Lot 278Graff Butterfly Diamond Pendant

Terms and Conditions

Welcome to First State Auctions. These Terms and Conditions will apply:

(a) When you create an online bidding account with First State Auctions;
(b) If you are Bidding for an Item and wish to purchase an Item via our online Auctions;
(c) If you are the winning Bidder and the Buyer of the Item at an online Auction;
(d) If you successfully purchase an Item by private treaty following the staging of an online Auction of the Item; or
(e) If you wish to access our Website for information on our online Auctions and other information contained on our Website.

You acknowledge that you have read and agree to be bound by these terms and conditions and any special conditions that may apply to the particular Auction or the particular Item.

Registration

1. All online Bidders must create an online bidding account with First State Auctions as well as register and accept the terms and conditions for each auction they wish to participate in before bidding in an online Auction. There is no cost to create an account or to become a registered Bidder.

2. All online Bidders must be 18 years or older and permitted by law to enter into a legally binding contract.

3. Registration will require completion of an online bidding registration form with all required fields to be completed by the Bidder who warrants the accuracy of all information provided to First State Auctions. Registration will require the Bidder to provide their full legal name, address, phone number and email address. The Bidder’s account is identified by the Bidder’s chosen username and password and the Bidder is the only party authorised to use that username and password (otherwise if there is a breach, the Bidder will be liable to First State Auctions for any loss suffered by it as a result of the breach). Any false or misleading information provided by the Bidder when completing the registration form will not negate any obligation the Bidder has to First State Auctions.

4. The party named on the registration form shall be deemed to be the Buyer and the Principal unless prior to the commencement of the online Auction First State Auctions is provided with written evidence that the party is acting for and on behalf of a principal and shall supply the full name, address, phone number and email address of the principal and such written evidence as is satisfactory to First State Auctions. As the Bidder you warrant to First State Auctions that you are the Principal, and shall be deemed by First State Auctions to be the Principal, and are personally liable for all obligations pursuant to these Terms and Condition.

5. Registration will require disclosure of the Bidder’s valid credit card details to First State Auctions. Online entry of these credit card details by the Bidder is encrypted through an authorised 3rd party online payment gateway. The Bidder will only be eligible to bid on Items for Auction if the Bidder provides valid credit card details. The Bidder must provide details of an acceptable credit card with sufficient funds to make the required online payments in full if successful at Auction and hereby authorises First State Auctions to take all steps necessary to pre-authorise the credit card at the time of registration with a nominal amount and to charge winning Lots to the credit card in full if they are a successful Bidder/Buyer. Pre-authorisation is a banking anti-fraud measure which validates that the card is real and active. The pre-authorisation charge will normally be reversed by the Bidder’s bank within 1 week. By providing credit card details in advance, First State Auctions is able to process the transactions that the Buyer makes on its Website.

6. First State Auctions has the sole discretion which credit cards are acceptable as a form of payment.

7. The Bidder will be responsible to ensure their credit card details on their online account remains valid. Should the credit card of the bidder be past its expiry date, the status of the bidder will change to pending and all bidding privileges will be suspended and will remain as such until new credit card details are provided by the Bidder to First State Auctions via the online Auction platform.

8. First State Auctions may in its sole discretion accept or reject the Bidder’s online application form. If accepted, the Bidder will be a registered Bidder and will be able to bid at online auctions.

9. First State Auctions has the right to restrict Bidder registration for its online Auctions at its sole discretion.

10. Upon registering for the online Auction, the Bidder authorises First State Auctions to utilise private and personal information obtained for the delivery and online communication of promotional material, compliance with the law and internal and administrative purposes.

11. The Bidder must be authorised to provide the information required by the online application form and must not be breaching any law relating to privacy or personal information.

12. A Bidder can ask First State Auctions to unsubscribe the Bidder from the First State Auctions customer database and to cancel their online registration. All such requests must be submitted to First State Auctions by the Bidder in writing. First State Auctions can delay the removal of the Bidder until all current obligations on the part of the Bidder are satisfied. First State Auctions will retain any website activity information including but not limited to bids placed and purchase history. First State Auctions will not allow the Bidder to cancel its registration if money is owed by the Bidder to First State Auctions.

13.  A Bidder may need to login to the Website of First State Auctions with a user name and password. Those details are personal to a Bidder and should not be shared or disclosed to any other party. The Bidder is responsible for maintaining the confidentiality of its user name and registered account with First State Auctions and any password(s) that the Bidder has chosen or that may be issued by First State Auctions in connection with the Bidder’s access and use of the Service.

14. If there has been unauthorised use of a Bidder’s login or password, and the Bidder has failed to protect the login or password or has been careless in its disclosure to any other party or has allowed a person to access its personal details for bidding purposes, the Bidder will remain liable for all costs, fees, charges and other amounts and any loss or damage occasioned to First State Auctions as a result of the unauthorised use of the login or password or the Bidder’s personal details including but not limited to amounts payable to First State Auctions as a result of a successful online bid.

15. The Bidder must immediately notify First State Auctions if it becomes aware of any unauthorised use of its user name, password or personal details.

16. A Bidder is responsible for ensuring it keeps its personal information up to date with First State Auctions. First State Auctions will not be responsible for any loss, damage or claims for compensation arising from the Bidder’s failure to provide accurate and up to date information.

