Terms & Conditions
MAGIC MILLIONS USE OF SITE AND ONLINE AUCTION SALE CONDITIONS
The Site is licensed to the Auctioneer and used under licence by the Promoter for each Auction hosted by the Auctioneer and the Promoter online at times and for periods decided by them. Each Auction will list for sale one or more Lots.
These Conditions will apply to all auctions and sales of a Lot conducted through the Site operated by the Auctioneer and shall be binding on each Bidder and any Vendor wishing to submit a Lot for sale at an Auction. Each Bidder and Vendor must register separately as a User to enter a Lot online and/or to obtain bidding approval.
Each User accepts these Conditions and agrees to comply with all applicable laws, statutes and regulations concerning the use of the Site and the Services provided by the Auctioneer.
The Auctioneer may amend these Conditions from time to time and such amendments will be effective when displayed on the Site.
1.3 Definitions and Interpretation
In these Conditions, unless the context requires otherwise, the words and interpretation thereof are as set out in Condition 32.
3 Registration for Bidding
4 Specific User Rules
4.1 Bidder ID and Passwords
Each User accepts, agrees and acknowledges that it will not:4.2.1 fail to pay for any Lot purchased by him at an Auction. This excludes where the Vendor materially alters the terms of the sale after a User has bid or agreed to purchase, or where any Lot is not as described, or, where the Vendor’s identity cannot be clearly authenticated;
4.2.2 fail to facilitate possession of any Lot being given where the sale has been made, unless the Purchaser cannot meet the terms of sale, or where the Purchaser’s identity cannot be clearly authenticated;
4.2.3 act other than in good faith while reserving his rights as set out in these Conditions;
4.2.4 seek to avoid the payment of Auction fees and commissions owed to the Auctioneer or manipulate the fee structure or fee payment process in any way;
4.2.5 use data provided by other Users for purposes other than contacting them via the Site;
4.2.6 abuse, harass, threaten, stalk, defame or in any way seek to violate the rights of another User or person;
4.2.7 encourage illegal activity or activity that violates the rights of other Users or persons;
4.2.8 supply or post content or advertisements calculated to deliberately mislead other Users or persons, including content falsely made to appear from or be endorsed by the Auctioneer;
4.2.9 pose as another User, person or employee of the Auctioneer for the purposes of obtaining User or third party information;
4.2.10 transmit or transfer any viruses, trojans, worms or any other malicious programs or code intended to spy on, gain control over, disrupt, destroy or in any other way impair any computer hardware or software or any other equipment;
4.2.11 attempt to gain access to the Auctioneer’s servers or other equipment in order to disrupt, impair, overload or otherwise hinder or compromise the safety, security or privacy of any of the Services provided by or relied upon by the Auctioneer and other Users;
4.2.12 reframe or repurpose the Site or any content on it or remove or obscure any notices or advertising provided by the Auctioneer on the Site;
4.2.13 advertise any Lot, which infringes the trademark, patent, trade secret or any other proprietary right of a third party or infringes any intellectual property law;
4.2.14 send junk or spam email or emails or posts promoting pyramid schemes, chain letters or any other activity that invites Users and others to participate in wasting their time and/or money;
4.2.15 use any robot, spider, scraper or other technical means to access the Site or content on the Site.
4.3 Liquidated Damages
If a User breaches these Conditions by sending any unsolicited bulk email, (spam) or any other bulk communications to Users, such User’s actions will cause harm to the Auctioneer and to the Site. Such harm is difficult to quantify and as such you agree to pay the Auctioneer the sum of $100.00 ( GST) for each and every individual email or other communication sent to a User or third party.
4.4 Breach of Rules
The above list is not intended to be exhaustive. The Auctioneer reserves the right to amend or remove (with or without notice) content of the account of any User who in the absolute discretion of the Auctioneer determines that such content is in breach of these Conditions.
4.5 General Site Conditions
4.5.1 Suspension and Termination
22.214.171.124 The Auctioneer may, in its absolute discretion, determine to suspend or terminate the right of any User to use the Site or the Services. In the case of suspension, the Auctioneer, in its absolute discretion may determine as to when (or if) a suspended User will be reactivated.
The Auctioneer shall take all reasonable steps to ensure that the Site is available and functioning fully at all times and each User must do likewise with his provider. However, in the event the Site is unavailable or functioning incorrectly either wholly or partly the Auctioneer offers (where possible) the opportunity of repeat performance of the service the Auctioneer should have offered to each User in the first place which may include re-running auctions or re-opening bidding where appropriate and practical. No refunds will be payable in any circumstance.
126.96.36.199 Transactions and all other contact between Users are conducted entirely at their own risk. Each User agrees that the Auctioneer and the Promoter take no responsibility or liability for any misconduct of any Users including, without limitation, Users that have registered under false names or using false pretences, or, who attempt to defraud, or, mislead a User. The Auctioneer gives no representations, undertakings or warranties in relation to Lots sold or listed on the Site including, but not limited to, representations, undertakings or warranties that relate to:
188.8.131.52 Each User expressly understands and agrees that:
184.108.40.206.1 Sole risk: his use of the Services is at his sole risk. The Site and Services are provided on an “as is” and “as available” basis. To the maximum extent permitted by law and without limiting Condition 17, the Auctioneer and the Promoter disclaim and exclude all implied conditions or warranties, statutory or otherwise, including, but not limited to, any warranties of merchantability and fitness for a particular purpose to the maximum extent permitted by law.
220.127.116.11.2 Accuracy: the Auctioneer is not responsible for the accuracy of any content on the Site, nor any advertisements placed on the Site.
18.104.22.168.3 Links: the Auctioneer is not responsible for any links to third party websites from the Site and the inclusion of any link does not imply an endorsement of a third party Site by the Auctioneer.
