Auction Terms and Conditions
1. About My105
1.1 My105 Group Pty Ltd (My105) provides an online marketplace for motoring enthusiasts in Australia dedicated to connecting buyers and sellers of:
(each, an Item).
1.2 The following terms explain how our Platform works and the obligations of Buyers, Sellers and My105. Please read these terms carefully. By using our Platform, you agree to abide by these Auction Terms and Conditions.
1.3 Capitalised terms used herein are defined in clause 17, "Defined terms".
2. How it works
2.1 Preparation for listing:
2.2 The listing:
2.3 The Introduction:
2.4 It is the Buyer's responsibility to ensure that they independently:
3. Your account
3.1 In order to bid on an item, a user must create an account with My105.
3.2 To set up an account, users must provide the following details:
3.3 As part of setting up your account, we will ask you to provide contact details that you would like to send to a counterparty Buyer / Seller as part of our introduction when an Item is Sold (for example, your name, contact number, and email address). You consent to us providing these contact details to a counterparty Buyer / Seller when an Item is Sold.
3.4 You are responsible for protecting the confidentiality of your registration information and password. Use of your account by another person could result in the suspension or termination of your account. If you suspect an unauthorised use of your account, please inform us immediately.
3.5 You may close your account with us only if you have resolved any outstanding issues in relation to your account (such as suspensions or restrictions) and have paid any outstanding fees owing on your account.
3.6 We may provide your personal information to third parties for the purposes of verifying your identity and your chosen payment method. The third party verification providers may also obtain information about you from third parties for the same purposes.
3.7 We may, without notice to you and in our absolute discretion, suspend or terminate your account with My105 for breach of these Terms and Conditions. We may also suspend or terminate your account with My105 in our absolute discretion without reason and without notice to you.
3.8 You must be at least 18 years old to have an account.
4. Our role
4.1 Our Platform is a marketplace for Buyers and Sellers to initiate a sales transaction. We do not act as an agent of the Buyer or of the Seller in the sales transaction or otherwise, and we do not take possession of any Items. The sales transaction is conducted entirely between the Buyer and the Seller, and the Buyer and Seller are responsible for all costs and expenses in relation to the sales transaction.
4.2 My105 relies on the information provided by Buyers and Sellers in relation to any listings. You:
4.3 Any dispute in relation to a sales transaction must be resolved between the Buyer and Seller without the participation of My105. We recommend that you conduct your own assessments in relation to any listing to ensure that risks in relation to any sales transaction relating to the listing are or will be appropriately addressed.
4.4 Listing details may be amended by My105 at its absolute discretion before or during the Sales Process. My105 agrees to use its reasonable endeavours to notify the Seller in writing of any such amendments within a reasonable time after they are made.
5. Using our Platform
5.1 The Platform is intended for use by Buyers and Sellers of Items located in Australia only.
5.2 You must not use the Platform or any information available on the Platform for any unlawful or prohibited purposes. Such purposes include, but are not limited to:
5.3 We may remove any listing from our Platform at our sole discretion. We are not required to have or provide any reason for the removal of the listing, however typical reasons may include the following:
5.4 We may remove any bid made by a Buyer if:
5.5 During the Sales Process, Buyers and Sellers must not conduct any activity designed or intended (whether in whole or in part) to complete or facilitate the sale of an Item outside of our Platform without our written consent. If an Item's sale is concluded through means outside of our Platform, the Seller will be obliged to pay My105's fees in accordance with clause 10.2.
5.6 We cannot guarantee that the Platform will be free from viruses, or that you will have continued and uninterrupted use of our Platform. The Platform may be unavailable for use (for example, for maintenance and security) at any time without notice, whether because of a decision on our part, or otherwise.
6. Seller terms
6.1 Upon the Seller's listing going live on our Platform, the Seller must list that Item with us exclusively for a 7 or 14-day sales period. During this period, without My105's prior written consent, the Seller must not seek to sell, or take any steps to pursue the sale of, the Item other than via the Platform.
6.2 The Seller is responsible for compliance with any applicable laws in relation to the sale of their Item. Sellers warrant that:
6.3 The Seller warrants that upon delivery of any vehicular Item to any Buyer, the vehicle's mileage will be no more than 1,000 kilometres higher than the mileage that appeared on the Seller's listing of the Item.
