K&S FREIGHTERS PTY LTD T/A K&S AUCTIONS ABN 67 007 544 390
OF 141-147 JUBILEE HIGHWAY WEST, MOUNT GAMBIER, SA 5290
LICENSED DEALER NO. MVD 273711

Auction and Pre-Auction Sale Terms & Conditions

I, the named Buyer on the Buyer Registration Form, on my own behalf, and where I am acting on behalf of any other party, on that party’s behalf, in consideration of being permitted to bid for goods (“Goods”) at this auction and/or to buy Goods prior to the commencement or completion of this auction, agree and acknowledge as follows:

1. I declare that the information provided by me in the Buyer Registration Form is true and correct.


2. I declare that I am authorized to act on behalf of any party nominated on the Buyer Registration Form in relation to any Goods for which I may bid, or subsequently buy.


3. I have read these Terms & Conditions and understand that my use of the K&S Auctions website and/or if I bid at auction or submit an offer to buy Goods prior to the commencement or completion of an auction, my bid/offer is subject to these Terms & Conditions and any special conditions announced or advised prior to the auction or sale by K&S Auctions. If I am the successful bidder or buyer, I acknowledge and agree that I am bound to purchase the Goods I have successfully bid for or offered to buy in accordance with these Terms & Conditions and any special conditions announced or advised prior to the auction or sale.

Bidding and Purchase Terms

4. The auction period for Goods is completed upon the acceptance and declaration by K&S Auctions of the highest bid, whether by expiry of the bidding period nominated by K&S Auctions or otherwise by fall of hammer (“Auction Close”).


5. The bidder with the highest bid at the Auction Close will purchase the Goods at the price specified in the bid, subject to K&S Auctions’ acceptance, but if any dispute arises to the last or highest bid, K&S Auctions (at its sole discretion) may auction or resell the Goods.


6. Each bid constitutes an irrevocable offer by the bidder to purchase the Goods at the specified bid price. Once a bid is made, it cannot be revoked and remains open for acceptance by K&S Auctions until the sale is completed.


7. All auction bid prices are GST inclusive.


8. All bids submitted must be bona fide and must not be fixed or adjusted in collusion (or otherwise in accordance with any agreement or understanding) with any third party (including but not limited to providing information relating to intended bids or attempting to manipulate the sale in any way). If K&S Auctions becomes aware of any form of collusive activity by a bidder, K&S Auctions may terminate the bidder’s rights to participate in the auction, or if K&S Auctions has accepted the bidder’s bid it may terminate any contracts entered into by the bidder relating to the bid.


9. K&S Auctions may refuse to accept any bid and/or may withdraw any Goods from sale at any time prior to Auction Close.


10. K&S Auctions reserves the right to, and is entitled to, enter into further negotiations with the highest bidder at Auction Close.


11. Where a Buyer elects to purchase Goods prior to the commencement and/or completion of an auction by using the ‘Buy Now’ purchase option (“Pre-auction Sale”), (subject always to clause 37) the Buyer will be deemed to have made an irrevocable offer capable of immediate acceptance by K&S Auctions for the Buyer to purchase the Goods at the ‘Buy Now’ price specified by K&S Auctions.  K&S Auctions may accept that offer by withdrawing the Goods from auction and/or indicating that the Goods are sold.


12. All Buyers shall at Auction Close or Pre-auction Sale, pay a deposit of ten per cent (10%) of the sale price for the Goods (unless K&S Auctions confirms in writing to the Buyer that no deposit is required).


13. In the case of non-payment of such deposit by a Buyer (“Defaulter”) within 24 hours of Auction Close or Pre-auction Sale, the Goods may, at the option of K&S Auctions, be auctioned or re-sold and K&S Auctions may in its sole discretion refuse to accept any bid made by the Defaulter.


14. Where the Buyer:

1. is the bidder with the highest bid at Auction Close and K&S Auctions accepts that bid (or, following further negotiations between K&S Auctions and the Buyer after Auction Close, K&S Auctions agrees to accept an alternate offer by the Buyer for the Goods); or


2. elects to purchase Goods prior to auction using the ‘Buy Now’ purchase option,

(subject always to clause 37) the Buyer must pay for the Goods in full and without set off or deduction in cleared funds on the earlier of:

3. 5:00pm on the day falling two working days (or such longer period as may be agreed by K&S Auctions in its sole discretion) after Auction Close or after Pre-auction Sale (as the case may be); and


4. the time that the Buyer collects the Goods.