17. Should the Bidder use a false name, stolen or forged credit card, or provide any other fraudulent or misleading information, First State Auctions will refer the matter to the police and/or other authorities and may commence proceedings against the Bidder for any losses suffered as a result of such occurrence.

18. First State Auctions may suspend a Bidder’s registration and/or account should a Bidder give false or misleading information to First State Auctions, fails to pay for an Item, fails to comply with these terms and conditions, is involved in false, misleading or illegal conduct, or if First State Auctions in its sole discretion chooses to do so. Upon suspension of a Bidder’s registration, the Bidder may no longer register with First State Auctions for the bidding at any of its Auctions while the suspension is in place.

Online Bidding

Inspection of Item or Lot

19. It is the Bidder’s sole responsibility to inspect desired Lots to their satisfaction prior to the commencement of the Auction either in person or via digital means. Before placing a bid, the Bidder must carefully read all the online details and descriptions of the Item and carefully inspect all the online certificates, documents, condition reports photographs and videos of the Item as applicable. All Lots are also open for inspection to Bidders by appointment during business hours at the Head Office of First State Auctions located at Level 10/33 York Street, Sydney, Australia prior to the Auction.

Online Auction and Minimum Starting Price

20. Each online Auction will have a set start and end time as well as auction information.

21. Online auction times will vary. The Auction times will be as specified on the Website. A Bidder is responsible for monitoring the online Auction in which it is participating.

22. First State Auctions will set a minimum starting bid in relation to each Lot to be Auctioned and any subsequent bid on that Lot must commence at or above that starting bid and based on the bidding increments for that lot.

23. Each Lot in the Auction may be given a low and high Auction estimate representing that range, which in the opinion of First State Auctions, represents a fair and probable Auction value. When possible, the estimate is based on previous Auction results of comparable Items, condition, rarity, quality, market conditions, currency fluctuations and the opinion of First State Auctions’ staff. The estimates are subject to revision. Actual prices realised at an Auction for Items can fall below or above this range. An estimate of the selling price should not be relied upon as a statement that this is the price at which the Item will sell or its value for any other purpose. First State Auctions takes no responsibility for the accuracy of the Auction estimates listed. Bidders should independently satisfy themselves as to the value of the Item being auctioned.

24. A Bidder is responsible for monitoring the bidding in an Online Auction it is participating in (unless the Bidder is “Placing a Maximum Bid” then refer below).

25. All Lots in online auctions will be subject to a Buyer’s Premium.

Bidding Process

26. A registered Bidder may make an offer to purchase an Item by submitting an online bid by way of the Online Bidding System.

27. Bidding on an Item indicates the Bidder’s intention to purchase the Item.

28. All bids are final and cannot be reduced or cancelled once they are submitted.

29. Each bid is an irrevocable offer by the Bidder to purchase the Lot.

30. The Online Bidding System allows the facility for the Bidder to place a Maximum Bid on an item during the duration of the Auction. With these type of bids, the Bidder provides a bid reflecting the maximum amount the Bidder is willing to pay for the Item in question. For further details on this type of bidding refer below to the heading “Placing of a Maximum Bid”.

31. The status of the Bidder’s Maximum Bid will be reflected in the Online Bidding System on the Lot indicating whether the Bidder’s bid is the current highest bid or if it has been outbid.

32. As bidding is competitive, other Bidders may outbid the Bidder’s bid. If this occurs, the Bidder will be notified that they have been outbid. This will be reflected in the Online Bidding System on the Lot as well as by email sent by First State Auctions to the Bidder’s registered email.

33. All bids placed via the Website are executed immediately against the current highest bid or the Item’s Reserve Price (if any).

34. If there are two bids for the same amount, the earlier time of the two bids will take precedence. In the event of any dispute as to the bidding in respect of any Lot, First State Auctions shall have absolute discretion to settle the dispute as sole arbitrator and its decision shall be final and binding.

35. First State Auctions has the sole right to:

(a) refuse any bids;

(b) advance the bidding at its absolute discretion;

(c) place a reserve on any Lot;

(d) not disclose the reserve amount;

(e) bid on behalf of any prospective purchaser with or without disclosure;

(f) withdraw any Lot for sale for any reason whatsoever including but not limited to if the Lot is incorrectly described or is incorrectly priced or is unavailable;

(g) require a successful Bidder to pay forthwith the whole or part of any of the purchase price;

(h) require a successful Bidder to pay a deposit at the sole discretion of First State Auctions;

(i) place a bid or bids on behalf of the owner with or without disclosure;

(j) refuse any person or entity access to the online auction.

36. First State Auctions will endeavour to provide the Bidder with email notifications in relation to the status of online Auctions the Bidder is participating in. If the Bidder is the successful Bidder (the “Buyer”), it will receive invoices and delivery details by email. The Buyer will not be entitled to make a claim against First State Auctions for loss or damage should such emails not be forthcoming.

37. The close time for a Lot will be extended for a further 3 minutes on an ongoing basis if there is competitive bidding within 3 minutes of the close time for that Lot. The length of this time extension may vary on an auction by auction basis at the sole discretion of First State Auctions.

