Terms
and Conditions (Dated 26.10.2016)
These are the terms and conditions on which violater.com
(“we/us/our”) is willing to deal with you (the bidder or vendor/seller). Any
variation to these terms and conditions must be in writing and signed by an
authorised officer of Violater.com or appointed officer from Khai Kwan (a law firm in NSW, Australia).
1. Description
As a registered user you will be permitted to participate in
an auction as an online bidder, currently via the website at the domain name violater.com,
but otherwise at a domain name as notified from time to time (the Website).
There is no fee for basic listing. Additional requirement such as bold, high light and special feature to boast your properties and so on may attract a fee. There
is a fee to verify your identity which is charged by AustPost under contract with KHAI KWAN (a legal
practice in NSW, Australia) www.khkwan.com. There are other fees associated
with conveyancing for example to prepare a sale & purchase agreement (for
NSW and ACT) prior to listing (where you do not have a copy). There is also a
fee (min $1000) for the actual conveyancing which will by default conducted by
Khai Kwan (Solicitor) in NSW and you irrevocably agree to this. This fee does not include any disbursement
(searches etc). All fees paid is non-refundable. A cost and disclosure
agreement will be provided upon request (email info@khkwan.com) or click here. In NSW, we
will be using electronic conveyancing and PEXA for settlement. All monies will
be bank into a Trust Account (either ours or PEXA the choice is yours).
1A. Identities
By accepting these terms and conditions you give consent for
us to disclose your name, residential address and date of birth to a credit
reporting agency and ask the credit reporting agency to provide an assessment
of whether the personal information so provided matches (in whole or in part)
personal information contained in a credit information file in the possession
or control of the credit reporting agency to assist in verifying your identity
for the purposes of the Anti-Money Laundering and Counter-Terrorism Financing
Act 2006 (Cth). The credit reporting agency may prepare and provide us with
such an assessment and may use your personal information including the names,
residential addresses and dates of birth contained in credit information files
of you and other individuals for the purposes of preparing such an assessment.
If you disagree with having your identity verified by a credit reporting agency or any agency appointed,
please contact us so that we can discuss other options with you.
2. Becoming a Registered User and warranties.
To become a registered user you must successfully complete
an application for registration as a registered user. The application
incorporates these terms and conditions which you hereby acknowledged and agree
to abide. Registered user status is non-transferable.
You confirmed that you are at least eighteen (18) years old
or over in order to apply for and become a registered user. As a registered
user you can offer and bid for items listed here by others only. As part of the
registration process, we will require identification papers to identify
yourself. You agreed that you will go to the Australia Post and use their verification identification service as soon as possible. If
you are a company then similarly documents pertaining the same as to your status
and standing shall be provided to our satisfaction. We cannot approve any users
without first having verified their identities to our satisfaction as this is a
legal requirement.
You (users in general) warrant that:
your access to the Website is not illegal or prohibited by
the laws which apply to you;
you will keep your password secure and confidential;
you will not interfere with or disrupt the operation of the
Website or its contents;
your registered user details are true and accurate at all
times;
you will notify us immediately of any change to your
registered user details as originally given;
you are otherwise entitled to participate in the online
auction;
you will not attempt to gain unauthorised access to the
Website or computer systems or networks connected to the Website by any means
used to circumvent security procedure, including by hacking or password or data
mining or by reverse engineering;
you will not use any robot, spider, scraper or other
automated means to access the Website for any purpose without our express
written permission;
you will not use the Website in any manner that could
damage, disable, overburden or impair it or any service we provide or interfere
with any other party’s use and enjoyment of the Website;
you will not post or otherwise make available on the Website
any content that is illegal, obscene, threatening, defamatory, or otherwise
injurious to third parties; and
you will not impersonate any person or entity, or otherwise
mislead as to the origin of the Information you upload on the Website.
Without limiting any other remedies available to us, we may
suspend or terminate your account if we suspect that you may have engaged in
fraudulent activity in connection with the site.
3. Your Obligations
You will be solely responsible for your participation as an
online bidder and any bids you make shall be bidding unless waive by consent by
the offeror or vendor. You acknowledge and agree that any online bids made
using your account have been made by you and are your sole responsibility. By
making a bid, you warrant and represent that you have the legal right to enter
into and complete the transaction.