15. Except where specifically required by applicable legislation, K&S Auctions will not provide a road test report in relation to any Goods.  Where a road test report is provided (and subject always to the provisions of any applicable legislation which may not be excluded by law), K&S Auctions provides no warranty or guarantee concerning known or unknown faults or defects being disclosed or described in relation to Goods in the road test report.  Where Goods are capable of visual inspection prior to a Buyer submitting a bid or electing to purchase the Goods using the ‘Buy Now’ purchase option, any road test report that may be supplied by K&S Auctions will not cover any faults or defects that could have been identified by a Buyer on a visual inspection of the Goods.  Goods sold with a road test report are sold subject always to these Terms & Conditions including clause 23 in relation to the Buyer assuming the risk of any faults in Goods.


16. Risk of damage to, and loss or destruction of, Goods shall pass to the Buyer immediately at Auction Close or Pre-Auction Sale.  Subject always to clause 23, K&S Auctions will not be liable for any deficiency, damage or loss to Goods that may arise thereafter.


17. It is the Buyer’s responsibility to independently verify any information relevant to any item important to the Buyer’s decision to bid on, or buy, any Goods.


18. Stamp duty and delivery charges (where applicable) are to the account of the Buyer.


19. Title to Goods (or any part thereof) shall not pass to the Buyer until K&S Auctions has received the purchase price in full (and without set off or deduction) in cleared funds.  K&S Auctions may charge interest at a rate of 7% per annum compounding daily on any monies required to be paid by a Buyer from the date that payment was required to be made under clause 14 until such time as payment is made by the Buyer.


20. The Buyer cannot collect any Goods until K&S Auctions has received the purchase price in cleared funds in accordance with clause 19 (“Completion”).  The Buyer must remove all Goods within five working days of Completion, failing which K&S Auctions reserves the right to impose reasonable storage charges until such time as the Goods are collected.


21. To the maximum extent permitted by law, K&S Auctions shall not be liable for any damage to property or injury to persons incurred during the collection of any Goods.


22. Subject always to clause 37, if the Buyer fails to comply with these Terms & Conditions (including, without limitation, clause 14), K&S Auctions may retain any deposit paid by the Buyer and the Goods may be resold by the Buyer.


23. To the full extent permitted by law, all conditions, warranties, guaranties, rights, remedies, liabilities and other terms implied or imposed on K&S Auctions by statute, custom, the common law or equity are excluded from these Terms & Conditions. If a supply is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law, nothing contained in these Terms & Conditions excludes, restricts or modifies the application of the Australian Consumer Law, provided that, to the extent the Australian Consumer Law permits, K&S Auctions’ liability shall be limited to (at K&S Auctions’ option):

1. in the case of services, resupplying the services or paying the cost of having the services supplied;


2. in the case of goods (including the Goods), the cost of replacing the goods, supplying equivalent goods, having the goods repaired, or payment of those costs.

24. K&S Auctions represents and warrants that at Completion, the Goods will not be subject to any security interest of any kind, including without limitation any interest under the Personal Property Securities Act 2009 (Cth).


25. Subject always to clause 23, the Buyer accepts all Goods, having been made available for inspection prior to auction or sale, ‘as is, where is’ with all faults and defects (if any).


26. The Buyer acknowledges that all information supplied by K&S Auctions in relation to Goods is provided in good faith.  However, to the maximum extent permitted by law, K&S Auctions does not give any warranty as to the accuracy or completeness of such information.


27. Subject always to clause 19, the Buyer agrees and acknowledges that K&S Auctions accepts no liability or responsibility to the Buyer or any third party for any indirect, consequential or remote loss, damage or expense of any kind or nature whatsoever and the Buyer releases K&S Auctions from any such liabilities, claims, demands or causes of action in respect thereof.


28. Subject to clause 23, the Buyer agrees to indemnify, keep indemnified and hold harmless K&S Auctions the full amount of any claim, suit or demand (including K&S Auctions’ legal costs of such claim, suit or demand, on a full indemnity basis) made by the Buyer, or any other person claiming through or in connection with the Buyer, in relation to an auction of sale. This clause 28 survives termination of these Terms & Conditions for any reason and does not merge on Completion.


29. K&S Auctions is not responsible or otherwise liable for any delay in, or failure of, performance to the extent of any delay or failure due to circumstances outside the reasonable control of K&S Auctions including, without limitation, strikes, lockouts, fire, flood, explosion, accident, breakdown of systems or cyber attack.


30. The Buyer acknowledges that despite K&S Auctions using its reasonable endeavours, from time to time Goods may be listed with incorrect information (including, without limitation, as to description or price of the Goods).  K&S Auctions has the right to cancel any purchase transaction due to error even if the purchase price for the Goods has been paid by the Buyer.  K&S Auctions may exercise this right at any time up until the Buyer has collected the Goods.  If K&S Auctions exercises this right, it will refund to the Buyer the purchase price or deposit (as the case may be) that the Buyer has paid.


