GraysOnline New Zealand Terms & Conditions

 

The following terms and conditions (“Terms and Conditions”) govern the Service that we offer to you ("the Bidders Agreement"). 

Please read these Terms and Conditions carefully. Upon completion and submission of your registration details (and for all bidding conducted by you under those details), you are deemed to have accepted, and will be bound by these Terms and Conditions, as amended and varied from time to time.

 

 

1. GENERAL

 

1.1 Terms and Conditions

 

(a) The meaning of defined terms used throughout this Bidders Agreement are contained in Clause 13 of this Bidders Agreement.

 

(b) The Terms and Conditions contained in this Bidders Agreement set out what you must do and what you must not do when using the Service. It also sets out our obligations to you. These are important conditions for the use of the service. If you breach any of these conditions, we may decide not to allow you to participate in the Service or if necessary claim damages against you. Please take time to read these Terms and Conditions and make sure you understand them. If you have any questions, please read our Help pages. If these pages do not answer your question, please contact our customer service team at customerservice@grays.co.nz.

 

(c) We may amend the Bidders Agreement from time to time by posting new terms and conditions on this Site. These amendments will usually take effect 7 days after the changes have been posted on the Site. You should review this Bidders Agreement from time to time for any amendments. Please ensure you are familiar with them as changes may have been made to previous versions. Continued use by you of the Service following any amendments to this Bidders Agreement will constitute your acceptance of the new terms & conditions applying to the Service.

 

(d) Please note that additional conditions governing the Service and your relationship with us are contained in other GraysOnline website pages and unless those conditions conflict with these Terms and Conditions, they will be incorporated into and will form part of the Terms and Conditions contained in this Bidders Agreement. In particular, please carefully read all information relating to the Sale Overview which contains important information relevant to each particular sale on the Site. In the event of an inconsistency between the Sale Overview or other Product Information (including the Lot Description) posted on the Site and these Terms and Conditions, the Sale Overview and other Product Information will prevail.

 

1.2 Use of The Service For Online Auctions

(a) The Service is provided to you personally. When using the Service, you must not re-sell access to the Service to another person or make commercial use of the Service, without our prior written consent.

 

(b) If a government department, government agency or law enforcement agency informs us that there is any information on the Site which is in contravention of, or may contravene, any law, industry code of practice, policy guideline or regulation, we can remove that information from the Site.

 

(c) Without limiting any other remedies available to us, we may suspend or terminate your account if you are suspected or found to have engaged in fraudulent activity in connection with the Site.

 

 

2. REGISTRATION

 

2.1 Registering For Use

 

(a) You must register your details with us to use the Service (your “Account”). Registration is free and does not oblige to you purchase anything.

 

(b) You agree that you will not, in registering for and using the Service, use a false or misleading name or give false or misleading information, and notwithstanding which, your obligation to purchase as a Winning Bidder shall not be abrogated by reason of the provision by you of any false or misleading information. If your details have changed since you last used the Service, you must provide us with the updated details. We are not responsible for any loss or damage as may occur because you have not provided us with complete and accurate information (including but not limited to loss or damage resulting from misdirected Winning Bidder’s emails and misplaced deliveries).

 

(c) When you register for the Service, you must choose your user name and password. You must have a valid user name (or “login”) and password before you can bid on items on the Site. You are responsible for the security of your user name and password. You authorise us to assume that anyone using your user name and password is you or someone authorised by you. Unauthorised access and use of your details will, under no circumstances, negate your liability for any bids made on the Site or any obligation to purchase an item which may result from such use. You must notify us immediately if you become aware of any unauthorised use of your user name or password or of any other security breach.

 

(d) We will use our best endeavours to send notifications to you by e-mail of: 

 

(i)                   the status of an online auction in which you are participating, such as ”you have been outbid” e-mails, or “you are the Winning Bidder” emails;

(ii)                 newsletters and other promotional events and offers, unless you tell us you do not wish to receive these communications when you complete your registration form,

 

however, we accept no liability for any loss or damage incurred if, for whatever reason, you do not receive such notifications. 

(e) We will use your personal data strictly in accordance with our Privacy Statement. We will not sell your personal information to other mailing lists.

 

(f) You may request that your Account be closed by emailing us a closure request to customerservice@grays.co.nz. You may not close your Account while you are the highest bidder on an online auction. When you are no longer the highest bidder, or when the auction closes, you may request that your Account be closed.

 

2.2 Eligibility to Participate

 

You must be able to form legally binding contracts to use the Service. This means that if you are under 18 years of age or otherwise legally prohibited from entering into binding contracts, you must not use the Service.

 

2.3 Registration Process

 

In order to be eligible, you must provide details of an acceptable credit card sufficient to make online payments. As part of the registration process, we may charge a nominal amount (NZ$1) to your credit card and then re-credit that amount to the same credit card (which usually takes no more than one week). These transactions may appear in your credit card statement. By registering, you irrevocably authorise us to process these transactions.

 

2.4 Your Information

 

(a) Your information includes any information you provide to us during the registration, online auction bidding process, your bidding activity at an online auction and product preferences in any public message area or through any e-mail feature (Your Information). This clause 2.4 is subject to clause 9 (Privacy).

