AFA LIVE AUCTIONS TERMS OF USE AGREEMENT
This document describes terms and conditions applicable to your use of the services made available by Australian Fine Assets Pty Ltd ATF The Art Lease Management Unit Trust ABN 58249384775 ("AFA", "we", or "us") at the website www.australianfineassets.com.au (the "Site").
Section 1. General.
1.1 Services. This Terms and Conditions of Use Agreement (hereafter this "Agreement") sets forth the general terms and conditions that apply to the use by you of the Site, including the features and services offered by us from time to time at or through the Site (the "Services"). BY USING THE SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN. This Agreement is a legally binding instrument between you and AFA and describes your responsibilities in connection with your use of the Services and, among other things, limits the liability of AFA. Before using any of the Services, please read all of this Agreement carefully. By accessing or using any Services, you affirm that you are over 18 years of age and are otherwise capable of forming legally binding contracts, and that you agree to be legally bound and to abide by this Agreement. If you are under 18 years of age, or are otherwise incapable of forming legally binding contracts, or do not agree with any part of this Agreement, YOU MUST NOT ACCESS OR USE THE SERVICES.
1.2 Amendments. We reserve the right, exercisable in our sole discretion, to change, modify, add to, subtract from, or otherwise amend the terms and conditions of this Agreement at any time. Except as otherwise stated below, all changes, modifications, or other amendments shall be effective on a prospective basis once they are posted on our Site. This Agreement may not otherwise be amended except in a writing signed by you and AFA. Continued use of the Services by you constitutes your binding acceptance of this Agreement, including any changes or modifications made by us as described above. You agree to review the terms and conditions of this Agreement periodically to become aware of such revisions and to review your compliance with them. If at any time the terms and conditions of this Agreement are no longer acceptable to you, you must immediately cease all use of the Services. The right to access and use the Services is personal to you and is not transferable to any other person or entity.
1.3 Additional Agreements.
The Services include, among other things, such services as: contacting or placing bids with auction houses by email or through a live bidding console; searching and accessing past and upcoming auction records including, when available, object photos and estimated and realized prices and registering to receive email alerts about objects offered at upcoming auctions. Additional terms and conditions of use applicable to your use of the Services available at the Site from time to time are or may be posted in relevant areas within the Site or may be agreed upon by you and AFA in a separate written agreement (e.g. Subscription Agreement; auction house conditions of sale; all such additional terms and conditions, "Additional Agreements"). Together with this Agreement, such Additional Agreements will govern your use of those Services or any other services made available by us to you. We reserve the right, exercisable at our discretion, to change or discontinue without prior notice some or all of the Services we provide from time to time at the Site, or change the applicable terms and conditions for your use of such Services as set forth in the Additional Agreements.
Effective May 25, 2018, Privacy for EU data subjects is controlled by the regulations set forth in the General Data Protect Regulation, or GDPR. Our privacy policy can be found on our website at details how the GDPR applies to EU data subjects (in addition to our master privacy policy at https://australianfineassets.com.au/privacy-policy . Effective May 25, 2018, if you do not agree to our Privacy Policy YOU MUST NOT ACCESS OR USE THE SERVICES. If you have already registered an account with us, these new laws apply regardless of your acceptance of our stated measures to comply.
1.4 Your Account is identified by the email address you provided and you are the only party authorized to use your user ID (email address). You are responsible for maintaining the confidentiality of your registered account with us and any password(s) you have chosen or we may issue to you in connection with your access and use of the Services. You are responsible for all uses of your account, whether or not actually or expressly authorized by you. If you believe that your account and/or password(s) have been misused or compromised in any manner, please contact us immediately at enquiries@australianfineassets.com.au
1.5 Covenant Regarding Your Account. You agree that you will not maintain multiple registered accounts with us without our express written consent. If you wish to maintain a multiple account, you may submit a request to do so to enquiries@australianfineassets.com.au, including your primary User Name and your rationale for having multiple accounts.
1.6 Equipment. You shall be solely responsible for obtaining and maintaining all telephone, communications, computer hardware and other equipment needed for access to and use of the Services and all charges of any description arising from or relating thereto.
Section 2. Live and Timed Auctions Participation.