31. K&S Auctions expressly disclaims any representation or warranty that the online auctions and sales system will be available for use by the Buyer at all times, or at any particular time, during and for the duration of any particular sale process.


32. If the online auction or sales process or system is interrupted (either generally or only to a particular Buyer(s)) for any reason during an online auction or sale process (whether by way of suspension of the process by K&S Auctions in accordance with these Terms and Conditions or otherwise), K&S Auctions may, but is not obliged to, declare any particular online auction or sale process affected by that interruption void and may recommence the online auction or sale process from the beginning.


33. K&S Auctions may from time to time suspend the provision of the online auction and sale system for any reason including (without limitation) for the conduct of routine system maintenance and upgrades.


34. Where possible, K&S Auctions will provide prior notice to you (including via email or by notification published on the K&S Auctions website) of the anticipated time and duration of any suspension of the online auction and sale system, but does not warrant or represent that it will do so on every occasion or on any occasion at all.


35. All Goods are sold as unregistered unless otherwise stated by K&S Auctions.


36. Any deficiency in the Goods shall not vitiate the sale, but K&S Auctions shall not be obliged to deliver more than is in its possession.


37. Cooling Off Period:

No cooling off period applies where the Buyer participates in an online auction.

The Buyer is entitled to a two clear business days cooling off period where the Buyer elects to purchase Goods using the ‘Purchase Now’ option on the K&S Auctions website. If the Buyer is entitled to, and validly exercises, the right to cool off, K&S Auctions will refund to the Buyer any deposit paid by the Buyer less:

1. 2% of the purchase price for the Goods; and


2. $100,

whichever is the lesser amount.

38. Additional terms for truck and machinery auctions or where vehicles are purchased for business use :

K&S Auctions does not warrant any electrical or mechanical appliance, plant and/or equipment (collectively “Plant and Equipment”) complies with the requirements of any federal, state or territory occupational health and safety laws (“OHS Laws”).  Where reasonably practicable and where Plant and Equipment is likely to be used in the workplace, K&S Auctions will display a statement indicating the safety condition of the Plant and Equipment and will provide user manuals etc which may exist for an item of Plant & Equipment.  By law, a Buyer of any Plant and Equipment for use in the workplace must ensure that the Plant and Equipment complies with all applicable OHS Laws before it is used.  Heavy penalties apply for non-compliance with OHS Laws.  You warrant and agree that you will satisfy yourself that any Plant and Equipment complies with applicable OHS Laws prior to using it in a workplace.

39. Additional terms for salvage auctions:

Subject to clauses 23 and 25, K&S Auctions does not accept any responsibility for damage sustained to vehicles or equipment through the normal use of forklifts or other lifting plant to load, unload or otherwise shift or re-position damaged and non-driveable vehicles.

Bidder Registration

40. A Buyer may not bid at Auctions or submit offers to purchase Goods unless the Buyer is a Registered Buyer under clauses 36-40.


41. A Buyer may apply to K&S Auctions to become a Registered Buyer to participate in auctions and sales by completing the online Buyer Registration Form.


42. By submitting a completed Buyer Registration Form to K&S Auctions, you represent and warrant that all information provided by you to K&S Auctions is complete and accurate.


43. K&S Auctions may accept or reject a Buyer Registration Form in its absolute discretion by notice to you (including by email). If K&S Auctions accepts a Buyer Registration Form, you become a Registered Buyer for the purposes of these Terms and Conditions (and the agreement comprised thereunder).


44. K&S Auctions reserves the right to require you to provide your credit card details before providing access to you to the online bidding and sales system.  In that event, you are required to maintain current and valid credit card details while you are a Registered Buyer.


45. Registered Buyers have access to the K&S Auctions website and online bidding and sales system for the purpose of participating in online auctions and sales only and provided always that they comply at all times with these Terms and Conditions.


46. When you complete the Buyer Registration Form, you will be asked to nominate a nickname. You consent to that nickname being displayed in a format visible to other users of the K&S Auctions website (eg, when you place a bid in an online auction, along with the amount of your bid) and you specifically agree that your nickname may be used by K&S Auctions in this manner.  K&S Auctions recommends that the nickname you nominate does not include details which may allow any other person to ascertain your identity.  However, K&S Auctions takes no responsibility if other persons do ascertain your identity from the nickname that you have nominated.