22.214.171.124.4 Indemnity: Each User agrees to release, indemnify and keep indemnified the Auctioneer and its respective officers and employees from and against all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities, fines, fees or demands suffered or incurred by the Auctioneer to any person arising out of or in connection with a User’s failure to comply with these Conditions, his failure to complete a transaction, his use of the Auctioneer’s message boards, his sale or attempted sale of a Lot, or arising out of any content a User submits, posts, transmits or makes available through the Services.
5 Conduct of Auction
5.1 The Vendor of a Lot must list the Lot for sale exclusively via the Site (and submit the VONF with respect to the Lot in a correct and complete form and the Vendor accepts and acknowledges the Conditions of Nomination, as a User, and the Vendor, prior to the Auction) and the Vendor shall have the right to bid personally or through an agent for a Lot nominated for sale by such Vendor. Each Vendor will comply with any instructions or notifications posted on the Site from time to time in relation to use of the Services as a Vendor.
5.2 Each Purchaser must comply with any instructions or notifications posted on the Site from time to time in relation to use of the Services as a Purchaser.5.3 The Auctioneer expressly reserves the right to reject any Lot from sale, to withdraw any Lot before or during the Auction, to stop or cancel any Auction at any time, to refuse to accept any bid, exclude any person from the Auction, refuse to acknowledge any bid, and to bid as an agent on behalf of a principal without giving a reason therefore.
5.4 The Auctioneer reserves the right to advance the bidding as the Auctioneer thinks fit and in its absolute discretion.
5.5 The Vendor may set a reserve price before the Auction. If the Vendor sets a reserve price he may not during the course of the Auction alter the reserve price. Under no circumstances may the reserve price be increased. If a reserve price is not met at the Auction Close, the Bidder and the relevant Vendor are released from any obligation to complete the sale and purchase.
5.6 Each Bidder shall be deemed, as between the Vendor, the Auctioneer and such Bidder, to bid as principal party, and accordingly, notwithstanding any subsequent disclosure of agency, shall be and remain responsible for the payment of the Purchase Price of any Lot in respect of which he is the highest Bidder.
5.7 All Auctions will be conducted in the currency of the Jurisdiction. Each Bidder is responsible for ensuring that it has sufficient funds to cover the cost of its bid and make payment.
5.8 Each Bidder is personally responsible for a bid made by him. A Bidder must not retract a bid except for limited circumstances allowed under applicable law, for example, where the Lot does not materially comply with the description provided in relation to it on the Site, or in accordance with these Conditions.
5.9 Any bid made by a Bidder will remain open for the time period specified on the Site. The Auctioneer reserves the right to automatically change this fixed time period by up to two (2) minute increments where the highest bid is submitted within two (2) minutes before the Auction Close to allow time for responses and final bids. The Site does not support the practice known as “sniping” where Bidders place bids within the final few minutes of an Auction and do not allow other Bidders time to respond.
5.10 The Auctioneer’s decision is final in the case of any disputed bid.
5.11 The name and address of the Vendor shall in all cases be supplied by the Auctioneer to a Bidder and the Auctioneer reserves all rights to use or publish details of bidding, the identity of the Vendor, the Bidder and the Purchaser in all matters related to the sale of any Lot as the Auctioneer thinks fit.5.12 The Extra Time Rule applies to each Auction.
6 Payment, possession, risk, title and consequences
6.1 Payment, possession, risk:
6.2.1 All payments shall be made in the currency of the Jurisdiction by any one of the payment methods available; and
6.4.1 The full Purchase Price is not paid in accordance with Condition 6.1.2 or as otherwise agreed with the Auctioneer (time being of the essence); or
6.7 So long as any part of the Purchase Price, any interest payable thereon or any other charges are payable pursuant to these Conditions and for so long as the Lot is the subject of any credit or terms agreement with the Auctioneer, the Vendor or any other party, the Purchaser must keep the Lot in a safe and secure place and in good health and condition, and, at all times advise the Vendor and the Auctioneer of the location of the Lot (and allow them or their agents access or arrange for them access without notice), and, not perform (or allow any other person to perform) surgery on the Lot (without the prior approval of the Vendor and the Auctioneer), and not remove the Lot outside the Jurisdiction (without the prior written approval of the Auctioneer and the Vendor), and, not grant, or purport to grant, or take, or purport to take, any Security Interest envisaged by Condition 22 of these Conditions or otherwise over the Lot that would be adverse to the interests of the Vendor and / or the Auctioneer.
6.8 The Purchaser shall not, until the full Purchase Price is paid in full and all other obligations to the Vendor and the Auctioneer are fulfilled, register or attempt to register any Security Interest in the Lot on the PPSR.
6.9 If the person signing the Purchaser's acknowledgement of purchase of a Lot or bidding on behalf of the Purchaser is not the Purchaser (whether the person is a director, agent, attorney or otherwise), such person guarantees to the Vendor and to the Auctioneer the performance of the Purchaser under these Conditions, and indemnifies the Vendor and the Auctioneer for any loss and damage arising from any default or breach by the Purchaser. This guarantee and indemnity may only be waived in writing by a director of the Auctioneer or by the acceptance by the Auctioneer of a duly completed appointment of agent form.
6.10 The Vendor acknowledges and accepts that the Auctioneer will only be required to issue one cheque to the Vendor of a Lot where the Vendor comprises a syndicate of members. The Vendor accepts and acknowledges that the person nominating the Lot for Auction on behalf of the Vendor is the person to whom the payment is to be made. In the event that there is a dispute among syndicate members as to payment or otherwise or a syndicate member requires a separate cheque, the Auctioneer has a right to hold the payment in trust pending a decision by the syndicate members in accordance with their syndicate agreement / partnership agreement as to whom the cheque in payment will be made. The Vendor indemnifies the Auctioneer against all claims made by syndicate members.
