Platform terms of service
Pre-counsel draft. This is the platform's first full draft of this instrument, written for review by counsel rather than as a placeholder. It is not legal advice and is not yet the published text. Bracketed drafting notes mark the points counsel is asked to settle; the wording outside them states what the service actually does.
1. The agreement
These terms are an agreement between [AuctionSpace Pty Ltd] (the "Provider"), which operates the platform (the "Service"), and the legal entity on whose behalf they are accepted (the "Customer"). The person who accepts them confirms that they have authority to bind the Customer. The Service records the Customer's acceptance, the exact version accepted, and the legal entity it binds. [Drafting note: the Provider's legal name is bracketed until the entity is incorporated; its registered number and address are fixed at adoption.]
2. Definitions
In these terms: "Application" means a unit through which the Customer runs sales on the Service, with its own name, team, settings and sales; "Site" means the pages of an Application that Participants and other visitors reach, at its address on the Service or at a domain the Customer connects; "Dashboard" means the console from which the Customer administers its Applications; "Participant" means a person who registers, bids, buys, follows a sale or otherwise takes part in a sale on a Site; "Consignor" means a person whose goods the Customer offers for sale; "Team Member" means a person the Customer admits to its team in the Dashboard; "Customer Data" means everything the Customer, its Team Members and its Participants put into the Service, including the personal data the data processing agreement governs; "Rule Book" has the meaning given in clause 4.2; "Closing Date" has the meaning given in clause 12.4; and "Credit", "Closing Window" and "Platform Outage" have the meanings given in Schedule 2.
3. The Service
The Provider makes the Service available to the Customer to publish sales, register and admit Participants, take bids and orders, take and settle deposits and payments through the payment provider the Customer connects, and keep the records that follow. The Service is provided as it stands from time to time. The Provider may change it, but will not make a change that materially reduces the protection of Customer Data. Schedule 2 sets out what the Service does when a Platform Outage overlaps the Closing Window of one of the Customer's items, and is the only commitment the Provider makes about the Service's availability. [Drafting note: Schedule 2 is the Service's service level. Whether a support commitment is offered is not yet decided; if one is, it is attached as a further schedule.]
4. The Customer's sales
4.1 The Customer's conditions. The Customer sets its own conditions of sale, reserves, premiums and admission policy, and is the counterparty to every contract of sale those form with its buyers and Consignors. The Provider provides the means; it is not a party to any sale, is not an auctioneer or agent for either side, and does not hold goods. Money moves through the account the Customer holds with the payment provider it connects, which is the Customer's own arrangement with that provider.
4.2 How bidding works. As part of the Service, the Provider supplies fixed wording that explains how the Service's sale mechanisms behave — among them bids and maximum bids, retraction, reserves and their disclosure, the close of bidding and its extension, sealed bidding, the seller's acceptance of a winning bid, when a lot is sold, changes to a listing once bidding has begun, and limits on what one bidder may win — and says that the seller chooses which of them apply to each sale (the "Rule Book"). The Rule Book describes what the Service does whatever any conditions of sale say. It states each setting a sale may have without stating its value, and each sale shows its values from its own settings. The Customer cannot edit the Rule Book, and adds its own conditions beside it.
4.3 Presenting the Rule Book. The Customer presents the Rule Book to its Participants as part of its conditions of sale, under its own name and beside the conditions it writes itself, and does not present it as an agreement with the Provider. The Service shows the Rule Book with the Customer's conditions wherever a Participant is asked to accept them, and records the version each Participant accepted. The Customer remains its Participants' counterparty for every sale, and the Provider's supplying the Rule Book makes it no party to any sale. Where the Customer has published no conditions of sale of its own for a sale, that sale runs on the Rule Book alone, and the Customer remains responsible for any further term the law requires it to give its Participants. The Customer may use the Rule Book only to run its sales on the Service. [Drafting note: the Service shows the Rule Book with the Customer's conditions, and asks for acceptance of both on one tick, at sign-up, ahead of bidding and at every commitment; a sale for which the Customer has published no conditions of its own shows the Rule Book alone, and never the Service's terms of service, which are this agreement.] [Reviewer note: confirm, in each market the Service is offered in, that fixed wording the Provider writes and the Customer presents is effectively incorporated in the Customer's conditions, and which party is its drafter under the unfair-terms rules.]