Similarly as a vendor or offeror, you are solely responsible
for your offer and agree that any online offer made using your account have
been made by your and is your sole responsibility. By making an offer, you
warrant and represent that you have the legal right to enter into and complete
the transaction. Specifically, you acknowledge that;
you have full legal capacity and lawful entitlement to sell
your property on our site and use our Services;
you are the registered proprietor of the subject property,
acting with the authority of all other joint proprietor(s) or tenant(s) in
common;
you are the director of the registered proprietor acting
with the approval of the board of directors of the registered proprietor, if
the registered proprietor is a corporation within the meaning of section 9 of
the Corporations Act 2001;
you are acting pursuant to a legally enforceable power of
attorney from the registered proprietor of the subject property which has not
been revoked;
you are acting as a trustee of a trust which is the
registered proprietor of the legal interest in the subject property, and you
are acting in accordance with the relevant trust deed;
you are acting as a mortgagee in possession of the subject
property;
you are acting as the executor of or pursuant to a grant of
probate in relation to the estate of the registered proprietor which authorises
you to sell the subject property;
you are acting pursuant to an order of a Court of a State or
Territory in Australia which authorizes you to sell the subject property; or
you are acting as an agent for the registered proprietor of
the subject property, pursuant to a written authority that complies with all
applicable laws in the State or Territory in which the subject property is
situated, including but not limited to laws regarding the sale of real estate
by agency.
your Agent is authorised to make all the decisions in, and
on your behalf, including without limitation listing the property, setting the
reserve price, selecting the opening bid call, revising the reserve price down,
editing the listing, delisting and any other functions we may offer;
we are not under any obligation to verify any authorisations
you give your Agent; and
we cannot guarantee the continuous or fault-free operation
of the website or other services we provide and, without limitation, systems or
technological failure or delay may impede or prevent access to the website and
other services.
At all times whilst your property is listed, you will
immediately notify us of any discrepancies you notice or become aware of, with
your property or its listing.
If your property (Seller) successfully sells (i.e. a Winning
Bid Amount is achieved) via our online auction, you irrevocably and
unconditionally appoint us as your attorney to sign and exchange the Contract
for Sale of Land in relation to the property on your behalf once the required deposit
is received.
If you (buyer) are notified that your bid has been
successful, you must complete the transaction in the manner stipulated,
including by as soon as possible signing the contract for sale and paying the
agreed deposit to the nominated stakeholder (for example our law firm KHAI KWAN or PEXA)
in accordance with the terms of the contract for sale.
If you are the highest bidder at the completion of the
online auction and the property is knocked down to you and for whatever reason
you do not or you are not unable to sign the land sale contract in relation to
the property you irrevocably appoint:
the current general manager of Violater.com (in Australia)
or KHAI KWAN to execute; and/or
KHAI KWAN as your Solicitor for the conveyance (if you have not appointed one) to complete the transaction on your behalf.
You acknowledge that we will provide notifications to you
during an auction concerning the status of the auction by either email or SMS,
or both. You consent to the receipt of such notifications during the auction
and agree that such notifications are not unsolicited commercial electronic
messages. However, we are not obliged to provide such notifications to you and
it is your responsibility to check on the progress of the online auction.
4. The On-line Auction
The auction will commence with the nominated starting price.
Registered users (having been previously approved) will be entitled to log on
to the Website and make a bid. Vendors including co-owners are NOT allowed to
bid and do so at their own risk whereby their bids shall be void. The auction
will be conducted over a period of time and there will be a final auction time
nominated.
Step by Step Auction Process
A property auction will start at the specified date and time
Any bid:
must first meet the opening bid call; or
must at least meet the minimum next bid nominated (if the
opening bid call has already been met).
A bid is binding while the timer counts down.
During this countdown such a bid may be outbid.
If a bid is not outbid;
i. the bid will lapse and unbind the Bidder if it is less
than the reserve; or
ii. bind the Bidder to purchase the property if the bid is
equal to or greater than the reserve.
At the final auction time the highest bid will determine the
purchaser and the property will be "knocked down" to that party
providing the bid reaches or exceeds the reserve price. The final auction time,
as shown by the timer provided on the Website, is conclusive as to when the
auction ends and the property is "knocked down".
We have discretion to close a property auction at any time
including, without limitation, where:
there is or we suspect there may be, fraudulent or dummy
bidding;
there is a processing error;
there is a technological error or site failure; or
there are issues with the property.
When an auction in which you have bid closes and you are the
Winning Bidder, we intend to notify you by e-mail and SMS. This notice will
include:
notification that you are the Winning Bidder and of the
amount of the Winning Bid Amount; and
an instruction to contact your solicitor or conveyance (if
any).
If during the period of the auction:
the vendor dies or becomes mentally ill or incapable of
managing their own affairs; or
the property is destroyed or substantially damaged to render
it unfit for sale,
For any other reason determined by us, the auction will be
terminated and all registered bidders will be notified by the Website.