6.11 The Purchaser will, if a corporation or a trustee of a trust, if requested by the Auctioneer, provide guarantees for the performance of its obligations pursuant to these Conditions and procure the guarantors of such performance to execute a deed of guarantee in a form required by the Auctioneer on or before registration of the Purchaser as a Bidder at the Auction.
6.12 For the sake of certainty and, further to Condition 6.5.1 of these Conditions, the Vendor irrevocably authorises and directs the Auctioneer to deduct from the Purchase Price for any Lot sold on behalf of the Vendor any monies due and owing to the Auctioneer or the Promoter, past, present or future, prior to accounting to the Vendor for the balance of the Purchase Price (if any).
6.13 The Vendor assigns fully to the Auctioneer all its interest, beneficial and legal, in any authority that the Vendor may have signed in favour of any party with respect to the allocation of the Purchase Price for any Lot sold on behalf of the Vendor by the Auctioneer and irrevocably appoints the Auctioneer his attorney to do all things necessary and execute all documents to give effect to this Condition and to amend or withdraw any such authority in its absolute discretion.
6.14 Where a Purchaser purchases more than one Lot at any one Auction, the Auctioneer may, in the absence of written directions from the Purchaser to the effect that a payment of the Purchase Price is to be a payment of the Purchase Price for a specific Lot, appropriate such payment as it elects to do so and may allocate the payment in relation to any particular Lot or Lots that it determines.
6.15 Where a Purchaser does not nominate payment for a specific Lot and the Auctioneer splits a payment made by a Purchaser across a number of Lots, such that each Lot is partly paid, the Purchaser accepts, acknowledges and agrees that title to any of those Lots will not pass to the Purchaser until such time as the full Purchase Price for all the Lots has been paid by the Purchaser.
6.16 the circumstances envisaged by Condition 6.15 above, the Purchaser accepts, acknowledges and agrees that the Auctioneer is entitled to retain the Horse Identification Papers for all Lots until payment for all the Lots purchased at the one Auction have been paid for.
6.17 If the Auctioneer accounts to the Vendor for the Purchase Price or the balance of the Purchase Price, then in addition to the other rights conferred on the Auctioneer by these Conditions, the Auctioneer is entitled to exercise in its own name or the name of the Vendor any of the Vendor's rights including the right to be paid the Purchase Price and to repossess the Lot or exercise any Security Interest of the Vendor, registered or otherwise.
6.18 The Auctioneer reserves all rights to use or publish details of bidding, the identity of the Vendor and the Purchaser and all matters related to the Auction of any Lot as it thinks fit.
6.19 If any sale is cancelled for any reason, the Auctioneer shall remain entitled to receive its commission on the sale, and to be paid or reimbursed for all money owing to it by either the Vendor or the Purchaser, for any charges, dues (including stabling and yard dues, fees and the like), interest and any other money owing to the Auctioneer.
7 Vendor Respresentations and Undertakings
Each Vendor appoints the Auctioneer as his exclusive agent for the purpose of achieving a sale of his Lot by Auction, private sale or otherwise and for the purpose of completing the sale, invoicing and receiving payment. The Vendor gives to the Auctioneer authority in its discretion to do all things necessary to achieve this purpose.
7.2 Title, Location and Description
Each Vendor:7.2.1 declares that he has clear title to each Lot that he has entered for sale and confirms that all requirements of RA have been adhered to and that at the Auction Close the Lot is or will be free of all liens, charges and Security Interests. Without limiting the foregoing each Vendor confirms:
7.2.2 that he declares the location of each Lot being a horse will be at that place from the time the listing is published on the Site until the time the Purchaser is entitled to possession.7.2.3 that he declares that each Lot meets the description and pedigree he supplies.
7.2.4 that he is alone responsible for the accuracy of the information that he supplies under Conditions 7.2.1, 7.2.2 and 7.2.3 and if the information is materially misleading or inaccurate:
7.3 Inspection and/or Veterinary examination
7.3.1 As each Bidder and Purchaser acknowledges that the Auction will be conducted online, and, without their physical attendance or the physical attendance of the Lot at the Auction venue, prior to Auction any Lot (being a horse) which is being listed for sale must be available for:
7.3.3 Prior to the Auction, each Bidder is strongly advised to inspect the Lot at the location of the Lot that each Vendor supplies, and, to inspect the Repository and any other veterinary information with respect to each Lot.
7.3.4 BEFORE BIDDING AT THE AUCTION, THE AUCTIONEER STRONGLY ADVISES EACH BIDDER FOR A LOT TO SEEK VETERINARY ADVICE FROM A QUALIFIED LICENSED VETERINARY SURGEON AND TAKE ADVICE IN RELATION TO THE INFORMATION DEPOSITED IN THE REPOSITORY AND THE REPOSITORY CONDITIONS AND POSSIBLE CONDITIONS OR DISABILITIES SUCH AS EI, IMPAIRED VISION, ROARER, WINDSUCKER OR WOBBLER OR SYMPTOMS OR THE ADMINISTRATION OR PROVISION OF TREATMENTS (SEE CONDITION 7.4 HEREOF) AND NOTE THAT NOTWITHSTANDING ANYTHING THERE WILL BE NO RIGHT TO A POST AUCTION SCOPE AND THE LOT IS SOLD “AS IS, WHERE IS” WITH ALL DEFECTS, LATENT AND PATENT.
7.4 Vendor Disclosure on Lot disabilities
7.4.1 Further to Condition 7.3, the Vendor must provide the Disclosure Notice to the Auctioneer which, with respect to a Lot, details the Symptoms and lists the Treatments as required by the Conditions of Nomination as known to the Vendor as at the date of submission of the VONF, or, as become detected, known or exhibited thereafter, and, the Vendor must so disclose prior to the Auction if a change in condition of the Lot has been detected or become known or exhibited to the Vendor, or, such a condition has been detected, become known or exhibited to any other person who has reported (or should have reported in the normal course of business) the same to the Vendor in that period. The Auctioneer will disclose details of any Disclosure Notice before or at the time of the Auction Open.
