Recitals1. MotorPlatform provides a software-as-a-service known as ‘MotorPlatform’ (Platform) which assists customers in the purchase, sale and valuation of vehicles.
2. The Buyer is an automotive dealer engaged in the business of buying and selling used, new and online vehicles. The Buyer is seeking to use the Platform for the purposes of buying vehicles which will be listed by vendors. MotorPlatform is not a vendor but rather, a facilitator of a vehicle sale via the Platform.
3. MotorPlatform agrees to grant access to, and the Buyer agrees to use, the Platform on the following terms and conditions.
Terms and Conditions4. The following terms and conditions govern the one-off sale of any vehicle (Vehicle) through MotorPlatform’s disposal service, the Platform, to the Buyer. By accepting these terms and conditions, the Buyer hereby agrees to contract with MotorPlatform on the basis of same.
Binding Bids & Completion of Sale5. All Vehicles listed for sale on the Platform are intended to be sold on an ‘as is, where is' basis. If the Buyer bids on a Vehicle advertised for sale on the Platform and its bid is successful, the Buyer will be required to complete the sale by paying MotorPlatform for the Vehicle within 24 hours of receiving an invoice for payment.
6. On successful completion of a sale, MotorPlatform will organise transportation of the sold Vehicle using appropriate available transportation companies and will charge the Buyer for the costs, at the rates applicable at the relevant time. If, on taking delivery of a Vehicle, the Buyer has any concern or dispute, it must engage with MotorPlatform, in good faith, within 24 hours of taking delivery and work with MotorPlatform to resolve any concern or dispute in accordance with this agreement, through private conciliation or mediation. The Buyer hereby acknowledges and agrees that it must not take any action against MotorPlatform unless it has firstly engaged in a conciliation or mediation process in good faith to the reasonable satisfaction of MotorPlatform.
7. If a vehicle has finance owing on it, MotorPlatform will payout the finance and request the removal or discharge of any security interests recorded by the financier against the Vehicle on the Personal Properties Securities Register. The Buyer acknowledges and accepts that where MotorPlatform attempts to payout any finance owing on a Vehicle, its ability to secure unencumbered title and release of any security interest is dependent on factors outside of MotorPlatform’s control including how and when any existing financier engages. Accordingly, there may, from time to time, be processing delays outside the control of MotorPlatform in respect of some encumbrance clearance processes and the Buyer accepts that MotorPlatform cannot be responsible for any such delays or complications.
Third Party Sales or Solicitation of Offers Prohibited8. The Buyer hereby undertakes not to canvass any third party in respect of the future on-sale of any Vehicle advertised on the Platform before it places a bid on and successfully completed a sale transaction with MotorPlatform.
Nominal Buyer Fee9. The Buyer will be charged a nominal fee +GST in relation to each Vehicle purchased via the Platform (Nominal Fee). MotorPlatform reserves the right to change, including by increasing, the Nominal Fee as at 1 July or 1 January in every calendar year. The Nominal Fee must be paid by the Buyer at the time of completion of a sale pursuant to these terms and conditions.
Vehicle Description Acknowledgment of Limitations10. The Buyer hereby acknowledges and accepts that MotorPlatform is not the vendor of any Vehicle nor the agent of any vendor (unless a Vehicle is expressly listed on the Platform as being made by MotorPlatform as the vendor or vendor’s agent). MotorPlatform is wholly reliant on vendors for the accuracy of information shared via the Platform. However, MotorPlatform will, to the best of its ability and on the basis of the information available to it, provide descriptions of each Vehicle including as to (where available and appropriate):
10.1.1 Make, model, model year, variant, badge, options, accessories, conditions (mechanical and cosmetic), the Vehicle Identification Number (or VIN) and registration number;
10.1.2 odometer reading;
10.1.3 cosmetic & mechanical condition (disclosing any faults, hail / flood or accident damage);
10.1.4 number of keys and presence of logbooks; and
10.1.5 service-history records.
11. The information outlined above and any other documents or information including (without limitation) service books or accident history reports (etc.) will be passed onto the Buyer by MotorPlatform. The Buyer hereby acknowledges and accepts that MotorPlatform is not responsible for the accuracy or completeness of any of such information or documentation and, that MotorPlatform is acting in good faith in providing the information obtained from the vendor. The Buyer accepts that MotorPlatform does not, and cannot, warrant the accuracy or completeness of any information provided in respect of any Vehicle. To the extent required or necessary, the Buyer accepts that it must verify the information provided or obtain further information where possible.