Placing of a Maximum Bid

38. When placing a Maximum Bid, the Bidder provides First State Auctions with instructions about the maximum amount that the Bidder is willing to pay for the Item (GST inclusive). This means that, should they wish to, the Bidder does not need to monitor the timed online Auction of the Item.

39. If this bidding option is being used by the Bidder, the Bidder must ensure that they have taken reasonable care to ensure that the bid has been made correctly. Once this bidding option is in place, the bid cannot be removed or reduced. This bidding option is an irrevocable offer to purchase the Item up to the maximum amount that the Bidder is willing to pay for the Item (GST inclusive).

40. The bid is automatically executed by the Online Bidding System on behalf of the Bidder knocking out any competition during the online bidding and subject to any Reserve Price (if applicable), up to the Maximum Bid placed by the Bidder. This does not mean that the Bidder will pay the maximum amount. If the Auction activity is at a lower level at the time of the online Auction, and at or above the Reserve Price, the Bidder may purchase the Item for less than the Maximum Bid, if they are the highest successful Bidder in the online Auction. If the online bids go above the Maximum Bid, then the Bidder will be unsuccessful with their Maximum Bid.

41. The Maximum Bid does not include the Buyer’s Premium and if the Bidder is successful at the Auction and becomes the Buyer of the Item, the Buyer will be liable for the Buyer’s Premium in addition to the winning bid amount. The Buyer will also be liable for any additional charges that comprise the Total Purchase Price as mentioned below under the heading “Winning Bidder”.

42. If multiple maximum bids are placed on a Lot for the same amount by different Bidders, the maximum bid that is received first by First State Auctions will be given precedence during the Auction.

43. If the Maximum Bidder is the highest successful Bidder (and subject to any Reserve Price), they will be the Buyer of the Item.

44. First State Auctions is not liable for any failure of its Website which prevents this type of bidding being placed or if a delay is incurred in transmission.

Winning Bidder

45. If the Bidder is the highest successful online Bidder at the end of the online auction for that particular Lot, (subject to the highest bid reaching the reserve) the Bidder will be the winning Bidder and the Buyer of the Item. A binding contract is deemed to have been made at this point in time between the Buyer and First State Auctions as owner of the Lot in its own right or with First State Auctions as the duly appointed agent of the owner (as the case may be).

46. Should the reserve be met, the Buyer will be notified by email when the Auction closes that it is the winning Bidder.

47. The Buyer will be responsible for paying to First State Auctions all of the following amounts:

(a) the full Purchase Price;
(b) a Buyer’s Premium of 20%;
(c) GST;
(d) delivery and insurance charges (if applicable);
(e) credit card charges (if applicable) ;
(f) any other governmental charges or fees (if applicable);
(g) any storage charges (if applicable);
(h) any other Charges or Expenses (if applicable).

By participating in the Auction, the Buyer agrees to pay to First State Auctions all of the above amounts which make up the Total Purchase Price.

48. All bids are deemed to be inclusive of Australian GST.

49. For all purchases requiring shipping by First State Auctions from Australia, Australian GST will be removed from the purchase price.

Buyer’s Premium

50. The successful Buyer in addition to payment of the amount of the successful bid will be responsible for payment of a Buyer’s Premium. The Buyer agrees to pay the Buyer’s Premium without set off.

51. First State Auctions will determine the rate or absolute value of the Buyer’s Premium payable from time to time.

Available Funds to Purchase

52. The Buyer acknowledges and warrants to First State Auctions that prior to making a bid or an offer for an Item or successfully negotiating the purchase of an Item at the online Auction or by private treaty on auction terms, that it has the money immediately available to complete the purchase or has financial assistance on reasonable terms to complete the purchase.

Payment and Shipping

Payment

53. All bidding and invoice amounts are in Australian Dollars unless specifically stated otherwise.

54. Payment is to be made immediately following the end of the online Auction or if sold by private treaty, immediately when the agreement has been reached.

55. Payment is to be made by cash, Visa, MasterCard, American Express or any other payment method accepted by First State Auctions.

56. The Buyer authorises First State Auctions to effect immediate payment of the Total Purchase Price by authorised credit card deduction as soon as the Auction closes.

57. Should the Buyer’s credit card not allow the Total Purchase Price to be deducted in one transaction, First State Auctions has the right to make multiple deductions from the credit card until the total amount is paid.

58. Should available funds on the Buyer’s credit card be insufficient to cover the Total Purchase Price, First State Auctions is permitted to deduct any portion of the amount owing from the credit card in reduction of the Total Purchase Price and call upon the Buyer to effect immediate payment of the balance owing.

59. First State Auctions may in its sole discretion elect not to proceed with the sale of the Item to the Buyer in the event that the credit card payment of a successful Buyer is not able to be processed due to credit card errors or insufficient credit limit.

60. By application to First State Auctions prior to the commencement of the Auction, and at the sole discretion of First State Auctions, the successful Buyer can affect payment of the Total Purchase Price by an authorised credit card deduction immediately after the Auction of an amount equivalent to 20% of the Total Purchase Price (Deposit amount) and for the remaining 80% of the Total Purchase Price to be paid by BPay, authorised credit card, or direct deposit (electronic funds transfer) by the successful Buyer within two (2) business days following the conclusion of the Auction. Payment is to be deposited into the bank account nominated by First State Auctions.