7.4.2 If the Vendor or the Auctioneer fails to provide the Disclosure Notice or make such disclosure as hereinbefore referred to and if the Lot proves to have one of the Symptoms or been given one or more of the Treatments within ten (10) Days of the Auction Close, then, subject to the Purchaser producing at his expense written evidence signed by a licensed qualified veterinary surgeon approved by the Auctioneer in its absolute discretion, certifying that the Lot is a Roarer, Windsucker, Wobbler or sufferer of Impaired Vision, or undergone Invasive Surgery, then, subject to Condition 7.4.3, the Purchaser may cancel his purchase of the Lot by notice in writing to the Auctioneer.
7.4.3 The Auctioneer reserves the right to obtain a confirmatory opinion from up to three (3) qualified licensed veterinary surgeons appointed by the Auctioneer before a notice of cancellation of the purchase by the Purchaser is accepted by it. In the event that such panel unanimously denies the existence of the defect in the Lot, then, in the absence of agreement to the contrary by the Auctioneer, the Purchaser shall have not any right to cancel the sale.
7.4.4 The Vendor must comply with the Conditions of Nomination.
As Condition 6.1.6 of these Conditions confirms, all risk in the Lot passes to the Purchaser from the Auction Close, the Auctioneer recommends the Purchaser insure the Lot for its full replaceable value upon the risk thereof passing to each Purchaser.
9 Title, Possession and Risk
9.1 The Vendor (notwithstanding Condition 6 of these Conditions):
10 Commission and Fees
10.1 The Auctioneer will charge the Vendor fees to enter a Lot for sale at the Auction, and if the Lot is sold the Auctioneer will charge the Vendor sales commission and the TBA Levy on the Purchase Price. The Auctioneer may provide pricing tiers for different levels of service. At the date of these Conditions the fees will be as set out in the Conditions of Nomination and published on the Site.
10.2 All fees must be paid in Australian currency and are non-refundable.
10.3 The Vendor is responsible for paying all fees referred to in Condition 10.1. Failure to pay fees due to the Auctioneer may mean that the Auctioneer seeks to collect fees owed by other means, including (but not limited to) invoicing, use of collection agencies and legal action where the Auctioneer deems it appropriate.
10.4 The Auctioneer reserves the right to change both fees and fee structures and commissions by giving to the Vendor, ten (10) Days’ notice of any such change.
11 GST and other taxes
11.1 All Lots are listed on a GST exclusive basis.
11.2 GST is payable on the Purchase Price where the Vendor is registered for GST.
11.3 The GST registration status of each Vendor is published on the Site for each Lot listed.
11.4 Where a Vendor is fully registered for GST, GST of 10% (or such payment as is at that time required to be paid by the GST Act) will be added to the Purchase Price.
11.5 Where a Vendor is not registered for GST, no GST is added to the Purchase Price.
11.6 The Vendor and the Purchaser undertake to do all things necessary to ensure that the provisions of the GST Act are met in relation to sales that do not, or claim not to attract GST.
11.7 Neither the Auctioneer, nor the Promoter, or any of their associated entities accept (and this is agreed by the Vendor and Purchaser) liability for any GST liability arising as between the Purchaser and the Vendor and the ATO in respect of a Lot sold by the Auctioneer either at auction or by private sale.
11.8 A Vendor who is not a resident of Australia agrees that he will list his Lot/s for sale on the basis that the sale/s will be made in Australia.
11.9 GST is payable on all services provided by or through the Auctioneer and the Promoter and any of their associated entities.
12 GST and Export
12.1 In accordance with GST Legislation the Auctioneer is required to charge GST on all Lots sold (subject to Conditions 11.4 and 11.5).
12.2 The Purchaser must pay to the Auctioneer all GST invoiced.
12.3 The Vendor and the Purchaser acknowledge that it is their responsibility to acquaint themselves with and comply with the requirements of the GST Act at their cost.
12.4 The Vendor acknowledges that the Auctioneer has no responsibility to pay the GST to the Vendor until such time as it is paid by the Purchaser.
12.5 If a Lot is purchased by a Non-Resident for the purpose of export the following shall apply:
12.5.1 if a Purchaser, who is not registered or required to be registered for GST desires to export a Lot and signs and gives to the Auctioneer a properly completed and signed Magic Millions Export Declaration Form (such form being prescribed by and available upon request from the Auctioneer), then the Auctioneer will not add GST to the Purchase Price of the Lot sold, except in the circumstances set forth in the Magic Millions Export Declaration Form where the Purchaser of the Lot acknowledges and accepts that GST is payable in respect of the Lot;
12.8 The Purchaser will comply with all obligations imposed upon the Purchaser in the Magic Millions Export Declaration Form.
12.9 The Purchaser of a Lot referred to in Condition 12.5.1 must notify the Auctioneer and the Vendor in writing:
12.11 The Purchaser acknowledges that it is liable for GST on the Lot if it is used in anyway considered by the ATO to be commercial in nature or unnecessary to prepare them for export. This includes (but is not limited to) racing for prizemoney, using for commercial breeding or reselling prior to export. Breaking in, training and barrier trials are acceptable and will not deny GST-Free status.