 

(b) You are solely responsible for Your Information. However, we may deal with Your Information if we deem it necessary or appropriate. For example, if we believe Your Information may create any liability for us.

 

(c) You must ensure that Your Information 

 

(i)                   is true, accurate and complete;

(ii)                 is not fraudulent or misleading;

(iii)                does not infringe any third party’s copyright, patent, trade mark, trade secret or other proprietary rights or rights of publicity or privacy;

(iv)                (iv)does not violate any law, statute, ordinance or regulation;

(v)                 is not defamatory, libellous, unlawfully threatening or unlawfully harassing;

(vi)                is not obscene or contains pornography;

(vii)              does not contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming instructions that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

 

(d) Furthermore, you may not do anything involving the Service which:

 

(i)                   may violate or cause us to violate any applicable law, statute, ordinance or regulation, or

(ii)                 is expressly prohibited by these Terms and Conditions.

 

 

3. YOUR RIGHTS AND OBLIGATIONS

 

3.1 Your Obligations as Bidder

 

(a) When you use the Service and bid on an online auction conducted on our Site, you are making an offer to buy the item at your bid price. If your bid price is the Winner’s Bid Amount, you will be the Winning Bidder and you are obliged to purchase the item you have bid for and pay the Winner’s Bid Amount, plus any additional charges that you may be obliged to pay. Please refer to clause 3.2 below for details in relation to “Your Obligation to Pay”.

 

(b) It is your responsibility to read the Sale Overview and Product Information (including the Lot Description) about any item we post for auction on the Site. Please do not rely solely on the title summary or any photographs of the item posted on the Site for a complete description of an item. You must not assume that the description or photograph of the item in any way offers an opinion or an assessment of the suitability of an item for you. If a photograph is provided, please use it as a guide only.

 

(c) Please make sure you understand the delivery and payment terms, including any addendum to those terms and conditions as outlined in the Sale Overview or other Product Information (including the Lot Description) or in our Delivery Rules. Note that a Buyer’s Premium, and other charges including a delivery fee, will apply to most online auctions (please refer to clause 3.2 below for details of these additional charges).

 

(d) You must not engage in bid manipulation. Bid manipulation is any practice which unfairly induces other users to make bids or controls the bid price. This includes (but is not limited to) bidding in a way that pulls other bidders to their maximum bid, and then re-bid at a small increment above the legitimate high bidder or employ Shill Bidding, (being the use of secondary registrations, associates or aliases to artificially raise the bidding on an item). Buyers are also prohibited from communicating with each other for the common purpose of manipulating the final purchase price of an item.

 

(e) Please use common sense and caution when using the Service. There are risks involved when conducting business over the Internet. We cannot confirm the identity or location of each of the people who use the Service or whether such users are under age or acting under false pretence. We do not tolerate fraudulent practice by people using the Service or abuses of the system. However, we cannot guarantee that such conduct will not occur and we are not liable for such conduct.

 

3.2 Your Obligation to Pay

 

(a) If you are the Winning Bidder on an online auction, you must pay:

(i)            the Winners Bid Amount; and

(ii)           the Buyers Premium; and

(iii)        any other fees and charges specified in the Sale Overview, and including but not limited to tax, delivery and insurance charges, (the “Invoice Amount”)

 

due to us either by:

(iv)          authorised credit card deduction (charge), immediately; or where the amount payable exceeds NZ$5,000.00,

 

(v)           by way of direct deposit (telegraphic transfer), deposit of a bank cheque or such other method whereby immediately cleared funds are deposited into the bank account nominated by us within 2 working days of closure of online auction.

 

(b) If you are the Winning Bidder and the Invoice Amount exceeds NZ$5,000.00, and you fail to make payment of the Invoice Amount into a bank account nominated by us, we shall have the right (and you hereby authorise us) to charge your credit card, (either for the full or for part of the amount constituting the Invoice Amount that is owing to us) and hold such funds as a deposit pending final payment by you. In such circumstances we will also charge an additional 3% administration fee to your credit card, which amount will be calculated on the total of the Invoice Amount.

 

(c) If we find that the amount of credit available on your credit card is insufficient to cover the Invoice Amount due to us, we can deduct any portion of the Invoice Amount that is due and payable to us from your credit card and hold such funds as a deposit pending payment of the balance of the Invoice Amount due.

 

(d) If we are unable to deduct from your credit card the full sum of the Invoice Amount owing to us in one transaction, we shall be at liberty to process any such number of transactions on your credit card as is sufficient to satisfy the full Invoice Amount you owe to us.