THE FOLLOWING DESCRIBES THE TERMS ON WHICH AFA OFFERS YOU ACCESS TO BID ONLINE AT LIVE AND TIMED AUCTIONS
2.1 Eligibility. You may be required to apply for and obtain approval in order to participate in a specific live or timed auction, including in some cases providing credit card information if you have not done so previously. You agree to maintain at all times the accuracy of your account information including contact information, addresses and credit card information. Approval to participate in one live or timed auction does not guarantee approval to participate in any other live or timed auction, conducted by AFA. AFA has sole discretion to refuse to approve your eligibility for any live or timed auction.
2.2 Fees. AFA may charge a buyer's premium (which is an additional fee that a winning bidder is required to pay above the auction price) as well as other shipping, handling, and other fees including applicable taxes, if any. AFA may facilitate shipping through a third-party, however in all cases, the buyer will pay applicable shipping charges unless otherwise noted in the AFA terms and conditions. These fees are subject to change depending upon AFA and the particular item for sale and are set by the AFA. A fee is charged for all online purchases using the Service which will be in addition to the other charges unless otherwise noted in the AFA terms and conditions. By using the Services, you agree to be bound by and pay all fees according to the terms of this Agreement and AFA’s general terms and conditions. AFA may allow you to pay for items using the online payment service powered by WePay, Inc. ("WePay") and/or Stripe, Inc. ("Stripe") and made available on the Site (the "Payment Service"). Your use of the Payment Service is solely governed by WePay's Terms of Service and Privacy Policy located at www.wepay.com/legal (collectively, the "WePay Terms") and/or Stripe's Terms of Service and Privacy Policy located at www.stripe.com/legal (collectively, the "Stripe Terms"). You expressly acknowledge and agree that, if you elect to use the Payment Service, neither WePay nor Stripe is a party to any contract between you and AFA All transactions, using the Payment Service or otherwise, remain subject to the applicable AFA terms and conditions (including the refund policies posted therein).
You may not use the Payment Service to engage in activities prohibited by the WePay Terms, Stripe Terms or otherwise to violate applicable law. Either AFA or WePay or Stripe may decline to process transactions that are too large in dollar amount, too long in duration or exceed other risk parameters. In addition, WePay and/or Stripe may decline to provide the Payment Service to you, or may impose a reserve requirement, or may limit transaction size, or may decline to process a transaction, based on WePay's and/or Stripe's then-current compliance and risk management programs or any other bona fide reason. You will indemnify, hold harmless and defend AFA, WePay, Stripe and their respective affiliates and each of their respective directors, officers, employees and agents from and against any and all claims, suits, actions, damages, demands, obligations, proceedings, investigations, liabilities or other losses of any kind (including reasonable attorneys' fees and costs) arising from a third party claim based on, arising from or relating to your use of the Payment Service.
2.3.01 Auctions AFA will list items up for auction for you to bid on. Auction dates and times, as well as the number, character, and order and schedule of the items to be auctioned are set by AFA and are subject to change without notice. Individual lots and items may be modified or changed at any time. Some lots and items that are made available on the auction floor will not be included in the online live auction services.
2.3.02 "TAGS". AFA may categorize, "tag" or otherwise describe property listed for auction on the Sites. Such categorizations, "tags" and descriptions are provided for convenience only.
AFA DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY OR RELIABILITY OF SUCH CATEGORIZATIONS, "TAGS" OR DESCRIPTIONS OF ANY NATURE, AND BY USING THE SITE, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO RECOURSE AGAINST AFA AND ITS AFFILIATES AND REPRESENTATIVES ARISING OUT OF OR RELATED TO ANY SUCH CATEGORIZATIONS, TAGS OR DESCRIPTIONS.
2.4 Bidding, Buying and Conditions of Sale. You may cancel an absentee bid on a lot for a live auction up until the lot has been opened for live bidding. For timed auctions the following cancelation rules will apply:
(i) Only three (3) bids may be cancelled per session
(ii) No bid cancellations will be allowed within 2 hours of the scheduled first lot end time.