61. Title will only pass to the Buyer when the Total Purchase Price and any other amounts that may be owing to First State Auctions by the Buyer is paid in full by the Buyer to First State Auctions in cleared funds and a credit card security check (if applicable) is satisfied. Until such time, First State Auctions has the right to withdraw the contract for sale at any time with or without notice to the Buyer and refuse delivery of the Item.

62. Time shall be of the essence in respect of payment of amounts due to First State Auctions. If the Buyer fails to pay for the Item within 21 days of the date of the Auction, First State Auctions has the right to charge the Buyer interest on the Item at the rate of 1.5% per month on the Total Purchase Price from the date of the Auction to the date of payment for the Item, in addition to the rate prescribed by the appropriate Court having jurisdiction in relation to any claim for monies owing.

Shipping

63. Items can be collected by Buyers from First State Auctions’ Head Office or can be shipped to Buyers once a delivery address has been confirmed in writing or by telephone call to First State Auctions.

64. All collections from Head Office must be by prior appointment and can only take place during the business hours of 9:30am – 4:00pm excluding weekends and public holidays.

65. Dispatch of items will usually occur within five business days from the close of the Auction subject to credit card security verification and full payment of the Total Purchase Price.

66. To prevent credit card fraud, a security verification procedure is in place for first time credit card purchases. Items will be dispatched within three business days of credit card security verification and payment.

67. Free worldwide shipping applies (with the Item insured while in transit).

68. For all purchases requiring shipping from Australia the Buyer shall be fully responsible for all customs clearance charges, duties, taxes and other local charges imposed by their country.

69. Items are shipped using secure couriers with tracking of packages.

70. The street address that the Item will be sent to, is the street address provided by the Buyer at the time of online registration or unless subsequently advised by the customer in writing or by telephone call to First State Auctions. .

71. An email will be sent by First State Auctions to the registered email address of the Buyer with a tax invoice attached to confirm the delivery address information. For security purposes, Items will not be dispatched before receiving the delivery address confirmation.

72. The Buyer cannot contact the courier service of First State Auctions to arrange for a different delivery address.

73. Risk will pass to the Buyer on delivery of the Item to the Buyer. Once delivered to the Buyer, the Buyer assumes all risk in relation to the Item. First State Auctions recommends that Buyers arrange their own insurance cover for the Item once they become the winning bidder as First State Auctions cannot warrant that its insurance cover will extend to all risks.

74. If the Item cannot be delivered to the Buyer despite the attempt of First State Auctions, risk will pass to the Buyer when the Item was first attempted to be delivered to the Buyer.

75. If a Buyer fails to accept delivery of an Item, First State Auctions will in addition to any other remedies available to it, be entitled to terminate the Buyer’s access to its Website including but not limited to, the Online Bidding System.

76. Please note that, due to tariff uncertainties, we are currently not shipping to the United States

Damaged or Lost Items

76. If for any cause a purchased Lot cannot be delivered in as good condition as at the time of sale, or if an Item is damaged during the course of delivery to the Buyer, or should any Item be stolen or mis-delivered or lost prior to delivery to the Buyer, First State Auctions shall not be liable for any amount in excess of that paid by the Buyer to First State Auctions for that Item.

77. If the Item is damaged during delivery, First State Auctions at its sole discretion can either repair the Item or refund to the Buyer all monies paid by the Buyer to First State Auctions.

78. If First State Auctions at its sole discretion is not satisfied that the Item has been damaged during the course of delivery, the Item will be returned to the Buyer without any further action required to be taken by First State Auctions.

No Refunds or Exchanges

79. All sales are final. Subject to clause 82, no refunds or exchanges will be given.

Title and Description of Items

80. The Bidder acknowledges that First State Auctions acts either:

(a) As the agent of the owner of the Lot or is consigned the Lot by the owner; or

(b) Is the owner of the Lot in its own right, and as such neither First State Auctions in its own capacity or as agent for the owner of the Lot, shall be responsible for any defects or faults in respect of any Item or Lot other than as set out in this clause.

81. First State Auctions warrants that all Items sold have good title and match the description as described on its Website or in its Catalogue.

82. If within 7 days after delivery of the Item to the Buyer (which time may be extended at the sole discretion of First State Auctions), First State Auctions receives from the Buyer notice in writing, accompanied by the written opinion of a competent expert or authority, that the Item as purchased is not as described on the Website of First State Auctions or in the Catalogue or otherwise as represented by First State Auctions, then First State Auctions will within 7 working days of receipt of such notification either refund to the Buyer the full amount paid by the Buyer to First State Auctions or will repair the Item at the sole discretion of First State Auctions. First State Auctions must be satisfied as to the validity of the claim, otherwise the Item will be returned to the Buyer without any further action required to be taken by First State Auctions. This subclause is subject to the Buyer returning the Item purchased in the same condition and state of repair including the return of any certificates, documents, packaging and other materials provided by First State Auctions to the Buyer. First State Auctions shall not be liable to the Buyer for any direct or indirect loss or consequential loss or damage suffered or expense incurred by the Buyer for any mistake, error, misstatement or omission or otherwise in respect of the description of an Item. The benefit of this condition shall not be assignable and shall rest solely and exclusively in the Buyer who shall be the person to whom the original invoice was made out by First State Auctions in respect of the Item when sold and who has since the Auction retained uninterrupted and unencumbered ownership of the Item. The benefit of this condition will expire 12 months following the invoice date for the Item.

