The parties to this agreement are set out on the front page of this agreement and are referred to respectively as "Realtair" and "the USER" throughout this agreement.
2.1 Throughout Australia, bidders at auctions for the sale and purchase of Real Property are generally only able to bid in person or by telephone.
2.2 Realtair is in the business of providing an online auction portal to enable users to participate in online bidding of live auctions for the sale and purchase of Real Property.
2.3 Realtair will:
(a) Provide access to live and timed auctions online;
(b) Enable users to bid on live and timed auctions online; and
(c) Facilitate the exchange of contracts for successful bidders of live and timed auctions.
2.4 The following are the terms and conditions governing the use of the Realtair online auction portal and the successful registration to the Realtair online auction portal by a User is an agreement by the User to these terms and conditions.
3.1 Unless the context otherwise provides, this Agreement defines the following terms:
• Account - Means the online profile we provide you to use the Service.
• Agency - Means the sole trader, partnership or entity that employs or engages the Agent.
• Agent - has the same meaning as set out in the Applicable Law.
• Applicable Law - Means the law applying in the relevant jurisdiction.
• Auction - Means an auction that is facilitated online by Realtair.
• Realtair - Means Realtair Pty Limited [ACN 625 513 742] trading as Realtair.
• Auctioneer - Has the same meaning as set out in the Applicable Law.
• Bidder - Means a USER who places a bid by using the Service.
• Buyers Agent - Refers to a person who is licenced to represent a Purchaser in a Real Estate Transaction.
• Realtair/we/us - Means Realtair Pty Limited trading as Realtair including its shareholders, directors, officers, employees, agents and representatives.
• Dummy Bidding - Has the same meaning as set out in the Applicable Law.
• Foreign Investment Requirements - Means the requirements of the Australian Tax Office, Treasury and Foreign Investment Review Board and any other government authority for foreign investors to purchase real property in Australia.
• Foreign Investor - Means an individual who is not an Australian citizen or an Australian permanent resident.
• Intellectual Property - Means all intellectual property rights (including, without limitation, all copyright, designs, trademarks and patents) of any nature in any inventions, designs, works and subject matter created, developed or generated by Realtair.
• Licenced Conveyancer - Includes any person who is authorised under any state or territory law to undertake conveyancing in relation to the contract for the sale of Real Property.
• Purchaser - means a buyer of Real Property.
• Property - Means Real Property.
• Publicly Advertised - Means Real Property that is advertised to the world at large via any form of communication.
• Relevant Jurisdiction - Means the jurisdiction of the state or territory where the Property is located.
• Real Estate Agent - Refers to a person who is licenced to buy and sell real estate under any law of any state or territory.
• Real Estate Transaction - Means the buying or selling of Real Property.
• Real Property - Means the land and anything fixed, immovable, or permanently attached to it. Title to real estate normally includes title to air rights, mineral rights, and surface rights.
• Registration - Means an online registration of the Site of the User at www.auctionnow.com.au. For the purposes of this Agreement Registration is taken to have occurred when the administrator of Realtair activates the Registration.
• Service - Means the online auction portal for Real Property provided by Realtair through the Site.
• Site - Means www.auctionnow.com.au
• Solicitor - Means the holder of an Australian legal practice certificate.
• Successful Bid - Means the highest bid above the reserve price or accepted by the Vendor, at the close of an Auction.
• Third Party Content - Means any content, information or documents appearing on the site which was not created by Realtair.
• Vendor - Means the seller of Real Property and for the purposes of this agreement includes the vendors agent and vendors solicitor.
• Verification of Identity - Means the requisite amount of personal identification required to identify an individual or company or trust in accordance with the requirements of the Applicable Law as amended from time to time.
3.2 In this agreement unless the context otherwise requires:
(a) headings and underlining are for convenience only and do not affect interpretation;
(b) the singular includes the plural and vice versa;
(c) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(d) a reference to a person, trust, partnership, joint venture, association, corporation, organisation, society, firm, authority or other entity and includes any of them.
4.1 Upon Registration of an Account on the Site, the User may:
(a) View Property listed for Auction; and
(b) Register for Properties listed for Auction.
4.2 Upon registration for a Property listed for Auction, the User may:
(a) View the online Auction of the Property;
(b) Attend the Auction in person if it is a live Auction;
(c) Place Bids on the Property at Auction either online or in person; and
(d) Utilise the features provided in their Account including requesting amendments to thecontract for sale and purchase of the property directly with the Agent/Vendor.
5.1 The User must:
(a) Be over the age of eighteen (18) years;
(b) Be able to legally purchase Real Property in Australia;
(c) Provide correct Verification of Identity information of the User to Realtair when undertaking Registration of an Account.
(d) Keep the information on their Account up to date;
(e) Except in accordance with clause 7, not allow any other person to use the User's Account and must maintain the confidentiality and log in details of the User's Account;
(f) Notify Realtair immediately if the User becomes aware that their Account has been hacked or otherwise compromised;
(g) Not in any way impersonate another person or entity or access another person's Account;
(h) Not do anything to interfere with the auction process or the Service;
(i) Not post any defamatory, illegal, obscene or threatening content on the Site;
(j) Not provide information to Realtair which is false or misleading;
(k) Abide by all policies and procedures referred to in section 7 and set out in the schedules to this Agreement and as updated or set out from time to time by Realtair in the User's Account.
