Special Conditions

1. By opting in to the Drive-Pickles Guarantee of Sale programme (GOS), you agree to these terms and conditions (GOS T&Cs;). These GOS T&Cs; are a binding legal contract between you and Fairfax Media Publications Pty Ltd (ABN 33 003 357 720) (Fairfax).
2. These GOS T&Cs; apply in addition to Fairfax’s Advertising Terms and Conditions (available http://adcentre.fairfaxdigital.com.au/dotAsset/11739.pdf) and the Conditions of Use for all Fairfax Digital sites (available http://www.fairfax.com.au/conditions.html). These GOS T&Cs; prevail to the extent of any inconsistency between them and any of those other terms.
3. In order to participate in the GOS, you agree and acknowledge that you will enter into a separate agreement with Pickles Auctions Pty Ltd (ABN 32 003 417 650) (Pickles) in relation to the admission of your vehicle, advertised for sale on Drive.com.au, into an auction process managed by Pickles (Auction Agreement). Fairfax is not a party to the Auction Agreement and your rights and liabilities in relation to the auction process are exclusively set out in that agreement (except as otherwise provided by law).
4. You must enter into the Auction Agreement in your own discretion and you agree and acknowledge that you should seek independent legal advice in relation to the Auction Agreement. Fairfax makes no representation, warranty or other recommendation in relation to the Auction Agreement.
5. The rules and procedures of the GOS are set out at https://selfservice.drive.com.au. These rules and procedures form part of these GOS T&Cs.; You must follow these rules and procedures in order to be eligible for any and all of the features of the GOS, and you agree and acknowledge that Fairfax has no obligation to provide you with any feature of the GOS where you have not complied with those rules and procedures or these GOS T&Cs.;
6. Fairfax makes no warranty, representation or undertaking in relation to the sale of your vehicle on Drive or under the GOS, including as to any price that may be offered.
7. You agree and acknowledge that you must (a) notify Pickles if your vehicle is sold or there is any agreement or arrangement to sell your vehicle prior to the proposed time and date of the auction of the vehicle by Pickles; and (b) not sell or agree or promise to sell your vehicle to any person on and from the proposed time and date of the auction unless and until notified by Pickles that your vehicle has not been sold at auction.
8. If Pickles notifies you that your vehicle has been sold at auction, you must do all things and execute all documents necessary to transfer title and possession of the vehicle to the buyer as directed by Pickles.
9. If Pickles notifies you that your vehicle has not been sold at auction, you must elect by notice in writing to Pickles within the timeframe nominated by Pickles either to (a) accept Pickles’ offer to purchase your vehicle at the guaranteed price, and do all things and execute all documents necessary to transfer title and possession of the vehicle to Pickles within the timeframe nominated by Pickles or (b) decline Pickles’ offer. Such election is irrevocable and once Pickles’ offer is declined your vehicle may not be re-entered in the GOS.
10. You warrant, represent and undertake that you are the owner of your vehicle and have all necessary right, title and interest to (a) grant to Pickles the right to sell the vehicle at auction; and (b) complete such sale to either the buyer at auction or to Pickles.
11. You release, indemnify and hold harmless Fairfax, its related bodies corporate, and their officer, employees and agents from and against any and all losses, costs, expenses, claims, damages and other liabilities arising in connection with your entry into the Auction Agreement, the auction process or the sale or attempted sale or other dealing with your vehicle.

1. Definitions and interpretation

   1. Definitions

      In these terms and conditions, unless the context otherwise requires or implies:

      Auctioneer

      means PICKLES AUCTIONS PTY LTD (ACN 003 417 650) trading as PICKLES AUCTIONS, or any person conducting an auction sale for, or on behalf of PICKLES AUCTIONS PTY LTD, except that where the context so permits it will mean or include the person actually conducting the auction sale on its behalf.

      Auction Sale

      means the auction of all of the Lots listed the Catalogue. The Auction Sale will be deemed complete after all of the Lots listed in the Catalogue have been put to auction irrespective of whether or not all Lots have been sold.

      Australian Consumer Law

      means the Australian Consumer Law set out in Schedule Two of the Competition and Consumer Act 2010 (Cth).

      Catalogue

      means a list of Lots published by the Auctioneer and scheduled to be sold by way of auction on a specified date and at a specified location.

      GST

      means the goods and service tax as imposed by the GST Law together with any related interest, penalties, fines or other charges to the extent that they arise from the Purchasers failure to pay when due.

      GST Amount

      means any Purchase Price (or the relevant part of the Purchase Price) multiplied by the appropriate rate of GST (currently 10%).

      GST Law

      has the meaning given to the term in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and service tax in Australia and any regulation made under that Act.

      Lot

      means any goods available for purchase at the Auction Sale, including but not limited to Motor Vehicle and plant items.

      Motor Vehicle

      means, Motor Vehicle as defined in the Motor Dealers Act 1974 (NSW).