47. If K&S Auctions accepts a Buyer Registration Form, it will provide to Buyer a login and password to allow you to use the online auction and sales system on the K&S Auctions website and Buyer:

1. acknowledges that the login and password are solely for the personal use of the named buyer/entity;


2. agrees to maintain the confidentiality of the login and the password;


3. agrees not to disclose the login or password to any other person;


4. agrees, where a login or password are provided to any other individual at your request, to ensure that the individual complies with clauses 42(a), (b) and (c);


5. accepts full responsibility for, and indemnifies K&S Auctions against, any expenses, loss, damage, costs, demands or liabilities incurred by K&S Auctions directly or indirectly, out of or in connection with, the use, including (without limitation) improper or unauthorized use of the login and password;


6. agrees to only access the K&S Auctions website and online auction and sales system for legitimate and lawful purposes and in accordance with any instructions or directions given to you on the K&S Auctions website and online auction and sales system from time to time; and


7. agrees and acknowledges that K&S Auctions may, in its absolute discretion, withdraw or restrict your access to the K&S Auctions website and online auctions and sales system at any time and without reason, explanation or prior notification.

General

48. K&S Auctions may terminate these Terms & Conditions (and the agreement between the Buyer and K&S Auctions arising thereunder) at any time without cause by notice in writing (including by email).


49. The Buyer may terminate these Terms & Conditions (and the agreement between the Buyer and K&S Auctions arising thereunder) at any time without cause by notice in writing (including by email), provided the Buyer does not have an open or outstanding bid, offer to purchase, or sales.


50. Any purported termination does not release the Buyer from or extinguish any accrued liabilities or obligations of the Buyer under these Terms & Conditions. On termination of this Agreement for any reason, any amounts owed by the Buyer to K&S Auctions become immediately due and payable.


51. K&S Auctions may amend these Terms & Conditions at any time by thirty days notice in writing (including via email or by publishing a notice on K&S Auction’s website).

1. If the Buyer does not agree to be bound by the varied Terms & Conditions, the Buyer may, subject to clause 32, terminate these Terms & Conditions (and the agreement comprised thereunder) by notifying K&S Auctions within 30 days of service of the notice of variation.


2. If the Buyer does not notify K&S Auctions within 30 days of a notice of variation that the Buyer wishes to terminate these Terms & Conditions (and the agreement comprised thereunder), the Buyer agrees to be bound by the Terms & Conditions as varied.

52. K&S Auctions may give notice of any matter to be notified under these Terms and Conditions (and the agreement comprised thereunder) by email or post or by posting the notice on K&S Auction’s website.


53. Except to the extent that any specific State, Territory or Commonwealth laws apply to the sale of particular Goods, these Terms and Conditions shall be governed by and construed in accordance with the laws of South Australia and the parties submit to the non-exclusive jurisdiction of the courts of South Australia.


54. If any provision of these Terms and Conditions is found to be invalid or unenforceable in any jurisdiction, the provision will be read down or severed in that jurisdiction only and the invalidity or unenforceability does not affect the validity or enforceability of the other Terms and Conditions.


55. These Terms and Conditions comprise the entire understanding between the parties as to their subject matter.


56. In these Terms and Conditions, a reference to a statute includes any regulation under it and any consolidations, amendments or re-enactments of any of them.

Privacy

57. K&S Auctions protects the privacy of individuals in accordance with the Privacy Act 1988 (Cth) (“Privacy Act”).


58. Any personal information (as defined in the Privacy Act) (“Personal Information”) collected from a Buyer when you register, bid or transact with K&S Auctions or otherwise in connection with these Terms and Conditions is collected by K&S Auctions for the purposes of these Terms and Conditions and may be disclosed to K&S Auction’s related bodies corporate, to the extent that K&S Auctions is selling an item of Goods on behalf of a third party then to that third party, and to other third parties (such as licensing authorities) for this purpose.  K&S Auctions is required and/or authorized to identify buyers and sellers of vehicles under applicable laws relating to the sale of second hand vehicles.  Details are available in K&S Auctions’ privacy policy which may be accessed at Click Here.


59. K&S Auctions may also use the Personal Information contained in a Buyer Registration Form to contact the Buyer (or any party on whose behalf the Buyer is bidding) for marketing purposes.


60. If the Personal Information requested on the Buyer Registration Form is not provided, the Buyer may not be able to bid for or to buy Goods from K&S Auctions.


61. The Buyer specifically acknowledges and agrees that the nickname that it provides in the Buyer Registration Form does not comprise Personal Information and may be displayed in a format visible to other users of the K&S Auctions website (eg, accompanying bids submitted on Goods).


62. K&S Auctions’ Privacy Policy contains information about how individuals may:

1. access and correct the Personal Information about them held by K&S Auctions;


2. complain to K&S Auctions about a breach of privacy and K&S Auctions’ complaints handling process.

63. Any queries about privacy can be directed to K&S Auction’s privacy officer, PO Box 57, Laverton, Victoria 3028 or at privacy.officer@ksgroup.com.au .