13.1 To the extent that section 102 of the ACL may be applicable, the Auctioneer advises that the ACL provides the following prescribed wording is to be included in these Conditions:
14 Online Credit Arrangements
14.1 Any Purchaser requiring credit from the Auctioneer or Vendor must enter into a satisfactory credit or terms agreement with the Auctioneer or Vendor in writing prior to the Auction. All such agreements entered into at any time prior to delivery of the Lot between the Auctioneer and the Purchaser shall be made by the Auctioneer as principal and not as Agent of the Vendor and such agreements shall not form part of any Auction and purchase whether made by Auction or private sale.
14.2 Purchasers are cautioned that approval of credit for prior Auctions does not establish credit for Purchasers at this Auction. To avoid misunderstandings clients must re-establish credit before bidding.
14.3 The Auctioneer shall not be obliged to acknowledge or accept any credit or terms agreement entered into between the Purchaser and the Vendor until the Auctioneer has received satisfactory written evidence of such credit or terms agreement signed by the Vendor. If the Vendor enters into any credit or terms agreement with the Purchaser, the Auctioneer will not be obliged to pay to the Vendor the Purchase Price, and, the Auctioneer will not be obliged to collect any part of the Purchase Price from the Purchaser but the Vendor will still be obliged to pay all monies due and owing to the Auctioneer to the Auctioneer with respect to the sale (immediately when such monies are due to be paid) irrespective of whether the Vendor has been paid by the Purchaser, and, the Auctioneer will be entitled to register a Security Interest over the Lot to secure the payments due and owing to the Auctioneer by the Vendor.
14.4 With regard to the insurance of any Lot purchased by any Purchaser (in the subject of any credit or terms agreement referred to in this Condition 14), such Purchaser will strictly comply with his obligations to insure the Lot as is set out in Conditions 6.1.6 and 8 of these Conditions.
14.5 if a Purchaser requires credit from the Auctioneer or a Vendor, the Purchaser consents to the party asked to provide credit seeking and receiving information from a credit reporting agency with respect to the Purchaser, seeking information from any party to enable the party providing credit to assess the creditworthiness of the Purchaser and allowing the party providing credit to disclose the information obtained as to the Purchaser's creditworthiness to trade insurers and credit reporting agencies. The Purchaser agrees to a credit reporting agencies and trade insurers providing to, and collecting from, the party asked to provide credit, information about the Purchaser’s creditworthiness.
15.1 Without prejudice to the Purchaser's payment obligations pursuant to Condition 6, the Purchaser shall pay to the Auctioneer on demand interest at the rate of 1.25% per month, on:
16.1 The Vendor and the Purchaser for the purpose of enabling the Auctioneer to give full force and effect to these Conditions, each irrevocably appoint the Auctioneer his true and lawful attorney, with full power in his name or in the name of the Auctioneer to do all such things, to take all such action, to sign and execute all such documents and to give such instructions for the purposes of these Conditions as may be necessary or in the Auctioneer's opinion desirable and hereby agrees to ratify and affirm anything done by the Auctioneer as such attorney.
16.2 Without limiting Condition 16.1, the Auctioneer may exercise the power of attorney so granted for the purpose of removing, waiving, or otherwise discharging any Security Interest purportedly granted by the Purchaser and in particular (to the extent the Purchaser is capable of doing so) removing the registration of such an interest.
17 No Representation as to Suitability for Training or Racing of a Lot
The Purchaser acknowledges that the Vendor/Auctioneer/Promoter do not warrant or represent the physical condition of any Lot (except in the case of the Vendor regarding the physical condition as set out in these Conditions), or, that any Lot is suitable for being trained as a race horse, or, capable of being trained as a race horse, or, suitable or capable of competing in races or any other activities involving thoroughbred race horses, or for any purpose whatsoever.
The Auctioneer/Promoter act as agents for the Partnership.
19 Conditions of Nomination and Repository Conditions
The Vendor acknowledges having read the Conditions of Nomination and the Repository Conditions and accepts them. The Purchaser acknowledges that the Vendor has instructed the Auctioneer/Promoter, in the absence of written instructions to the contrary, to restrict access to the X-Rays to qualified licensed veterinary surgeons, and, further acknowledge that it is the responsibility of the Purchaser to obtain written authority from the Vendor if the Purchaser requires a person other than a qualified licensed veterinary surgeon to examine the X-Rays.
The Vendor and the Purchaser acknowledge the existence of the Code. The Auctioneer recommends that the Vendor and the Purchaser acquaint themselves with the Code.
21 Use of Information for Publicity and Disclosure of Information
21.1 The Vendor and the Purchaser accept, acknowledge and agree that the Auctioneer and the Promoter may use the face or visage of any Vendor or any Purchaser to promote the interests of the Auctioneer and the Promoter (and their associated entities) for nil consideration.
21.2 The Vendor and Purchaser accept, acknowledge and agree that the Auctioneer and the Promoter collect information that is personal to the Vendor and the Purchaser which must be provided to the relevant authorities, such as RA and its members, and, in some cases, legal enforcement and government bodies and agencies and third parties that might have an interest, direct or otherwise, in the Lot. The Vendor and the Purchaser (without releasing the Auctioneer and the Promoter, and their associated entities, from their other obligations of confidence and privacy), irrevocably authorise the Auctioneer and the Promoter and their associated entities to release personal information relating to the Vendor and the Purchaser as anticipated by this Condition 21.2.
22 PPSA and PPSR
22.1 The Purchaser accepts, acknowledges and agrees that the Auctioneer has a right, pursuant to the PPSA, to register a Security Interest on the PPSR with regard to any monies due and owing by the Purchaser with respect to any Lot purchased by the Purchaser or any monies paid by the Auctioneer to the Vendor with respect to any Lot purchased by the Purchaser (or any other of these Conditions with respect to which monies are due and owing by the Purchaser to the Auctioneer), or, any credit or financing arrangement for value granted by the Auctioneer to the Purchaser with respect to any Lot and, which may be outstanding from time to time.
