Terms & Conditions

1. General

FinalCall Ops Pty Ltd provides a mobile online platform for the auction and private sale of real property via the Site.

The following are the terms and conditions of this agreement that govern the use of the Service by any user unless otherwise specified.

In using this Service, you agree to the terms and conditions of this agreement.

This agreement sets out your rights and obligations. In the event that you breach any obligations under this agreement, we may at our discretion terminate your Account, refuse to provide the Service to you and/or make a claim for damages against you.

We reserve the right to amend the terms and conditions of this agreement from time to time and if you continue to use the Service after 4 days of any such amendment then you are deemed to have accepted the amendment. You should review this agreement from time to time and clearly understand any amendments made.

2. Use of the Service

You agree that your Account can only be used for this Service personally by you and you are solely responsible for all information relating to your Account. You must not allow any other person to use your Account to access the Service.

You agree not to interfere with the Service or use any device, program or otherwise that may do so. You must not do anything that may unreasonably hinder or place an unnecessary restraint on our capacity to provide the Service.

In accessing or using our Site you agree you will not use any data mining, robot, spider, page or screen scraping, deep link or similar automated device, software, process or means to access, acquire, copy, retrieve, scrape, use or index any portion of our Site or any content on our Site, without our written consent.

We reserve the right to assess whether your conduct is reasonable in the usage of the Service. We will act reasonably when exercising our rights to make such an assessment.

You must at all times comply with the Applicable Law when using the Service.

Agents are at all times responsible for uploading to the Site and managing any documents or information that must be provided to Buyers prior to the commencement of an Auction, including but not limited to auction rules, in accordance with the Applicable Law. We are not responsible for any documents or information that is or must be provided by Agents and we

do not define or set any auction rules or Applicable Laws.

Agents are at all times responsible for the operation and conduct of the Auction or Listing facilitated through the Service.

In the event it is found that you are using the Service for fraudulent, unwarranted or illegal purposes, we may suspend or terminate your Account, notify the police and in our discretion pursue any other remedies available to us.

If we are informed or discover that the Service may breach any laws, we reserve the right to remove the offending content from the Service or Site.

3. Eligibility

You must have legal capacity to enter into contractual arrangements to be eligible to use the Service.

Buyers must be approved by the Agent and be able to provide their full name, phone number and email address.

Agents and Auctioneers must provide their full name and license number and also the name, address, phone number, email address and license number of the Agency.

Buyers must be capable of placing a bid or making an Offer and have sufficient funds to pay for any bid placed or Offer made.

If a Buyer of Buyer is a Foreign Investor, they can only use the Service if they have complied with the Foreign Investor Requirements.

Agents and Auctioneers can only use the Service if they satisfy all legal requirements contained in the Applicable Law.

4. Registration

You must register your details on the Site including full name, address, phone number and email in order to use your Account.

Agents and Auctioneers must provide their license number and the license number of their Agency.

At our discretion we may require Agents and their Agency to provide bank account details and/or provide credit card details to a third party payment provider nominated by us before Agents can conduct an auction or post a Listing through the use of the Service.

Your personal information must not be offensive, false, misleading, deceptive or illegal and must not contain any viruses, malicious applications or software that may disrupt the Service.

Upon registration you will receive a username and password to access your Account which must be kept confidential.

You will receive a notification email with a link to confirm the registration of your personal details. We are not responsible if the confirmation email is not received by you.

5. Fees and charges

We will charge Agencies a fee for each Auction they conduct or Listing they post through the use of the Service.

The fee and terms for payment will be agreed with the Agency prior to the commencement of the Auction or Listing.

The fee must be paid by the Agency on terms agreed with the Agency.

At our discretion we may waive any fees for the use of the Service.

We reserve the right to disable, refuse or prevent an Auction taking place or Listing being posted if fees remain outstanding within 7 days of the Auction date.

We reserve the right to suspend or cancel an Account if fees remain outstanding beyond the payment terms agreed with the Agency.

6. Auction

Each Auction conducted through the Service must be Publicly Advertised by the Agent.

Each Auction will be commenced and concluded by the Auctioneer conducting the Auction. We are not the Agent or Auctioneer or acting in the capacity of an Agent or Auctioneer or holding ourselves out to be an Agent or Auctioneer.

The Auction will be conducted by an Auctioneer who will be responsible for the conduct of the Auction including any decisions regarding bidding during the Auction.

