|When you apply to become a Registered Bidder, you are making representations to each member of the Manheim Group and also agreeing to the following important conditions. You should ensure you have read this Agreement prior to registering and making any bid at a Manheim Sale. If you bid at any Manheim Sale you will be subject to this Agreement.|
Access to Online Sales
Your viewing and use of the Website and the Online Sales System is governed by and subject to You agreeing to this Agreement.
By applying to become a Registered Bidder, logging onto and using the Website and the Online Sales System, making or purporting to make a Bid at any Auction Sale or submitting or purporting to submit a Tender at any Tender Sale, You irrevocably submit that You:
Bidders must be Registered to Participate in Sales.
You may apply to Manheim to become a Registered Bidder to participate in Sales by completing the online application form (Application).
Applications for Registration
A person (the Applicant) may apply to Manheim to become a Registered Bidder to participate in Sales by completing the Online Application Form.
By submitting an Application to Manheim, You represent and warrant to Manheim that all information provided by You to Manheim is complete and accurate.
Manheim may accept or reject an Application in its absolute discretion by notice to You. If Manheim accepts the application, You become a Registered Bidder for the purposes of this Agreement.
Registered Bidders have access to the Website and the Online Sales System for the purpose of participating in a Sale only and provided they comply with this Agreement at all times.
Use of login and password
If Manheim provides You (or an individual who You nominate) with a login and password to use the Online Sales System You:
acknowledge that the login and password are for the personal use of the named entity;
agree to maintain the confidentiality of the login and password both separately and as a pair;
agree not to disclose the login or password to any other person;
agree, where a login and password are provided to an individual at Your request, to ensure that the individual complies with clauses 2.3.1 to 2.3.4;
accept full responsibility and indemnify Manheim for any expenses, loss, damage, costs, demands or liabilities incurred by Manheim directly or indirectly, out of or in connection with, the use, including (without limitation) any improper or unauthorized use of the login and password;
agree to only access the Website and Online Sales System for legitimate and lawful purposes and in accordance with any instructions or directions given to You on the Website or Online Sales System from time to time; and
agree and acknowledge that Manheim may, in its absolute discretion, withdraw or restrict your access to the Website or Online Sales System at any time and without reason, explanation or prior notice.
Prepayment Amount "Bidding Bond"
Manheim may require a Registered Bidder to pay to it an amount of money determined and held by Manheim (without any obligation to pay interest) as a prepayment (“Bidding Bond”) of any amounts owed or payable to Manheim under this Agreement or as a result of a Sale.
The parties acknowledge and agree that Manheim holds the Prepayment Amount (“Bidding Bond”) as a security against the Registered Bidder subject to the terms of this clause 2.4 and not as trustee for, agent of or in any other fiduciary relationship with the Registered Bidder.
The Registered Bidder acknowledges and agrees that Manheim is the absolute owner of the Prepayment Amount and the Registered Bidder has no right, title or interest in the Prepayment Amount subject only to a contractual right to repayment pursuant to clause 2.4.8. To the extent that the Registered Bidder is, pursuant to this Agreement, deemed to hold a Security Interest over the Prepayment Amount, the Registered Bidder agrees that it will not register any such Security Interest, or any financing statement in relation to it, or take any steps to do so.
Manheim may apply the Prepayment Amount against any amounts owed or payable to it under this Agreement or as a result of a Sale without prior notice to the Registered Bidder.
Manheim may from time to time vary the amount of a Registered Bidder's Prepayment Amount by notice to the Registered Bidder.
The Registered Bidder must ensure that it maintains the required balance of the Prepayment Amount with Manheim at all times.
Manheim may refuse to allow a Registered Bidder to participate in a Sale or reject any Bid or Tender made by the Registered Bidder if the balance of the Prepayment Amount falls below the required amount.
Subject to clause 2.4.9, following termination of this Agreement for any reason, Manheim must pay an amount equal to the balance of the Prepayment Amount (less any amounts owing or payable to Manheim) to the Registered Bidder within five (5) Business Days.
