Terms and Conditions of Members

TERMS AND CONDITIONS OF MEMBERS


IMPORTANT This is a legal agreement between Dealer-Auction.co.nz Limited and the user ("you" or "your") of the website at URL: www.dealer-auction.co.nz ("Website"). Please read the following terms and conditions carefully.

  1. Interpretation

In this agreement the following terms and phrases mean:

Sell Fee: the price the Seller will pay for sale of a vehicle on the Website, as set from time to time and located on the Website.

Annual Subscription Fee: the annual fee to be paid by a Bidder as membership of the Website, as set out from time to time and located on the Website.

Bidder: the user who bids for the Goods at auction.

Buyer: the winning Bidder at auction.

Buyer Fee: the fee to be paid by the Buyer for winning an auction on the Website, as set out from time to time and located on the Website.

Consequential Loss: loss or deferment of actual or anticipated profits or revenue, loss of goodwill or reputation, loss or deferment of anticipated benefits or savings, loss or deferment of any prospect or business opportunity, loss of data, loss of value, loss of production or other business interruption loss and legal costs (on a full indemnity basis).

Dealer-Auction: Dealer-Auction.co.nz Limited, company number 5338321 and includes its officers, employees, representatives, agents and related bodies corporate.

Goods: the vehicle for sale on the Website.

Membership Criteria: The Seller must hold and maintain a motor vehicle trader licence in New Zealand in order to register and maintain membership. The Seller must also be a New Zealand franchise motor vehicle trader. The Bidder or Buyer must hold and maintain a motor vehicle trader licence in New Zealand in order to register and maintain membership.

Purchase Price: the price of the winning bid.

Seller: the licensed motor vehicle trader who is advertising and selling the Goods on the Website.

Services: the advertisement of the Goods for sale on the Website and the facilitation of the sale of a Seller's Goods on the Website.

Terms: these terms and conditions, as applying from time to time.

Website: www.dealer-auction.co.nz

  1. Status of these Terms

2.1. These Terms relate to the provision of Goods and Services supplied to you from time to time in accordance with the membership and use of the Website. These Terms and any policy or notice and privacy policy shall constitute the entire agreement between us and shall be read down in that order.

2.2. We may alter, vary, modify or delete any of these Terms or amend or delete any features of the Website without your consent at any time and your continued use of the Website after this constitutes an agreement by you to abide by the Terms and/or features as so amended.

  1. Website Use

3.1. This Website is operated by Dealer-Auction.

3.2. Your viewing and use of this Website is governed by and subject to these Terms.

3.3. By using this Website you irrevocably submit that you have read, understood and agree to be bound by these Terms and have had the opportunity to ask any questions in relation to this website by telephoning our Customer Service Centre on 09 2676349 or 09 2676350 or emailing us at graham.green@dealer-auction.co.nz or Daniel.hood@dealer-auction.co.nz.

3.4. You agree to only access the Website for legitimate and lawful business purposes.

3.5. If you have read and accepted these Terms and our privacy policy but you have not registered to use the Website, please click on the link below to register: Go to Registration page  We reserve the right to refuse your application to register to use the Website for any reason, including (but not limited to) because you fail to satisfy the Membership Criteria.

3.6. Unfortunately no data transmission over the internet can be guaranteed as totally secure. Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any information which you transmit to us. Accordingly, any information which you transmit is transmitted at your own risk. Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such information.

3.7. Dealer-Auction reserves the right to block your access to the Website or terminate your membership if you do not fulfil the Membership Criteria or have otherwise breached these Terms or for any other reason determined at our discretion.

  1. Prices

4.1. All prices given on this Website may be varied by Dealer-Auction from time to time, including after you become a registered member.  The Buyer Fee and Seller Fee specified on the Website at the commencement of the relevant auction period will apply to any transaction arising from that auction.  The Annual Subscription Fee on the Website at the time your annual membership is renewed will apply to the renewal.