The Auctioneer will provide any necessary instructions to the Agent during the Auction.

The Auction will conclude once the Auctioneer has identified the highest Buyer and instructed the Agent to end the Auction.

The Auctioneer’s decision regarding any conduct or bidding during the Auction is final.

If at any time during the Auction there is a malfunction with the Service that causes you to lose connection with the Auction and you have made a bid and the Agent has received and confirmed it, it shall remain valid. If the Service permits, you may log back in to the Service and participate in the Auction until the Auction concludes. We will not be responsible for any malfunctions with the Service which results in a bid not being processed during the Auction.

If at any time you do not adhere to the conduct and manner prescribed by the Auction the Agent may, if instructed by the Auctioneer, remove you from the Auction. We may in our discretion pursue any remedies available to us in relation to such removal.

Buyers may contact directly the Agent responsible for the Auction for matters concerning the property being sold, any document or information uploaded to the Site or the conduct of the Auction itself.

The Agent must provide a mobile phone number of an Agent’s representative who will be present at the Auction and available to accept calls from Buyers.

The Agent may provide a video or audio stream of the Auction on the Site or Facebook which does not allow for permanent download of the Auction.

The video or audio streaming requires network connectivity to function properly. Your device or poor signal, which is dependent on your location and service provider, may slow down or prevent the video or audio streaming from working at optimum speed or in real time and therefore should not be relied upon for Bidding. We will not be responsible for the video or audio streaming including any delays caused to the transmission of the onsite Auction.

You are solely responsible for paying all expenses you may incur when you access or use the video or audio streaming including but not limited to your internet or data service provider charges and any excess charges to that provider if you have a limit on the amount of data you can download.

7. Bidding

In order to place a bid, you must register to bid on this Site and have an Account.

Bidding for an Auction will commence on the date and at the time, or after such time, appearing on the Site.

Buyers must only place a bid if they intend to purchase a Listed property appearing on the Site.

Before placing any bids Buyers must carefully read the details of the Listed property appearing on the Site that is being auctioned and any other information on the Site that may be relevant to the Auction.

It is your sole responsibility to ensure that you understand what you are bidding for and for how much.

Once you have placed a bid, that bid cannot be changed or withdrawn by you.

If instructed by the Auctioneer, Agents may reject or cancel any bid.

By placing a bid you acknowledge it is a genuine bid and you are able to pay the amount of the bid made by you.

Your bid must exceed the highest bid presently shown on the Site for the property being auctioned.

While the Auction is proceeding the Agent may, at the request of the Auctioneer change the increments of the bidding and notify the changes on the Site during the Auction. The Auctioneer may, in its discretion, instruct the Agent to accept or reject any bid that is less than the increment notified by the Agent on the Site.

The Agent may, at the discretion of the Auctioneer pause the Auction during which time the bidding will also pause.

While the Auction is paused, the Agent may cancel or add bids through the Service for the purpose of correcting the Auction with any bids placed at the onsite auction. If bids are cancelled, the Agent must cancel the bids in the order there were received through the Service.

You must not attempt to manipulate a bid in any way whatsoever when using the Service.

You are not allowed to participate in Dummy Bidding. Dummy Bidding will result in immediate cancellation of your Account. We reserve the right to pursue any remedies available to us if you participate in Dummy Bidding.

The Auctioneer is permitted to place Vendor bids during the Auction in accordance with the Applicable Law and will instruct the Agent to update the Site during the Auction identifying which bids are actually Vendor bids.

If you are the highest Buyer at the completion of the Auction the Agent will notify you through the Site or any other way the Agent deems suitable. We are not responsible in any way if the Agent does not notify you through the Site due to a malfunction of the Service.

If at the completion of the Auction you are the highest Buyer, you become the purchaser.

We are not responsible for any further steps or acts required after the completion of the Auction to complete the sale of the property. Any such steps or acts will take place directly between the Buyer and Agent.

8. Listing

By Listing an item on our Site, the Agent agrees to pay our fees for the Listing, assumes full responsibility for the content of the Listing and property offered, and accepts the following Listing conditions:

  • The Listing will be posted and viewed on our Site.
  • The Listing may not be immediately searchable so we can't guarantee exact Listing durations.
  • The Listing will, at all times, comply with our rules and policies, as amended from time to time.