22.2 The Vendor and the Purchaser irrevocably authorise the Auctioneer to register its Security Interest in each Lot to secure payments made by the Auctioneer to any Vendor and / or to secure payment of the Purchase Price by the Purchaser pursuant to these Conditions on the PPSR pursuant to the provisions of the PPSA.
22.3 Registration by the Auctioneer of its Security Interest on the PPSR will be at the cost of the Auctioneer.
22.4 The Auctioneer will deregister, at its cost, and in its absolute discretion, its Security Interest in any Lot from the PPSR as soon as practically possible following the payment of all monies due and owing by the Purchaser with respect to any Lot or any other Lot sold or purchased through the Auctioneer and with respect to which monies are due and owing to the Auctioneer from time to time.
22.5 The Purchaser undertakes not to obtain and / or apply for finance or register any security or other interest in a Lot purchased by the Purchaser on the PPSR prior to the payment in full of the Purchase Price and all other charges arising from the purchase of a Lot.
22.6 The Purchaser accepts, acknowledges and agrees that it will not compete or contest with the Auctioneer (in its own right or as agent for the Vendor, or, in any other capacity) with respect to any Security Interest available for registration to the Auctioneer or registered by the Auctioneer with respect to any Lot or any interest claimed by the Auctioneer.
22.7 To secure the interests of the Auctioneer, the Vendor and the Purchaser grant to the Auctioneer, a Security Interest in the Lot and any proceeds of sale of the Lot including, but not limited to, any foals of the Lot or any proceeds of payment of the full amount of the Purchase Price, the other assets of the Vendor and the Purchaser and all other commissions, fees, charges payable by the Vendor or the Purchaser with respect to the purchase of the Lot or any other lot with respect to which monies are owed by the Vendor or the Purchaser to the Auctioneer as referred to in these Conditions.
22.8 The Purchaser irrevocably appoints the chief executive officer and the chief financial officer, for the time being, of the Auctioneer to execute all documents and do all things necessary to enable the Auctioneer to secure its interest as hereinbefore and hereinafter referred to and to ensure that the Purchaser obtains and maintains perfected its Security Interest under the PPSA and, as registered on the PPSR, which will have priority over all other Security Interests or encumbrances over or affecting the Lot.
22.9 The Purchaser will not except and until the Purchaser has paid all monies due and owing with respect to each Lot (and as required pursuant to these Conditions) attempt to register or assist any third party to attempt to register, or register, any interest on the PPSR that could compete or conflict with the Security Interest of the Auctioneer without the prior written consent of the Auctioneer, such consent to be given or refused by the Auctioneer in its absolute discretion.
22.10 The Purchaser agrees that, if, the Purchaser breaches, or attempts to breach, or is a party to any breach or attempted breach of this Condition 22, the Auctioneer may terminate any credit or finance arrangement with the Purchaser or any related body corporate or associated entity with respect to any Lot purchased by the Purchaser (or any other Lot with respect to which a credit or finance agreement exists between the Auctioneer and the Purchaser) by giving the Purchaser seven (7) Days to remedy such breach, failing which the Auctioneer may cancel such credit or finance arrangement and all monies due and owing by the Purchaser or any related body corporate or associated entity will immediately become payable within fourteen (14) Days of the giving of such notice.
22.11 The Vendor and the Purchaser accept, acknowledge and agree that in the event that the Auctioneer is of the opinion that the Purchaser is in breach of this Condition 22, the Auctioneer may determine, in its absolute discretion, that a dispute exists between the Vendor and the Purchaser and the Auctioneer may refuse to release any monies due or payable to the Vendor or pay to the Vendor any monies due and owing that the Auctioneer may have otherwise agreed to pay pursuant to these Conditions.
22.12 To the extent permitted by the PPSA, the Purchaser agrees that Sections 142 and 143 of the PPSA will not apply to these Conditions and agrees to waive all rights to any of the following provided for in the PPSA, including, but not limited to, the following:
23 Insolvency of Purchaser
If the Purchaser, being a corporation, is placed in administration, receivership or liquidation, or the Purchaser, being an individual, is declared bankrupt or has entered into a scheme with his creditors, the Vendor and the Auctioneer may, in their absolute discretion, where any part of the Purchase Price remains outstanding, declare the sale of the Lot to the Purchaser invalid and of no force or effect by notice in writing to the Purchaser, whereupon the Purchaser irrevocably appoints the Vendor and the chief executive officer of the Auctioneer (or his nominee from time to time) its or his attorney to enter upon all places and premises to repossess the Lot and exercise its rights as contained in Condition 126.96.36.199 and thereafter resell the Lot in accordance with Condition 188.8.131.52 and thereafter otherwise exercise the rights and remedies granted to the Vendor and the Auctioneer pursuant to these Conditions.
24 Vendor / Purchaser Related Entities
Where the Vendor (in the reasonable opinion of the Auctioneer) is in any way or in any capacity (by virtue of directorship, shareholding, trustee, beneficiary or otherwise) involved with or related to a Purchaser of a Lot listed for sale by the Vendor and the Vendor owes the Auctioneer any monies with respect to that Lot or any other lot, the Auctioneer may, in its absolute discretion, retain all or part of the Purchase Price paid by the Purchaser and apply the same to the debt owed by the Vendor to the Auctioneer. In such a case the Auctioneer may, in its absolute discretion, refuse to pay out the Vendor for the Purchase Price for the Lot prior to receiving payment in full for the Lot from the Purchaser.
25 Anabolic Androgenic Steroids
In accordance with the ARR, the use of anabolic androgenic steroids in thoroughbred horses is banned effective from 1 May 2014. The ARR can be viewed at the RA Site http://racingaustralia.horse and are subject to change by RA without notice. Each Bidder, Purchaser and Vendor acknowledge the obligations of the Vendor as to disclosure set out in Condition 7.4.
