1. General Conditions
1.1. User Agreement
The Owner of these General Terms and Conditions for Auction Purchases (in short, “Auction Terms“) shall be TM Auction. The object of these Auction Terms is to regulate the sale of movable property by the Owner, businesses, or private persons (hereafter referred to as the “Seller”) to persons who are also businesses (hereafter referred to as the “Buyer”).
Sales shall be arranged and conducted via TM Auction House’s (TM Auction House) Internet platform at tmauctions.co.za. These Auction Terms form the legal basis between TM Auction House, TM Auction House and the Buyer (the “contracting parties”). Where reference to “Lots” is made in these Auction Terms, they may also include other objects for sale at an auction.
The current version of the following Auction Terms shall also apply for future transactions between the contracting parties. Other general business terms shall not apply here, even if not explicitly contradicted.
1.2. Exemption from Liability
The User of the Internet platform shall release TM Auction House from all claims that other Users or third parties may make against TM Auction House, whether through violation of their rights in the offers and subject matter a User places on the website, or through his using the TM Auction House website for other purposes. The User shall also bear the costs of any legal defence TM Auction House may require, including all court and solicitor’s costs. This shall not apply if the User is not responsible for the infringement.
2. Registration, Use of the Internet Platform
2.1. Registration Procedure
A User must register to use all the services TM Auction House offers. No-one is entitled to register at TM Auction House. Registration is free and carried out by the User opening a user account and agreeing to these Auction Terms. By registering, a contract on the use of the TM Auction House’ Internet platform is concluded between TM Auction House and the User.
The data provided for TM Auction House at registration must be accurate and complete. Should there be a change in user data after registration, the User shall be obliged to notify TM Auction House of this change at once. Upon registration, the User shall select a User name and password. The User’s name may not violate third party rights, particularly not trade names or copyrights. The password must be kept confidential. The User shall be liable for the misuse of a User name or password. A User’s account is not transferable.
2.2. Use of the Internet Platform
The Internet platform and other TM Auction House websites may contain links to other Internet sites. TM Auction House has no influence on the design and subject matter of these site links. TM Auction House shall not be responsible for the topicality, accuracy, entirety or quality of the information provided on them and expressly dissociates itself from all subject matter on any such sites.
When using TM Auction House websites, the User is not entitled to employ any devices, software or other practices likely to affect the functioning of the Internet platform. The User may not employ any measures likely to result in unreasonable or excessive infrastructure loads. Subject matter on the TM Auction House Internet platform may not be copied, passed on, used or reproduced in any way without the owner’s prior permission. This shall also apply for “robot/crawler” search engine copies, “screen scraping” and other automatic devices.
The layout of TM Auction House websites may only be reproduced and/or used on other websites with TM Auction House prior written permission.
2.3. Freezing of Accounts
TM Auction House may freeze a user account at any time, especially in the case of violations against the general and particular Auction Terms. As soon as a user account is frozen, the User may no longer use the TM Auction House website or re-register without TM Auction House express permission.
2.4. Termination of Contract
The User may terminate his user contract at any time, without notice. Written notification or an e-mail to info@TMAuctions.co.za shall serve to state termination.
3. Concluding a Contract in an Auction
3.1. TM Auction House Auction Conditions
Users may not manipulate the course of an auction by making bids via another user account or through the express intervention of a third party. TM Auction House, in particular, shall be prohibited from placing bids on the objects he is auctioning during the bidding period. The auctioning of objects is prohibited where their tendering, sale, or purchase violates the statutory regulations or the rules of common decency. In particular, objects may not be described or put up for auction if their advertising, tendering or sale violates copyright and intellectual property rights, industrial property rights or any other rights (e.g. the right to one’s own image, name and personality).
3.2. Auction Procedure
The beginning, end and course of an auction shall be controlled by TM Auction House. TM Auction House reserves the right to cancel or alter scheduled auctions. Only in exceptional cases shall TM Auction House be entitled to invalidate auctions without given reason, without a legal claim ensuing on the User’s part. Invalidation may take place before or during an auction.
3.3. Placing Items for Auction
TM Auction House must place objects for auction in the appropriate category, with a correct and complete written and illustrated description. This shall include an accurate indication of all the essential properties and features required to make a purchase, and any defects likely to reduce the object’s value, i.e be a truthful statement of its actual condition. Furthermore, TM Auction House must give Users full information as to who owns the object under tender, the owner’s right to put it up for auction, and the details of payment and collection.
The description and images used must not violate third party rights and must refer solely to the object under tender (original photographs). Descriptions, drawings and photographs may not contain any advertising for anything other than the object under tender, and especially not include links to a personal website, telephone numbers, etc.
Where TM Auction House is TM Auction House, objects being auctioned will be described by a contract partner or service provider, without TM Auction House conducting a second appraisal.
3.4. Description Discrepancies
Should, in the Buyer’s view, the defects of an object on auction exceed those described by TM Auction House, TM Auction House is entitled to obtain an expert opinion, which shall be binding for the partners to the contract. The ensuing costs shall be paid by the party responsible for an established or non-established discrepancy; if only a slight, or no discrepancy is ascertained, the ensuing costs shall be borne by the Buyer. Faulty descriptions of objects worth up to R 2 000 are deemed immaterial and will not be contemplated.
By placing an object on an TM Auction House website, TM Auction House declares his prior binding acceptance of a Bidder’s highest offer at the end of the bidding period, as long as the bid meets the minimum stipulated price. TM Auction House also expressly declares his agreement to sell the auctioned object to the bidder should no higher bids be made.
3.6. Bidding Rules, Binding Period
The Bidder shall make a bid by entering a sum of money within the bidding period. All offers shall be gross amounts. Should two bidders offer the same price, the first bid to be entered shall be considered the higher.