12. The Buyer hereby acknowledges and accepts that it is prudent for it to undertake its own research and fact verification process in respect of any Vehicle it seeks to buy via the Platform including as to any Vehicle specifications or information (including but not limited to that set out above).
13. The Buyer must be satisfied with the condition description, specifications and or images provided in respect of a Vehicle. If the Buyer is not satisfied with that information, in addition to conducting its own independent assessment or verification, it may contact MotorPlatform and request further information before bidding on the Platform. To the extent possible and available, MotorPlatform will assist in providing any additional information or confirmations reasonably requested.
14. The Buyer hereby acknowledges and accepts that there may be up to $1000 in undisclosed damages or issues with any Vehicle and that the Buyer will consider those risks when it is placing a bid on the Platform.
14.1 The Buyer acknowledges and agrees that any Vehicle purchased via the Platform for a total purchase price of less than $5,000 (exclusive of GST) is sold strictly on an “as is, where is” basis and no return, refund, or claim for compensation will be accepted by MotorPlatform in respect of such Vehicle, regardless of any subsequently discovered faults, defects, or damages.
15. Subject to clause 14.1, if any Vehicle is found to have any major undisclosed damage or issue, MotorPlatform will engage with the Vehicle’s vendor and utilise its best endeavours to mediate a resolution as between the vendor and the Buyer. In doing so, MotorPlatform will apply its policy titled “
Mediation and Return Policy” (
the Policy), which forms part of this Agreement and sets out (a) the grounds on which a return or other remedy may be sought, (b) the process for mediation, and (c) matters that are not covered or are excluded. The Policy is available on request. For clarity, the version of the Policy in force at the time the Buyer places a successful bid will apply to that transaction, and where there is any inconsistency between this Agreement and the Policy, this Agreement prevails.
Privacy and Data Protection16. The Buyer acknowledges that any personal information or data collected by MotorPlatform via the Platform will be gathered in its capacity as a data controller and will be processed in accordance with the MotorPlatform’s privacy policy (available at
https://www.motorplatform.com.au/privacy-policy) and applicable privacy laws. The Buyer hereby acknowledges and accepts the terms of MotorPlatform’s privacy policy.
Intellectual Property and Platform Integrity17. The Buyer hereby acknowledges and accepts that MotorPlatform owns the intellectual property rights including as to existing and future copyright, rights in designs, patents, semiconductors, circuit layouts and rights in trademarks, trade names and service marks, in each case, whether registered or unregistered and existing in Australia or elsewhere in the world and either created before or after the date of this agreement, including any and all intellectual property rights in or to the Platform, as may be updated from time to time and used by MotorPlatform to provide services under the Platform including any methodologies, software, templates, formulas, know-how or other tools or materials.
18. All rights in or attached to MotorPlatform’s intellectual property rights vest or remain vested solely in MotorPlatform or its licensors at all times.
19. The Buyer must immediately notify MotorPlatform in writing as soon as practicable upon becoming aware of any infringement or unauthorised use of the Platform. The Buyer must also take reasonable precautions to ensure that the Platform’s integrity is maintained by ensuring that its users of the Platform comply with the terms and conditions of this agreement and or any other policies or procedures connected with the Platform.
Limitation of Liability20. To the extent permitted by law, MotorPlatform’s liability arising out of or in connection with this agreement, whether in contract, tort (including negligence) or any other basis in law or equity for any indirect or consequential loss is hereby excluded.
Governing Law21. This agreement is governed by the laws of New South Wales, Australia. The Buyer and MotorPlatform irrevocably submit to the exclusive jurisdiction of the courts of New South Wales and waive any objection to proceedings being brought in those courts.
Notices22. Notices and other communications in connection with this agreement must be in writing and must be sent to the address or email address referred to above.
Amendment23. This agreement may only be amended or varied by written agreement between the Buyer and MotorPlatform.
Termination24. This agreement will continue on a rolling basis until such time as either the Buyer or MotorPlatform terminates the agreement on the provision of 30 days’ written notice.
Entire Agreement25. This agreement represents the entire agreement between the Buyer and MotorPlatform in respect of its subject matter.