4.4 Changes to the Rule Book. The Rule Book changes as the Service's mechanisms change, and one version is in force for every sale at a time. The Provider publishes a change that is not material without notice. A material change takes effect on a date the Provider announces in the Dashboard at least [fourteen] days in advance, and is announced, in the Customer's name, to each of its Participants with a bid standing in a sale the change reaches. A Participant may take back any bid placed before a material change was announced, on a lot the change will reach, whatever the sale's retraction settings say, and the Customer accepts that right for each of its sales. [Drafting note: the notice period is fourteen days until it is settled with the launch terms.]
5. What the Customer is responsible for
The Customer is responsible for the accuracy of its listings; the lawfulness of what it offers and how it offers it; the identity, standing and conduct of its Team Members and the permissions it gives them; and every obligation its own jurisdiction places on an auctioneer or seller, including licensing, consumer protection, tax and anti-money-laundering obligations. Once a Participant has committed to a listing, the Customer corrects that listing only by a dated update, which the Service records and shows. A buyer who paid before an update is offered a refund.
6. Team Members and account security
The Customer decides who is on its team and what each Team Member may do. Each Team Member signs in with their own account. The Customer shall ensure that sign-in credentials are not shared, and shall tell the Provider without delay if it suspects that an account used for its team has been compromised. What is done through a Team Member's account is, for the purposes of these terms, done by the Customer. The Provider holds each Team Member's own account under its privacy notice.
7. Acceptable use and suspension
The Customer shall not use the Service to break the law, to offer goods it has no right to sell, to mislead Participants, to send marketing to Participants who have not agreed to receive it, to interfere with the Service or with other customers, or to attempt to reach another customer's data. The Provider may suspend an Application, or any part of the Service, immediately where continuing to serve it would break the law, endanger Participants, or put the Service or other customers at risk; it tells the Customer why, and restores the Application once the reason has gone. Suspension is not closing: the Customer's account, Customer Data and these terms continue while an Application is suspended. What the Customer may not offer at all, and what it may offer only under a permit, is set out in Schedule 1.
8. Fees
The Customer pays the fees its plan states, on the basis and at the intervals that plan sets out, together with any applicable taxes. Fees accrue up to and including the Closing Date. [Drafting note: the plan schedule, invoicing and payment terms, the consequences of late payment, and whether any fee paid in advance is refunded on closing are not yet decided.]
9. Data protection
The Provider processes the personal data of the Customer's Participants, Consignors and others on the Customer's behalf, as its processor, under the data processing agreement accepted alongside these terms, which forms part of them. The accounts people make on the Customer's Sites are among that data. The Provider processes the personal data in the accounts people use to sign in to the Dashboard and the Provider's other own parts of the Service, and in the Customer's own contact and billing records, as a controller, under its privacy notice. The Provider does not use the Customer's Participants' data, or the accounts on its Sites, for its own marketing and does not sell them.
10. Intellectual property and Customer Data
The Customer keeps all rights in Customer Data and in its own content, such as listings, images, conditions of sale and branding, and confirms that it holds the rights needed to publish that content. The Customer grants the Provider a non-exclusive licence to host, copy, transmit and display Customer Data and that content as needed to provide the Service to the Customer and its Participants, for as long as the Provider holds them under these terms. The Provider keeps all rights in the Service and the Rule Book. The Customer shall not copy, resell or reverse engineer the Service except as law permits. [Drafting note: whether the Provider may use aggregate, de-identified statistics about use of the Service to improve it is not decided; if it may, the permission is stated here.]