9. OpenOffers™

In order to participate in an OpenOffers™ you must register to make an Offer on this Site and have an Account.

An Offer can only be made for a property appearing in a Listing.

A Listing will commence on the date and at the time, or after such time, appearing on the Site.

The duration or completion date and time of a Listing will appear on the Site however the duration or completion time will be extended by no less than 60 seconds from the last Offer made.

An Offer must only be made if you intend to purchase a Listed property appearing on the Site.

Before making any Offers you must carefully read the details of the property appearing in the Listing and any other information on the Site that may be relevant to the Listing.

It is the Buyer’s sole responsibility to ensure that it understands what it is making an Offer for and for how much.

Once an Offer has been made that Offer cannot be changed or withdrawn.

An Agent has the absolute discretion whether to reject or cancel any Offer.

By making an Offer the Buyer acknowledges it is a genuine offer and is able to pay the amount of the Offer it has made.

An Offer must exceed the highest Offer presently shown on the Site for the Listed property.

At any time before the Listing is completed the Agent may change the increments of the Offers and notify the changes on the Site. The Agent may, in its discretion, accept or reject any Offer that is less than the increment notified by the Agent on the Site.

A Buyer must not attempt to manipulate an Offer in any way whatsoever when using the Service.

If a Buyer has made the highest Offer at the completion of the Listing the Agent will notify the Buyer through the Site or any other way the Agent deems suitable. We are not responsible in any way if the Agent does not notify the Buyer through the Site due to a malfunction of the Service.

The Buyer which has the highest Offer at the completion of the Listing will become the purchaser or alternatively have the exclusive right to negotiate further with the Agent, which will be in the absolute discretion of the Agent.

We are not responsible for any further steps or acts required after the completion of the Listing to complete the sale of the property. Any such steps or acts will take place directly between the Buyer and Agent.

10. Private Offers

In order to participate in a Private Offer, you must register to make an Offer on this Site and have an Account.

A Private Offer can be made for a property appearing in a Listing except during any times an Auction is taking place for the sale of the property or the Listing is available for OpenOffers™.

An Offer must only be made if you intend to purchase a Listed property appearing on the Site.

Before making any Offers you must carefully read the details of the property appearing in the Listing and any other information on the Site that may be relevant to the Listing.

It is the Buyer’s sole responsibility to ensure that it understands what it is making an Offer for, for how much and the consequences of any conditions it places on the Offer.

Once an Offer has been made the Buyer is permitted to make a limited number of changes to the Offer before the expiration date.

An Offer can be withdrawn before the expiration date however the Buyer will not be permitted to place another Offer on the same Listing for a limited period of time.

By making an Offer the Buyer acknowledges it is a genuine offer and is able to pay the amount of the Offer it has made.

An Agent has the absolute discretion whether to accept, reject or counter any Offer and must notify the Buyer through the Site, or any other way the Agent deems suitable, whether it has accepted, rejected or countered an Offer.

We are not responsible in any way if the Agent does not notify the Buyer through the Site due to a malfunction of the Service.

If a Buyer has made an Offer it must be accepted by the Agent and confirmed by the Buyer to proceed with the Offer.

An Agent can counter an Offer by notifying the Buyer which component of the Offer is amended. The Buyer has the absolute discretion to accept the counter, decline the counter or submit a new Offer.

We are not responsible for any further steps or acts required after the completion of the Listing to complete the sale of the property. Any such steps or acts will take place directly between the Buyer and Agent.

11. Your Responsibilities

In addition to any other responsibilities you have under this agreement, you are responsible for:

  • keeping your personal details of your Account including any details that we have given you (such as your username and password) up to date and confidential;
  • all activity and use relating to your Account regardless of the circumstances;
  • ensuring that in the unlikely event your Account has been hacked or misused in any way not authorised by you, to immediately contact us.
  • ensuring that you do not attempt to or actually cause the Service to be disrupted or malfunction.
  • ensuring that when using the Service you abide by any Applicable Law regarding the use of the Service, including in relation to bidding and purchasing real property in the case of Buyers and conducting Auctions and posting Listings in the case of Agents and Auctioneers;
  • in the case of Agents, ensuring that any property auctioned or Listed through the use of the Service is actually the property being sold and all relevant documentation associated with it is accurate and genuine; and
  • ensuring that all fees, charges and monies payable by you for use of the Service, the Auction and the Listing are paid when due.