 

(e) If you: 

 

(i)                   refuse to pay or otherwise fail to complete the purchase of an item on an online auction when you are the Winning Bidder (for example, if your credit card balance is insufficient to meet all money due);

(ii)                 otherwise abuse the Service, or

(iii)                do not comply with the Terms and Conditions contained in this Bidders Agreement then we will, at our absolute discretion, be at liberty to (in addition to our other rights and remedies available at law and under these Terms and Conditions):

 

(A) sue you for the Winner’s Bid Amount and all other money owing to us, including the Buyers Premium and lost income; or

 

(B) resell the item in any manner and upon such conditions as we see fit without notice of resale to you and claim the net shortfall (between the Winner’s Bid Amount and the resale price received after deducting all expenses (as specified in (C) below) if any from you; and

 

                (C) charge you a cancellation fee of $250.00 or 20% of the Invoice Amount (whichever is the greater) to cover cost of         resale of the item, lost commission and Buyers Premium, administration costs, restocking costs, additional costs including               advertising, insurance, transportation, storage, and any other reasonably incurred expenses incurred in reinstating us to   the same position as if the item was sold to you;

 

and in taking the steps in (A) to (C), you hereby authorise us to charge your credit card with any money owing to us.

 

(f) Notwithstanding that a Winning Bidder may have been notified of their placement of the Winner’s Bid Amount, we may at our sole discretion choose to withdraw and not proceed with completion of the sale of the item in circumstances including (but not limited to) where:

 

(i)                   the credit card payment is not processed in the first run due to card entry errors (including an incorrect or expired card expiry date) made by the Winning Bidder;

(ii)                 there are insufficient funds/ the credit limit is insufficient to cover the sum of the Invoice Amount or if the Invoice Amount exceeds $5,000;

(iii)                if the Winning Bidder fails to make payment of the Invoice Amount into a bank account nominated by us within 2 working days of the Winning Bidder placing the Winner’s Bid Amount; or

(iv)                we are unable to contact the Winning Bidder for any reason.

 

(g) If you fail to comply with any of these Terms and Conditions, any moneys which you paid to us upon deposit on account of any purchases of an item shall be forfeited absolutely and we shall be at liberty to sue you for recovery of the balance of the Invoice Amount and any other amounts as may be owing to us pursuant to these Terms and Conditions. For the avoidance of doubt, you agree to indemnify us in accordance with clause 7.3(b) in respect of your failure to comply with these Terms and Conditions.

 

(h) If you fail to pay any monies owing to us on time, (in addition to our other rights and remedies available at law and under these Terms and Conditions), we may at our discretion charge you interest on the unpaid overdue balance from the day after payment is due until the date payment is received (including that day) at the rate of 4% per annum above the current commercial overdraft rate charged by our bankers, compounding monthly on the unpaid balance owing on the first day of each month until payment is received by us. You authorise us to charge your credit card for any interest owing to us.

 

3.3 Obligation To Maintain System Integrity

 

(a) You may not take any action that might undermine the integrity of the Service.

 

(b) You must not use any device, software or instruction to interfere or attempt to interfere with the proper working of our Site or any online auction being conducted on our Site. You may not take any action which imposes an unreasonable or disproportionately large burden on our infrastructure. You may not disclose or share your password to or with any third parties or use your password for any unauthorised purpose.

 

(c) You are solely responsible for your transmissions through the Service. You agree that you will

 

(i)                   not forge communications or take any other action which would disguise the origin of the communications transmitted by you through the Service;

(ii)                 not allow another person to transmit communications that falsely identifies your account as the origin of such a communication;

(iii)                not interfere with or disrupt networks connected to the Service;

(iv)                not use the Service for illegal purposes;

(v)                 comply with all regulations, policies and procedures of networks connected to the Service.

 

(d) We reserve the right to determine whether or not your conduct is consistent with the spirit and the intent of these Terms and Conditions and may, at our sole discretion, immediately terminate your Account and use of the Service if your conduct is deemed by us to be inconsistent with these Terms and Conditions.

 

 

4. THE ONLINE AUCTION PROCESS

 

4.1 Procedure

 

(a) You may bid:

(i)       by placing a normal bid ; or

(ii)     through AutoBid.

 

(b) If you bid at an online auction using AutoBid, you are responsible for monitoring the online auction in which you are participating and acting in the auction by instructing AutoBid with your bids.

 

(c) If you leave the Autobid text field blank, the bid amount that will appear when you submit a normal bid will apply.

 

(d) You cannot increase your Autobid bid when you are the current highest bidder. You must wait until someone else outbids you before you can place another normal bid or Autobid.

 

(e) An online auction will start at the specified time and at the nominated minimum starting price.

 

(f) All bids placed at an online auction

(i)       must be made on a per-item basis, and

(ii)     may only be increased by multiples of the posted bid increment.

 

(g) We set a minimum price for each item we auction at which the bidding must start.

 

(h) We have discretion to close an online auction before the scheduled time.

 

(i) If an online auction closes without any bid activity, we may extend that online auction for a time period being the length of the original auction in which there was no bid activity. The extended auction will retain all bid history from the original auction.

 

(j) Bids will be ranked in the following order of precedence, 

(i)       bid price;

(ii)     bid quantity

For example, if two or more bids are for the same bid price, the higher quantity will take precedence.

 

(k) All bids placed on online auctions are made on a per-item basis and bid amounts may only be increased in multiples of the specified bid increment. While you are the current highest bidder on an online auction, you will not be permitted to lower your current bid with a new lower bid, nor will you be permitted to lower your bid quantity with a new bid. If you want to decrease your quantity, you must wait until your current highest bid is exceeded by another bidder.

