MMforty was a company setup to deal with the closure and sale of the plant and machinery from a...
These definitions relate to the terms and conditions within this document.
Online Auction: An online sale conducted by Skylarc on the Vendor’s behalf via competitive online system e.g. Trade Me.
Reserve Price: The minimum GST inclusive sale price agreed to by the Vendor.
Buy Now Price: The price GST inclusive agreed by the Vendor for selling the goods direct through a fixed sale price method excluding Trade Me Fixed Price Offer.
Fixed Price Offer Price: The amount the Product will be offered for via Trade Me Fixed Priced Offer mechanism in the event it fails to sell at online auction. This will be the same as the Reserve Price unless otherwise agreed by the Vendor.
Buyer: An entity that purchases a Vendors Products for which Skylarc is an agent.
Buyer Claim: A claim made by the Buyer against Skylarc with reference to a good sold by Skylarc on the Vendor’s behalf.
Skylarc Charges: The amounts payable to Skylarc for the Services including commission and preparation for sale.
Services: The services Skylarc charges for and provides to its Vendors including but not limited to “Estimated sale price valuations,” “Online auction services,” “Buy now sale service.”
Products: Property which the Vendor has authorised Skylarc to sell in accordance with these terms.
In Trade: Means whether the Vendor of the goods is selling the goods in trade as a supplier (within the meaning of the Consumer Guarantees Act 1993).
Security Interest(s): Means a security interest, which is registered on the Personal Property Securities Register under the Personal Property Securities Act 1999.
Vendor: An entity for which Skylarc is acting as agent for the sale of their Products.
Estimated Sale Price Valuation: A non-binding approximation of the value of a Vendor’s Products if sold by Skylarc.
Skylarc is appointed by the Vendor to act as its agent in all aspects Skylarc sees fit to sell, market and transfer title of the goods without limit:
Store, inspect, and market the Products for sale using the Services;
Request an amount to settle from any entity with a security interest in the Products;
Publish or announce any information pertaining to the nature of the Vendor and the conditions under which the Products are offered for sale including if the Vendor is “In Trade” and the condition of the Products;
Collect funds from the sale of the goods and settle any amount needed to discharge a Security Interest over the Products along with Skylarc Charges and transfer the products ownership to the buyer;
And respond to, negotiate, and settle any Buyer Claim as the Vendor’s agent.
Sale: The sale of Products is an agreement between the Vendor and Buyer, Skylarc only facilitates this agreement.
Buyer Default on Payment: Skylarc is not obliged to take action against a Buyer to enforce a purchase agreement between Vendor and Buyer.
Buyer Enquiries: The Vendor agrees to direct any potential Buyers that may have become aware of the goods via Skylarc’s marketing to Skylarc and will not sell Products directly to Buyers.
Accuracy: Estimated sale price valuations are a guide only based on experience and research, Skylarc provides no guarantee of accuracy versus actual sale return.
Liability for Errors: The Vendor takes all responsibility for judging the accuracy of any Estimated Sale Price Valuation given by Skylarc and any decision to use Skylarc’s services based on any Skylarc Estimated Sale Price Valuation is the Vendor’s alone.
Reserve and Buy Now Prices: Any reserve or Buy Now price placed on the Products are done so at the Vendor’s own judgement with no reliance on statements made by Skylarc’s representatives.
Trade Me: Skylarc may list the Vendors Products for sale either through Online Auction or Buy Now through the Trade Me Channel.
If a Reserve Price is specified for any product the Vendor authorises Skylarc to sell the goods at any price exceeding this through the Online Auction or Fixed Price Offer.
If any Goods fail to sell at Auction: The vendor authorises Skylarc to offer goods to the interested parties via a fixed price mechanism for a period of 24 hours unless agreed otherwise.
Risk: Products stored for sale on a Vendor’s premises are the Vendors responsibility to insure.
Risk: Products which Skylarc has accepted for sale but are not on Skylarc’s premises are at the sole risk of the Vendor.
Risk: Products stored in Skylarc’s facilities will be covered by Skylarc’s insurance policies.
Damage: If Products are damaged or destroyed while on Skylarc’s premises then Skylarc will, at its option, repair the damage to the Products or pay to the Vendor any loss in value which is directly attributable to the damage. Skylarc will not be liable in any case for any consequential loss or loss of profit suffered by the Vendor which results from damage to the Products.