In the case of any dispute, the remedy of the Purchaser shall be against the Vendor and the remedy of the Vendor shall be against the Purchaser and in no case or under any circumstances shall it be against the Auctioneer or the Promoter. Any disputes which arise between the Vendor and the Purchaser in relation to any Lot shall be resolved between them only and no Lot shall be delivered to the Auctioneer or Promoter, directly, or, indirectly.
All paragraphs, sub-paragraphs and clauses of these Conditions shall be read and construed independently of each other. Should any part of these Conditions or its paragraphs, sub-paragraphs or clauses be found invalid it shall not affect the remaining paragraphs, sub-paragraphs and clauses.
Failure by the Auctioneer to enforce any accrued rights under these Conditions is not to be taken as or deemed to be a waiver of those rights unless the Auctioneer acknowledges the waiver in writing.
29 Entire Conditions
These Conditions set out the entire agreement and understanding between each Bidder, User, Vendor, Purchaser, the Auctioneer and the Promoter, and, between each of them, subject to any specific terms and conditions applicable to any Lot that are displayed on the Site or in respect of which a Bidder, User, Vendor or Purchaser otherwise have notice.
30 Force Majeure
Without prejudice to Condition 4.5.2, the Auctioneer has no liability for any lack of performance, unavailability or failure of the Services or the Site, or for any failure of the Auctioneer to comply with these Conditions where the same arises from any cause reasonably beyond the Auctioneer’s control.
31 Governing Law
No Bidder, User, Vendor, Purchaser, the Auctioneer or the Promoter may institute court proceedings (including without limitation proceedings for interlocutory relief) in relation to any dispute arising out of or relating to this agreement in any court other than a court in the Jurisdiction. The Vendor and the Purchaser equivocally submit to the jurisdiction of the courts of the Jurisdiction.
32 Definitions / Interpretation
32.1 In these Conditions:
“ACL” means the Australian Consumer Law;
“Affiliates” means subsidiaries of and associates of the Auctioneer and the Promoter;
“ARR” means the Australian Rules of Racing as adopted, administered and amended by RA from time to time;
“ASB” means the Australian Stud Book which is the official record and publication of thoroughbred bloodlines for horses in Australia;
“ATO” means the Australian Taxation Office;
“Auction” means a sale where Lots are listed for sale to the highest Bidder for the period commencing at the Auction Open and ending with the Auction Close and has the same meaning as is attributed to the word “Sale” in these Conditions;
“Auction Close” means the time and date at which the Auction shall close for bidding as displayed on the Site;
“Auction Open” means the time and date upon which the Auction will open for bidding as displayed on the Site;
“Auctioneer” means Magic Millions Sales Pty Limited (ABN 54 078 396 317) and having PAMD auctioneer’s and agent’s licence number 2005419 and includes its officers and agents;
“Bidder” means all bidders wishing to bid for a Lot at the Auction;
“Bidder ID” means a specific individualised identification for each Bidder as allocated by the Auctioneer / Promoter;
“Code” means the Australian Thoroughbred Sales Code of Conduct as amended from time to time;
“Conditions” means the conditions of use of the Site and the Sale Conditions set out herein and which contain those terms and conditions of use of the Site by a Bidder and those conditions binding the Vendor and the Purchaser with respect to any Lot sold or bought at an Auction;
“Conditions of Nomination” means the conditions of nomination of a Lot attached to the VONF;
“Day” means any day of the week including Saturday, Sunday or a public holiday in the Jurisdiction;
“Disclosure Notice” means a written notice to be given by the Vendor to the Auctioneer disclosing knowledge by the Vendor that the Lot has any of the following conditions: Impaired Vision, Roarer, Windsucker, Wobbler, EI or has had any of the Treatments. If the Vendor does not provide to the Auctioneer a Disclosure Notice, the Vendor will be deemed to confirm that the Lot, to the best of the knowledge of the Vendor, does not suffer from any such condition as at the date of executing the VONF and up to and including the Auction Close;
“DPIF” means the national Department of Primary Industries and Fisheries;
“EI” means equine influenza and any mutations, strains or variations thereof from time to time;
“Extra Time Rule” means that for each Auction, if a bid is placed on a Lot within the final three (3) minutes prior to Auction Close, the Auction Close will be changed to three (3) minutes remaining from the time that bid is placed. The Auction Close will not occur until such time that no bid is placed within the final three (3) minute period. For instance, when and if the Auction is scheduled to end at 8.00 p.m. on a given day and a Bidder places a bid at 7.59 p.m., the Auctioneer will grant all other Bidders three (3) minutes from that time to place a final bid. The Auction Close will therefore be postponed to 8.02 p.m., if no other bids are placed;
“GST” has the meaning given to it in the GST Act;
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time;
“Impaired Vision” means a Lot which has impaired sight in one or both eyes, and which, is sold exclusively as a thoroughbred racehorse or a thoroughbred racehorse prospect but does not include, specifically, any other type of Lot including, but not limited to, a broodmare;
“Invasive Surgery” means invasive joint surgery, surgery to repair a fracture, surgical intervention of the upper respiratory tract, or any other surgical procedure that may affect the suitability for racing, or, racing future of, the Lot, and, in the case of broodmares or broodmare breeding prospects includes surgery to any reproduction organ or other organ, which could adversely affect the reproductive capabilities of the Lot;
“Jurisdiction” means the State of Queensland;
“Lot” means any horse (includes gelding, colt, filly and mare and the expression “colt” includes rig or crypt orchid namely male animals in which one or both testes have not descended into the scrotum from the abdomen), share in a horse or horse syndicate, nomination for a stallion service, and in case of a mare with foal at foot, or, a mare in foal, both the mare and the foal or other Lot listed on the Site for sale;
“Magic Millions Export Declaration Form” means the export declaration form prescribed by and available upon request from the Auctioneer and as required by the GST Act;