 

(l) Winning bids placed at online auctions will be a processed by us even if the bidder’s bid is successful only in respect of a percentage of the lot or unit volume bid upon by that bidder. For example, if a bidder bids on 10 units and is successful in relation to 2 of those units, but is outbid on the other 8 units, we will recognise the Winning Bid Amount placed by you with respect to the 2 units only.

 

4.2 Reserve Prices

 

The vendor may choose to nominate a minimum reserve sell price on an asset. If your bid is lower than the reserve price a notification of "Reserve not met" will appear. Once bidding meets or exceeds the reserve price the "Reserve not met" label will be removed and the highest bid for each item on the lot at the end of the auction will win the asset. Please note that when you confirm your bid, it is still accepted as a valid bid even when the "Reserve not met" label is shown.

 

4.3 Reserve Price not met at end of Auction

 

If the reserve price has not been met at end of auction, the highest bidder below reserve may be contacted.

 

4.4 Conclusion of Online Auction

 

(a) The auction closes at the end of the time period specified for that online auction where there are no new successful bids during the 10 minutes immediately preceding the end of the time period specified. If there are any successful bids on a particular lot/item within 10 minutes of the close of the online auction (the going, going, gone period), the auction will continue to be extended until there are no more within the Refresh Period. Due to circumstances beyond our control, the Refresh Period may vary from time to time by a number of seconds. GraysOnline accepts no responsibility for any circumstances or incidents arising as a result of any slight variations that may occur in the Refresh Period.

 

(b) When an online auction in which you have been participating closes and you are the Winning Bidder, we will notify you by e-mail. This notice will include 

(i)       notification that you are the Winning Bidder and of the amount of your winning bid;

(ii)     the item number and description;

 

(c) We provide this notice out of courtesy and as a reminder to you. Due to problems beyond our control you may not receive this email, however, you are solely responsible for monitoring the status of any online auction in which you participate and non-receipt of a Winning Bidder (or any other) email from us shall not abrogate or release you from your obligation to complete the sale and purchase the auction sale item. Additionally, you are responsible for completing your obligations with respect to the purchase after the online auction has closed.

 

(d) When you place the winning bid at an online auction, you authorise us to charge the Invoice Amount, together with any other fees and charges in accordance with clause 3.2.

 

(e) If you are the Winning Bidder for an item at an online auction, you are contractually obliged to complete the transaction and purchase that item.

 

(f) You acknowledge that: 

(i)       unless otherwise stated all prices are quoted in New Zealand dollars;

(ii)     you must pay for goods and services, including delivery costs and other fees as outlined in clause 3.2 above, in New Zealand dollars, unless otherwise specified.

 

4.5 Processing and Technological Errors

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, we hereby reserve the right to:

 

(a) 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,

 

(b) 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,

 

(c) retract any Winning 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,

 

(d) 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,

 

(e) void that entire online auction transaction and open the auction again at the original start prices.

 

 

5. PRODUCTS FOR SALE ON ONLINE AUCTION

 

5.1 Description of Goods

(a) In relation to the items sold in an online auction, we will endeavour to: 

(i)       provide accurate descriptions in the Product Information to fairly reflect each item;

(ii)     pass clear title to the items to you; and

(iii)    ensure that each item for auction on the Site is available at the time of the auction.

 

(b) Subject to any implied warranties (statutory or otherwise) which are incapable of being excluded at law, we do not make any promises that:

(i)       the items are fit for a particular purpose;

(ii)     they are able to be repaired, replaced or serviced over and above the rights which you have under manufacturer’s warranties;

(iii)    that we will be able to replace or exchange any of the items which are found to be defective on delivery.

 

5.2 Return of Goods

(a) Your rights under the Consumer Guarantees Act 1993 apply to the return of goods. In addition, you may return an item in the circumstances outlined in our Returns Policy. Please remember that GraysOnline acts on behalf of various vendors and endeavours at all times to uphold such vendors to their obligations at law. GraysOnline requests that the timeframes in our Returns Policy be adhered to so that GraysOnline may assist with any returns and/or refunds claims prior to distributing sales proceeds to such vendors. If the timeframes are not adhered to GraysOnline will assist you to contact the vendor directly to pursue any returns and/or refunds claims. As stated above, the timeframes do not affect your rights under the Consumer Guarantees Act 1993.

 

(b) In accordance with our Returns Policy, please contact us by email to customerservice@grays.co.nz within 15 days after delivery of the item to you. After we email you a returns advice form in accordance with sub-paragraph 5.2(d), please respond or deliver the returned item to us within 5 days thereafter as provided by our Returns Policy.

 

(c) You acknowledge and agree that the Consumer Guarantees Act 1993 does not apply to goods sold at auction if:

(i)    the goods are goods that are ordinarily acquired for personal, domestic, or household use; and

(ii)   the vendor is selling the goods in trade as a supplier (within the meaning of the Consumer Guarantees Act 1993); and

(iii)  you acquire the goods in trade (within the meaning of the Consumer Guarantees Act 1993).