4.2. All prices on the website are inclusive of GST unless otherwise noted.

4.3. All prices on the website are exclusive of any government and statutory charges unless otherwise stated.

4.4. Payment of the Annual Subscription Fee, Sell Fee or Buyer Fee will be by direct credit or direct debit.

  1. Advertising

5.1. Should you wish to advertise Goods for sale on the Website you agree you are the owner or have the right to use the photographs, pictures, text or other content used to advertise the Goods.

5.2. As the Seller, you agree that:

5.2.1.   You are legally capable of entering into a binding contract to sell the Goods;

5.2.2.   You will sell the Goods should they reach or better the reserve price;

5.2.3.   Should the Goods successfully reach or better the reserve price or you accept an offer lower than the reserve price you will pay the Sell Fee; and

5.2.4.   The description of the Goods uploaded by you to the Website accurately and fully describes the Goods and is not misleading or deceptive.

5.3. As the Seller, you also agree that:

5.3.1.   You are the sole owner of the Goods; or

5.3.2.   You have authority from the owner to sell the Goods where you are not the registered owner, and

5.3.3.   You or the owner have clear title to and the unfettered right to sell the Goods and the Goods are not subject to a security interest of any kind including, but without limitation, under the Personal Property Security Act 1999 (PPSA) which will not be released at or before the completion of any sale.

  1. Bidding and Sale

6.1. Full instructions on how to bid for the Goods and details of the expiry date and time for each auction will be posted on the Website but all bids and transactions shall be subject to these Terms.

6.2. A bid may not be withdrawn after it is placed.

6.3. No person may submit a bid for the Goods which is less than the sum specified from time to time by the Seller or Dealer-Auction in relation to those Goods.

6.4. To be the winning bid, the bid must be the highest bid of the auction and must meet any other conditions which may be specific to each auction including, but not limited to, meeting or exceeding any reserve. If additional or special conditions apply, they (other than the amount of any reserve price) will be detailed alongside the description of the Goods prior to the commencement of each auction listing.

6.5. When you bid on the Goods you are agreeing to purchase those Goods for the price you bid in the event that you are the highest Bidder. Once a bid has been accepted you agree that you will complete the transaction and pay the Purchase Price.

6.6. The successful Bidder must pay the Purchase Price within 72 hours of the winning bid. Payment shall be made directly to the Seller and in accordance with additional or special terms and conditions notified by Dealer-Auction or the Seller to you.

6.7. In the event the Seller ends an auction listing early which has met the reserve price (and does not sell the Goods to the highest Bidder) the Seller must still pay the Sell Fee.

6.8. If you are the highest Bidder and the reserve price is not met the Seller or Dealer-Auction may contact you to accept or discuss your bid for the Goods.

6.9. Dealer-Auction reserves the right to contact either a Bidder or the Seller to assist parties to achieve a Purchase Price.

6.10. Dealer-Auction reserves the right to refuse or remove bids and/or suspend, cancel or extend auctions at its absolute discretion, including (but not limited to) where an error has been made by Dealer-Auction.

6.11.  If the reserve price is met for the Goods:

6.11.1.     Dealer-Auction will invoice the Buyer the Buyer Fee and will invoice the Seller the Sell Fee even if the Seller and the Buyer do not ultimately complete the transaction, except where the transaction is not completed due to the wilfully negligent act or omission of Dealer-Auction or a breach of these Terms by Dealer-Auction. Payment must be made on the terms and conditions stipulated on the relevant invoice.

6.11.2.      The Seller will inform the Buyer by email or telephone the date and time for collection of the Goods and acceptable payment methods.

6.12. Intelligent bidding allows you to submit your maximum bid on a Goods listing and it will bid up to this figure on your behalf. If the maximum bid placed exceeds that of the reserve price set by the Seller, the system will only take the reserve price figure and display a reserve met status on the Goods listing. Bids will then increase up to your maximum bid as subsequent bids are placed.