5. Reserve Price
There shall be a reserve price nominated by the vendor. It
will be provided in our system. Auction without a reserve price will be
terminated and void ab initio.
If a bid is made that is below the vendor’s reserve price,
the vendor has the right to reduce their reserve price and accept that bid. All
viewers of the auction will be notified if the reserve has been reached
otherwise the auction will end without any purchaser.
6. Bid Precedence
Bids will be ranked in the following order of precedence by
the amount of the bid only as each bid is increase automatically by a set
increment.
7. Auction Rules
You agree to adhere to these Terms and Conditions and acknowledge
all online auctions will be conducted in manner that must observe the rules of
law where applicable in the State where the property is being auction online.
8. Your Relationship with Us
Nothing in these terms and conditions creates any
relationship of employment, agency or partnership between you and us, except
where expressly stated.
There is no contract of sale between you and us. In the
event that a bid of yours is accepted by the vendor, a contract of sale will be
formed directly between you and the vendor.
8A. Contract of Sale of
Land (also known as Sale and Purchase Agreement)
The parties acknowledge that in accordance with these terms
and conditions the Vendor and the Bidder have each provided us as Solicitor
with authority to sign the Contract for Sale of Land in relation to the
property listed.
The parties may also enter into Special Conditions in
relation to the property. If the parties adopt the Special Conditions those
Special Conditions form part of the agreement between the Vendor and the
Winning Bidder in relation to the sale of the property.
You acknowledge that:
the responsibility of agreeing and negotiating the terms of
any Special Conditions are solely the responsibility of the Vendor and the
Bidder; and
other than providing the form of the Special Conditions, we
will have no dealings with the Special Conditions for a property sale as it is
a confidential matter between the Vendor and Bidder.
9. Intellectual Property
These terms and conditions do not give you any Intellectual
Property Rights in the Website.
Your details and information that you provide us about
yourself or which we gather may be retained by us on our database. You have no
rights in that database. We may use such database in the conduct of our
business, subject to privacy and other relevant laws.
We may aggregate data for statistical and other purposes.
We are not liable for any infringement or unauthorised use
of any Intellectual Property Rights arising from these terms and conditions. If
any dispute or claim is made in respect of any infringement or unauthorised use
of Intellectual Property we may terminate these terms and conditions by notice
to you and without liability to you or any other person.
Where you provide content to the website, you grant us a
non-exclusive, royalty free right to use the content for the purpose of
providing the Service and for any related purposes in connection with this
agreement.
Where you have provided content to us, you warrant to us
that you are the owner or licensee of the Intellectual Property Rights in that
content, and are entitled to supply that content to us in accordance with these
terms and conditions, and that our use of the content will in no way:
infringe the Intellectual Property Rights of, or be a breach
of confidentiality owed to any person; or
breach or cause us to be in breach of any obligation under
the Privacy Act.
We permit you to print or download extracts from this
website for your personal use only. None of this material may be used, except
if you are a Vendor Agent, for any commercial or public use, stored in or
transmitted to any other website or distributed in any form without our prior
written permission.
In these terms and conditions, Intellectual Property
includes the full benefit of any rights in any copyright, trade mark,
registered design, patent, trade and business names, inventions, knowhow,
inventions, improvements, discoveries, confidential processes and information
and includes without limitation the look at feel of websites, artistic works,
images, designs, motifs and photographs and any adaptation or concept relating
to it.
10. Warranties
We offer no warranties in relation to the properties sold or
listed pursuant to the auction process or otherwise. We do not warrant the
truth or accuracy of listings and we have no control over representations made
by the vendor or its agent.
Whilst we have no reason to believe that any information
contained on the Website is inaccurate, we do not warrant the accuracy,
adequacy or completeness of such information, nor do we undertake to keep the
Website up to date.
We cannot guarantee continuous or secure access to our
services (including our online auction services) and the operation of the
Website may be interfered with by numerous factors outside our control.
You acknowledge that we make no representation as to the
ownership or title in auctioned properties or as to the ability of the vendor
to complete the transaction.
No data transmission over the Internet can be guaranteed as
totally secure. Whilst we will use best endeavours to protect such information,
we do not warrant and cannot ensure the security of any information which you
transmit to us. Accordingly, any information which you transmit to us is
transmitted at your own risk. Despite this, once we receive your transmission,
we will take reasonable steps to preserve the security of such information.