If either of the two rules above has been exceeded (i.e. 3 timed bids have already been cancelled for a single session/catalogue or the timed auction is within 2 hours), bidders may call AFA to request that their bid be cancelled. These requests may only be made during office hours. Voicemail requests for bid cancellation will not be considered.
AFA reserves the right to take any adverse action, including without limitation, termination of an account, against those who are deemed to be abusing bid retraction and cancellations.
You expressly acknowledge and agree that AFA makes no guarantee or representation regarding the effectiveness or success of bids and you understand that AFA may be conducting a specific live or timed auction on multiple platforms, including websites other than the Sites (“External Auction Sites”). By placing a bid for an auction, you expressly authorize AFA to begin bidding against the then-highest bid on the Sites or any External Auction Sites with respect to the applicable item(s) subject to such auction, and to continue bidding on your behalf at any price in excess of the opening bid and up to the amount of your bid. If AFA becomes aware of a bid on an External Auction Site that exceeds the amount of your bid, AFA may, but is not required to, notify you through your account in accordance with the notification preferences you have selected for your account. You expressly acknowledge that AFA owes no duty to you to obtain the lowest possible price on behalf of you and that AFA may not have access to bidding information on all relevant External Auction Sites. The terms and conditions for participation in each auction, including how bids are accepted, rules governing absentee bids, bid increments, bid retraction and cancellation, the conditions the buyer must meet to purchase the item, as well as the specific conditions of sale (such as warranties, shipping costs, insurance, and the like) may change for each auction by AFA. AFA will post such terms and conditions and to maintain the terms throughout the auction period. You agree to be bound by those bidding terms and conditions of sale by agreeing to this Agreement. This Agreement, in addition to AFA general terms and conditions, govern your bidding activity as well as your participation in an auction, except for timed auctions where the acceptance of bids is determined solely by AFA’s technology, AFA acts as an auctioneer and has the final determination with respect to the bidding on the item the sale of the item and the resolution of disputes, including the right using its sole discretion to: a) determine who is the successful bidder; b) reject any bid that it believes is not commensurate with the value of the item being offered; and c) reject any bid that it believes may have a detrimental effect on the item in question, or the auction as a whole.
2.5 Video and Audio. Any audio or video aspects of a live auction event are for entertainment purposes only.
2.6 No warranty. WITHOUT LIMITING SECTION 10 BELOW, WE DO NOT WARRANT THAT THE LIVE OR TIMED AUCTION SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT BIDS WILL BE RECEIVED BY US OR INFORMATION REGARDING CURRENT PRICE WILL BE TRANSMITTED IN A TIMELY FASHION.
2.7 Limitation of Liabilities. WITHOUT LIMITING SECTION 11 BELOW, IN NO EVENT SHALL WE OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE FAILURE OF ANY BID OR PRICING INFORMATION TO BE TRANSMITTED OR RECEIVED BY YOU IN A TIMELY MANNER, THE INTERRUPTION OF ANY DATA TRANSMISSION, AUDIO OR VIDEO BROADCAST, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE).
Section 3. Information You Provide to Us.
3.1 Your Information. The term "Your Information" means collectively the following: (i) any information or materials you provide to us in connection with our registration process, your use of any Services, or in email correspondence with us, (ii) any information or materials you provide to other users of the Site in connection with your use of any Services, or in any public message board or chat room area, (iii) any information or materials you provide to auction houses, appraisers, art or antiques dealers, trade members, curators, educators, antiques professionals, collectors or other third parties affiliated with AFA in connection with your use of any Services, and (iv) any search terms or other instructions that you transmit to our servers through a web browser. Please note that the information and materials belonging to Your Information may include without limitation textual information, graphic images, photographs, and audio-visual materials. Except as may be otherwise expressly provided to the contrary in this Agreement or the Additional Agreements, you are solely responsible for Your Information, and we act at all times as a passive conduit for your online distribution, communication, and/or publication of Your Information.