In Trade Status Message: Skylarc shall at the time of sale display the Vendors In Trade status via a message on the sale medium.
Vendor In Trade Status Declaration: The Vendor is required to declare their In Trade status, failure to do so may result in the withdrawal of goods from sale.
Vendor Bidding: No Vendor or their agents or employees will bid on any good offered on their behalf by Skylarc.
Goods accepted for sale via any of Skylarc’s Services will be subject to fees agreed to by all parties.
Other Services: Skylarc may carry out additional services specified by the Vendor on the terms set out in the Services, Fee Schedule and any other unnamed serviced agreed to by the Vendor.
Third Party Charges Sold Products: Where Skylarc has commissioned third party services including but not limited to transportation, marketing or preparation of products the Vendor agrees to these being recovered on the proceeds of sale unless the Products are not sold.
Third Party Charges Unsold Product: If Skylarc has incurred costs for any Product belonging to the Vendor for third party services including but not limited to transportation, marketing or preparation of products where the goods for whatever reason are unable to be sold, the Vendor agrees to pay these costs.
Withdrawal from Sale: Where goods are withdrawn without sale, all costs incurred by Skylarc must be covered before collection of the Products.
Commission: The commission payable by the Vendor to Skylarc will be charged at the commission rate specified in the proposal irrespective of any GST included in the hammer price. The Vendor will in addition to the said commission pay the GST on the said commission. Skylarc’s commission and GST thereon is payable immediately on delivery to the Vendor of Skylarcs vendor invoice.
Product Warranties: The Vendor represents and warrants to Skylarc that:
The Vendor has legal authority to sell the goods;
Any Security Interests in the goods have been cleared and the goods will not be seized legally by any entity;
Any information known by the Vendor relevant to the condition or fitness for use of any Product has been disclosed;
And any legal or regulatory charges are up to date at the time of Skylarc’s sale, e.g. Road User Charges.
Deductions: The Vendor authorises and directs Skylarc to pay the proceeds of the sale in the following order:
Any unpaid securities owing on the Products;
Skylarc’s fees and any third party charges;
Any outstanding fees owed to other parties which Skylarc are legally required to pay, e.g. Road User Charges;
Any Buyer Claims deemed legitimate by Skylarc in consultation with the Vendor as per the Buyer Claims Clause;
And the balance will be paid to the Vendor or as the Vendor directs in writing.
Payment: Skylarc will pay net proceeds to the Vendor with a full breakdown of costs within 10 days of the receipt of Buyer payment for the Vendor’s Products. Where the Vendor is In Trade as per section 36ZF(1) of the Fair Trading Act 1986 payment will be excluded for products with outstanding Buyer Claims.
Buyer Claims Clause: Skylarc will notify the Vendor of all Buyer Claims as soon as possible and will endeavour to involve the Vendor in any resolution where the Vendor requests it, Skylarc claims absolute right to remedy these claims at its discretion.
Skylarc may withhold payments in line with legislation until Skylarc reasonably considers no further Deductions are due.
General Indemnity: The Vendor shall at all times hold Skylarc harmless and indemnify Skylarc in respect of all payments made by Skylarc, damages or penalties imposed on Skylarc and costs incurred by Skylarc in relation to any Buyer Claim or other claims made by any person in relation to the services provided under these terms or the sale of any Goods, whether Skylarc is legally liable or not, and includes a breach by any person of the Consumer Guarantees Act 1993, Fair Trading Act 1986, any applicable consumer law or standard, the Motor Vehicle Sales Act 2003 or any other law or regulation whatsoever, and any failure by the Vendor to provide correct information to Skylarc, and in relation to the sale of a vehicle, includes any breach of the warranties and any statutory warranties, conditions or guarantees by any person.
Buyer Acts: Skylarc will not be held responsible for any lack of completion by a Buyer.
Exclusion of Liability: Skylarc will have no liability to the vendor for any consequential losses relating to unsold Products, marketing of Product by Skylarc or any Buyer Claim.
Skylarc’s maximum liability to the vendor in any circumstance is limited to the amount paid for Skylarc’s services.
Skylarc may in its absolute discretion terminate this agreement immediately at any time, on any breach of good faith. On termination, subject to the Vendor paying all amounts due to Skylarc, Skylarc shall make the Goods available for collection by the Vendor at the Vendor’s cost.
Entire Agreement: This agreement constitutes the entire agreement between the parties.
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