The Bidder’s bid shall be binding until invalidated by a higher bid. Should the Bidder not be outbid and the floor price not met, the offer shall remain valid for a 48-hour period (2 working days) following the end of the online auction, unless another ruling is agreed to.
All submitted bids will be registered and stored by TM Auction House . TM Auction House shall resolve any uncertainties that arise regarding bids in a manner binding for all the contracting parties.
3.7. Sales Agreement
As long as the floor price is attained, at the end of the online auction a sales agreement will be concluded between TM Auction House and the highest bidder, in which their rights and obligations shall primarily be in accordance with Sections 4, 5, and 6 of these Auction Terms.
When an object had been purchased, TM Auction House shall send the sales contract to TM Auction House and the Buyer. The contracts TM Auction House sends must be checked for accuracy. At the same time, they will be placed on the respective user accounts at TM Auction House.
4. Collection and Buyer’s Right of Inspection
Purchased items/objects must be collected by the Buyer at his own expense, from the location stated by TM Auction House in his notice of sale or on the website. TM Auction House shall provide the address of the location.
4.2. Collection Deadline / Lump Sum Compensation
All Items must be collected by the Buyer at the stated location, within 2 working days of receiving a so-called “notification of release”. Notification generally follows immediately after payment of the purchase price has been received.
Should these terms not be complied with, TM Auction House reserves the right to invalidate the purchase due to default (of the payment periods stated in the contract and the final date of payment stated in the invoice) and to market the Item elsewhere. The Buyer shall be sent a reminder to pay that states the lump compensation sum, following which he shall be invoiced for the auction fees.
4.3. Buyer’s Warranty Claims for Defects
The sale of all objects shall essentially be on a “purchase as is” basis, i.e. without any warranty. The Buyer is therefore obliged to inspect a Item thoroughly prior to acceptance, to determine whether it matches the description of the Item under auction. Obvious defects likely to impair the object’s value must be contested on the spot, and TM Auction House notified within 48 hours. TM Auction House must be notified by telephone of such defects prior to this on: 076 215 9152 or email@example.com. The Item shall remain at the same location.
4.3.2. Price Reductions
Sections 3.4 and 4.3.1 shall apply in the event of a substantial discrepancy in the description. Section 7 shall remain unaffected.
5. Other Rights and Obligations of the Parties to the Contract
5.1. Transfer of Risk
When a Item is accepted, the risk of accidental deterioration and destruction shall pass to the Buyer.
5.2. Seller’s Obligations
Particulars on how the object under auction is equipped and descriptions of its condition shall be drawn up by TM Auction House, and be incorporated in the descriptions to the best of their knowledge and belief.
5.3. Seller ‘s Rights
Should the sold object be damaged, lost or destroyed before risk is transferred to the Buyer, through no fault of TM Auction House, TM Auction House shall be entitled to withdraw from the sales agreement if he reports the damage, loss or destruction to the Buyer at once and returns the purchase price to him immediately.
No further claims shall exist after a withdrawal and purchase price reimbursement of this kind.
6. Purchase Price, Payment, Fees
6.1. Purchase Price
The purchase price shall be equivalent to the highest bid, and, unless other arrangements for the respective item are expressly stated in its sales description, shall include all rates and fees (on the gross purchase price). TM Auction House shall provide buyers with a proper invoice indicating the net purchase price.
TM Auction House will issue a gross invoice for all Items sold through TM Auction House. The purchase price must be paid in full to TM Auction House by bank transfer, prior to collection. The transfer must be affected within 2 working days after a bid has been accepted. TM Auction House may put Items not paid for within this period up for sale elsewhere. In this case, TM Auction House will send the Buyer a written request for final payment with a deadline of 1 working day, notifying him that the Item will be offered for sale elsewhere, and stating any differential amounts or additional expenses this will entail. Any bank fees incurred shall be paid by the Buyer.
The goods shall remain the property of TM Auction House until full payment has been effected.
The Buyer and Seller shall each pay auction fees according to the amounts stipulated below:
All final bidding amounts will be subjected to a 10% auction fee, defined and described on the final invoice submitted for payment to the buyer.
Fees are due immediately after receipt of the invoice and may be remitted by bank transfer. Invoicing shall be placed online and emailed to the stipulated email address. a User will be in default after a period of two weeks following the invoice date and be sent no reminder to pay.
7. Limitation on Liability
Without exception, TM Auction House shall only be liable to compensate for damages – on whatever legal grounds – in cases of specific intent and gross negligence. In cases of simple negligence, TM Auction House shall only be liable for:
Damages from injury to life, limb or health;
Damages from violation of a fundamental contractual obligation (an obligation which facilitates the proper execution of a contract through its fulfilment and on the compliance of which the contracting partners may always rely). In this case, however, TM Auction House´s liability shall be limited to the replacement of foreseeable, standard damages.
The limitations on liability resulting from this section shall not apply should TM Auction House fraudulently withhold a defect or take on a warranty for an object’s condition.
8. Data Protection
All partners to contracts are strictly prohibited from engaging in any kind of advertising with the postal or e-mail addresses, or the contact information thus obtained.
In addition, the contracting parties shall agree to their personal data – i.e. particulars collected and/or entered on the TM Auction House Internet platform during the registration process, the setting up and handling of a contract, or any other procedure – being stored on TM Auction House servers. TM Auction House will only process and use such data in the execution and handling of the rights and obligations for which it is responsible under the contractual relationship.
TM Auction House shall be entitled to process, use and transfer personal data to the prosecuting authority, even after the end of a User relationship, to help safeguard overriding interests when clarifying misuse of the Internet platform and for prosecution purposes.