To the extent permitted by law, any condition or warranty
which would otherwise be implied into these terms and conditions is hereby
excluded. Where legislation implies any condition or warranty, and that
legislation prohibits us from excluding or modifying the application of, or
liability under, any such condition or warranty but allows limitation, that
condition or warranty is limited to supplying the service again.
11. Limitation of Liability
Under no circumstances are we liable for special, indirect
or consequential loss or damage of any kind including any loss of profit or of
contract, even if you advise us of any special circumstances or such loss was
reasonably foreseeable, which you may directly or indirectly suffer, including
in connection with:
your use of the Website;
your use of or reliance on the information contained on or
accessed through the Website, including in relation to its accuracy, adequacy
and currency;
a bid not being processed due to technical difficulties
affecting our system;
any property supplied pursuant to an online auction offered
over the Website;
a failure or omission on the part of the other party to a
transaction to complete the sale;
the transmission of any computer viruses or anything else
(such as worms or trojan horses) that may interfere with or damage the
operation of your computer system.
In the event that your bid is accepted, you and the vendor
will have an obligation to complete the transaction. This is the responsibility
of you and the vendor, not our responsibility. If you have any doubts about the
ability of the vendor to discharge its obligations in this regard, it is your
responsibility to make all necessary enquiries in advance and to take any steps
which you consider to be appropriate in the circumstances.
If a government department, government agency or law enforcement
agency informs us that there is any information on a property which is in
contravention of, or may contravene, any law, industry code of practice, policy
guideline or regulation, we can remove that property from the site without
notice to you.
Responsibility for the content of advertisements appearing
on the Website (including hyperlinks to advertisers’ own websites) rests solely
with the advertisers. The placement of such advertisements does not constitute
a recommendation or endorsement by us of the advertiser’s products and each
advertiser is solely responsible for any representations made in connection
with its advertisement.
12. Indemnity
You release and indemnify us against all actions, claims,
demands (including the cost of defending or settling any action, claim or
demand) which may be instituted against us arising out of a failure by us to
comply with these terms and conditions or a failure by the other party to a
transaction to complete a sale/purchase or satisfy the requirements of the sale/purchase.
You also release and indemnify us against all actions,
claims and demands (including the costs of defending or settling any action,
claim or demand) which may be instituted against us arising out of any act or
omission on your part, including but not limited to a failure by you to comply
with your obligations under these terms and conditions.
13. Consumer Credit Code Excluded
You acknowledge that:
you are not an associate or related body corporate or
related party or related entity of ours (as such terms are defined in the
Corporations Act 2001); and
the Consumer Credit Code does not apply to these terms and
conditions.
If, at any time:
you believe that you may not or may be unable to perform or
comply with your obligations under these terms and conditions;
you are or become insolvent or you have an administrator
appointed; or
there is a change or a change is proposed to your
shareholding, shareholders or directors,
you agree that:
you will immediately notify us that one or more of the above
notifiable events has occurred and you will keep us notified on a monthly basis
until such notifiable event no longer exists; and
we have no obligation to you and will terminate your
registered user status while a notifiable event exists.
For the purpose of these terms and conditions, you are
insolvent if:
a receiver or receiver and manager or an agent for a
mortgagee in possession has been appointed over all of your assets and
undertakings;
you have passed an effective resolution for your voluntary
winding-up;
an order has been made by a Court of competent jurisdiction
for you to be wound up;
a compromise arrangement (excluding a voluntary
administration) has been made legally binding on you and your creditors;
you have presented a debtor’s petition and it has been
accepted by the Registrar in Bankruptcy;
you have entered into a composition, deed of assignment or
deed of arrangement under Part X of the Bankruptcy Act (or equivalent) with
your creditors; or
a legally binding sequestration order has been made against
your estate.
14. Termination of your registered user status
Your registered user status may be terminated at any time by
us without notice. Clauses 2, 3, 8, 9, 10, 11, 12, 13, 14, 16 and 18 will
survive any termination of your registered user status.
15. General
The application for registration as a registered user, these
terms and conditions and any other rules or terms and conditions set out on the
Website form the entire agreement on which we are willing to deal with you and
all or any previous agreements or understandings we may have had with you are
superseded by these terms and conditions.
We may alter these terms and conditions at any time upon one
(1) day written notice. All transactions after the date specified in such
notice will be subject to the altered terms and conditions. If you continue to
trade with us after the date such alterations become effective you will be
deemed to have agreed to the altered terms and conditions.
You must not assign any rights or benefits under these terms
and conditions.
To the extent of any discrepancy between these terms and
conditions and any third party (including your own) terms and conditions these
terms and conditions prevail.
