The Auction shall be conducted on the following terms and conditions by way of clearing sale:
1 Landmark Operations Limited ABN 73 008 743 217 (Landmark)shall have a sole and exclusive selling agency for the Goods described in Item 6 of the Schedule and offered for sale and for all or any Goods unsold at the Auction for a period of one calendar month from the Auction Date.
2 Landmark shall receive on the Vendor’s behalf the purchase moneys for the Goods (Proceeds of Sale) and shall, subject to clause 5 pay and apply any or all of the Proceeds of Sale received on behalf of the Vendor firstly in payment of any sums owing to Landmark in accordance with clause 3 below and the balance to the Vendor subject to clause 4 below.
3 The Vendor authorises Landmark to deduct from the Proceeds of Sale:
(a) its commission on the amount realised on the Goods sold at the rate specified in Item 1 of the Schedule together with a fee as specified in Item 3 of the Schedule for those Goods remaining unsold.
(b) all sums disbursed by Landmark on account of advertising, printing of catalogues, and all other expenses reasonably incurred by Landmark in connection with the auction to the maximum sum specified in Item 2 of the Schedule.
4 (a) The Vendor warrants that the Goods offered for sale are not subject to any mortgage, charge, lien or other legal impediment and are the sole property of the Vendor save and except those Goods expressly disclosed in Item 4 of the Schedule. The Vendor warrants that in respect to those items subject to any prior charge the Vendor has obtained from each Chargee referred to in the Schedule consent to offer for sale and dispose of each of the items therein disclosed. The Vendor indemnifies Landmark against all claims which may be made against Landmark arising out of or in connection with the sale of any Goods pursuant to this Authority including any claims for which Landmark may become liable in an action for conversion.
(b) In respect to those items disclosed in Item 4 of the Schedule hereto as being subject to a prior charge, in the event of any of those items being sold by Landmark then the Vendor hereby authorises Landmark to pay and apply the purchase moneys for such items firstly in payment of the amount owing to the Chargee (as to the quantum of which the advice in writing by or on behalf of the Chargee shall be conclusive evidence) and the balance (if any) as provided in clause 2.
5 The Goods remaining unsold after the Auction remain at the risk of the Vendor and Landmark its servants and agents shall not be responsible or accountable for any loss or damage unless the same is due to the negligence of Landmark, its servants or agents.
6 Prior to the Auction the Vendor may notify Landmark in writing of such reserve price as the Vendor may wish to place on any of the Goods to be offered. In the absence of any reserve price being fixed by the Vendor, Landmark shall be entitled to sell to the highest bidder.
7 The Vendor acknowledges and agrees that the Auction will be conducted in accordance with the Australian Livestock & Property Agents Association Ltd (ALPA) terms and conditions for Clearing Sales and that the Vendor has read and agrees to be bound by the ALPA terms and conditions.
8 Where the Vendor agrees to offer particular Goods on terms other than cash, the Vendor will advise Landmark of the details of these terms and hereby authorises Landmark to offer the particular Goods to Purchasers subject to these terms. Where a sale of Goods is affected in this manner, then the Vendor acknowledges and agrees that Landmark is not acting as del credere agent in respect to this particular item and further acknowledges that receipt of the price for the Goods is at the sole risk of the Vendor.
9 The Vendor/s acknowledges that he / she is aware of the provisions of the Occupational Health and Safety Regulations applicable in the State where the Auction is held and the obligations those regulations impose on the Vendor to provide to Landmark certain information and further the Vendor/s WARRANTS that he / she shall provide Landmark at least five (5) days prior to the Auction Date in respect to the items of plant to be sold at the clearing sale other than items of plant which rely exclusively on manual power or are designed to be primarily supported by hand, all information in relation to:
9.1 The purpose for which the plant is designed;
9.2 All hazard and risk identification and assessments associated with the use of the plant;
9.3 Any testing or inspections carried out on the plant;
9.4 Installation, commissioning, decommissioning, use, transport, storage and, if the plant is capable of becoming dismantled, dismantling of the plant;
9.5 The systems of work and competency of operators necessary for the safe use of the plant;
9.6 The emergency procedures (if any) required if there is a malfunction of the plant;
9.7 All Operator Manuals relevant to the plant; and
9.8 Any record or document kept by the previous owner of the plant required under the Occupational Health and Safety Regulations 2007 (Vic) that is in the Vendor’s possession
10 The Vendor hereby agrees to indemnify Landmark against any claim for damages, suits, court proceedings or other proceedings whatsoever arising from any award of damages which may be made against Landmark arising out of the use of the plant sold by Landmark for or on behalf of the Vendor.
11 The Vendor WARRANTS to Landmark that the Vendor is not a supplier who hires or leases plant as defined in the Work Health and Safety Regulations.
12 The Vendor acknowledges that any breach of clauses 9 and 11 hereof is a breach of an express warranty for which the Vendor will be liable to Landmark in damages.
13 The Vendor acknowledges that Landmark is retained solely as an Auctioneer for the purpose of selling the Goods comprised in the lots for the highest Price. The terms of engagement between Landmark and the Vendor do not extend to the provision of advice by Landmark to the Vendor in relation to the safety or otherwise of machinery, equipment, the sale ring and the surrounding environs.
14 The price payable for any of the Goods sold pursuant to this Clearing Sale shall be adjusted so as to pass on to the Purchaser the impost on the Vendor of any Goods & Services Tax (“GST”) in respect of the supply made. Any commission payable shall be calculated on the unadjusted Price and shall be adjusted so as to pass on to the Vendor the impost on Landmark, if any, of any GST.