11. Warranties and liability
11.1 Limit. Each party's total liability to the other arising out of or in connection with these terms, in contract, tort (including negligence) or otherwise, is limited to the greater of the fees the Customer paid under these terms in the twelve months before the event giving rise to the claim, and [AUD floor]. [Drafting note: the floor is set against the insurance cover the Provider holds, and does not exceed it.]
11.2 Customer Data. Each party's total liability for a breach of the data processing agreement is limited to the greater of [three] times the amount in clause 11.1 and [AUD amount], in place of the limit in clause 11.1. [Drafting note: the multiple and the amount are set with the floor in clause 11.1.]
11.3 Indirect loss. Neither party is liable to the other for any indirect or consequential loss.
11.4 Outside the limits. Nothing in this clause limits a party's liability for fraud or wilful misconduct, the Customer's obligation to pay fees, or any liability that cannot be limited by law. [Reviewer note: confirm, in each market the Service is offered in, that the limits in clauses 11.1 to 11.3 are not unfair terms in a standard-form contract with a small business. The sole remedy in clause 11.5 is asked about in clause S2.7.]
11.5 A Platform Outage during a Closing Window. Where a Platform Outage overlaps the Closing Window of any of the Customer's items, the reinstatement of Credits in Schedule 2 is the Customer's sole and exclusive remedy for that Platform Outage, as clause S2.7 sets out.
11.6 Warranties and indemnities. [Drafting note: the warranties and their disclaimers, and any indemnities (for example for the Customer's content and for the Customer's sales), are not yet decided. Whatever is settled must leave the obligations in the data processing agreement, and the return, deletion and retention obligations in clause 12, enforceable.]
12. Closing the account and ending these terms
12.1 Closing by the Customer. The Customer may close its account at any time from the Dashboard. A Team Member whom the Customer has permitted to manage its team closes it on the Customer's behalf. Before closing, the Service shows a checklist of what must be done first, with a link to where each item is done.
12.2 What must be done first. Before the account can close, the Customer must: (a) take offline every sale and listing that is open to Participants or scheduled to open; (b) release or capture every Participant deposit it still holds; (c) send every refund owed to a buyer; (d) answer every open request from a data subject to exercise their rights; and (e) pay everything it owes the Provider. The Service does not close the account while any of these remains.
12.3 What does not prevent closing. Orders that buyers have not paid, and orders that have been paid but not yet collected, do not prevent closing. The Service warns the Customer of them and asks it to acknowledge the warning before the account closes. The Customer's obligations to its buyers and Consignors under those orders, and under every sale made through the Service, continue after closing, outside the Service, and remain the Customer's alone.
12.4 What closing does. Closing takes every one of the Customer's Applications offline at once, and these terms end on the day the account closes (the "Closing Date"). From then, Participants can no longer reach the Customer's Sites and the Customer can no longer run sales on the Service.
12.5 Return of Customer Data. For thirty days after the Closing Date (the "Export Period"), the Customer can download Customer Data from the Service. The Provider is not obliged to provide Customer Data in any other form, or after the Export Period ends. [Drafting note: the download is the Service's own export; an export in a form fixed by contract is planned and, when it exists, is described here.]
12.6 Deletion. When the Export Period ends, the Provider deletes Customer Data as the data processing agreement describes, except records that law requires the Provider to keep, such as accounting and payment records. The Provider keeps those under its own legal obligation, for the period that law sets and for no other purpose, and deletes them when that period ends.
12.7 Reopening. At the Customer's request made during the Export Period, the Provider may reopen the closed account, in which case nothing is deleted under clause 12.6 and these terms continue. [Drafting note: whether a reopened account's Applications return online automatically or when the Customer chooses follows the reopening flow as built, and is to be confirmed against it.]
12.8 Closing by the Provider. The Provider may close the account on the Customer's behalf: (a) at the Customer's request; (b) where the Customer has materially breached these terms and has not remedied the breach within [number] days of notice; (c) where law requires it; or (d) for any reason, on [number] days' notice. The Provider closes through the same checklist: the Customer shall complete the items in clause 12.2 within the notice period, and clauses 12.3 to 12.7 apply as they do when the Customer closes. [Drafting note: the two periods are not yet decided, nor is what happens when a closure the Provider starts meets an item in clause 12.2 the Customer has not completed.]