“Net Sale Proceeds” means the Purchase Price less any monies which the Auctioneer and the Promoter are entitled to deduct therefrom pursuant to these Conditions including, but not limited to, the TBA Levy;
“Non-Resident” has the meaning attributed to it in the GST Act;
“PAMD” means the Property Agents and Motor Dealers Act 2000 and as amended from time to time;
“Partnership” means Magic Millions Sales Partnership (ABN 99 519 379 694);
“Possession Notice” means the notice to be given by the Auctioneer to the Vendor and the Purchaser to advise that the Lot can be delivered by the Vendor to the Purchaser after payment by the Purchaser of the Purchase Price or otherwise as allowed for in these Conditions;
“PPSA” means the Personal Property Securities Act 2009 which took effect on 30 January 2012 and any amendments thereto from time to time;
“PPSR” means the personal property securities register established pursuant to the PPSA;
“PRA” means the Principal Racing Authority in each state and territory in Australia which control, regulate and supervise racing in each state and territory in Australia with approval of but subject to RA;
“Promoter” means Magic Millions Promotions Pty Limited (ABN 41 088 197 200) or any other party, identified on the Site or other documentation issued in respect of the Sale as the promoter or sponsor of the Sale;
“Purchase Price” means the amount to be paid and payable by the Purchaser for each Lot;
“Purchaser” means the Bidder for a Lot who makes the highest bid accepted by the Auctioneer that exceeds the reserve price (if any) at the Auction Close;
“RA” means Racing Australia which is the peak national administration body for thoroughbred racing in Australia, responsible for the governance of the ARR and the RASB in an effort to ensure worldwide best practice standards of integrity and animal welfare. Each PRA is a member of RA;
“RASB” means the rules of the ASB as administered by the ASB from time to time;
“Registration Form” means the online registration form displayed on the Site (click here);
“Repository” means the repository to be established by the Auctioneer / Promoter at least four (4) Days prior to the commencement of the Sale, the conditions of entry into which and use of the services of which are set out in the Repository Conditions displayed at the Repository, the terms of which the Purchaser acknowledges having read and understood prior to the purchase of a Lot;
“Repository Conditions” means the conditions of entry into the Repository for the purpose of inspecting the X-Rays and other terms and conditions relating to the terms and conditions of access and inspection as displayed at the Repository;
“Roarer” means a condition known as laryngeal hemiplegia, a condition caused by damage or degeneration of the laryngeal nerve and the Lot is known as a “Roarer” because of the sound they make and includes “Roarers”;
“Sale” means the sale for which a Lot is nominated, accepted and listed for sale by the Auctioneer;
“Security Interest” has the meaning attributed to it in the PPSA;
“Services” means the services provided by the Auctioneer on the Site;
“Site” means “www.magicmillions.online” and such other locations where it may be hosted or featured where the entire Site or elements of the Site are hosted or featured by the Auctioneer’s Affiliates or business associates;
“Symptoms” means any symptoms associated with Roarers, Windsuckers, Wobblers, Impaired Vision, Invasive Surgery, botulism, EI, equine morbillivirus (Hendra virus), nipah virus or any other virus, or any significant condition or symptoms indicating the need for or requiring Treatments;
“TBA” means the Thoroughbred Breeders Australia Limited (ABN 34 003 432 228);
“TBA Levy” means the marketing levy payable to the TBA being the amount calculated as being, as at the date of these Conditions being displayed on the Site, 0.385% (inclusive of GST) of the Purchase Price of any Lot sold or bought back by the Vendor with such marketing levy to be forwarded by the Auctioneer to the TBA;
“Treatments” means treatments for any Symptoms or treatments for abdominal surgery of any type (with the exception of the surgical repair of a non-strangulating umbilical hernia), Invasive Surgery, EI that may affect the suitability or racing future of the Lot, or treatments involving the use of anabolic androgenic steroids or bisphosphonates or treatments otherwise identified and prohibited by the ARR from time to time, and, has and will comply with all directions, protocols and regulations made or declared by DPIF, the ASB and all other competent authorities having lawful jurisdiction with respect to the diagnosis and treatment of EI;
“User” means any person who browses or otherwise uses the Site;
“Vendor” means the person or corporation on whose behalf any Lot is sold by the Auctioneer and where more than one shall mean each severally and any two or more jointly;
“VONF” means the vendor official nomination form displayed on the Site (click here) as amended from time to time as displayed on the Site, the original of which must be executed by or on behalf of the Vendor prior to an Auction;
“Windsucker” means a Lot which suffers from the vice of noisily drawing in and swallowing air through its mouth;
“Wobbler” means a Lot which stands or moves unsteadily or with uncertain direction;
“X-Rays” means the set of X-Rays deposited at the Repository, physical or digital format, (along with any reports, certificates, notes, writings or information deposited therewith, including historical records of operations or treatment provided to each Lot) made available by the Vendor with respect to a Lot for inspection by the Purchaser’s qualified licensed veterinary surgeon, such X-Rays being in the minimum number and taken strictly in accordance with the specifications detailed in the Repository Conditions and otherwise subject to the Repository Conditions displayed at the Repository, the terms of which the Purchaser acknowledges as having read and understood prior to the purchase of a Lot.
32.3 Where the Purchaser of any Lot comprises more than one person or corporation these Conditions shall bind each such person or corporation severally and any two or more of such persons or corporations jointly.
32.4 A Bidder is taken to be a principal unless, before bidding, the Bidder has given to the Auctioneer a copy of a written authority from a third party principal to bid for or on behalf of that third party principal.
32.5 A reference to a gender in these Conditions will be deemed to be a reference to all genders.
This document was last revised on 24 April 2020.