 

You acknowledge and agree that GraysOnline acts on behalf of various vendors and may not always be in a position to substantiate representations made by those vendors or third parties. Where you acquire goods in trade (within the meaning of the Consumer Guarantees Act 1993), you agree that you do not rely on any representations made by, or conduct of, GraysOnline in respect of the goods whether before, during or after bidding at auction or otherwise purchasing goods from GraysOnline.

 

(d) Goods will be accepted for return if they have been incorrectly described in the Sale Overview, Lot Description or other Product Information, if they have been damaged in transit, or if they are unworkable or ”dead on arrival”. If you wish to return an item, please email our customer service team within 15 days of delivery with full details of your purchase and the reason for return of the item. Upon receipt of your email, we will email you a returns advice form, which must be included with the returned item.

 

(e) Subject to any implied warranties (statutory or otherwise) which are incapable of being excluded at law, if an item is sold by us on an online auction, and that item is sold with an accompanying manufacturer’s warranty, the content, fulfilment or enforcement of that manufacturer’s warranty is their responsibility, and we request that you contact any such manufacturer in the first instance in relation to all queries and claims relating to the manufacturer’s warranty.

 

(f) If we email you a returns advice form in accordance with sub-paragraph 5.2(d) and we do not receive a response from you or receive the returned item from you within 5 days thereafter, we may consider that you have decided to forfeit your right to return the item and therefore no longer wish to return the item to us, or to claim a refund and we will accordingly distribute sales proceeds to the relevant vendor(s).

 

(g) Within the first 10 working days of receipt by us of a returned item, the item will be inspected and tested to determine its condition and, if the item is found to be in good working order (and your claim as to the faulty nature of the item is found to be invalid), the item will be returned to you and you will be charged all freight charges incurred by us in relation to the return and re-return of the goods. We shall have the right, and you hereby authorise us to charge your credit card with any moneys incurred by us in this regard.

 

(h) If, upon receipt by us of a returned item, and subsequent determination by us that the item is faulty or damaged or incorrectly described, we will, within 21 days refund your credit card for the Invoice Amount.

 

(i) If an item or lot is described in the Sale Overview, Lot Description or other Product Information on our Site as being in a faulty or damaged condition, you acknowledge such condition when bidding for that lot or item, and further acknowledge that GraysOnline accepts no liability for, and will not entertain any subsequent claim against us by a Winning Bidder for any loss or damage incurred by a buyer on account of the faulty or otherwise damaged condition of the auction item or lot.

 

(j) Goods returned to us must be in their original packaging and include all accessories, manuals etc. if applicable.

 

5.3 Retail Prices

In certain circumstances, an item for sale on the Site may display the manufacturer’s original retail price (ORP). Please be aware that this is not a reference to the current recommended retail price of the goods but rather a reference to the price supplied by the manufacturer, distributor or retailer of the item at the time of the item’s original sale, and therefore such prices may not be current as at the time of the online auction of the item. GraysOnline takes no responsibility for the accuracy or otherwise of ORP’s on any item it offers for sale at an online auction on its Site, and hereby advises all bidders to satisfy themselves as to the value of the item being auctioned.

In certain circumstances, an item for sale on the Site may include reference to the manufacturer’s Recommended Retail Price (RRP). Please be aware that if a RRP is included with a sale item, the RRP has been supplied by the vendor of the item and the vendor has warranted to us that the RRP is current at the time the item is placed on the Site for sale by online auction. GraysOnline accepts no responsibility for the accuracy or otherwise of any RRP’s included on any item it offers for sale at an online auction on its Site, and GraysOnline hereby advises all bidders to independently satisfy themselves as to the value of the item being auctioned.

The Comparable Retail Price (CRP) means the price at which in the judgment of our manufacturers or suppliers, is the comparable selling price in retail shops for the same or similar item. In some cases the CRP may be supplied by an importer of products who has not sold in the domestic market, and in these cases the CRP may be calculated using a foreign retail price (adjusted) as a guide. You may choose to use the CRP as a reference guide. GraysOnline takes no responsibility for the accuracy or otherwise of CRP’s on any item it offers for sale at an online auction on its Site, and hereby advises all bidders to satisfy themselves as to the value of the item being auctioned.

 

 

6. OUR RIGHTS

 

6.1 Suspension from Use Of Service

 

(a) We may refuse you the right to use the Service if you 

(i)       are successful at an online auction and do not pay for the bid item and/or refuse delivery of the item;

(ii)     give information which is untrue, inaccurate or incomplete; or

(iii)    if we become aware that you have engaged in any form of bid manipulation you will be permanently suspended from the Service, including all associated secondary and re-registered membership accounts.

 

(b) We may suspend, cancel or terminate your access to the Service if you breach or fail to observe these Terms and Conditions or for any other reason at our discretion

 

(c) If we suspend your access to the Service, you may not register again.

 

6.2 Our Discretion

 

(a) It is illegal to make bids in a false name or with an invalid or stolen credit card, even if our software initially accepts such a bid. Fraudulent bidders will be prosecuted to the fullest extent of the law. You will also be reported to your Internet Service Provider.