12.9 The Customer's own records. The Provider keeps the Customer's own identity and billing records — its legal name, its contact details, the agreements it accepted, and its invoices and payments — for ten years after the Closing Date, as accounting and tax law requires, and then anonymises them. [Drafting note: ten years is the longest accounting-record period among the jurisdictions the Service is built for; counsel to confirm it holds for each.]
12.10 What survives. The obligations on amounts owed, data protection, return and deletion, the Customer's own records, liability and the general terms survive the end of these terms, as does anything else that by its nature is meant to.
13. Changes to these terms
The Provider may publish a new version of these terms. A material change is published as a new version, which the Customer is asked to accept before it continues to use the Service; a Customer that does not accept it may close its account under clause 12. The version accepted, and when, is recorded against the accepting account. [Drafting note: the advance notice given of a material change is not yet decided.]
14. General
Notices to the Customer are given through the Dashboard or to the contact address the Customer holds in it; notices to the Provider are given to the address it publishes for them. Neither party may assign these terms without the other's consent, except that the Provider may assign them on a transfer of the business that operates the Service. These terms, the data processing agreement and the privacy notice are the whole agreement between the parties about the Service. If any provision is unenforceable, the rest stands. These terms are governed by the law in force in [New South Wales, Australia]. [Drafting note: the governing law is bracketed until the Provider is incorporated.]
15. Disputes
A party with a dispute about these terms gives the other written notice of it, and for thirty days from that notice senior representatives of both parties try in good faith to resolve it. Neither party starts proceedings about the dispute before those thirty days end, except to seek urgent interim relief. The courts of [New South Wales, Australia] have exclusive jurisdiction over any proceedings about these terms, and each party submits to them. [Reviewer note: confirm, in each market the Service is offered in, that an exclusive choice of court in a standard-form contract with a small business is not an unfair term.]
Schedule 1. Prohibited and permit items
S1.1 Prohibited items. The Customer shall not offer through the Service any of the following, whether or not it may lawfully offer them in a particular territory: counterfeit currency and stamps, and equipment designed to make them; credit, debit and store cards, whether active or expired; financial instruments, including stocks and other securities, and other investment or financial products; offers of credit and credit accounts; government documents, passports, identification cards and licences; ivory, and organs and body parts of endangered or protected species; cultural property whose sale or export is prohibited by sanctions or by the law of its country of origin; narcotics, so-called legal highs and related paraphernalia; prescription medicines; mailing lists and other lists of personal information; mobile telephone jammers, GPS jammers and similar devices; personal relationships and dating services; recalled products; sexually explicit material and items; stolen goods; tickets priced above their face value; used cosmetics and applicators; used undergarments; explosives; weapons that are prohibited in the territory of the Customer or of the buyer; replica firearms that do not carry the markings the law requires; and real property.
S1.2 Permit items. The Customer may offer alcohol, plants and animals, and firearms, ammunition, knives and other weapons that are lawful in its territory and the buyer's, only where it holds every licence, permit, accreditation or approval the law requires for that offer (a "Permit"). For each Permit item the Customer warrants that it holds every Permit the item needs; shows its Permits on the page of the event in which the item is offered; answers any query from the Provider about its Permits and their status; admits as a bidder or buyer only a person of the age the law requires, using the admission criteria the Service lets it set; and complies with every restriction on advertising, sale, delivery, import and export that applies to the item.
S1.3 Firearms and weapons. In addition, for firearms, ammunition, knives and other weapons, the Customer completes every sale through the channel the law requires for the transfer, including any permit to acquire and any transfer through a licensed dealer, and never treats the Service as that channel; and it either holds its payment provider's approval to take payment for the item through the Service, or takes payment outside the Service and records it there as paid.
S1.4 Real property. Real property is prohibited until the Service supports the records and checkout a sale of it requires; the Provider will say when it does.