6.4 If the Seller's failure to disclose to My105 all information which may reasonably be expected to affect the title, value, condition, quality or any other aspect of a listing contributes to the loss of a sale of the relevant Item, the Seller must pay the fees to My105 in accordance with clause 10.2.
6.5 If a Seller withdraws a listing before its close but after a bid has been placed on it, then the Seller must pay the fees detailed in clause 10.2 within seven days of the withdrawal. These fees are non-refundable and apply even if the sale of the Item occurs other than via our Platform.
6.6 Sellers are responsible for all fees if during the Sales Process, without My105's prior written consent, they offer or reference their contact information, or ask for a Buyer's contact information, for the purpose of buying or selling a listed Item outside of My105 and avoiding My105's fees.
6.7 Our Platform uses Stripe to process its payments. You agree to be bound by Stripe's terms and conditions as applicable. This may involve Stripe requesting information from you for the purpose of conducting checks on your identity, assessing your financial condition, pre-authorisation processes, and payment processes. You are not obliged to provide this information, but refusal to do so may affect your ability to make payments through our Platform and Stripe.
6.8 If Stripe is unable to charge the applicable fees from your credit card then you must, within 24 hours of the Sales Process ending, contact us to arrange for immediate payment of the outstanding amount to a bank account of our choosing. If the Seller does not make the applicable payment within 24 hours of receiving our instructions (or such further time that My105 allows), the Seller remains liable to My105 for the outstanding fees and My105 is entitled to take any actions necessary to recover those amounts.
6.9 We may modify our fees from time to time in accordance with clause 12. However, our fees will not change for a Sales Process that has already commenced.
7. Buyer terms
7.1 Buyers warrant that:
7.2 Buyers acknowledge that photographs and illustrations used in listings are for identification purposes only. They may contain inaccuracies, for example they may not represent the true condition and colour of the Item. We recommend that Buyers take precautions such as those listed in clause 2.4.
7.3 Buyers agree that each bid submitted as part of the Sales Process is a legally binding offer by the Buyer to the Seller to purchase the Item if the bid is successful. The bid and the offer cannot be withdrawn.
7.4 When a Buyer submits a bid, our third-party payment services provider, Stripe, may place a hold on the Buyer's credit or debit card for the fee payable if the Buyer is the successful bidder. The Buyer's payment details will be provided directly to Stripe.
7.5 If the Buyer's bid is accepted by the Seller, the Buyer must pay:
7.6 My105's service fee does not include any transport or on-road costs, for example stamp duty and registration. It is the responsibility of the Buyer and the Seller to negotiate and arrange for the payment of such costs, with no involvement of My105.
7.7 If the Buyer fails to complete the purchase of the Item for any reason other than the Seller's default, the Buyer remains obliged to pay our fees as provided in clause 10.1. The Seller will be able to sell their Item to the next highest bidder.
7.8 Our Platform uses Stripe to process its payments. You agree to be bound by Stripe's terms and conditions as applicable. This may involve Stripe requesting information from you for the purpose of conducting checks on your identity, assessing your financial condition, pre-authorisation processes, and payment processes. You are not obliged to provide this information, but refusal to do so may affect your ability to make payments through our Platform and Stripe. If any payment is declined by Stripe, your bid may be cancelled by us.
7.9 If Stripe is unable to charge the applicable fees from your credit card then you must, within 24 hours of the Sales Process ending, contact us to arrange for payment of the outstanding amounts to a bank account of our choosing. If the Buyer does not make the applicable payment within 24 hours of receiving our instructions (or such further time that My105 allows):
7.10 We may modify our fees from time to time in accordance with clause 12. However, our fees will not change for a Sales Process that has already commenced.
8. Intellectual property rights
8.1 Our Platform may contain a range of material and information that you prepare, upload or post (Content). You warrant to us that you have all necessary intellectual property rights in relation to such Content. Further, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to exercise any and all intellectual property rights in relation to such Content for the purpose of My105 providing its services, the marketing and promotion of My105's services, the enforcement of our legal rights, and compliance with applicable laws and court orders. You also waive any moral rights that you may have in relation to the Content.
8.2 The Platform, and all intellectual property rights in the Platform, are each owned by My105. You must not use, reproduce, edit, modify or otherwise exercise any intellectual property rights with respect to our Platform, except that you may reproduce and copy listings on our Platform for your own personal use. You must not use our trademarks (including the name 'My105' and our logo) without our written consent. We reserve all our rights in relation to any intellectual property material in connection with our Platform.