12. Our Rights

We reserve the right to suspend or cancel your Account and/or refer you to the relevant authorities or institute proceedings against you:

  • if you do not pay any fees or charges when due for use of the Service;
  • if you provide information that is false, misleading, deceptive or illegal;
  • if you do not adhere to or fail to observe any of the conditions under this agreement or any additional conditions that apply to the use of the Service; or
  • if you engage in bid manipulation or Dummy Bidding.

We reserve the right to suspend the Service at any time for scheduled maintenance. We will attempt to notify you in advance via email and/or on the Site of the date of the scheduled maintenance, but we do not represent nor warrant that we will do so.

We reserve the right to remove or amend any content on the Site if it is found to be inaccurate due to technical error or otherwise.

13. Security

The use of this Service and Site is at your own risk.

You must take measures to protect yourself and your information when using this Service and Site and be cautious to accept or open anything that may appear suspicious including but not limited to viruses and malicious software that may damage or disrupt your device.

We do not accept or take responsibility for any disruption, damage or loss caused when using this Service or Site.

14. Third Party Content

Third Party Content may appear on the Site from time to time to advertise, inform, update, feed, comment or provide links to other websites.

We may use Third Party Content from time to time to enhance the functionality of the Site and improve the Service.

We are not responsible for, nor do we warrant that the Third Party Content is accurate, reliable or up to date and we are not liable for any recommendations, results or statistics provided by the Third Party Content.

15. Privacy

Our Privacy Statement is provided on the Site which outlines how we collect, use, hold and disclose personal information about you:

  • to improve the functionality of the Site and the Service;
  • to provide contact details, instructions and resolve queries in relation to Agents, properties and use of the Service and Site;
  • to market promotional material to you; and
  • to meet legal and regulatory requirements.

We may collect personal information from you such as your contact or registration details, browsing activity and bidding, Offer and purchasing history.

The Privacy Statement outlines how your personal information can be accessed and corrected if required and refers to complaint handling procedures available in cases of breach of privacy.

You must consent to your personal information being collected under this clause and in accordance with the Privacy Statement in order to use the Site and the Service.

16. Intellectual Property

All intellectual property on this Site or used to provide the Service is owned and registered by us (unless it is owned by a third party providing Third Party Content) including but not limited to patents, trademarks, copyrights, processes, know-how, registered designs, information, documents, products, logos, graphics, images, services, advertising and promotional material.

You may not use any intellectual property contained on the Site or used to provide the Service at any time without our consent. This includes but is not limited to copying, modifying, reproducing, posting, framing, displaying, redistributing, uploading to a third party, downloading, republishing or transmitting in any capacity whether electronic, hardcopy or otherwise.

17. Warranties

To the extent permitted by law, we exclude all conditions and warranties relating to your use of the Service that are not expressly set out in this agreement.

Unless specified by a condition of this agreement or any additional conditions that may form part of this agreement, the provision of the Service is on an ‘as is’ basis.

We do not give any representations, warranties, conditions or guarantees regarding the accuracy, quality, suitability, completeness, reliability or authenticity of any information, documents, products or services provided by any user or other Third Party Content that may be uploaded and/or advertised on our Site or through the Service.

We do not warrant that:

  • we will provide uninterrupted, safe and stable access to the Site or the Service;
  • the Site will provide the Service or any communications between you and any other person free of viruses or malicious software;
  • we will remedy any issues with the Site or Service in any way or form;
  • your personal information, payment information, details of any transaction or any communications will not be read, stolen, amended, deleted or lost; or
  • the Site and Service will not be subject to inappropriate or illegal use nor will we be able to give notice of such circumstances.

The appropriateness of any product or service offered on the Site or through the Service is at your discretion. We will not be responsible for any product or service that is not fit for your purposes.

18. Liabilities and Indemnities

We are not liable or responsible for any malfunction that may occur in receiving, processing or accepting bids or Offers on the Site and any damage, disruption, cost, expense or loss suffered as a result.

We are not liable or responsible for any damage, cost, expense or loss suffered or incurred as a result of the purchase of real property on the Site or through the Service.

We are not liable or responsible for any damage, cost, expense or loss suffered or incurred as a result of the provision of information or/and documents on the Site.

You accept all responsibility and liability for your use of the Site including, but not limited to, all material appearing on the site.