3.2 Covenant Regarding Your Information. You agree that Your Information: (i) will not be false, inaccurate, frivolous, or misleading,
(ii) will not infringe any third party's copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy,
(iii)shall not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising),
(iv) will not be defamatory, trade libelous, unlawfully threatening , unlawfully harassing, or obscene,
(v) will not contain any computer viruses, worms, Trojan horses, time bombs, or other computer programs, scripts, or instructions that are intended to damage or detrimentally interfere with the operation or use of the Services, or to intercept or expropriate any proprietary computer system information or other confidential data or personal information relating to or arising out of the access or use of the Services,
(vi) will not create any liability for AFA or cause AFA to lose (in whole or in part) the services of its internet service providers or other suppliers and business affiliates, (vii) will not contain any links to or from other information or websites for which you do not have the right to make or reproduce such links, and
(vii) will not solicit or involve the purchase or sale of counterfeit, stolen or illegal items, or solicit or commit any fraudulent transaction or other form of criminal activity.
3.3 Updated Information. If you are a registered user of the Site, you agree to promptly update your account registration information in order to keep it current, complete, and accurate.
3.4 Limited License. To enable us to use Your Information, so that we are not violating any rights you might have in Your Information, you hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise the copyright and publicity rights (but no other rights) you have in Your Information, in any media now known or hereafter existing, with respect to Your Information.
3.5 Privacy Policy. We will only use Your Information in accordance with our Privacy Policy, available at https://australianfineassets.com.au/privacy-policy . By agreeing to the terms and conditions of this Agreement, you also give your consent to the way we may use your Information pursuant to the Privacy Policy. If you have any questions not addressed in our Privacy Policy Document, you should address them to enquiries@australianfineassets.com.au.
Additionally, privacy for European Union (“EU”) data subjects is controlled by the regulations set forth in the General Data Protect Regulation, or GDPR. If you do not agree to our Privacy Policy YOU MUST NOT ACCESS OR USE THE SERVICES.
Section 4. Use of Content.
4.1 Copyright. You acknowledge that the Services contain information, text, software, photographs, music, audio and video clips, graphics, links and other material (collectively, the "Content") that are protected by copyright, trademark or other proprietary rights of AFA or third parties. All Content used or made available through the Services is copyrighted as a collective work and/or compilation of AFA pursuant to applicable copyright law. AFA owns a copyright in the selection, coordination, arrangement and enhancement of such Content, as well as in the content original to AFA. You agree to comply with any additional copyright notices, information, or restrictions contained in any Content available on or accessed through the Services. AFA does not grant permission to users of its Services to reproduce images of original works of art.
4.2 Limited License. Subject to your compliance with the terms and conditions of this Agreement (including without limitation the restrictive terms and conditions set forth in this Section 4), and except to the extent otherwise expressly provided in an Additional Agreement between you and AFA, you are granted a limited non-exclusive, non-transferable, non-sub-licensable, and revocable license to access the Services and/or Content only for your own personal non-commercial use.
You acknowledge that all Content included with the Services is provided for your own use. In no case shall you re-publish the Content in any form without express written permission of AFA. You will limit printouts for personal use of the material to a maximum of 35 individual text listings per individual. Reproduction of images is strictly prohibited without the written permission of AFA. Your right to use this product is limited to a single workstation unless an additional agreement for network access has been signed by both parties. You acknowledge that you are not permitted to sell or otherwise dispose the software and that no rights granted hereunder may be assigned or sub-licensed by Licensee, any assignment or sublicense being void.
You agree to maintain and/or reproduce all copyright and other notices contained in such Services and/or Content. You may not modify, publish, transmit, transfer or sell, resell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit or commercially use any of the Services and/or Content, in whole or in part, except as expressly permitted in this Agreement or in an Additional Agreement between you and AFA. You acknowledge that you do not acquire any ownership rights by accessing or downloading copyrighted materials. You shall not store electronically any portion of any Services and/or Content. You may not collect and use e-mail addresses of other users of the Site or other user account information, listings, or perform any form of data extraction or data-mining whatsoever. Except as expressly permitted by the copyright laws, no copying, storage, redistribution or publication of any of the Services and/or Content is permitted without the express permission of AFA. You are responsible for complying with all applicable laws, rules, and regulations regarding your use of any such downloaded Content. AFA reserves all rights in the Content and Services not expressly granted hereunder.