83. The Buyer acknowledges that the sale of the Item is by Auction and on auction terms. First State Auctions makes no warranty and gives no guarantee regarding the availability of repairs or spare parts for the Item or express warranties made by the manufacturer in respect of the Item being complied with.

Rights of First State Auctions regarding the Auction and the Sale of the Item

84. First State Auctions reserves its rights not to offer the Item or Lot for sale or to remove it from the online Auction.

85. First State Auctions is entitled in its sole discretion to cease an online Auction before the nominated commencement time or to close bidding on a particular Lot for any reason whatsoever including but not limited to errors or delays caused to its Website.

86. First State Auctions has the sole discretion not to sell the Item to the Buyer for any reason whatsoever.

87. First State Auctions can offer and sell an Item or Lot that is not sold at the online Auction immediately thereafter by private treaty. Any such private treaty is on auction terms and subject to these Terms and Conditions.

88. Bidders must not place a false bid aimed to mislead. First State Auctions may close the Auction early or suspend a Bidder’s online account during or after an auction if any false or misleading bidding is suspected.

89. First State Auctions may suspend a Bidder’s access to the Website login and/or bidding privileges at its sole discretion if it suspects irregular bidding by the Bidder or if the Bidder's bids are at a level at which First State Auctions may require the Bidder to comply and pass the First State Auctions security check, the level to be determined at the sole discretion of First State Auctions.

Jewellery

90. Items may be accompanied by an independent valuation. These valuations are not binding on First State Auctions and are offered only as independent opinions.

91. Weights of set stones are estimates only and are provided to the best of the technical ability of First State Auctions.

92. Gram weight on gold and other precious metals are also given as an approximation.

Ring re-sizing

93. No ring resizing service is offered by First State Auctions.

Warranty on Watches

94. To assist Bidders to understand the condition of the watch sold, all watches have been classified by First State Auctions based on the following guide:

(a) New watches. The Item is new and has not been privately owned.
(b) “As New”. The Item presents as new (but is not new) and is in very good condition. The Item may or may not have been privately owned.
(c) “Pre-owned”. The Item has been privately owned and/or has some signs of wear (e.g. a scratch).

95. For new watches, First State Auctions provides either its own limited warranty for the period stated in the catalogue description or the balance of the manufacturer’s warranty may apply.

96. For “as new” and “pre-owned” watches, First State Auctions will provide its own 3 month limited warranty.

97. The only components covered under the limited warranty are the hands, and watch movement.

98. The limited warranty provided by First State Auctions on watches as specified above does not include the following:

(a) Ageing and wear and tear from normal use;

(b) Damage resulting from improper handling, negligence, accidents, tampering or incorrect use of the watch;

(c) Any damage to the watch caused by an external event;

(d) Change of battery;

(e) Any loss of stones or gems on the outer portion of the watch or watch face;

(f) Moisture damage to a watch not marked water resistant;

(g) Any damage that occurs as a result of a water resistant watch being used under conditions which exceed the watch manufacturer’s water resistance guidelines;

(h) Water damage caused to a water resistant watch where the crown is not screwed down.

99. Any modifications by the Buyer or third party repairs by the Buyer without prior authorisation from First State Auctions in writing will void the warranty.

Warranty on Watches Shipped to Destinations Outside of Australia

100. All watches shipped to destinations outside Australia are covered by the warranties mentioned in the last mentioned paragraphs on condition that the watch is returned to the Head Office of First State Auctions. The Head Office address is Level 10/33 York Street, Sydney NSW 2000, Australia.

101. The Buyer is liable for all costs incurred in returning the watch to the Head Office of First State Auctions including but not limited to shipping charges, customs, duties and other related costs. The Buyer is also liable for all costs incurred in the return of the watch from First State Auctions to the Buyer.

Credit Notes

102. First State Auctions Credit Notes are issued only by First State Auctions Head Office in writing in its sole discretion.

103. First State Auctions Credit Notes are not redeemable for cash and are non-refundable.

104. All First State Auctions Credit Notes are valid for 12 months from the issue date. It is the Buyer’s responsibility to redeem the value placed on the Credit Note within that time frame. First State Auctions is unable to extend credit notes beyond the expiry term.

105. The Bidder or Buyer who receives the Credit Note is responsible for the safety and use of the credit note.

106. Amounts issued on a First State Auctions Credit Note are in Australian Dollars (AUD) or in the currency in which the original sale was made.

107. Credit note redemption can only be in Australian Dollars (AUD) or in the currency in which the original sale was made.

108. Items purchased using a First State Auctions Credit Note are sold, subject to these Terms and Conditions.

109. If the Buyer’s purchase is greater than the value of the First State Auctions Credit Note, First State Auctions will require the Buyer to pay the additional amount.

110. If the Buyer’s purchase is less than the value of the First State Auctions Credit Note, the credit note will be partially allocated to the purchase. The balance of the First State Auctions Credit Note will continue to be available for the Buyer’s use but must be fully redeemed within 12 months from the original date of issue of the Credit Note.