6.13. Dealer-Auction is not obliged to assist in any sale or dispute between a Seller and Bidders or the Buyer. If any dispute arises, the dispute will be between the Bidder or Buyer and the Seller and you acknowledge and agree that Dealer-Auction will be excluded from any subsequent action or court proceedings. If Dealer-Auction is subsequently included in any such action or proceedings, the relevant Buyer and Seller jointly and severally agree to indemnify Dealer-Auction for any liability or costs (including, but not limited to, legal costs on a full indemnity basis) incurred by Dealer-Auction in relation to such action or proceedings.

  1. Your Obligations

7.1. Where you are the Seller and you submit Goods for auction on the Website, you irrevocably agree to advertise the Goods exclusively with Dealer-Auction for the duration of the relevant auction period. In the event you advertise or attempt to sell the Goods via other sales channels simultaneous to the auction listing, we reserve the right to cancel the auction listing, terminate your membership and/or charge you the Sell Fee.

7.2. You are not permitted to place your dealership name, address or contact details in any advertisement including, but not limited to, the comments feature on the Website (including in any photographic material). A failure to adhere to this Term will result in cancellation of the auction listing and may result in the termination of your membership.  We also reserve the right to charge you the Sell Fee in these circumstances even if the relevant Good is not sold at auction.

7.3. You agree to provide further information if required in relation to your Website registration or the advertisement of Goods.

7.4. It is your responsibility to notify us immediately of any changes to your registration details by emailing: graham.green@dealer-auction.co.nz or Daniel.hood@dealer-auction.co.nz.

7.5. On registration you will be asked to select a username and password. You are responsible for the use and for keeping your password and username confidential and secure and you must not provide these details to any third party under any circumstances.  You must also notify us immediately if you suspect unauthorised use by any third party. In the event of a security breach, you will be given the ability to change your username and password which you must do immediately. You represent and warrant to Dealer-Auction that you accept all liability for any unauthorised use of any username and password.

7.6. You are not permitted to transfer your password to another person or entity.

7.7. You are responsible for all costs and charges (including, without limitation, internet and telecommunication charges) in accessing the Website.

7.8. You are responsible for conducting all due diligence in relation to any Goods on the Website including, but not limited to, a search of the Personal Property Security Register regarding security interests and/or written off vehicle register notification.  Subject to these Terms and to the extent permitted by law:

7.8.1.   you irrevocably release us from loss you suffer or incur due to any and all defects in the Goods or title to the Goods; and

7.8.2.   your sole recourse for any such loss is against the Seller.

7.9. You shall not permit any person under the age of 18 to participate in an auction on the Website.

7.10. You will use your best endeavours to scan or remove any virus or any other contaminated or destructive features before submitting any information to Dealer-Auction via email of the Website.

  1. Delivery

8.1. The Seller shall make available its terms of delivery to Dealer-Auction at the request of Dealer-Auction who may then make the terms of delivery available to the Bidders.

8.2. The Buyer shall at its own expense collect or make arrangements for the delivery of the Goods.

8.3. The Goods shall only be collected or delivered (as appropriate) on terms arranged by the Buyer and Seller after the auction.

  1. Payment and Risk

9.1. The Bidder shall pay Dealer-Auction the Annual Subscription Fee on the expiry of any applicable 30 (thirty) day free trial period and annually thereafter. In the event the Annual Subscription Fee is not paid within 30 days of invoice date, membership will be suspended until such time as payment is made.

9.2. The Buyer and Seller shall pay Dealer-Auction the Buyer Fee and Sell Fee (respectively) for each purchase and sale of Goods made via the Website.

9.3.The Buyer’s Fee and Sell Fee are payable regardless of whether the parties complete the transaction.

9.4. All Goods must be paid for in cleared funds to the Seller's nominated bank account (as set out in any invoice generated by the Seller or as otherwise notified by the Seller) within 72 hours of auction (unless otherwise agreed between the Buyer and the Seller).

