TERMS AND CONDITIONS

1. Introduction

1.1. This page tells you the terms and conditions on which:

  1. you may access or use our Sites whether as a visitor or a registered user. Please read these terms and conditions carefully before you start to use our Sites; and
  2. you may participate in any Auction on our Sites. Please read these terms and conditions carefully before entering into any Auction.
1.2. Any information provided on our Sites on how to enter the Auction and about the Property ("Extraneous Information") will also form part of these terms and conditions.

1.3. In the case of conflict between these terms and conditions and any Extraneous Information, these terms and conditions shall prevail.

1.4. You acknowledge and agree that by:
  1. using our Sites; or
  2. making a Bid in any of our Auctions,
you agree to be bound by these terms and conditions.

1.5. These terms and conditions apply to all users of, and visitors to, our Sites.

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2. Definitions

In these terms and conditions:

Auction means the lowest unique bid auction model as conducted by us in our Sites, where no Bidder knows the identity of other Bidders or the amount of other Bid prices during the Auction and where at Auction Close the Bidder who has submitted the Lowest Unique Bid (subject to clause 8) has the opportunity to purchase the Property offered for that Bid price;

Auction Close means the time when Bids will no longer be accepted for an Auction, which will occur automatically when 1,000,000 Bids have been made for the Property during that Auction;

Bid means the offer by a Bidder, communicated online, to purchase the specified Property at a stipulated Bid price;

Bidder means a user who participates in an Auction by submitting a Bid for the Property;

Bid Status means the email or web message sent to each Bidder to inform them whether their Bid is "currently lowest and unique", "unique but not the lowest" or "not unique and not the lowest";

Current Lowest Unique Bid Price Band means the range of Bid prices where the current Lowest Unique Bid is located, as displayed from time to time in the "Updates" page of the Sites;

Extraneous Information is defined in clause 1.2;

Lowest Unique Bid means the lowest Bid for a Property that is greater than zero and unmatched by other Bids;

Government Agency means any government or any governmental, semi governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity;

Option is defined in clause 7.2;

Property means the property specified in the Sites as being offered for sale in each Auction;

Sites means our website - www.krystalauctions.com and any associated websites owned by us;

Status Service Charge means the stipulated charge for the provision of the Bid Status to a Bidder, payable when a Bid is submitted;

Successful Bid means the Lowest Unique Bid at Auction Close, or if there is no Lowest Unique Bid at Auction Close, the Bid as determined in clause 8;

Successful Bidder means the Bidder who submitted the Successful Bid at Auction Close;

Unique Bid means a Bid for the Property that is unmatched by other Bids;

Us/we means the owner of the Sites, being ITZ Holdings P/L; and

User/you means any person accessing our Sites, entering the Auctions, placing a Bid or using any of the services provided.

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3. Interpretation

In these terms and conditions, unless the context requires otherwise:

  1. headings and bold type are for convenience only and do not affect the interpretation of these terms and conditions;
  2. words indicating the singular include the plural and vice versa;
  3. words indicating a gender include any gender;
  4. an expression indicating a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Government Agency;
  5. references to clauses, parties, annexures, exhibits and schedules are references to clauses of, and parties, annexures, exhibits and schedules to, these terms and conditions;
  6. a reference to a party to any document includes that party's successors and permitted assigns; and
  7. the use of the words "includes" or "including" when introducing an item or list of items does not limit the meaning of the words which follow to that item or those items or to items of a similar kind.
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4. Bidders

4.1. You warrant that:
  1. you are legally capable of entering into binding contracts;
  2. you are at least 18 years old;
  3. you are neither an officer or employee of ITZ Holdings P/L nor the spouse, partner, or child of such officer or employee;
  4. you will not use our Sites for any purpose that is unlawful under the laws of any country binding on you, or prohibited by these terms and conditions;
  5. all information submitted by you when registering on the Sites is true, accurate and complete;
  6. you will not impersonate another person or use a false name, email address or phone number;
  7. you will keep safe and secure and confidential all passwords and credit and debit card data used on the Sites and will fully and effectively indemnify us against all loss or damage caused by any misuse of such passwords or data.
  8. you will print out and retain, and make available to us at all times, copies of all notices making or confirming any order transacted on our Sites.
4.2. You must provide to us proof of your eligibility to Bid on request.