 

(b) You may be sued by us for all losses suffered by us and our vendors because of your bid manipulation or illegal action. Those proceedings can result in bankruptcy if you cannot pay the amount claimed. We may also at our sole discretion suspend, cancel or terminate the provision of the Service to you. If you engage in illegal activities in connection with the use of the Service, we may report you to the relevant authority or take civil or criminal action against you. For the avoidance of doubt, you agree to indemnify us in accordance with clause 7.3(b) in respect of your bid manipulation or illegal action.

 

(c) If your credit card balance is insufficient to meet all money due to us, then in addition to all other remedies available to us pursuant to these Terms and Conditions and at law, we may immediately institute proceedings for full financial restitution, including the full cost of recovery.

 

6.3 Our Rights Upon Breach By You

We may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your registration account on any of your current online auctions, and any other information you place on the GraysOnline site if you breach this Bidders Agreement or if we are unable to verify or authenticate any information you provide to us.

 

6.4 Rights As agent and/or Seller

(a) We may withdraw and / or re-offer an item from an online auction where the item:

(i)       becomes unavailable due to damage,

(ii)     or the title to or provenance of the item is disputed;

(iii)    is withdrawn by the manufacturer, distributor or vendor;

(iv)    fails to draw a bid above the posted minimum,

(v)     fails to draw any bid;

(vi)    has been erroneously listed twice; or

(vii)  is incorrectly described.

 

(b) We also reserve the right to change the:

(i)       quantities of products posted;

(ii)     maximum number of items which you may bid for; or

(iii)    bid increment during the auction

 

 

7. LIABILITY AND INDEMNITIES

 

7.1 Our Liability To You

 

(a) We are not responsible for bids not received, processed or accepted due to technical difficulties, including those online bids placed by Autobid. In particular, we are not responsible for any loss, liability or damage incurred by you as a result of a bid not received, processed or accepted due to technical difficulties.

 

(b) We provide the Site and the Service without any warranty or condition with regard to the Site’s capacity express or implied except those warranties which are implied by law and are incapable of being excluded. In relation to the items which we auction at the Site, we provide those warranties implied by law which are incapable of being excluded.

 

(c) Neither we nor our suppliers will be liable for any lost profits or any special, indirect incidental or consequential damages (however arising, including negligence and recklessness) arising out of or in connection with the delivery of the Service.

 

(d) We do not guarantee continuous, uninterrupted or secure access to the Service, and operation of the Site may be interfered with by numerous factors outside of our control. We do not accept responsibility for interrupted or unsecure access.

 

(e) You acknowledge that the Internet can be an unstable and, sometimes, insecure marketplace. At times the Service may not be available or bids placed at online auctions may not be processed or may not be accepted for reasons beyond our control. In these circumstances we accept no responsibility. We will not post a bid on your behalf.

 

(f) We cannot guarantee that we will notice or be able to prevent any illegal or inappropriate use of the Site and we do not accept responsibility for such conduct.

 

(g) We cannot guarantee the preservation of any record, particularly after the provision of the Service to you has been suspended, cancelled or terminated and may delete information at our sole discretion and without notice.

 

7.2 imitation Of Our Liability to You

 

(a) To the extent that we are able under New Zealand legislation to limit the remedies available under this agreement, we expressly limit our liability for breach of a condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is at our sole discretion):

 

(i)       in the case of goods, any one or more of the following, at our absolute discretion: 

A.       the replacement of the goods or supply of equivalent goods; or

B.       a full refund,

 

provided they fall within the ambit of the acceptable reasons for return as outlined in the Returns Policy.

 

(ii)     in the case of services: 

A.       supply of the services again; or

B.       a full refund.

 

 

(b) Nothing in these Terms and Conditions is intended to limit or exclude any liability on our part where and to the extent that applicable law (e.g. the Consumer Guarantees Act 1993 and the Fair Trading Act 1986) prohibits such exclusion or limitation.

 

7.3 Indemnities

 

(a) You waive, release, discharge and relinquish any and all claims that you now have or may have against us, our affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives (“the GraysOnline indemnified parties”) which are connected with, arise out of, relate to or are incidental to the use of the Service.

 

(b) You agree to indemnify and defend us, our affiliates, subsidiaries, parent companies, shareholders, directors, officers, employees, agents and representatives (the GraysOnline indemnified parties) harmless from and against any and all claims, loss, damage, tax, liability and/or expense that may be incurred by the GraysOnline indemnified parties arising out of or in connection with the performance of its duties as described in these Terms and Conditions (except as caused by the wilful misconduct of the GraysOnline indemnified parties) including the legal costs on a solicitor/client basis, fees and expenses of defending ourselves against any claim by any or all of the parties to any transaction and/or by any other person and/or as a result of your breach of these Terms and Conditions or your negligent act or omission. In the event of legal action you will pay continuing interest after the date of judgment order or reward until full payment is received by us.

 

(c) You further agree to indemnify and hold the GraysOnline indemnified parties harmless from any claim or demand, including legal fees on a solicitor client basis, made by any third party due to or arising out of the breach of these Terms and Conditions by you, or

 

(d) the infringement by you, or other user of the Service using your user name and password, of any intellectual property or other right of any person or entity.

 

These indemnities are subject to “Our liability to you” and “Limitation of our liability to you”.