4.3 Trademarks. All trademarks associated with product and company names that may appear in connection with the posting of items for sale are the property of their respective owners. Use of such third party trademarks does not suggest or imply any affiliation with or endorsement by those third parties.
4.4 Uploading or Posting Content. You will not upload, post, or otherwise make available through the Services any Content protected by copyright, trademark, or other proprietary right without the express permission of the owner of the copyright, trademark, or other proprietary right and the burden of determining that any material is not protected by copyright rests with you. You shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission. By submitting Content to any public area of the Site, you hereby grant, or warrant that the owner of such Content has expressly granted, AFA a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, publicly display and distribute such Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such Content. You also permit any other user of the Services to access, view, store, or reproduce such Content for that user's personal use.
4.5 Beneficiaries. The foregoing provisions of this Section 3 are for the benefit of AFA, its subsidiaries, affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
Section 5. Sites Access; Interference with Services; Monitoring; Compliance with Laws.
5.1 Sites Access. We do not guarantee continuous, uninterrupted, or secure access to the Services, and operation of the Site may be interfered with by numerous factors outside of our control. Internet connection speed will determine how rapidly pages with photographs load to your browser.
5.2 No Interference. You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein without our prior expressed written permission. You agree that you will not use any device, software, or routine to interfere or attempt to interfere with the proper working of the Site or the Services, or any transaction being conducted on or through the Site or Services. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the server infrastructure of the Site.
5.3 Fraudulent Activity. You may not register to use any Services under a false name or use an invalid or unauthorized credit card in connection with any Services. You may not make offers to purchase any goods or services under a false name while using the Services. You may not impersonate any other user of the Services or make use of another user's password(s). Such fraudulent conduct is a violation of federal and state laws. Fraudulent conduct may be reported by us to law enforcement authorities, and we will cooperate with such authorities to ensure that violators are prosecuted to the fullest extent of the law.
EU data subjects who use of these services under fraudulent or false pretenses will potentially face limitations on their privacy protections under the General Data Protection Regulations (GDPR)
5.4 Monitoring. You agree that AFA has the right, but not the obligation, to monitor any form of user activity and/or Content linked to or from or otherwise associated with the Services. We may investigate any reported violation of our Agreement, Additional Agreements or Site policies, and any user or other third party complaints relating thereto. We may take any action that we deem appropriate in connection with any such investigation without notice (including without limitation issuing warnings, suspending or terminating Services, denying Site access and/or removing any materials posted on the Site). We may also investigate, in our sole discretion, the use of any credit card by a user in connection with the Services, and take such action as we deem necessary or appropriate, including without limitation contacting the owner or user of such card or cancelling purchase orders placed by such owner or user.
5.5 Compliance with Laws. The Services may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes and regulations regarding use of the Services and any transactions that may be conducted by means of the Services.
Section 6. External Sites; Linking.
6.1 External Sites. The Services may contain links to websites on the Internet that are owned and operated by third parties (the "External Sites"). This Agreement does not apply to your use of any External Sites to which the Site links, and we are not responsible for the availability of any External Sites to which the Site links. We do not endorse or take responsibility for the contents, advertising, products or other materials made available through any External Sites, and you acknowledge that AFA is not responsible for the availability of, or the content, advertising, products, or other materials located on or through, any External Sites. You acknowledge and agree that under no circumstances will we be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, goods, or services available on any External Sites. If you decide to access an External Sites, you do so at your own risk. You should contact the sites administrator or Webmaster for those External Sites if you have any concerns regarding such links or the content or services located on such External Sites.
Section 7. Breach.
7.1 Without limiting other remedies, we may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your registered user account and/or refuse to provide the Services to you: (i) if you breach this Agreement or any of the Additional Agreements it incorporates by reference or which you have separately entered into with AFA; (ii) if we are unable to verify or authenticate any information you provide to us; or (iii) if we believe that your actions may cause legal liability for you, us, our other users, or other third party business affiliates.
Section 8. Indemnity.
8.1 You agree to indemnify, defend, and hold AFA and its affiliates, and their respective officers, directors, owners, agents, information providers, and licensors (collectively, the "Company Parties") harmless from and against any and all claims, liability, losses, costs, and expenses (including attorneys' fees) incurred by any Company Party in connection with any use or alleged use of the Service under your password by any person, whether or not authorized by you. AFA reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with AFA's defence of such claim.