Without limitation, Manheim may retain the balance of the Prepayment Amount for so long as is reasonably necessary to finally resolve any claim or dispute between any member of the Manheim Group, the Seller of an Item, a Registered Bidder and any other person.
Definition of Auction or Tender Sales
Prior to the commencement of the Sale Process for an Item, Manheim may nominate that the Item is for sale by Auction Sale or Tender Sale.
All Auction Sales conducted by or in conjunction with the Online Sales System are subject to the Online Auction Sales Terms and Conditions.
All Tender Sales conducted by or in conjunction with the Online Sales System are subject to the Online Tender Sales Terms and Conditions.
All vehicles are sold as unregistered unless expressly stated to the contrary.
No Warranty or Representation of Availability
Manheim expressly disclaims any representation or warranty that the Online Sales System will be available for use by You at all times or at any particular time, during and for the duration of any particular Sale Process or at all.
Interruption to Service during Sale Process
If the Online Sales System is interrupted (either generally or to a particular Bidders or person(s)) for any reason during a Sale Process (whether by way of suspension by Manheim under clause 4.3 or otherwise) Manheim may, but is not obliged to, declare the Sale Process void and recommence the Sale from the beginning.
Suspension of Service
Manheim may from time to time suspend the provision of the Online Sales System.
Where possible, Manheim will notify You in advance of the time and duration of any suspension of the Online Sales System, but does not represent or warrant that it will do so on every occasion, on any particular occasion or any occasion at all.
If You make use of the Online Sales System, whether for You or another person, You acknowledge and warrant to Manheim that:
You have the full authority to engage in the transactions You undertake;
You will be liable for all costs, fees, charges and other amounts which may become payable to Manheim or any other person as a result of the use of the Online Sales System;
You are properly authorised to provide Manheim with any information which You provide;
You are not breaching any obligation of confidence or any requirement of any applicable law relating to the privacy of Personal Information by providing the information to Manheim; and
all information You provide to Manheim is true and complete to the best of Your knowledge.
Manheim shall not be responsible for any damage to property or injury to persons incurred during the removal of Items.
Subject to clause 5.6, the Registered Bidder is not entitled to cancel any transaction on the basis that the Items were not accurately described.
Subject to clause 5.6, all Items, having been made available for inspection prior to Sale, are offered for sale 'as is, where is' with all faults (if any).
Exclusion of Representation
As a Registered Bidder making a Bid or submitting a Tender in accordance with this Agreement, You do so on the basis that:
no member of Manheim Group makes any representation concerning the Online Sales System; and
You do not rely on:
No Exclusion of Legislation
To the full extent permitted by law, and notwithstanding the contents of or any description given in any catalogue, advertisement, Road Test Report, engineers' report or other materials issued by any member of the Manheim Group, all conditions, warranties, guarantees (including without limitation as to the condition, quality, fitness for purpose, merchantability or compliance with description of an Item), rights, remedies, liabilities and other terms implied or imposed on any member of the Manheim Group by statute, custom or the common law are excluded from this Agreement. If a supply under this Agreement is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law, nothing contained in this Agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, provided that, to the extent that the Australian Consumer Law permits any member of the Manheim Group to limit its liability, then its liability shall be limited to:
in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
You acknowledge that You are responsible for conducting a search of the Personal Property Securities Register (PPSR) maintained pursuant to the Personal Property Securities Act 2009 (Cth) (PPSA) to ascertain whether any security interests are recorded in relation to the Item.
You acknowledge that any information provided by Manheim in relation to any Items reflects the information provided to Manheim by the Seller, and, subject to clause 5.9, Manheim has not independently verified its completeness or accuracy. Manheim does not give any warranty as to the completeness or accuracy of any information provided to You about any sale of Items, including without limitation any information in relation to the distance travelled by a vehicle or its machine or engine hours and Manheim will not be liable for any loss, damage, cost or expense suffered or incurred by a buyer arising out incorrect or incomplete information. You agree to independently verify any information which is important to Your purchasing decision.