Buyer Failure to Pay

111. If a Buyer fails to pay all or part of the Total Purchase Price to First State Auctions within 21 days after the sale of the Item to the Buyer (including without limitation, makes any dishonoured payment), First State Auctions, at its sole discretion will be entitled to:

(a) Agree to terms for the payment of the Total Purchase Price with the Buyer;
(b) Rescind the Sale of the Item to the Buyer without notice to the Buyer, with all monies that the Buyer may have paid to First State Auctions being forfeited (including without limitation, any deposit paid to First State Auctions);
(c) Resell the Item without notice to the Buyer, with all monies that the Buyer may have paid to First State Auctions being forfeited (including without limitation, any deposit paid to First State Auctions). The resale of such Item to be in any manner that First State Auctions considers reasonable and upon such terms and conditions as First State Auctions thinks proper;
(d) Claim from the Buyer any deficiency on the resale of the Item together with all charges arising out of the Buyer’s default as liquidated damages, including but not limited to Auction and resale costs, the lost fees of First State Auctions on the original sale and the Buyer’s Premium lost on the original sale, GST, Interest and legal costs. First State Auctions may commence proceedings against the Buyer (without demand first being made) for recovery of those amounts;
(e) Commence proceedings against the Buyer (without demand first being made) for monies owing to First State Auctions by the Buyer and/or to recover damages from the Buyer;

112. Appoint a solicitor or other agent to do any of the above. The Buyer will continue to be liable for any loss sustained by First State Auctions even after the Item has been re-sold to a third party. This is due to the Buyer’s default in not making payment(s) as and when required by these Terms and Conditions.

113. Time is of the essence in respect of the payment of amounts due by the Buyer to First State Auctions. The Buyer will be required to pay interest on overdue amounts at the rate of 1.5% per month on the Total Purchase Price, in addition to the rate prescribed by the appropriate Court having jurisdiction in relation to any claim for monies owing.

114. First State Auctions may deduct any amounts payable to it from any amounts paid by the Buyer for the Item as soon as any part of the Total Purchase Price is received by it from the Buyer.

115. First State Auctions may, at its sole discretion, allocate any monies received from a Buyer between an Item or Items or a Lot or Lots, as it sees fit.

116. First State Auctions may regard the sale of multiple Items or Lots to a Buyer as interdependent and treat a default by a Buyer for an Item or Items or a Lot or Lots as default under all other contracts for sale of other Item/s or Lot/s by that Buyer.

Disputes

117. If there is a dispute as to the bidding in respect of any Lot, First State Auctions shall have absolute discretion to settle the dispute as sole arbitrator and its decision shall be final and binding.

118. If Bidder and Buyers have a complaint about anything, First State Auctions encourages discussion of concerns with First State Auctions so that any issue can be identified and First State Auctions can have the opportunity of resolving the matter.

Termination

119. First State Auctions may, without any prior notice or warning, refuse, suspend or terminate a Bidder’s access to its Website, or suspend access to a Buyer during or after the course of an Auction and at any other time, if the Bidder fails to comply with these Terms and Conditions, provides untrue, incomplete or inaccurate information or is involved in false, misleading or illegal conduct or owes any monies to First State Auctions.

120. First State Auctions may at any time suspend the provision of the Online Bidding System without any prior notice or warning to the Bidder. Any suspension occurring during an online Auction will render void any individual bid or transaction occurring but not complete at the time of the suspension.

121. First State Auctions may terminate a Bidder’s access to its Website at its sole discretion.

122. A Bidder may cease to remain a registered Bidder effective upon receipt by First State Auctions of a written notice by the Bidder advising that the Bidder wishes to no longer be a registered Bidder. First State Auctions will de-register the Bidder, provided the Bidder has satisfied all of its obligations in respect of any purchase transaction with First State Auctions and any other obligation that the Bidder owes to First State Auctions.

Force Majeure

123. First State Auctions will not be liable for any direct or indirect or consequential loss or damage nor will it be deemed to be in breach of any agreement with the Buyer if its failure to perform its obligations under these terms and conditions results from a pandemic or any other events or circumstances beyond its reasonable control.

Right to Use Website

124. First State Auctions grants a limited license to each registered Bidder to make personal use only of the Website.

125. This license expressly excludes, without limitation, any resale or commercial use of the Website, making any derivative of the Website, the collection and use of participant (Bidder) email addresses or other information, ratings or listings or any data extraction.

126. All materials provided on the Website, including but not limited to information, documents, products, logos, graphics, images, look and feel, auctions, and services are the wholly owned and copyrighted work of First State Auctions and/or its third party providers.

127. None of the materials posted herein may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to digital, electronic, mechanical, photocopying, recording or other means, without the prior express written permission of First State Auctions or the appropriate third party provider.

No Liability for Website Issues

128. First State Auctions cannot guarantee the continuous or secure access to its Website. First State Auctions uses all reasonable methods to maintain an uninterrupted service but offers no guarantee or promises.

129. If there are any technological or processing problems or delays during an Auction, First State Auctions may in its sole discretion decide to close the Auction and re-open the Auction at a later time or extend the conclusion time for the Auction.

