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Sydney auctioneers Vickers and Hoad have voiced their frustration after discovering that what they thought was a ‘trial period’ contract with an online bidding platform actually tied them into the service for a year.

Colin Vickers told ATG that although he hadn’t read the full text of the multi-page contract, he felt his attention should have been drawn to an exclusivity clause in LiveAuctioneer.com’s terms and conditions that would restrict his online bidding service to them for a year if he did not opt out of the 30-day trial before it ended.

Mr Vickers considers the contract to be onerous, but LiveAuctioneers.com told ATG that the terms were stated plainly.

The issue arose after the eleventh-hour cancellation – as a result of the exclusivity clause – of a live online sale Mr Vickers had planned with the-saleroom.com, the live bidding platform operated by ATG’s parent company.

LiveAuctioneers.com, an eBay partner, offer bricks-and-mortar auctioneers the chance to bring their catalogues to eBay’s 200-million-plus audience, who can bid live during sales. Vickers & Hoad’s first sale using the service was on March 30.

While the sale was successful, Colin Vickers, director of the Sydney firm, had not found exposure to eBay’s audience of great benefit. Confident that his ‘30-day trial period’ had expired (he had signed the contract on March 15), he arranged to conduct the firm’s Sunday, April 27 sale via the-saleroom.com.

Subsequently, Anne Somers, director of the-saleroom.com, received a letter via email from LiveAuctioneers.com at 11pm on Friday, April 25, issuing legal threats should the sale go ahead.

It then became apparent that there was an exclusivity clause in the contract, stating that the trial user of the online bidding platform had to contact LiveAuctioneers.com in writing at least ten days before the end of the 30-day period or they would be contracted exclusively to LiveAuctioneers.com for a year.

Mr Vickers said he had not been aware of the clause and was now being threatened with breach of contract.

Julian Ellison, chief executive of LiveAuctioneers.com, issued ATG with a 600-word statement in which he states: “This stipulation was in plain English, in regular-size type – not in ‘small print’ – on Page 2 of the 30-day agreement signed by Mr Vickers on March 15 under the section headed Terms and Termination. … Based on the plainly stated terms of the Agreement, Vickers & Hoad had until April 3 to notify LiveAuctioneers of their intent not to renew. No such notice was received”.

He added: “…we must be clear that business is business, that Vickers & Hoad entered into a legally binding agreement with LiveAuctioneers, and that the terms of that agreement were plainly stated within the document at the time it was signed. We are sure that
the-saleroom.com, being in the same business as LiveAuctioneers, would understand this basic tenet of 21st century commerce. There can be no question that the-saleroom.com would not sit back, idly looking on, if one of its contracted customers chose to migrate to LiveAuctioneers.”

Mr Vickers considers the lock-in clause to be unfair. “The antiques trade and the auction business are gentlemen’s businesses,” he said.

He believes such contracts would be illegal under Australian law, although in this case LiveAuctioneers.com are subject to New York State law, where such contracts are permissible. He is seeking legal advice.

By Roland Arkell