4.3. We have the right to, in our reasonable discretion, disqualify any user or Bidder:
  1. whose conduct is contrary to the intention or spirit of these terms and conditions; or
  2. whose conduct is abusive or aggressive,
upon which we may declare as void any Bids or claims made by that user or Bidder.

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5. Bidding

5.1 Bids will be accepted only in United State Dollars (unless otherwise specified by us).

5.2 Bidders may submit more than one Bid for each Auction.

5.3 Bidders may only submit Bids for amounts between US$0.01 to US$10,000.00.

5.4 All Bids received after Auction Close shall be deemed invalid.

5.5 Bid price submitted by Bidders will not be made public during any Auction. On Auction Close, only the Successful Bid price of the Successful Bidder will be made public.

5.6 Bidders must pay the Status Service Charge of US$3.50 (or any other amount specified by us) when submitting a Bid, as consideration for the Bid Status message to be received for that Bid. Each Bidder is not entitled to any refunds once the Bid Status message for its Bids has been provided to it (whether by email or posted on the Sites).

5.7 Bidders may only submit Bids online, and only after they have become a registered user of the Sites.

5.8 We have the right in our reasonable discretion to declare as void any claims or Bids:
  1. resulting from printing, production and/or distribution errors, including any errors in our Sites, our emails, any newspapers, radio/TV advertising, and/or printed materials; or
  2. where there have been any errors in respect of the preparation or conduct of the Auction which materially affected the result of the Auction, the number of Bidders or the value of Bids;
5.9 Any information provided by us in our "Updates" page (including information on the Current Lowest Unique Bid Price Band) is for your information only and we do not warrant the accuracy or completeness of such information. Further, such information should not in any way be regarded as a recommendation or endorsement from us as to how you should place a Bid.

5.10 Bids are only valid if received by us. If for any reason, a Bid is not received by us because of network or communication failures (or for any other reason whatsoever), then that Bid shall be deemed to be invalid.

5.11 If a Bid is not made in the manner described in this clause 5, or the Status Service Charge described in clause 5.6 has not been paid, then that Bid shall be deemed to be invalid.

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6. Property

6.1 Any market valuations and rental valuations provided by us in respect of a Property are indicative only and not legally binding.

6.2 Legal fees, stamp duties and property purchase costs are to be borne by the Successful Bidder (if the Successful Bidder exercises its Option), unless otherwise specified on the Sites.

6.3 Following the transfer of the Property to the Successful Bidder, the Successful Bidder will be responsible for payments for service/maintenance charges, strata management rates, council rates, Water Corporation charges and all other costs in relation to the Property.

6.4 Each Property will be sold to the Successful Bidder in an unfurnished state.

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7. Auction Close

7.1. For each Auction, Auction Close will take place automatically after 1,000,000 Bids have been received by us.

7.2 The Successful Bidder will have the option to purchase the Property upon Auction Close ("Option"), for a sum equal to the Bid price of the Successful Bid, subject to standard Offer and Acceptance Contract that will be provided to the Successful Bidder after Auction Close.

7.3 We recommend that the Successful Bidder obtains independent legal advice when proceeding with the purchase of the Property.

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8. The Successful Bidder

8.1. The Bidder with the Successful Bid at Auction Close will be the Successful Bidder.

8.2. If there is a Lowest Unique Bid at Auction Close, then that Bid is the Successful Bid. The Bidder who placed that Successful Bid is the Successful Bidder.

8.3 If at Auction Close there is no Lowest Unique Bid, then the lowest Bid price greater than zero with only two Bids will be short-listed. Amongst those two Bids, we shall select the Bid that was first received by us as the Successful Bid. The Bidder who placed that Successful Bid is the Successful Bidder.

8.3 If at Auction Close there is no Lowest Unique Bid and no Bid price with two Bids, then the lowest Bid price greater than zero with only three Bids will be short-listed. Amongst those three Bids, we shall select the Bid that was first received by us as the Successful Bid. The Bidder who placed that Successful Bid is the Successful Bidder.