Manheim will, prior to the sale of any Items, conduct a search of the PPSR maintained pursuant to the PPSA to ascertain whether any security interests are recorded in relation to the Items. Unless Manheim specifically provides information to the contrary, it will not sell any Items if it is aware that any security interest recorded on the PPSR will not be released at or prior to the time title in the Items is intended to pass to the buyer.
Limitation of Liabiltiy
To the full extent permitted by law and subject to clause 5.6, neither the Seller nor Manheim will be liable for any loss, damage, cost or expense suffered or incurred by a purchaser arising out of the sale and purchase of an Item.
Subject to clause 5.6, You agree and acknowledge that no member of the Manheim Group accepts any liability or responsibility to You or any third party arising from any indirect or consequential loss, damage or expense of any kind or nature and You release and forever discharge each member of the Manheim Group from any such liabilities and any claims, demands or causes of action in respect thereof.
Subject to clause 5.6, no member of the Manheim Group accepts any responsibility for any interpretation which may be placed upon the information provided to You.
Subject to clause 5.6, any deficiency in the Items sold shall not vitiate the sale, but neither the Sellers nor Manheim shall be bound to deliver more than is in their possession.
Indemnity Subject to clause 5.6, you agree to indemnify each member of the Manheim Group for the full amount of any claim, suit or demand and all costs of such a claim, suit or demand (including, without limitation, legal costs on a full indemnity basis) made by You or any other person in relation to a Sale or Your use of the Online Sales System or the Website. This clause 5.5 survives termination of this Agreement for any reason and does not merge upon completion.
Circumstances beyond Manheim Group's reasonable control No member of the Manheim Group is responsible for or otherwise liable for any delay in, or failure of, performance to the extent that any delay or failure is due to circumstances beyond its reasonable control including, without limitation, strikes, lockouts and other industrial disputes, breakdown of systems or network access, flood, fire, explosion or accident.
Termination by Manheim
Manheim may terminate this Agreement and cease to provide access to the Online Sales System to You immediately by giving notice to You.
Termination by You
You may cease to remain a Registered Bidder by notice in writing by email via the website account or by mail to Manheim, provided that You do not have any active or outstanding Bid or Tender in the Online Sales System. Any purported termination of this Agreement by You does not release You from, or affect, any accrued obligation under this Agreement.
Consequences of Termination
Upon termination of this Agreement for any reason:
You must immediately cease to use the Online Sales System;
any amounts You owe to Manheim, whether under this Agreement or otherwise become immediately due and payable; and
You must destroy or delete any copy of the Online Sales System or any information collected from the Online Sales System You have in Your possession or under Your control.
Manheim may give You notice of any matter or thing required or permitted to be notified to You under this Agreement by either:
Such notice takes effect and is deemed served from the time the electronic mail message leaves the Manheim system or is visible on the Website, as the case may be.
Except to the extent any specific State, Territory or Commonwealth laws applying to the sale of particular Item, this Agreement shall be governed by and construed in accordance with the law for the time being in force in Victoria and the parties submit to the non-exclusive jurisdiction of the courts of Victoria.
A reference to a matter being to the knowledge of a person means the matter is to the best of the knowledge and belief of the person after making proper enquiry including enquiry which a reasonable person would be prompted to make by reason of knowledge of a fact.
If any provisions of this Agreement are found to be invalid or unenforceable, then that provision will be read down or severed and that invalidity or unenforceability does not affect the validity or enforceability of the other terms and conditions.
This Agreement represent the entire understanding between You and Manheim.
Variation of this Agreement
Manheim may vary, amend or change this Agreement (including any Manheim fees and charges) at any time prior to a Sale by making an updated set of terms and conditions available on the Website.
Any new terms and conditions take effect from the date stated or, where no date is stated, from the beginning of the next day after they become available.
Waiver and Exercise of Rights
A single or partial exercise or waiver of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right.
Subject to clause 5.6, no party will be liable for any loss or expenses incurred by another party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.
No party to this document has the power to obligate or bind any other party. Nothing in this document will be construed or deemed to constitute a partnership, joint venture or employee, employer or representative relationship between any of the parties.
Survival of Indemnities
Each indemnity in this document is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this document.
Enforcement of Indemnities
It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this document.