      Purchaser

      means the person or person who is the highest bidder for a Lot (subject to any reserve price and/or at the discretion of the Auctioneer).

      Purchase Price

      means the highest bid accepted by the Auctioneer for a Lot.

      Seller

      means the particular owner or owners of a Lot.

      Taxable Supply

      has the meaning given to that term by the GST Law.

      Tax Invoice

      has the meaning given to that term by the GST Law.

   2. Construction

      1. References to 'conditions' or 'these conditions' means a reference to this document which is headed - 'Terms and conditions of Auction and/or Sale'.
      2. References to any legislation or legislative provision include any statutory modification or re-enactment of, or any legislative provision substituted for, and any statutory instrument issued under, that legislation or legislative provision.
      3. Words denoting the singular number include the plural number and vice versa.
      4. Words denoting individuals or persons include corporations, authorities, governments and governmental agencies and vice versa.
      5. Words denoting any gender include all genders.
      6. Headings are for convenience only and do not affect interpretation.
      7. References to any agreement or document are to that agreement or document (and, where applicable, any provision thereof) as amended, novated, supplemented or replaced from time to time.
      8. References to any party in these conditions, or any other document or arrangement, include that party's executors, administrators, substitutes, successors and permitted assignees.
      9. Any condition or agreement on the part or in favour of two or more persons is deemed to bind them or be in favour of them jointly and each of them severally.
      10. If any term or condition of these conditions is to any extent be held by any court of competent jurisdiction to be invalid or unenforceable the remaining terms and conditions of these conditions will not be affected thereby, and will remain in full force and effect.
      11. The proper law governing the interpretation and enforcement of these conditions including all substantive rights and obligations hereunder and the manner mode and method of performance is the law of the State of New South Wales.

2. Auction contract

   1. The Auctioneer is acting as agent for the Seller.
   2. If a dispute arises in relation to a Lot, the dispute is between the Purchaser and the Seller. The Seller and Purchaser agree to release the Auctioneer from any claim, action, Tribunal or court proceeding in respect of that Lot and to indemnify the Auctioneer, on a full indemnity basis, from all liability, including all costs incurred by it in relation to any such claim.
   3. Subject to any reserve price and at the discretion of the Auctioneer, the highest bidder will be the Purchaser. The Auctioneer will be the sole judge of who was the highest bidder. In the event of any dispute between bidders for a Lot, the Auctioneer will have absolute discretion to settle the dispute and its decision will be final.
   4. The Auctioneer may (whether or not a Lot has been knocked down as sold) in its sole discretion resubmit a Lot for sale by auction at the Auction Sale in progress or as soon as practicable thereafter. Any separate agreement between the Seller and Purchaser will constitute the contractual relationship between the Seller and the Purchaser together with these conditions in so far as they are consistent with that agreement.

3. Purchaser to purchase as principal

   The Purchaser will be deemed to purchase on its own behalf unless:

   1. Prior to the sale it disclosed to the Auctioneer that it will be bidding as agent on behalf of a principal and has supplied the full name and address of its principal and a copy of a written authority to bid for and on behalf of that principal and any other documents that Pickles requires; and
   2. The Purchaser has actual authority to bid on behalf of the disclosed principal. The onus will be on the Purchaser to show that it had such actual authority.

4. Auctioneer's rights

   The Auctioneer and Seller reserve the following rights (which may be exercised by the Auctioneer at its discretion):

   1. To not offer for sale any Lot;
   2. To withdraw any Lot or Lots from the Auction Sale;
   3. To refuse to accept bids or offers from any person for any reason; and
   4. To not disclose the existence and/or quantum of the reserve price (if any) of a Lot prior to the close of bidding or withdrawal of the Lot.

5. Reserve prices and seller's bids

   The auction of Lots may be subject to a reserve price specified to the Auctioneer by the Seller.

6. Knocked down goods at Purchaser's risk

   The Purchaser assumes all risk in relation to a Lot from the fall of the hammer in respect of that Lot, and neither the Auctioneer nor the Seller will be accountable for any deficiency damage or loss to the Lot which may arise, occur, or become apparent thereafter.

7. Warranties and consumer guarantees

   1. The Purchaser acknowledges that the consumer guarantees stipulated in sections 54, 55, 56, 57, 58 and 59 of the Australian Consumer Law do not apply to the sale of goods by auction. As a result, in respect of Lots sold by auction, the Auctioneer and the Seller make no warranties and give no guarantees regarding:

      1. the goods being of acceptable quality;
      2. the goods being fit for any disclosed purpose or any purpose for which the supplier represents they are fit;
      3. the goods matching their description or corresponding to any sample or demonstration model;
      4. the availability of repairs or spare parts for the goods; or
      5. express warranties in respect of the goods made by the manufacturer being complied with.

   2. In respect of Motor Vehicles sold by auction, the Purchaser acknowledges that:

      1. it must satisfy itself as to the condition of the Motor Vehicle prior to the Auction Sale;
      2. it can not rely on the category in which a Motor Vehicle is sold as a representation as to the condition or registrability of the Motor Vehicle; and
      3. it is the Purchaser's responsibility to check the Written Off Vehicles Register prior to an Auction Sale to satisfy itself as to the registrability of the Motor Vehicle.