8.4 The process described in clauses 8.2 to 8.4 will continue until a Successful Bid is identified.

8.5 We shall contact the Successful Bidder using the contact phone number supplied on their online registration details. If we are unable to contact the Successful Bidder in that manner within 30 days of Auction Close, we may in our sole discretion disqualify that Successful Bidder, and nominate a substitute Successful Bidder.

8.6 Upon receiving notification from us that you are the Successful Bidder, you shall have 30 days to notify us as to whether you wish to exercise your Option to purchase the Property.

8.7 If:
  1. you notify us that you do no wish to exercise your Option;
  2. you fail to exercise your Option within 30 days after notification from us that you are the Successful Bidder; or
  3. after exercising your Option, you notify us in writing that you do not wish to proceed with the purchase of the Property,
we shall disqualify your Bid and you shall no longer be the Successful Bidder. We shall then identify and nominate a substitute Successful Bidder.

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9. Accessing our Sites

9.1 Access to our Sites is permitted on a temporary basis, and we reserve the right to withdraw or amend the service we provide on our Sites without notice.

9.2 From time to time, we may restrict access to some parts of our Sites, or the entirety of our Sites, to users who have registered with us.

9.3 If you choose, or you are provided with, a user name, password or any other information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any third party. We have the right to disable any user name or password, whether chosen by you or allocated by us, at any time, if in our opinion you have failed to comply with any of the provisions of these terms and conditions.

9.4 You are responsible for making all arrangements necessary for you to have access to our Sites. You are also responsible for ensuring that all persons who access our Sites through your internet connection are aware of these terms and conditions, and that they comply with them.

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10. Prohibited uses

10.1 You may use our Sites only for lawful purposes. You may not use our Sites:
  1. in any way that breaches any applicable local, national or international law or regulation;
  2. in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
  3. for the purpose of harming or attempting to harm minors in any way;
  4. to send, knowingly receive, upload, download, use or re-use any material which does not comply with our terms and conditions;
  5. to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); and
  6. to knowingly transmit any data, send or upload any material that contains viruses, trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
10.2 You may not:
  1. reproduce, duplicate, copy or re-sell our Sites or any part of our Sites;
  2. access without authority, interfere with, damage or disrupt:

    1. any part of our Sites;
    2. any equipment or network on which our Sites are stored;
    3. any software used in the provision of our Sites; or
    4. any equipment or network or software owned or used by any third party.
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11. Limitation of liability

11.1 The Sites and any materials on the Sites are provided "as is", "as available". We do not warrant the accuracy, adequacy or completeness of the Sites and/or the materials contained in the Sites and expressly disclaims liability for errors or omissions in such materials. No warranty of any kind, implied, express or statutory, including warranties of non-infringement of third party rights, title, merchantability, satisfactory quality and/or fitness for a particular purpose, is given in conjunction with the Sites or any material on the Sites.

11.2 We do not warrant that any of the Sites or any material on the Sites (including Bid Status messages) will be provided uninterrupted or free from errors or that any identified defect will be corrected; further, no warranty is given that the Sites and the materials on the Sites (including Bid Status messages) are free from any virus or other malicious, destructive or corrupting code, programme or macro.

11.1 We shall in no event be liable for any damages, loss or expense (including, without limitation, direct, indirect, special or consequential damage, or economic loss) arising from or in connection with:
  1. any access, use or the inability to access or use our Sites, or reliance on the materials and/or any information in our Sites (including Bid Status messages);
  2. any transmission failure of a Bid Status message to you;
  3. any system, server or connection failure, error, omission, interruption, delay in transmission, or computer virus; or
  4. any use of or access to any other website linked to our Sites, even if we are advised of the possibility of such damages, losses and/or expenses. Any hyperlinks to any other websites are not an endorsement or verification of such websites and such websites should only be accessed at your own risks.
This exclusion clause shall take effect to the fullest extent permitted by law.