The warranties, undertakings, agreements and continuing obligations in this document do not merge on completion.
Rule of Construction
In the interpretation of this document, no rule of construction applies to the disadvantage of the party preparing the document on the basis that it put forward this document or any part of it.
Registered Bidders may submit Bids for Items offered for Auction Sale by proxy set prior to, or during the auction period Sales Process by using the Online Sales System. This is performed on this Website by submitting a “BUY” request.2.
By submitting a bid at an auction, the Bidder accepts and agrees to be bound by this Agreement.3.
A Bid will only be accepted by the auctioneer if it is higher than the preceding Bid.4.
The Online Sales System may incorporate a proxy bidding facility. The proxy bidding facility allows Registered Bidders to enter a maximum Bid amount for a particular Item, and an incremental Bid amount which the proxy bidding facility will automatically submit, to the Online Sales System on the Registered Bidder's behalf in response to a higher Bid submitted by another Bidder for that Item, until the maximum Bid amount specified by the Registered Bidder is reached.5.
Each Bid constitutes an irrevocable offer by the Bidder to purchase the Item at the specified price which may be accepted or rejected by the Seller or Manheim. Once an official Bid has been made, it cannot be revoked and remains open for acceptance by the Seller or Manheim until the Sale Process is completed, despite any subsequent higher Bid being made.6.
All Bids submitted must be bona fide and must not be fixed or adjusted in collusion (or otherwise in accordance with any arrangement or agreement) with any third party (including but not limited to providing information relating to intended Bids or attempting to manipulate the Sale Process in any way, or otherwise contravene or attempt to contravene Part IV of the Competition and Consumer Act 2010 (Cth)).7.
A Bid is taken to be a representation and warranty by the Bidder that the Bid is a genuine offer to purchase the Item at the price specified. If any member of the Manheim Group becomes aware of any form of collusive activity by a Registered Bidder, Manheim may terminate the Registered Bidder's right to participate in the Sale Process, or if the Registered Bidder's Bid has been accepted by Manheim, Manheim may terminate any contracts that were entered into by the Registered Bidder relating to the Bid.8.
The auction period for an Item is completed upon the acceptance and declaration by Manheim of the highest Bid, whether by fall of the hammer or otherwise at the time and date nominated for that Item in the Online Sales System (Auction Close).9.
The Bidder submitting the Bid which at the end of the auction period is accepted and declared the highest bid, will be the buyer at the price specified in the Bid, subject to Seller acceptance. If any dispute arises as to the last or highest Bidder, Manheim at its sole discretion, may auction or re sell the item again or negotiate with the next highest Bidder.10.
Manheim may hold a Bid and refer such a bid to the Seller before acceptance. Manheim reserves the right to further negotiate with the highest Bidder.11.
All Bid prices are GST inclusive unless the owner of the Items is not registered or required to be registered for GST (in which case no GST is payable on the sale of the Item). Items to be sold on behalf of owners not registered or required to be registered for GST will be separately identified in the Online Sales System.12.
may refuse to accept any Bid or withdraw any Item from the Auction Sale.Back to Top
All buyers must at the conclusion of the auction period, if required to do so by Manheim, pay a deposit of 10% of the purchase price or $500 whichever is greater in cash or bank cheque and pay the balance in cash or bank cheque, Bpay, Direct Debit, or Credit Card (over the counter only), by 4.00 pm (Melbourne Time) one Business Day after the sale. Dealers may purchase Items under a Finance Company Credit Plan where the plan has been pre-authorised and is acceptable to the Seller.14.
In the case of non-payment of such deposit by a Bidder (Defaulter), the Item or Items may, at the option of Manheim, be auctioned or resold and Manheim may in its discretion, refuse to accept any Bid made by the Defaulter.15.
A buyer's administration fee may be payable by the buyer on Items sold by Manheim Group. The buyer's administration fee applicable to an Item is described in the Online Sales System. Where a fixed dollar amount is specified, the buyer's administration fee is inclusive of GST. Where a percentage is noted, the buyer's administration fee is inclusive of GST and will be calculated on the purchase price of the Item.16.