 

 

8. COLLECTION DELIVERY, INSURANCE AND RISK

 

8.1 Collection and Delivery

 

(a) Details concerning collection and/ or delivery of items by a Winning Bidder following the conclusion of an online auction are stated in the Sale Overview, provided that we shall be entitled to withhold delivery of any items until you have paid all sums due to us as the Winning Bidder under the online auction. You acknowledge that where there is a multi-vendor sale for a lot, each item in the lot may have a different collection address.

 

(b) Unless otherwise expressly agreed in writing with you, any collection times specified by us in the Sale Overview or otherwise are business estimates only and we will not be liable to you for any loss or damage sustained by you as a result of our failure to comply with such details. When collecting items, you agree to comply with the provisions of the Health and Safety in Employment Act 1992 and all directives given by us in accordance with such Act and any current legislation and statutory regulations.

 

(c) Unless outlined in the Sale Overview or other Product Information (including the Lot Description), delivery of bulky goods (e.g. large TVs, furniture, white goods etc.) assumes ground floor front door delivery.

 

(d) Deliveries will be made during business hours between Monday and Friday. Deliveries will be made to the delivery address specified in “My Info” before the auction closes. Delivery fees are quoted on a per item basis.

 

(e) Receipt of delivered items must be acknowledged by signature and you may not directly authorise the courier company to deliver to another address or to deliver without signature. If you contravene this clause, you waive your right to personal delivery and we do not accept any responsibility for loss or damage to the goods.

 

(f) Please also refer to our online auction Delivery Rules which is available on the Site for further information about our delivery procedures and charges.

 

8.2 Risk and Title

 

(a) If the item is to be delivered by us to a place nominated by you, then the risk shall pass to you when items are dispatched to your nominated destination.

 

(b) All items to be delivered must be delivered to a specified premises and receipt of such items must be acknowledged by signature. Following the provision by you of delivery location details, you may not contact our courier company directly and authorise them to deliver the items to another address, nor may you authorise for the items to be delivered to your or another address without signature (Left as Instructed), nor can you arrange for collection of the courier company directly. If you contravene this clause you will waive any right you may have had to personal delivery, and you shall accept all responsibility for any loss of or damage caused to the items, and you hereby release GraysOnline from any liability for any loss or damage caused as a result.

 

(c)If the item is to be collected by you from our or any other premises all risk in that item shall pass to you upon receipt by us of the full Invoice Amount.

 

(d) Title in the item will not pass to you until we have received payment in cleared funds for all outstanding amounts owing to us.

 

(e) In the event that the item is withheld by us in accordance with these Terms and Conditions, risk in the item shall pass to you at such time as you would have been able to collect the item had we not been withholding them.

 

(f) You cannot change or request to change your delivery address details after an online auction has closed. GraysOnline accepts no responsibility for misdeliveries made if the purchaser changes their delivery address details after an online auction has closed.

 

 

9. PRIVACY

 

(a) Our online auction Privacy Statement (as it appears from time to time) is available on the Site. We will take all reasonable steps to abide by this policy and all users of the Site hereby agree to its Terms and Conditions and agree to act in accordance with the policy when using this Site.

 

(b) If you do not agree to the collection of this information and the other information specified in the online auction Privacy Statement, then do not accept the Terms and Conditions of this agreement.

 

(c) By accepting the Terms and Conditions of this agreement, you also consent to the following:

 

(i)       Collection of a variety of personal information which is specified in greater detail in the Online Auction Privacy Statement. This information includes your address, gender, date of birth and contact details; in some cases, credit card details; bidding and buying activity at online auctions; and your use of our Site generally.

(ii)     Use of the above personal information is for certain purposes specified in greater detail in the Privacy Statement. These purposes include internal use for improving the Service; meeting our obligations under New Zealand law; statistical analysis of usage of our Site to improve the Service; to utilise our content and product offerings and deliver promotional material to you; and administrative purposes connected with the Site including for bidding at online auctions.

(iii)    We may disclose your information in certain circumstances. These circumstances are specified in the Online Auction Privacy Statement.

 

 

10. GOVERNING LAW

This agreement is governed by and must be construed according to the law of New Zealand. GraysOnline and you are subject to the jurisdiction of the courts of New Zealand.

 

 

11. GST

 

(a) The Sale Overview will state whether the sale price of a lot is inclusive of goods and services tax (GST Inclusive) or exclusive of GST (GST exclusive).

 

(b) You acknowledge and agree that:

 

(i)       if the sale price is GST inclusive, the Buyer’s Premium will include GST and will be calculated as a percentage of the sale price (inclusive of GST) and payable by you at the same time as the sale price;

(ii)     if the sale price is GST Exclusive, GST will be calculated on and added to the sale price, and the Buyer’s Premium (exclusive of GST) will be calculated on the sale price and payable by you at the same time as the sale price.

 

 

12. FURTHER INFORMATION

 

12.1 Online Auctions

 

(a) All visitors to the Site should familiarise themselves with the Online Auction Rules before participating in the GraysOnline online auction. Please note the Online Auction Rules are a summary only of this Bidders Agreement.