5.2 Where the User places a Successful Bid in an Auction (either by the User or by a Buyers Agent on behalf of the User) the User must take all steps necessary to effect the exchange of a contract for the sale and purchase of the Property, including:
(a) Sign the contract for the sale and purchase of the property via docusign;
(b) Pay the deposit as soon as practicable after the Successful Bid;
(c) Abiding by the Post Auction Procedure set out at Schedule 3 to this Agreement; and
(d) Take all other steps necessary to effect the exchange of the contract for the sale and purchase of the property.
Any bids made through a User's Account are binding on the User and non-retractable subject to clause 5.4.
5.4 Where evidence of fraud is provided that does not include any negligence or fault on the User's part, a bid may be withdrawn at the sole discretion of Realtair.
5.5 The User acknowledges that the Users information provided to Realtair will be required to be provided to third parties in order to facilitate property transactions and authorises Realtair to do so.
6.1 Realtair must use all reasonable endeavors to provide a functional Service to the User;
6.2 Realtair must ensure that its processes are compliant with all State, Territory and Commonwealth Laws.
6.3 Realtair does not take any responsibility and is not liable for any damages or loss resulting from:
(a) Any malfunctions or loss of service of either Realtair's systems or the Users systems which may occur during a live auction which prevent the User from participating in the auction;
(b) Any incorrect information regarding a property that is supplied by the Vendor or Agent and published on the Site or included in the contract for the property;
(c) Any actions of a Vendor of a property; and
(d) Any actions of a Buyers Agent; and
(e) Any actions of any other third party.
6.4 Realtair will not be an arbitrator of any dispute between the User and a Vendor.
6.5 Realtair is not required to hold or provide a contract for any Real Property. It is the responsibility of the Vendor or Vendors Agent to provide the User with a copy of any contract.
7.1 Notwithstanding clause 5.1(d) of this Agreement, the User may nominate a Buyers Agent to bid for Property on the Users behalf.
7.2 Where a User nominates a Buyers Agent to bid on their behalf it is the responsibility of the User to ensure that the following items are made available by the Buyers Agent to the Vendor or Vendors Agent:
(a) Name of Buyers Agent;
(b) Identification of Buyers Agent;
(c) Licence of Buyers Agent; and
(d) Agency Agreement between Buyers Agent and the User.
7.3 Where the Buyers Agent places a Successful Bid on behalf of the User, the User shall be bound to complete the Real Estate Transaction as if they had made the Successful Bid themselves.
8.1 The User agrees to comply with and be bound by all policies and procedures set out in the following Schedules and as amended or set out from time to time by Realtair:
(a) Schedule 1 - Live Auction Procedure
(b) Schedule 2 - Timed Auction Procedure
(c) Schedule 3 - Post Auction Procedure (both Live and Timed Auctions)
(e) Schedule 5 - Prescribed Conditions of Sale by Auction relevant to jurisdiction
8.2 The User acknowledges and agrees that polices or procedures may be amended or new policies or procedures may be added from time to time to the Account by Realtair and the User's continued use of the Service constitutes an agreement to be bound by any amended or additional policies or procedures.
9.1 Realtair do not warrant any of the information in relation to any Property that is sold, listed or auctioned on the Site. It is the Vendor's and Real Estate Agents responsibility to maintain and update all information with regards to the Property.
9.2 Realtair does not warrant uninterrupted or secure access to the Site and or the Service Realtair provides as it may be affected by factors out of Realtair's control.
9.3 Whilst Realtair endeavor's to update the information provided on the Site constantly, Realtair does not warrant the accuracy of the information contained on the Site.
9.4 Realtair does not warrant the Vendor's ability to complete the contract for the sale and purchase of a Property.
9.5 Whilst Realtair endeavor's to keep all information of User's safe and secure, Realtair does not warrant the security of any information provided on the Site.
9.6 To the extent permitted by law we exclude all conditions and warranties relating to the User's use of the Service that are not expressly set out in this Agreement.
10.1 This Agreement may be terminated by the following means:
(a) By the User on request in writing to Realtair which cannot be unreasonably refused by Realtair;.
(b) By the written consent of both parties; or.
(c) Where the User breaches a term in this Agreement, by Realtair immediately..
10.2 Where this Agreement is terminated by clause 10.1(c), Realtair will be entitled to make a claim for any damages that result from the breach of the Agreement by the User and may notify the relevant authorities regarding any illegal conduct.
11.1 Realtair reserves the right to make any changes to the terms of this Agreement at any time and it is the User's responsibility to review this Agreement from time to time and understand and accept any changes made to this Agreement prior to continuing to use the Site or Service.
11.2 Any variations or changes to the terms of this Agreement requested by the User do not take effect unless agreed to in writing by the director of Realtair prior to the commencement of use of the Site or Service.
If any provision of this Agreement is declared or determined to be illegal or invalid by final determination of any court or tribunal of competent jurisdiction, the validity of the remaining parts, terms or provisions of this Agreement shall not be affected, and the illegal or invalid part, terms or provisions shall be deemed not to be part of this Agreement.
The parties agree that the jurisdiction to manage all disputes will be under the Relevant Jurisdiction.
14.1 Realtair consents and the User agrees to this agreement being entered into by way of successful registration of an Account on the Site.
14.2 The User agrees that the provision of an Account by Realtair to the User constitutes Realtair's execution of this agreement.
EXECUTED by Realtair PTY LIMITED (ACN 625 513 742) trading as Realtair and the USER as an AGREEMENT pursuant to clause 14 above and section 9 of the Electronic Transactions Act 2000.
I confirm I have read, understood and agree to the terms and conditions of this Agreement.