9.5. In the event that payment is not received within 72 hours of auction (or within such other time period agreed by the Buyer and Seller) the Buyer acknowledges that the Seller may treat the bid as having lapsed and offer the Goods to other parties.  The Seller agrees not to sell the Goods to another party within 72 hours of auction, unless the Buyer agrees otherwise with the Seller in writing.

9.6. In the event the Buyer fails to pay the Purchase Price in accordance with clause 9.4, and notwithstanding any action the Seller may take under clause 9.5, Dealer-Auction reserves the right (at its discretion) to seek to recover from the Buyer:

9.6.1.    the purchase price for the Goods the Buyer bid at auction (less any amount the Seller receives when later selling the Goods, in mitigation of its losses), as agent for the Seller; and/or

9.6.2.   recover an administrative fee being equivalent to the Seller Fee paid by the Seller in relation to the Buyer's purchase of the Goods plus Dealer-Auction’s costs of recovery.

9.7. In the event that such payment is not made by the Buyer on demand from Dealer-Auction, the Seller reserves the right to pursue the Buyer through any available means for any loss or damage suffered.

9.8. The parties agree that Dealer-Auction shall not be responsible for pursuing any loss or damage or be liable for such loss or damage despite any efforts by Dealer-Auction to advance such matter on behalf of the Seller.

9.9. You are responsible for complying with all legal requirements in relation to use and maintenance of the Goods.

9.10. The Seller and Buyer are responsible for obtaining all certificates, permits or other authorisations necessary before the Goods can be used on any road or elsewhere.

9.11. The Buyer shall be liable for any taxes arising with the supply of the Goods.

10. Warranties

10.1. You warrant that:

10.1.1.         you have all rights to any information you provide Dealer-Auction or upload to the Website;

10.1.2.         the information does not infringe any person or entity’s legal or moral rights, does not infringe any law and is not obscene, indecent or defamatory;

10.1.3.         any content provided is not incorrect, misleading or deceptive; and

10.1.4.         you will not use the Website or Dealer-Auction for any purpose other than to sell or buy Goods.

11. Disclaimer

11.1. To the full extent permitted by law:

11.1.1.          Dealer-Auction does not provide any guarantee or warranty in relation to the Website or any Goods or Services advertised or provided on or via the Website including, but not limited to, accuracy, reliability or completeness of any information and/or any representation or warranty that the Goods or Services are of acceptable quality, fit or safe for the purpose intended.

11.1.2.          Dealer-Auction does not warrant that the Website is compatible with your computer equipment or that the Website or its server is free from errors, viruses, worms or trojan horses and Dealer-Auction is not liable for any damage you may suffer as a result of such destructive features;

11.2. The parties agree that the warranties, all other warranties and disclaimers in these Terms are reasonable and agree to be bound by them.

12. Liability and Indemnity

12.1. You acknowledge that you have not relied upon any representation made to you by Dealer-Auction in relation to the Goods and the Services.

12.2. The Website and its content are provided on an "as is" and "as available" basis by Dealer-Auction.

12.3. The Goods may be previously owned vehicles and are sold as seen. All Goods are sold with all (if any) faults and imperfections and errors of description. Buyers should satisfy themselves prior to sale as to the origin, description, suitability, age, durability, completeness, operability, state and condition or any other matter important to the purchasing decision of the Goods and should exercise and rely on their own judgment as to whether the Goods accord with any description. None of the photographs or illustrations of Goods available should be relied upon to give an accurate or full depiction of the state or condition of the Goods.

12.4. Subject to clause 12.5, Dealer-Auction excludes all liability, and you will indemnify us, for any loss, damage, cost or expense (including, but not limited to, any indirect or Consequential Loss) suffered or incurred by you arising out of the provision of any information, sale of any Goods or the provision of any Services or the breach by any party of these Terms.