Stamp duty is to be paid by the buyers where and when applicable under the relevant law.17.
Title in the Items passes when Manheim receives notice of clear title and clear funds on the full payment for the Items.18.
Risk of damage to, and loss or destruction of, the Item shall pass to the buyer immediately on the acceptance and declaration by Manheim of the highest Bid, whether by fall of the hammer or otherwise at the time and date nominated for that Item by Manheim. Subject to clause 5.6, neither the Seller nor Manheim shall be accountable for any deficiency, damage or loss, which may arise thereafter.19.
The buyer will not be allowed to collect an Item or any part of an Item until Manheim has clear title to the payment from the buyer in accordance with paragraph 16 of this Annexure A. All Items must be removed from the nominated storage premises by the buyer no later than the nominated collection day as described on the Online Sales System. Storage charges may apply on Items which remain uncollected after the nominated collection day. No parties will be allowed to remove their Items or any portion thereof until Manheim has clear title to the payment from the buyer in accordance with paragraph 16 of this Annexure A.20.
The Registered Bidder is responsible for the payment of all delivery charges, if applicable.21.
If a Registered Bidder fails to comply with any of the terms and conditions in this Annexure A, any contractual right to be repaid an amount equal to part or all of the Prepayment Amount pursuant to clause 2.4.7 and any money deposited by the Registered Bidder in part payment pursuant to paragraph 12 of this Annexure A shall be forfeited and all Items may be resold. The defaulting Registered Bidder will reimburse Manheim for all costs and charges consequent upon such resale.22.
At any time Manheim may, without any demand or notice, set off and apply the Prepayment Amount, any money deposited by the Registered Bidder pursuant to paragraph 12 of this Annexure A or any other indebtedness it owes to a Registered Bidder against any money owing to it by a Registered Bidder under this Agreement, whether or not the amount owed by Manheim or a Registered Bidder is immediately payable. The Registered Bidder irrevocably authorises Manheim to do anything necessary for that purpose.Back to Top
Road test reports (excluding Truck & Machinery Auctions and Salvage Vehicle Auctions), are prepared by or on behalf of Manheim as a result of a brief road test undertaken prior to auction, and are intended as a guide only (Road Test Report). Subject to clause 5.6, no warranty or guarantee concerning known or unknown faults is given or implied in relation to the Item the subject of the Road Test Report. The report covers no items capable of visual inspection. Vehicles sold with a Road Test Report are still sold subject to clause 5.4.24.
All vehicles are sold as unregistered unless expressly stated to the contrary.25.
Subject to clause 5.6, any deficiency in the Items sold shall not vitiate the sale, but neither the vendors nor Manheim shall be bound to deliver more than is in their possession.Back to Top
The Registered Bidder accepts that despite our reasonable precautions, Items may be listed at an incorrect price or with incorrect information.27.
Manheim reserves the right to cancel any purchase transaction, even if the Registered Bidder has paid the purchase price for the Items. We reserve this right up until the time the Registered Bidder collects the Items. If we exercise this right, we will refund to the Registered Bidder any purchase price that the Registered Bidder has paid.Back to Top
Manheim does not warrant that 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 practical to do so and where the Plant and Equipment is likely to be used in a workplace, Manheim has requested that the Seller display a statement on the Plant and Equipment to indicate the safety condition of the Plant and to supply certificates, operational manuals, etc, which may exist for the particular Plant and Equipment. If the Plant and Equipment purchased does not include this information, upon the request of a buyer, Manheim will use its reasonable efforts to obtain this information from the Seller. By law, a buyer of any Plant and Equipment for use in a workplace must ensure it complies with OHS Laws before it is used. Heavy penalties apply for non compliance. A summary of the occupational health and safety requirements in the Registered Bidder's state or territory is available from Manheim.Back to Top
Subject to clause 5.6 and in addition to clauses 5.4 and 5.9, Manheim does not accept any responsibility for damage sustained to auction vehicles or equipment through the normal use of forklifts or other equipment to load, unload and shift damaged and non mobile vehicles.Back to Top