Section 9. Termination of or Change in the Services.
9.1 AFA shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, malfunction, suspension, discontinuance of or interruption to or of any of the Services. AFA reserves the right, in its sole discretion, to restrict, suspend, or terminate your access to all or any part of the Services at any time for any reason without prior notice or liability. AFA may change, suspend or discontinue all or any aspect of the Services at any time, including the availability of any feature, database, or Content without prior notice or liability.
Section 10. DISCLAIMER OF WARRANTIES.
10.1 NEITHER AFA NOR ANY PROVIDER OF THIRD PARTY CONTENT OR THEIR RESPECTIVE AGENTS WARRANTS THAT THE SITE OR SERVICE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE; NOR DOES AFA, ANY THIRD PARTY CONTENT PROVIDER, OR THEIR RESPECTIVE AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SITE, SERVICES OR THE CONTENT. THE SERVICES AND THE CONTENT ARE DISTRIBUTED ON AN "AS IS, AS AVAILABLE" BASIS. NONE OF AFA, THIRD-PARTY CONTENT PROVIDERS, AND THEIR RESPECTIVE AGENTS MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WITH RESPECT TO THE SITE, SERVICES, ANY CONTENT OR ANY PRODUCTS OR SERVICES SOLD THROUGH THE SERVICES. NEITHER AFA NOR ANY THIRD PARTY CONTENT PROVIDER WARRANTS THAT ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE SITE OR SERVICES WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND THE ACCURACY OR COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU. WITHOUT LIMITING ANY PROVISION HEREIN, AFA MAKES NO WARRANTY THAT ANY PARTICULAR COMPUTER SYSTEM CONFIGURATION WILL BE COMPATIBLE WITH THE SITE. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOUR COMPUTER SYSTEM HAS THE RECOMMENDED HARDWARE, OPERATING SOFTWARE, AND INTERNET BROWSER SOFTWARE VERSIONS TO ACHIEVE THE SITES FULL FUNCTIONALITY AND CAPABILITIES. Some jurisdictions may not allow the disclaimer of implied warranties or limitation on how long an implied warranty lasts, so the above disclaimer or limitation may not apply to you. You may have other rights, which vary from jurisdiction to jurisdiction.
10.2 The Site includes an extensive collection of auction records that might be used as tools in the process of estimating values. AFA Content is only one of several elements that you should consider in estimating value of an antique or other artistic work and depends upon the accuracy and timing of information which AFA itself receives. AFA strongly recommends that its Content only be used in conjunction with other specialists such as Auction Houses, Personal Property Appraisers, Museums, and Dealers.
While AFA will endeavor to use commercially reasonable efforts to confirm the authenticity of the goods it receives and posts for auction via its website, AFA makes no claims, representations or warranties with regard to the authenticity of any goods sold on its website. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. In addition, to the extent permitted by applicable law, AFA (including our affiliates, officers, directors, agents and employees) is not liable, and you agree not to hold AFA responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from the items posted for sale on our website. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you. If you have purchased an item that is not as described in our posting for auction, your sole remedy is to return it in the condition you received it in exchange for a refund.
If you believe that an item posted for sale on our website violates a trademark, copyright or other intellectual property right held by you, please notify us immediately regarding the posting in question and the basis for your claim so we can properly investigate your claim.
10.3 AFA and third party content providers are not responsible for the translations provided by Google Translate. The translated copies of the Site are not legally binding, and any differences created in translation have no legal effect. Please be aware that the original lot description in the auction catalogue provided by us is the official Content. If there are any concerns regarding the accuracy of the information presented within the translated versions of our site, please refer back to the official Content.
Section 11. LIMITATION OF LIABILITY.
11.1 THE LIMITATION OF LIABILITY CONTAINED IN THIS SECTION 10 APPLY TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT AFA IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
11.2 UNDER NO CIRCUMSTANCES WILL AFA OR ITS AFFILIATES, OR ANY OF ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH EITHER THE CONTENT OR THE SERVICES, OR ANY LOSS OR DAMAGE CAUSED BY YOU BEING EXPOSED TO INFORMATION CONTAINED ON THE SITES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SERVICE. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC INFORMATION, OPINION, ADVICE OR OTHER CONTENT, INCLUDING OPINIONS OR ADVICE REGARDING THE IDENTIFICATION, VALUATION OR CARE OF ANTIQUES.