12.5. To the full extent permitted by law, all rights, remedies, conditions, guarantees and implied and express warranties by Dealer-Auction in respect of any Goods or Services are excluded. In entering into these Terms the Buyer and Seller each confirm, acknowledge and agree that:

12.5.1.               They are each ‘in trade’ within the meaning of the Consumer Guarantees Act 1993 (CGA);

12.5.2.                The Goods and/or Services are supplied to the Buyer and acquired by the Buyer in trade and for a business purpose; and

12.5.3.                The statutory guarantees and implied terms, covenants and conditions contained in the CGA are excluded to the fullest extent permitted at law, and do not apply.

12.6. To the full extent permitted by law, you agree to indemnify Dealer-Auction for the full amount of any claim, suit or demand and all associated costs (including, without limitation, legal costs on a full indemnity basis) made by you or any other person in relation to Goods or your use of the Website. This clause survives termination of the use of the Website and does not merge upon completion.

12.7. Dealer-Auction holds the benefit of exclusions and indemnities in this clause 12 that are in favour of Dealer-Auction’s officers, employees, representatives, agents and related bodies corporate on trust for them. 

12.8. The Seller agrees that it alone is liable for all information (including, but not limited to, photographs) that it uploads/provides to Dealer-Auction or the Website and that the indemnity in clause 12.6 applies with respect to any liability of Dealer-Auction arising from the publication or use of such data.

12.9. The Buyer acknowledges and agrees that in the event of an accident caused by a fault with the Goods which results in a claim being made, the Seller is the correct defendant in this matter and not Dealer-Auction. You acknowledge and agree Dealer-Auction will be excluded from any subsequent action or court proceedings. If Dealer-Auction is subsequently included in any such action or proceedings, the relevant Buyer and Seller jointly and severally agree to indemnify Dealer-Auction for any liability or costs (including, but not limited to, legal costs on a full indemnity basis) incurred by Dealer-Auction in relation to such action or proceedings.

12.10. Any contract of sale created is a contract directly between the Buyer and the Seller. Dealer-Auction shall not be responsible for the terms of any transaction between the Buyer and Seller.

12.11. Dealer-Auction shall not be held responsible for content provided by third parties or for the content of or use of third party sites to which there is a link in the Website.

12.12. Dealer-Auction is not responsible for the reliability or continued availability of the telephone lines or equipment you use to access the Website.

13. Privacy

13.1. Dealer-Auction protects the privacy of individuals and complies with the Information Privacy Principles in the Privacy Act 1993 (Privacy Act).

13.2. Dealer-Auction agrees that it will only collect, hold, use, disclose or otherwise deal with any personal information (as defined in the Privacy Act) (Personal Information) disclosed by you to us for the purpose for which it was disclosed (including as set out in clause 13.3). The Personal Information collected includes name, telephone number, email and physical address, fax number, identification number and date of birth. If you do not provide us with all information requested, we may not be able to deliver some or all products and services.

13.3. The Personal Information collected from you at the time of completion of the Website membership registration and otherwise in connection with the use of this Website is collected for the purpose of complying with and enforcing these Terms and may be disclosed to our related bodies corporate and other third parties (such as financiers and roads and licensing authorities for this purpose.)

13.4. Dealer-Auction may be required and/or authorised to identify the sellers or buyers of Goods under applicable law. If you are a bidder providing another person’s Personal Information it is your responsibility to ensure the person is aware of these Terms and of our Privacy Policy. Details are available in Dealer-Auction’s Privacy Policy which may be accessed by clicking on Privacy Policy at www.dealer-auction.co.nz.

13.5. Dealer-Auction may also use the Personal Information collected from you at the time of completion of the Website registration and otherwise in connection with the use of the Website to contact you with information about Dealer-Auction or Dealer-Auction’s related bodies corporate products and services. This contact may be by mail, email, SMS, telephone or other electronic means. We will provide a mechanism to opt-out of further correspondence.

13.6. For details on how we handle, or to seek access to your Personal Information view our Privacy Policy at www.dealer-auction.co.nz. You have the right to access the Personal Information we hold about you, and to request correction if any information is incorrect.

