” allocated to an item for sale online, but only so as to correct any errors due to processing or technological fault; and/or;
- (v) void that entire online auction transaction and open the auction again at the original start prices.
- (vi) In any of the decisions taken by Mechle.com as provided for in this Clause 17, the Mechle.com shall not under any circumstances be liable to the Buyer for any consequential losses, costs or any other amount on account of damages.
18. CHANGES TO TERMS AND CONDITIONS
Mechle.com reserves the right, at its absolute discretion, to change, modify, add or remove any portion of these Buyers Terms and Conditions, in whole or in part, at any time without any notice. Changes in theses terms and conditions of use will be posted to the On-Line Site. Buyer agrees to read these Terms and Conditions of use and to become aware of any changes. Buyers continued use of the Mechle.com On-Line Site after any changes to these Buyers Terms and Conditions of use are posted to it constitutes acceptance of those changes.