These terms and conditions are governed by, and you agree to
submit to, the laws applicable in the State of New South Wales, Australia.
The Supreme Court of New South Wales shall have the
jurisdiction to settle any disputes which may arise in connection with these
terms and conditions.
If we waive any rights available to us under these terms and
conditions on one or more occasions, this does not mean that those rights will
automatically be waived on any other occasion.
If any of these terms and conditions are held to be invalid,
unenforceable or illegal for any reason, despite this the remaining terms and
conditions will continue in full force.
The Website may contain links to other websites. Those links
are provided for convenience only and may not remain current or be maintained.
We are not responsible for the content or privacy practices
associated with linked websites.
Our links with linked websites should not be construed as an
endorsement, approval or recommendation by us of the owners or operators of
those linked websites, or of any information, graphics, materials, products or
services referred to or contained on those linked websites, unless and to the
extent stipulated by us to the contrary.
Both your email and mailing address for the purposes of
contacting you in relation to notices and for purposes relating to these terms
and conditions.
We will send all notices and other communications to you at
the email address and/or address you have provided to us. It is your sole
responsibility to ensure that you provide us with your current contact email
address and office address.
Unless otherwise specified, all amounts payable under these
terms and conditions are exclusive of GST and must be calculated without regard
to GST.
16. Privacy
Certain information that you provide to us about yourself is
subject to our Privacy Policy.
17. Interpretation
In these terms and conditions unless otherwise indicated by
the context: (i) reference to a party to a document includes that party’s
successors and permitted assigns; (ii) "including" and other similar
words are not words of limitation; (iii) an agreement, deed, covenant, representation
or warranty on the part of two or more persons binds them jointly and
severally; (iv) any indemnity given under these terms and conditions is an
irrevocable, unconditional and continuing indemnity; and (v) general words
following words describing a particular class or category are not restricted to
that class or category.
18. Acknowledgements
You acknowledge that:
The auction is conducted online and where applicable and at
our discretion, the auction will generally be conducted in accordance with the
NSW Prescribed Conditions of Sale for real property auctions in the State of
New South Wales;
by bidding at the online auction, you acknowledge that you
have read and understood and understood these Bidder Terms and Conditions and all
other requirements of you in relation to the online auction;
you have had an opportunity to seek legal advice in relation
to the land sale contract relevant to the property you are bidding on and by
submitting bids in relation to the property you are confirming that you wish to
proceed with the purchase of the property in its current 'as is' condition and
in accordance with the terms set out in the land sale contract;
you understand that your obligations in relation to the land
sale contract are governed by the laws and regulations regarding the purchase
of land and buildings that apply in the State where the property is located,
and you agree to be bound to and comply with those laws and regulations;
if you are the successful bidder, you undertake to pay the
deposit due under the land sale contract by bank cheque or cleared funds as
directed by the sole stakeholder under the land sale contract within 48 hours
of the completion of the online auction; and
you understand that there are no 'cooling off' provisions
under any State laws that apply to auction contracts, including the land sale
contract arising from its online auction, and that you will be bound to
complete the land sale contract if you are the highest bidder at the completion
of the online auction and the property is knocked down to you.
You understand that where your first language is NOT
English, you have sought these terms and conditions to be translated whereby
you have read and understood the content.
您了解您的第一语言不是英语，你都力求这些条款和条件进行翻译，让你已经阅读并理解的内容。
19. Dispute
Where you feel
you have a dispute with us in relation to any service, you should notify us
within 10 business days of first becoming aware of the problem. To notify us
you should send us an email or via telephone. If you contact us by telephone we
will require you to send to us complete details of your dispute in writing.
You agree that
you will not make any claim against us for a credit, re-publication, re-work or
any other remedy unless you notify us in writing no later than 10 business days
after the date of the tax invoice or date of work or publication of the
relevant content (whichever is the earlier). You accept that we are unable to
progress resolution of any dispute without the details of the dispute being
provided to us in writing. We reserve the right to request more information
from you or any other party in the dispute in relation to your dispute. We will
endeavour to resolve your dispute during normal business hours (9am to 5pm,
Monday to Friday, excluding any public holiday in Australia) as quickly as we
reasonably can and you acknowledge that if you do not notify us with 10
business days of you first becoming aware of the problem that our ability to
deal with your dispute quickly or at all will be potentially compromised. In
the event that we resolve your dispute in your favour, the extent of any
liability we may have will be limited at the discretion of us to any amount(s)
you have paid to us for the use of the our site and services in relation to the
specific dispute. In this regard you acknowledge the provisions of our terms
and conditions relating to “limitation of liability” (Clause 11).