   3. Nothing in this clause 7 (or any other provision of this Agreement) should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of the Australian Consumer Law, the liability of the Auctioneer or the Seller for failing to comply with these provisions of the Australian Consumer Law or the right of a consumer to make a claim in respect of these guarantees or under any other provision of the Australian Consumer Law.

   4. The Purchaser acknowledges that:

      1. The implied warranties and conditions as to quality or fitness of any motor vehicle are excluded.
      2. The obligations to remedy defects in respect of Motor Vehicles do not apply to Motor Vehicles sold by auction.

8. Title and property in goods

   The Seller guarantees to the Purchaser and the Auctioneer that the Seller has good title to the goods and/or that it has proper authority to sell the goods. The Seller acknowledges that the Auctioneer relies on this guarantee in offering the goods for sale on behalf of the Seller and the Purchaser acknowledges that such guarantee is given by the Seller and not by the Auctioneer.

9. Payment upon completion of sale

   1. Upon completion of the Auction Sale, the Auctioneer at its sole discretion may require immediate payment or part payment of the Purchase Price, together with all administrative and processing fees and charges, for a motor vehicle.
   2. The Purchase Price (and where applicable, any part payment thereof and sales or other tax, any other Governmental charges) must be paid in cash unless otherwise agreed by the Auctioneer.
   3. If payment for any part of the Purchase Price is made by cheque and the cheque is dishonoured, the Purchaser will be deemed to be in fundamental breach of its obligations pursuant to these conditions.

10. Finance

    The Purchaser expressly acknowledges and warrants to the Auctioneer and to the Seller that prior to making an offer for a motor vehicle or successfully negotiating the purchase of a motor vehicle by private agreement, that it has either cash resources immediately available to complete the purchase or has obtained approval for such financial assistance or loans as it may need to complete the purchase and that such financial assistance or loans are on reasonable terms and are satisfactory to the Purchaser.

11. General law (saving of rights)

    All rights and remedies available to the parties against each other under the general law are subject to these conditions.

12. Further special conditions

    1. The Auctioneer may prior to the commencement, or during an Auction Sale announce further special conditions applying to that Auction Sale or a particular item put up for auction in which event such further special condition or conditions will be deemed to be incorporated into and form part of these conditions.
    2. Users of the Pickles Live Bidding site must be 18 years of age or older and be able to enter into a legal and binding contract.
    3. The Auctioneer is not responsible for bids that were not processed due to technical problems and or delays.
    4. Purchaser's experiencing any loss from the use of the Pickles Live Bidding site agree to indemnify and hold the Auctioneer harmless regarding losses or damages experienced through the use of the Pickles Live Bidding Website. This includes losses as a direct result or errors or problems on the Internet or on the service or any other condition arising that is beyond the Auctioneers' control.
    5. The Auctioneer shall not be liable for any special, incidental or consequential damages or for loss, damage, or expense directly or indirectly arising from Purchaser's use of or inability to use the service.
    6. The Auctioneer cannot guarantee prevention of any inappropriate use of the system or of users registering with any false information or the preservation of any material, information and records posted on the Web site.
    7. These terms may be amended from time to time without notice to the buyer.

13. Goods and services tax (GST)

    1. The Seller will elect whether the Purchase Price of the goods is inclusive or exclusive of GST.
    2. GST will be added to all charges and fees payable.
    3. Subject to the above, if the whole or any part of any purchase price is the consideration for a Taxable Supply, the Purchaser must pay to the Seller via the Auctioneer, an amount equal to the GST Amount with that Purchase Price and the Auctioneer, will provide to the Purchaser (if applicable) a Tax Invoice at the same time at which any GST Amount is payable.

14. Time is of the Essence

    Time is of the essence.

15. Valuation

    Once the Seller has agreed to take part in the Auction Sale, Pickles Auctions willvalue the Motor Vehicle and provide the valuation amount to the Seller. The valuation amount is based upon the information provided by the Seller on Drive.com.au and by any other means. This valuation amount will be known as the "Guarantee of Sale" amount. The Seller and Purchaser both warrant that the information provided is true and accurate and be relied upon.

    Pickles Auctions has the right not to proceed with the purchase of the Seller's vehicle should the information provided by the Seller be inaccurate and/or false.

16. Online Auctions

    1. The Seller and Purchaser agree that Pickles Auctions is not involved in the transaction between the Seller and Purchaser. Pickles Auctions has no control over the ability of the Seller to sell a motor vehicle or the ability of the Purchaser to buy the motor vehicle. Pickles Auctions provides no guarantee that the Seller and or Purchaser will complete the transaction.
    2. Pickles Auctions does not warrant and/or guarantee the identity of the Seller and Purchaser or that they are using the website lawfully.