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12 Force Majeure

12.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these terms and conditions or as expressed in our Sites that is caused by events outside our reasonable control ("Force Majeure Event"). Force Majeure Events include:
  1. lightning, fire, earthquake, tsunami, unusual flood, storm, cyclone, typhoon, tornado or other natural calamity or act of God;
  2. epidemic or plague;
  3. breakdown in public or private telecommunication networks;
  4. accidents or explosions;
  5. acts of war (whether declared or not), invasion or act of foreign enemy;
  6. acts of rebellion, riot, civil commotion, strikes of a political nature, act or campaign of terrorism, or sabotage of a political nature; and
  7. any act, decree, legislation, regulation or restriction of any Government Agency that prevent us from performing any of our obligations under these terms and conditions or as expressed in our Sites.
12.2 If a Force Majeure Event continues for 360 days, we may close down the Sites and withdraw the Auction with no liability whatsoever to you.

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13. Suspension & Termination

13.1 We will determine, in our discretion, whether there has been a breach of these terms and conditions by you.

13.2. If:
  1. we determine that you have breached any term in these terms and conditions; and/or
  2. you have acted fraudulently, dishonestly or illegally in participating in the Auction or in placing any Bids,
we may take such action as we deem appropriate, which includes any or all of the following actions:
  1. immediate, temporary or permanent withdrawal of your right to use our Sites (including your right to make any Bids);
  2. commence legal proceedings against you for reimbursement of all costs on an indemnity basis (including reasonable administrative and legal costs) resulting from your breach;
  3. disclose information about you to law enforcement authorities;
  4. disqualify any Bids you have placed; and
  5. bar you from participating in any of our Auctions.
13.3 We shall not be responsible for, or have any liability to, you for any of the actions we take under clause 13.2.

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14. Intellectual Property Rights

14.1 The copyright in the Sites is owned by us or our licensors. No part or parts hereof may be reproduced, distributed, adapted, modified, republished, displayed, broadcast, hyperlinked, framed or transmitted in any manner or by any means or stored in an information retrieval system without our prior written consent.

14.2 The trade marks, service marks and logo ("Trade Marks") used and displayed on the Sites are our or our licensors' registered and unregistered Trade Marks. Nothing on the Sites should be construed as granting, by implication, estoppels, or otherwise, any license or right to use any of the Trade Marks displayed on the Sites, without our prior written consent.

14.3 All other intellectual property rights in the Sites are owned by us or our licensors, and together with the copyright in the Sites and Trade Marks, shall at all times remain our property (or the property of our licensors).

14.4 We will aggressively enforce our intellectual property rights to the fullest extent of the law. Our name, our product names or the Trade Marks may not be used in any way, including in advertising or publicity without our prior written consent.

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15. Privacy Policy

General

15.1 We are committed to protecting and respecting your privacy.

15.2 By participating in the Auction, Bidders acknowledge and agree that their information may be used for publicity purposes without further notice, consent or payment. Such publicity may include use of the Bidder's name and/or likeness, voice, photographs and/or video footage of the Bidder, biographical information provided by the Bidder and/or any statement made by them concerning the Auction and/or the Property. Bidders agree that any or all such information may be used by us in any and all media in perpetuity throughout the world as we in our sole discretion sees fit.

Collection of information

15.3 We may collect and process:
  1. any information that you provide to us on our Sites. This includes information provided at the time of registering to use our Sites. We may also ask you for information when you contact us to ask questions or to report a problem; and
  2. details of any Bids made through our Sites and of the status and outcome of any Bids.
15.4 We may obtain information about your general internet usage by using a cookie file which is stored on the hard drive of your computer. Cookies contain information that is transferred to your computer's hard drive. They help us to improve our Sites and to deliver a better and more personalised service. Cookies enable us to:
  1. to estimate our audience size and usage pattern;
  2. to store information about your preferences, and so allow us to customise our Sites according to your individual interests;
  3. to speed up your searches; and
  4. to recognise you when you return to our Sites.
15.5 You may refuse to accept cookies by activating the setting on your browser which allows you to refuse the setting of cookies. However, if you select this setting you may be unable to access certain parts of our Sites. Unless you have adjusted your browser setting so that it will refuse cookies, our system may issue cookies when you log on to our Sites.

15.6 Please note that our advertisers may also use cookies, over which we have no control.

Processing and storage of information

15.7 By submitting your personal information to us, you agree to our processing and storage of such information. We will take all steps reasonably necessary to ensure that your information is treated securely and in accordance with this privacy policy.