14. Changes to the Website

14.1. You agree that Dealer-Auction has the right to change the content or technical specifications of any aspect of the Website at any time at Dealer-Auction’s sole discretion for the purposes of (but not limited to) upgrading the software, upgrading the Website content, removing malicious software, resolving/repairing any third party hacks, improving the technical specifications of the Website, general maintenance, making reasonable alterations to the Website.

14.2. Dealer-Auction may have to suspend the operation of the Website from time to time for maintenance and required upgrades. You agree that such changes may result in you being unable to access the Website for a period of time and that Dealer-Auction shall in no way be liable for any loss, claim, damages or other liability suffered to you as a result of you being unable to access the Website.

15. Intellectual Property

15.1. The Website including, but not limited to, text, content, software, graphics, photographs, illustrations, artwork, names, logos, trademarks, service marks, and other material and other content is protected by copyright, database rights, trademarks and/or other similar intellectual property rights, the ownership of which resides with Dealer-Auction, which is either owned by Dealer-Auction or licensed to it by third parties (Intellectual Property).

15.2. Upon becoming a member you grant Dealer-Auction a non exclusive, payment free, perpetual, irrevocable licence to reproduce, modify, delete, adapt and/or publish any information you upload to the Website or provide to us and to sub-licence same as we determine (subject to Dealer-Auction’s Privacy Policy).

15.3. You will not acquire any moral or legal rights or licences in or to the Intellectual Property on the Website.

15.4. You may not copy, reproduce, recompile, decompile, disassemble, reverse, engineer, distribute, publish, transmit, display, perform, modify, download, create derivative work from or in any other way exploit any part of the Website and/or the content.

15.5. Downloading the content is permitted by Dealer-Auction provided that:

15.5.1.       You make no more than one printed copy of such download and no further copies of such printed copies are made;

15.5.2.        You retain on such downloads and/or printed copies all copyright notices and shall remain bound by the terms of such wording and notices.

15.5.3.        You agree that Dealer-Auction may use copy, reproduce, distribute, adopt, load, execute, store, transmit, communicate, display, maintain and enhance any data/information you provide to it subject to compliance with fair collection notices and with the Privacy Actgenerally.

16. General

Notices
Any notice shall be given by email to the email address provided by you at Website registration or such updated address.

Assignment
You may not assign your rights or delegate your duties under these Terms.

Relationship

No party to these Terms has the power to obligate or bind any other party. Nothing in these Terms will be construed or deemed to constitute a partnership, joint venture or employee, employer or representative relationship between any of the parties. You agree that Dealer-Auction provides the Website and shall in no way be party to the contract for the sale or purchase of the Goods by any person.

Severance
If any provision of these Terms are found to be invalid or unenforceable, then that provision will be read down or severed and that invalidity or unenforceability does not affect the validity or enforceability of the other provisions.

Governing Law and Jurisdiction
Except to the extent any specific laws apply, these Terms shall be governed by and construed in accordance with the law for the time being in force in New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.

Entire Agreement

These Terms, together with the documents referred to in it, constitute the entire agreement and understanding between the parties in respect of the matters dealt with in them and supersedes any previous agreement between the parties or any of them relating to such matters.

Waiver and Exercise of Rights

A single or partial exercise or waiver of a right relating to these Terms does not prevent any other exercise of that right or the exercise of any other right.

No party will be liable for any loss or expenses incurred by another party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.

Survival and Enforcement of Indemnities

Each indemnity in these Terms is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of these Terms.

It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this document.

No merger

The warranties, undertakings, agreements and continuing obligations in these Terms do not merge on completion.

Rule of Construction

In the interpretation of these Terms, no rule of construction applies to the disadvantage of the party preparing the Terms on the basis that it put forward the provision.

Legislation Interpretation

In these Terms a reference to a statute includes regulations under it and consolidations, amendments, re-enactments or replacements of any of them.

Plurals

The singular includes the plural and vice versa.