To the extent that our liability for breach of any implied warranty or condition cannot be excluded by law, our liability will be limited, at our option, to:

  • the re-supply of the Service; or
  • the payment of the cost of having the Service re-supplied.

In relation to any express warranty or condition set out in this agreement our maximum liability for claims made under this agreement shall not exceed the fees and charges paid by you in respect of the Service.

Under no circumstance will we be liable to you for any indirect, incidental, special and/or consequential losses or damages of whatever nature howsoever arising in the connection with the Service.

You agree to indemnify us on a full indemnity basis from and against all and any liabilities, losses, claims, damages, demands, costs, and expenses whatsoever which we may incur by reason of any breach or default by you under or in connection with this agreement and use of the Site or Service.

19. Force Majeure

We will not be responsible for any delay or failure to perform any conditions under this agreement or in the provision of the Service where it is reasonably out of our control or could not be foreseen including without limitation acts of war, terrorism, floods, fire, explosions, breakdown of internet service providers, accidents, acts of God or otherwise.

20. Communication

All communication with us must be sent by email to support@finalcall.com.au.

21. No waiver

If we do not exercise, or delay in exercising, any power or right contained in this agreement it does not operate as a waiver of that power or right. No single exercise of a power or right precludes any other or further exercise of it or the exercise of any other power or right.

22. Severability

Any provision in this agreement which is invalid or unenforceable in any Relevant Jurisdiction:

  • is to be read down for the purposes of the Relevant Jurisdiction if possible; or
  • if cannot be read down, is to be severed to the extent of the invalidity or unenforceability for the purposes of the Relevant Jurisdiction so as to be valid and enforceable in the Relevant Jurisdiction.

23. Law and jurisdiction

This agreement is governed by the laws in the Relevant Jurisdiction.

The parties submit to the non-exclusive jurisdiction of the courts of the Relevant Jurisdiction and any courts which hear appeals from those courts in relation to any proceedings in connection with this agreement.

24. Definitions and interpretation

Definitions

In this agreement, the following definitions apply.

Account means the online profile we provide for you to use the Service.

Agency means the sole trader, partnership or entity that employs or engages the Agent.

Agent has the same meaning as set out in the Applicable Law.

Applicable Law means the law and industry guidelines applying in the Relevant Jurisdiction.

Auction means an onsite auction where it is facilitated online.

Auctioneer has the same meaning as set out in the Applicable Law.

Buyer means an individual or a company (including all directors) who has an Account and places a bid or makes an Offer by using the Service.

Dummy Bidding has the same meaning as set out in the Applicable Law.

Foreign Investment Requirements means the requirements of the Australian Taxation Office, Treasury and Foreign Investment Review Board and any other government authority for foreign investors to purchase real property in Australia.

Foreign Investor means an individual who is not an Australian Citizen or an Australian Permanent Resident.

Listing/Listed means a property posted or appearing on our Site for sale, including but not limited to any property being sold at Auction.

Offer means an offer made by a Buyer in relation to a Listed property.

Publicly Advertised means real property that is advertised to the world at large via any form of communication.

Relevant Jurisdiction means the state of territory where the onsite auction is held.

Service means the online platform for the auction of real property in Australia provided by us via the Site.

Site means www.FinalCall.com.au.

Third Party Content means any content, information or documents appearing on the Site which was not created by us.

Vendor means a person or company in any capacity offering real property for sale.

Verification of Identity means the requisite amount of personal identification required to identify an individual, company or trust in accordance with the laws and requirements in the Relevant Jurisdiction as amended from time to time.

We / us means FinalCall Ops Pty Ltd (ACN 608 491 532) including its shareholders, directors, officers, employees, agents and representatives.

Interpretation

In this agreement unless the context otherwise requires:

  • a term or condition of this agreement applies to all Buyers and Agents unless it specifically refers to either a Buyer or an Agent then in that instance it only applies to the Buyers or Agent expressly referred to in that term or condition;
  • the singular includes the plural and vice versa;
  • a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
  • a reference to any gender includes all genders;
  • a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;
  • a reference to any party to this agreement, or any other document or arrangement, includes that party's executors, administrators, substitutes, successors and permitted assigns;
  • where an expression is defined anywhere in this agreement it has the same meaning throughout; and
  • a reference to “dollars” or “$” is to an amount in Australian currency.

Headings

In this agreement, headings are for convenience of reference only and do not affect interpretation.