130. First State Auctions is not responsible for and the Bidder will not bring any actions or make any claims or demands for losses or damages or costs and expenses against First State Auctions in relation to:

(a) bids not received, processed or accepted due to online technical difficulties or delays of the Website or its Online Bidding System;
(b) the non-availability of its Website or its Online Bidding System;
(c) the capacity of the Website or its Online Bidding System;
(d) failure to provide continuous uninterrupted Online Bidding;
(e) any errors or problems or any issues on the Website or the Online Bidding System;
(f) failure to provide reasonable security of the Website or the Online Bidding System;
(g) any illegal or inappropriate use of the Website or the Online Bidding System.

131. The Bidder acknowledges that First State Auctions cannot prevent inappropriate use of its Website or the Online Bidding System or Bidder information stored in its system.

132. The Bidder indemnifies and keeps First State Auctions indemnified against any actions, claims, demands for losses, damages, costs and expenses claimed or incurred by any person or entity arising from the Bidder’s use of the Website or the Online Bidding System.

Privacy

133. First State Auctions will collect personal information from the registered Bidder. First State Auctions manages and protects personal information in accordance with its Privacy Policy which can be viewed on its Website.

134. By registering to bid, a Bidder consents to First State Auctions using the Bidder’s personal information as specified in its Privacy Policy. This will include for the purpose of First State Auctions sending the Bidder promotional material, complying with the law and for internal and administrative processes.

135. Personal information will be used only for the purposes for which it is collected or in accordance with the Privacy Act 1988 (Cth) as amended.

136. First State Auctions may change its Privacy Policy. A Bidder should check the Privacy Policy frequently for any changes.

137. By agreeing to these Terms and Conditions, the registered Bidder consents to First State Auctions using personal information of the Bidder as specified in its Privacy Policy.

Sending Material by Electronic Means

138. First State Auctions will send and receive documents electronically. However, as such transmission is not secure it may be copied, recorded, read or interfered with by third parties while in transit. The Buyer by registering, releases First State Auctions from any claim it may have as a result of any unauthorised copying, recording, reading or interference with that document, for any delay or non-delivery of any document and for any damage caused to the Buyer’s system or any files as a result of First State Auctions transmitting any document to the Buyer or communicating with the Buyer electronically.

GST

139. All bids are deemed to be inclusive of GST (where applicable) or any other value added tax or goods and services tax.

140. The Buyer will pay GST on the Total Purchase Price of the Item, including but not limited to the Buyer’s Premium and other Charges.

141. If a payment is being made to First State Auctions in satisfaction of a Claim or a right to Claim under or in connection with the sale of an Item (for example, for indemnity or reimbursement of any expense) that gives rise to a liability for GST, Buyers must pay, and indemnify First State Auctions on demand, the amount of that GST.

142. If First State Auctions has a Claim under or in connection with this document for a cost on which it must pay an amount for GST, the Claim is for the cost plus the amount for GST.

Multiple Parties

143. If a Buyer is made up of more than one person:

(a) An obligation of those persons is joint and several;
(b) A right of those persons is held by each of them severally; and
(c) Any other reference to that party in these terms and conditions is a reference to each of those persons separately, so that (for example) a representation, warranty or undertaking is given by each of them separately.

Notices

144. A notice, demand, consent or approval or communication under these terms and conditions must be:

(a) In writing, in English and signed by a person duly authorised by the sender; and
(b) Delivered by hand or sent by prepaid post, and by airmail when sent to a destination outside Australia, or email to the recipient’s address, as varied by any notice given by the recipient to the sender.

145. Any notice under these Terms and Conditions takes effect when it is taken to have been received (or at a later time specified in it), and is taken to be received:

(a) If hand delivered, on delivery;
(b) If sent by mail, five (5) days after the date of posting if posted to an address in Australia and ten (10) days after the date of posting if posted to a country outside Australia; and
(c) If sent by email, at the time of delivery unless the sender is notified that the email was undeliverable or undelivered.

146. In proving service by delivery:

(a) If by hand, a delivery receipt to the last known address of the person will suffice;
(b) If sent by mail, it will suffice if the communication was contained in a pre-paid envelope which was duly addressed, posted and, in the case of the notice being sent to a destination outside Australia, was sent by airmail, to the last known address of the person; and
(c) If sent by email, an email print-out showing that the communication was sent to the last known email address of the person.

Variation

147. First State Auctions may vary these Terms and Conditions from time to time and will make the varied terms available on its Website. The varied Terms and Conditions take effect from the date that they are listed on the Website.

148. If you the Buyer continue to use the Website and these Terms and Conditions are varied, you are taken to have accepted the varied Terms and Conditions from the date that they are posted on the website of First State Auctions.

Waiver

149. The non-exercise of or delay in exercising any power or right of First State Auctions does not operate as a waiver of that power or right, nor does any single exercise of a power or right by First State Auctions preclude any other or further exercise of that power or right, or the exercise of any other power or right. A power or right may only be waived by First State Auctions in writing, signed by it.

Severance

150. Any provision of these Terms and Conditions which is unenforceable or partly unenforceable is, where possible, to be severed from these Terms and Conditions to the extent necessary, to make these Terms and Conditions enforceable.

Non-merger

151. No clause in these Terms and Conditions will merge on the payment of any amounts or on the sale of any Item or on completion of the contract for sale.