 

(b) GraysOnline’s items are offered for sale subject to the specific warranty details described with each item and our overall returns policy. GraysOnline excludes, to the extent permitted by the New Zealand law, all other warranties or conditions, whether express or implied, including, without limitation, implied warranties or conditions of merchantability or fitness for a particular purpose.

 

(c) Auction firms and consigning sellers are strictly prohibited by law from placing bids on their own behalf in order to alter or artificially increase the product price in an auction.

 

(d) GraysOnline’s auctions in New Zealand are managed by Grays Auctions Ltd, a licensed auctioneer.

 

12.2 Time - Online Auctions

 

(a) When bidding on GraysOnline auctions the Time is reflected on the Sale Overview, catalogue page, lot page and other pages on the site. You can change the Time shown to your local Time Zone by clicking on the Time Link on these pages.

 

12.3 Personal Property Securities Act 1999 (“PPSA”)

 

(a) If we have not received payment for the full Invoice Amount in cleared funds at the time of collection or delivery, you grant us a security interest (as defined in the PPSA) in the goods and their proceeds and you acknowledge that the granting of the security interest gives rise to remedies of repossession of the goods in accordance with the PPSA or otherwise where we seek to enforce our security interest.

 

(b) At all times you must advise us of the location of the unpaid goods and allow us to inspect those goods.

 

(c) You will at our request, promptly execute any documents, provide all necessary information and do anything else required by us to ensure that our security interest in the goods is perfected in accordance with the PPSA with such priority as we require.

 

(d) You waive your rights under the PPSA to receive a copy of any verification statement otherwise required by the PPSA. If applicable, so far as permitted by section 107 of the PPSA you will have no rights under sections 114(1)(a), 120 and 133 of the PPSA, including the right to receive any notices.

 

(e) Where you acquire items from us for personal, domestic or household use, nothing in this clause or any other clause in this Agreement will limit your rights under the Credit (Repossession) Act 1997.

 

12.4 Other

 

(a) Any clause in these terms and conditions which is or becomes unenforceable, illegal or invalid for any reason shall be severed and shall not affect the enforceability, legality, validity or application of any other clause(s) which shall remain in full force and effect.

 

(b) No failure or delay by us to enforce any provision of these terms and conditions at any time shall be a waiver of the provision. No waiver shall be effective unless it is in writing. No waiver of any breach of these terms and conditions shall be deemed to be a waiver of any other or any subsequent breach.

 

13. DEFINITION AND INTERPRETATION

 

(a) Autobid means the process whereby you elect and submit a maximum bid amount and our online auction system will automatically incrementally increase your existing bid in the event that your existing bid is exceeded by another bidder up to your maximum bid amount.

 

(b) Buyers Premium means that percentage of the Winner’s Bid Amount as identified on the Sale Overview and payable by the winning bidder of an auction. The Buyer’s Premium is payable in addition to and at the same time as the Winner’s Bid Amount, and will form part of the total Invoice Amount to be paid by the winning bidder for the purchase of the sale lot. The Buyers Premium may be GST inclusive or exclusive, and will be clearly marked which one in the Sale Overview.

 

(c) Delivery Rules means those rules contained in the Delivery Rules section. The Delivery Rules form part of these Terms and Conditions.

 

(d) Invoice Amount has the meaning given to it in clause 3.2 of this Bidders Agreement.

 

(e) Lot Description means the description of a product contained with the sale catalogue and identified with its individual lot number.

 

(f) Online Auction Rules means those rules contained in the Auction Rules section.

 

(g) Privacy Statement means that statement contained in the Privacy & Security Section.

 

(h) Product Information means any information posted by us on the Site in relation to any item posted by us for sale on the Site.

 

(i) Refresh Period means the time between nine minutes and one second and nine minutes and fifty nine seconds (inclusive), being the period that the Site’s timing mechanism has entered the tenth minute. For example:

 

(i)       where a bid is placed at 2:53:00 pm, assuming there are no further bids placed, the auction will close at 3:03:00 pm;

(ii)     where a bid is placed at 2:53:45 pm, assuming there are no further bids placed, the auction will close at 3:03:00 pm;

(iii)    where a bid is placed at 2:54 pm, assuming there are no further bids placed, the auction will close at 3:04:00 pm.

 

(j) Returns Policy means that policy contained in the Returns Policy section.

 

(k) Sale Overview means the special terms and conditions and specifications attaching to a particular good which are accessed by the potential bidder upon entry to the online sale portal for that particular good, and prior to accessing the catalogue and lot view details.

 

(l) Service means the GraysOnline online auction service governed by these Terms and Conditions and any other conditions contained on the Site.

 

(m) Site means the GraysOnline website.

 

(n) us/we means GraysOnline, a division of Grays Auctions Ltd of 38 Canaveral Drive, Rosedale, Auckland 0632, New Zealand.

 

(o) Winners Bid Amount means:

(i) The amount of the highest bid; or

(ii) where two or more bids are for the same price, the bid amount that is for the greater quantity of goods; or

(iii) where two or more bids are for the same price and quantity, the bid that was placed first.

 

(p) Winning Bidder means that bidder who has the highest bid at the conclusion of the online auction, allowing for any Bid Precedence rules.