S1.5 How this schedule is enforced. The Provider does not review listings before they are published. Where it learns that an item breaches this schedule, it may withdraw the item and act under clause 7. The Provider may add a class of item to clause S1.1 or S1.2 by notice in the Dashboard. [Drafting note: the notice period for such an addition, and what happens to an item already listed in the added class, are not yet decided.] [Reviewer note: confirm, in each market the Service is offered in, that hosting a Permit item offered by a licensed Customer places no licensing obligation on the Provider itself.]
Schedule 2. Platform outages during a closing window
S2.1 Platform Outage. A "Platform Outage" is a period, with a start and an end, that the Service records because the Service's bid path, the route by which a bid reaches the Service's records, was failing. The Provider's monitoring, which runs outside the Service, requests the bid path every minute from several locations. The Service records a Platform Outage when those requests have failed from more than one location for a minute, and records its end when they succeed again, with the start and end the monitoring gives them. A Platform Outage whose end has not been recorded is open. The Service is run as one or more separate installations, each serving the Applications placed in it, and each records the Platform Outages of its own bid path; a Platform Outage concerns only the items of the Applications its installation serves. [Drafting note: the monitoring is built and is not yet switched on in the installations that serve customers; until it is, the Service records no Platform Outage and nothing in this schedule takes effect.]
S2.2 Corrections. The Provider may correct a Platform Outage after the Service records it, by moving its start or its end, or by ending one the monitoring has left open. A correction records its reason, and the Service keeps the start and end the monitoring recorded beside the corrected ones. This schedule applies to a Platform Outage as corrected: a correction that widens it reaches items it did not reach before; a correction that narrows it takes back no Credit already reinstated, and a close it no longer overlaps is no longer held and is concluded in the ordinary way. The Provider may also record a Platform Outage the monitoring missed, with its start, its end where it has ended, and the reason it records it; such a Platform Outage has no start or end recorded by the monitoring, cannot start later than the moment it is recorded, and is in every other respect a Platform Outage under this schedule from that moment.
S2.3 Closing Window. An item's "Closing Window" is the period that ends at its close, the moment the item is scheduled to close, as moved by any extension. Its length depends on the kind of item: (a) for a lot offered for bidding, five minutes, lengthened by the time every extension of bidding the lot took added to its close, each extension counted at the full length the sale's settings give it, even where a limit on the sale's length cut the last of them short; (b) for a tender line, one hour, ending at its deadline for responses; and (c) for any other item with a scheduled close, such as a listing or a giving option, no length: its Closing Window is the moment of its close alone. No Closing Window is longer than one hour. An item with no scheduled close has no Closing Window. A Closing Window overlaps a Platform Outage where any moment of it, from its start to the item's close inclusive, falls at or after the start of the Platform Outage and either before its end or while it is open.
S2.4 Reinstatement. A "Credit" is a unit, bought, given, provided under the Customer's plan or extended on credit, that the Service draws when the Customer creates an item of a kind that costs Credits. Once a Platform Outage has ended, the Service reinstates the Credits drawn by each of the Customer's items whose Closing Window overlapped it, without the Customer asking, and records the Platform Outage as the reason for each reinstatement. It does so whether or not the item's close is later released under clause S2.6, and whatever that close concludes. An item that drew no Credits has none to reinstate, and an item's Credits are reinstated once, however many Platform Outages overlapped it. A Credit drawn from Credits the Customer bought or was given, or that its plan provides, returns to the Customer's balance, except that one drawn from an allowance whose period has ended expires as it returns, as the rest of that allowance has; and a Credit drawn on credit the Provider extended to the Customer is taken off the Customer's usage for the month in which it was drawn, so that it is not invoiced, where that month has not yet been invoiced. Where that month has already been invoiced, the invoice stands, and the Provider issues the Customer a credit note against it, naming the Platform Outage, for the price at which each such Credit was invoiced, with tax at the rate the invoice bore. The credit note is issued once the Service has finished reinstating Credits for the Platform Outage: one credit note against each such invoice, covering every such Credit reinstated for that Platform Outage, and a further credit note for any such Credit a correction later reinstates. It does not wait on, and is not carried by, any later invoice. Where the invoice was paid by card, the amount of the credit note, with its tax, is refunded to that card; otherwise the Provider sets that amount against what the Customer still owes under the invoice, and pays any of it left over to the Customer. Reinstatement does not reach an item withdrawn before its Credits were reinstated, or an item whose close the Service concluded before it recorded the Platform Outage, or the correction that brought the item within it. The Service shows the Customer in the Dashboard, beside its Credits, each Platform Outage for which it reinstated any of the Customer's Credits: the Platform Outage's start and end as corrected and as the monitoring recorded them, the reason for any correction, how many items and Credits were reinstated, and each item whose Credits were reinstated with the number of its Credits. Once the Service has finished reinstating Credits for a Platform Outage, and any credit note this clause provides for has been issued, it tells the Customer by email, at the addresses of the members of its team who manage its billing, the Platform Outage's start and end and how many items and Credits were reinstated, and tells the Customer again, with the new totals, where a correction later reinstates more.