152. All provisions of this contract will have application after completion for as long as necessary to give effect to the operation of those provisions.

Governing Law

153. These Terms and Conditions are governed by the law in force in New South Wales, Australia.

Definitions

In these Terms and Conditions, headings are used for convenience only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. A person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor or personal representative or successor in law, trustee or administrator or liquidator (or other “controller’) as defined in the Corporations Act 2001 (Cth) (as amended). The following words and expressions shall (unless the context otherwise requires) have the following meanings:
“Auction” means a timed online Auction at which an Item or Lot is offered for sale on the Website.
“Auctioneer” means First State Auctions and any of its associated and subsidiary companies and entities or their duly appointed employees, servants and agents. In the case of online Auctions, there is no Auctioneer. The online Auction is controlled by Auction software on behalf of First State Auctions.
“Bidder” means the Principal making one or more bids for the purchase of the Item/s on Auction terms on the Website of First State Auctions.
“Buyer” means the Principal who is the highest successful online Bidder (subject to any Reserve Price) and subject to First State Auctions accepting the Buyer as the highest successful Bidder, who purchases the Item/s by online Auction on auction terms on the Website of First State Auctions or by private treaty on auction terms.
“Buyer’s Premium” is the percentage rate of the Purchase Price payable by the Buyer to First State Auctions inclusive of GST presently 20% of the Purchase Price and payable in addition to the Purchase Price of the Item.
“Catalogue” includes and is not limited to any catalogue, advertisement, brochure, notice, price list or other publication in the public arena produced by First State Auctions whether in hard copy form or on the internet or social media or otherwise.
“Charges” or “Expenses” means charges and expenses paid or payable by First State Auctions in respect of an Item/s, including but not limited to packing or shipping costs, taxes, levies, removal and storage charges, interest and legal expenses, plus any GST.
“Claim” means all sums of money, debts, dues, suits, actions, causes of action, proceedings, arbitrations, claims, accounts, liabilities, losses, demands, costs, expenses, notices or any other type of claim howsoever arising out of these Terms or Conditions or anything relating to the subject matter of these Terms and Conditions, and whether it is present or future, fixed or unascertained, actual or contingent.
“Credit Card Fee” means the credit card fee listed by First State Auctions on its Website which is charged on the Total Purchase Price paid in the transaction.
“Dollars” or “$” means money in Australian dollars.
“First State Auctions” means First State Auctions Pty Ltd ACN 083 150 298.
“GST” means:
(a) tax payable under GST Law and imposed as a goods and services tax; and
(b) any other goods and services tax, or any Tax applying to this transaction in a similar way.
“GST Law” means the same as “GST law” means any of the following as amended:

• in the A New Tax System (Goods & Services Tax) Act 1999;

• the A New Tax System (Goods and Services Tax Imposition--General) Act 1999;

• the A New Tax System (Goods and Services Tax Imposition--Customs) Act 1999;

• the A New Tax System (Goods and Services Tax Imposition--Excise) Act 1999;

• the A New Tax System (Goods and Services Tax Imposition (Recipients)--General) Act 2005;

• the A New Tax System (Goods and Services Tax Imposition (Recipients)--Customs) Act 2005;

• the A New Tax System (Goods and Services Tax Imposition (Recipients)--Excise) Act 2005;

• the Taxation Administration Act 1953

“Interest” means 1.5% per month on the Total Purchase Price of the Item from the date of the Auction to the date of payment for the Item, in addition to the rate prescribed by the appropriate court having jurisdiction in relation to any claim for monies owing.
“Item/s” or “Lot” means the item/s the subject of the online Auction which may be allocated a lot number and thus called a “Lot”.
“Maximum Bid” means the maximum price the Bidder is prepared to pay for the Item GST inclusive not including the Buyer’s Premium and other Charges and it is the process whereby maximum bids can be set and bid increments increased automatically as another Bidder outbids you until your maximum bid is reached.
“Online Bidding System” is the online bidding system that a Bidder uses to place its bids for the online Auctions on the First State Auctions Website.
“Principal” means an individual, corporation, partnership or other entity with the legal authority to bid for and purchase an Item.
“Privacy Policy” means the First State Auctions privacy statement that can be accessed on the Website of First State Auctions https://www.firststateauctions.com.au/.
“Purchase Price” means the highest successful online bidding price (subject to any Reserve Price), inclusive of GST at which a Sale occurs and is accepted by First State Auctions.
“Sale” means any online bidding sale at which the Item is offered for sale on auction terms or any private sale on auction terms.
“Service” means the online Auction service provided by First State Auctions on its Website.
“Terms and Conditions” means these terms and conditions.
“Total Purchase Price” means the aggregate of the Purchase Price, the Buyer’s Premium, GST and other Charges.
“Reserve Price” means the confidential minimum price set by First State Auctions in association with a vendor at which the Item may be sold at Auction, which price may be revised by First State Auctions from time to time.
“Tax” means a tax, levy, duty, charge, impost, contributions, deduction or withholding, however it is described, that is imposed by law or by a government body or agency, or person authorised by law.
“Website” means either or both of the websites of First State Auctions (https://www.firststateauctions.com.au/) and (https://bid.firststateauctions.com.au/).
“You” or “Your” means the Bidder or the Buyer or the online user of the Website of First State Auctions.