8.3 Where My105 is providing photography services, the Seller gives My105 the right to photograph and illustrate the relevant Item. My105 own the rights to these photographs and illustrations and may use them for a listing and any other purpose.
8.4 My105 acknowledges that listings may contain photographs and other multimedia in which intellectual property rights are owned by third parties. We do not claim ownership over such material and rely on the warranty in clause 8.1 that the Buyers and Sellers have the necessary permissions to upload such material and license it to us.
9.1 To the extent permitted by law, My105 provides no warranty or guarantee in relation to the Items listed on the Platform, whether express or implied. My105 does not represent or warrant or guarantee that Items are of merchantable quality, are fit for purpose, that the details provided of the Items are true and correct, that Sellers have title and undisturbed possession of the Items, or that there are no undisclosed securities or other encumbrances in relation to the Items.
9.2 To the extent permitted by law, you release and indemnify and hold harmless My105 and its directors, officers, agents, employees and other personnel from and against any and all actions, claims (including negligence claims), demands, damages, losses (including consequential losses), liabilities, costs (including legal costs on a full indemnity basis) or expenses, either of you or any related party of you, arising out of or in any way connected with Items, the listing of them, conduct by or on behalf of any Buyers or Sellers, any party's use of the Platform, the use of the Platform, any dispute in relation to the use of the Platform, and any breach by you of these terms (including without limitation any representation or warranty given by you herein), whether at law, equity or other means.
10.1 If the Buyer's bid is accepted by the Seller, the Buyer must pay to My105 a 5% service fee on the full amount of the final sale price (including GST) unless any of the following apply:
10.2 The Seller must pay to My105 the amount equivalent to the Buyer's fees on the reserve price for the applicable listing; or if no reserve price is set for the listing, the Seller is obliged to pay a fee on the market value of the Item, if any of the following apply:
10.3 Fees under this clause are charged in Australian Dollars and include GST. We are not responsible for any tax liabilities incurred by Sellers or Buyers in relation to the Sale Process.
10.4 Fees and other amounts not paid by their due date accrue interest at the current RBA cash rate + 2%, compounding daily until payment is received by My105.
11. Privacy and cookies
12.1 We may amend these Terms and Conditions from time to time by posting an updated version on our Platform. Such amendments will be binding on you 14 days from the day they are displayed, except in relation to a Sales Process that is ongoing at the time the amendments come into force. We recommend checking these Terms and Conditions regularly to ensure that you are up to date.
13. Governing law
13.1 These Terms and Conditions are governed by the laws of Victoria, Australia. You agree to submit irrevocably to the non-exclusive jurisdiction of the courts of Victoria, Australia for the purpose of resolving any dispute arising from or in relation to these Terms and Conditions.
14.1 If any provision of these Terms and Conditions is held by a court to be unlawful, invalid or unenforceable, it is to be severed from these Terms and Conditions so that the other provisions remain unaffected and enforceable.
15.1 Any delay or failure in the enforcement of these Terms and Conditions by My105 will not be deemed a waiver of our rights. Any waiver will only take effect if we confirm it in writing.
16. Rights reserved
16.1 Any rights not expressly granted in these Terms and Conditions are hereby reserved.
17. Defined terms
Buyer means a person with an approved My105 account that is entitled to make bids on Auctions.
Content has the meaning in clause 6.
Item has the meaning in clause 1.
Platform means the online platform hosted by My105.
Reserve Price Form means the form completed by the Seller prior to listing a vehicle on the Platform.
Sales Process means the virtual sales process conducted on the Platform as outlined in clause 2.2.
Seller means a person with an approved My105 account that is offering an Item for sale on the Platform.
Sold includes when an auction has ended with at least one Buyer having bid on an Item, in circumstances where the Item had no reserve price, or the Seller waived the reserve price, or the Seller set a reserve price and the highest bid on the Item met or exceeded the reserve price. Sold also includes when a Seller has set a reserve price for an Item, and the highest bid received on the Item by the close of the auction was less than the reserve price, but the Seller then accepts the highest bid as described in clause 2.2(4) herein.
We/our/us/My105 means My105 Group Pty Ltd.
You/your means the Buyer, the Seller or both depending on the context.