S2.5 Holding a close. When the close of an item whose Closing Window overlaps a Platform Outage falls due, whether the Platform Outage is open or has ended, the Service does not conclude it: it determines no result for the item, sends no notice of one and raises no invoice for it. The close stays held for as long as its Closing Window overlaps a Platform Outage; a release under clause S2.6 moves it clear. Holding a close holds nothing else: every close no Platform Outage overlaps, in the same sale or any other, is concluded at its time. While the Service cannot read its record of Platform Outages, it concludes no close at all. The monitoring records a Platform Outage about two minutes after the bid path starts failing, so before it concludes any close the Service also requests its own bid path by the route the monitoring requests, and concludes no close while that request fails; a close passed over in this way is concluded when the request next succeeds, unless a Platform Outage recorded in the meantime holds it, and is not reinstated where none does.
S2.6 Releasing a held close. A held close is released for one sale and one Platform Outage at a time, and only once the Platform Outage has ended and the Service has finished reinstating Credits for it under clause S2.4. On release, the Service moves the close of every item of that sale the Platform Outage holds, whether that close has passed or not, later by one interval, the same for each, so that the items keep their order and spacing. The interval is the longer of: (a) the shortest interval that places the earliest of those closes no sooner than one day after the release, a period that may be longer where the law of a market the sale is connected to requires it; and (b) the shortest interval that places the start of every moved item's Closing Window at or after the end of the Platform Outage. Each moved item then closes at its new time in the ordinary way. Each sale states, among the terms its Participants are shown, whether its held closes are released on recovery, as soon as the Service has finished reinstating Credits for the Platform Outage, or when the Customer releases them, which applies unless the Customer chooses release on recovery for the sale. The Dashboard tells the Customer which of its sales hold closes, and lets it release each once release is possible. The Provider may release a held close itself where the Customer cannot be reached.
S2.7 Sole remedy. The reinstatement of Credits under clause S2.4 is the Customer's sole and exclusive remedy for a Platform Outage that overlaps the Closing Window of any of its items, and for any loss arising from that Platform Outage, including bids that could not be placed, a sale that did not complete or completed at a lower price, and a close that was held or moved. Reinstated Credits are not a payment of damages: they are not counted towards the limit in clause 11.1, and that limit does not reduce them. Nothing in this schedule limits a liability that clause 11.4 places outside the limits. [Reviewer note: confirm, in each market the Service is offered in, that a sole and exclusive remedy in a standard-form contract with a small business is not an unfair term (in the Provider's home market an unfair term in such a contract is not only void but attracts a penalty), and in particular: whether a remedy measured by the Credits an item drew, rather than by what the outage cost the Customer, sustains it; whether it should reach only the loss a Platform Outage caused through the Closing Windows it overlapped, rather than every loss arising from it; and that it sits correctly beside clause 11, with reinstated Credits outside the limit in clause 11.1 and the exceptions in clause 11.4 applying to it.]