11.3 NEITHER AFA, ANY THIRD-PARTY CONTENT PROVIDERS NOR THEIR RESPECTIVE AGENTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO ACCESS OR USE THE SITE OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR LIABILITY, AND THE LIABILITY OF OUR SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100.00. Some jurisdictions do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. In such jurisdictions, the liability of AFA, third party content providers and their respective agents shall be limited to the greatest extent permitted by law. Some jurisdictions may not allow the limitation of liability, so the foregoing limitation may not apply to you.
Section 12. MISCELLANEOUS
12.1 Copyright Infringement Policy. AFA observes the rights of all copyright holders and has adopted and implemented a policy that provides for the termination in appropriate circumstances of users and registered account holders who infringe the rights of copyright holders. If you believe that your work or that of a third party has been copied in a way that constitutes copyright infringement, please provide our Copyright Officer (who may be contacted electronically at enquiries@australianfineassets.com.au or care of our notice address in Section 12.7 below) with the information required below by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. 512:
A. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
B. Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online sites are covered by a single notification, a representative list of such works at that sites;
C. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
D. Information reasonably sufficient to permit us to contact the complaining party;
E. A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
F. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
12.2 Governing Law. ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF THIS AGREEMENT, OR THE NEGOTIATION, VALIDITY OR PERFORMANCE OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF AUSTRALIA AND THE STATE OF WESTERN AUSTRALIA WITHOUT REGARD TO ITS RULES OF CONFLICT OF LAWS. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of Western Australia for any litigation among the parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Western Australian Courts and agrees not to plead or claim in any Western Australian Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Western Australian Courts.
12.3 Headings. Section headings in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
12.4 Severability. Construction. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. If any inconsistency exists between the terms of this Agreement and any additional terms and conditions of Additional Agreements (whether such Additional Agreements are posted in electronic format on the Site or are separate written agreements entered into between you and AFA) such terms shall be interpreted as to eliminate any inconsistency, if possible, and otherwise, the additional terms and conditions of the Additional Agreements shall control.
12.5 Waiver. AFA's failure to exercise or forbearance from exercising any rights or remedies, or failure to enforce or forbearance from enforcing, the strict performance of any provision of this Agreement, will not constitute a waiver of AFA's right to exercise such rights or remedies or enforce such provision or any other provisions of this Agreement in that or any other instance. Any waiver of any provision of this Agreement by AFA must be made in writing and signed by an authorized representative of AFA specifically referencing this Agreement and the provision to be waived.
12.6 Assignment Third-Party Beneficiaries. This Agreement will inure to the benefit of AFA's successors and assigns. Except as set forth in this Agreement, this Agreement shall not benefit or create any right or cause of action in or on behalf of any person other than the parties hereto.
12.7 Notices. Except as otherwise provided herein, any notices to be given pursuant to this Agreement may be given by postal mail to AFA, PO Box 75, Leederville, WA 6902 or to the email address you provide to AFA during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to AFA during the registration process in the event that an address was supplied. In such case, notice shall be deemed given 3 days after the date of mailing.
12.8 Survival. Subsections 1.8, 3.1, 3.3, 3.4, 3.5, 3.6, 4.3, 4.4 and 5.1 and Section 7, 8, 9, 10 and 11, shall survive any termination of this Agreement as well as any other provisions which by their terms or sense are intended to survive.
12.9 Integration. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and except for any Additional Agreements that you may have entered into with AFA, supersedes all previous written or oral agreements between the parties with respect to such subject matter hereof.
This Terms of Use version 1.01 was last revised effective March 31, 2020.
CONTRACTS
All accepted bids are contracts and are considered final and non withdrawable.
BUYER'S PREMIUM
A buyer's premium of 20% (ex-GST) will be applied to all purchases.
ONLINE BIDDING
The person posting the bids online has to be the person who has registered for the auction.