15.8 All payment transactions will be encrypted and accessible only by our merchant provider, PayPal.

15.9 Unfortunately, the transmission of information via the internet is not completely secure. Although we will do our best to protect your personal information, we cannot guarantee the security of your information transmitted to our Sites. Any transmission is at your own risk. Once we have received your information, we will use strict procedures and security features to try to prevent unauthorised access.

Uses made of the information

15.10 We use information held about you in the following ways:
  1. to identify and contact you should you be the Successful Bidder;
  2. to ensure that content from our Sites are presented in the most effective manner for you and for your computer;
  3. to provide you with information and services that you request from us or which we feel may interest you, where you have consented to be contacted for such purposes;
  4. to carry out our obligations arising from any Bids made by you through our Sites and any contracts entered into between you and us;
  5. to allow you to participate in interactive features of our service, when you choose to do so; and
  6. to notify you about any changes to our services.
Disclosure of your information

15.11 We may disclose your personal information to any of our affiliates (as that term is defined in the Corporations Act).

15.12 We may disclose your personal information to third parties:
  1. in the event that we sell or buy any business or assets, in which case we may disclose your personal data to the prospective seller or buyer of such business or assets;
  2. if we or substantially all of its assets are acquired by a third party, in which case personal data held by us about our users will be one of the transferred assets; or
  3. if we are under a duty to disclose or share your personal data in order to comply with any legal obligation; or in order to enforce terms and conditions or other agreements; or to protect the rights, property, or safety of ourselves or our customers, or others. This includes exchanging information with other companies and organisations for the purposes of fraud protection and credit risk reduction.
Your rights and access to information

15.13 You have the right to ask us not to process your personal information for marketing purposes. We will usually inform you (before collecting your data) if we intend to use your personal information for such purposes or if we intend to disclose your personal information to any third party for such purposes. You can exercise your right to prevent such processing by checking certain boxes on the forms we use to collect your data. You can also exercise the right at any time by contacting us via the Contact Us page of the Sites.

15.14 Our Sites may, from time to time, contain links to and from the websites of our partner networks, advertisers and affiliates. If you follow a link to any of these websites, please note that these websites have their own privacy policies and that we do not accept any responsibility or liability for these policies. Please check these policies before you submit any personal data to those websites.

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16. General

Dispute resolutions

16.1 In the event of any dispute regarding these terms and conditions, or any other matter relating to the Auction, the decision of our directors on all such disputes or matters shall be final and binding on you.

Applicable Laws

16.2 These terms and conditions shall be exclusively governed by and construed in accordance with the laws of Western Australia and the user irrevocably submits to the exclusive jurisdiction of the courts of Western Australia.

Notice

16.3 You acknowledge and agree to accept communication and notices by us in electronic form (including by e-mail). For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.

Prohibition or enforceability

16.4 Any provision of, or the application of any provision of, these terms and conditions which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.

16.5 Any provision of, or the application of any provision of these terms and conditions, which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions of these terms and conditions in that or any other jurisdiction.

16.6 The application of clauses 16.4 and 16.5 are not limited by any other provision of these terms and conditions in relation to severability, prohibition or enforceability.

Waivers

16.7 Any waiver or election in relation to a provision of or a right or remedy arising under these terms and conditions must be in writing and signed by the party granting the waiver.

16.8 A failure or delay in exercise, or partial exercise, of a right, power, authority, discretion or remedy arising from a breach of or default under these terms and conditions, does not result in a waiver of that right, power, authority, discretion or remedy.

No partnership

16.9 These terms and conditions do not create any partnership, agency or joint venture between the parties.

Variation

16.10 We have the right to unilaterally amend these terms and conditions from time to time. You may not amend these terms and conditions.

Cumulative rights

16.11 Our powers under these terms and conditions do not exclude any of our other powers.

Entire agreement

16.12 These terms and conditions (including the Extraneous Information) embodies the entire agreement between the parties with respect to the subject matter of these terms and conditions and supersedes any prior negotiation, arrangement, understanding or agreement with respect to the subject matter of any term of these terms and conditions.

Assignment

16.13 We may assign or novate our rights and obligations in these terms and conditions to any person. You may not without our prior written consent assign or novate your rights and obligations in these terms and conditions to any person.

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