Terms and Conditions for Online Bidding
are current as at July 2019
These terms and conditions constitute a legally binding contract between registered Bidders (Registered Bidder, Dealer or You) and Cox Automotive MVR Pty Ltd ACN 169 442 013 (MVR) and apply to bidding at Motor Vehicle Replacement Auctions on the Motor Vehicle Replacement Platform.
When you apply to become a Registered Bidder, you are also agreeing to the following terms and conditions and will be bound by this Agreement. You should ensure you have read this Agreement prior to registering and making a bid on the Motor Vehicle Replacement Platform.
1. USE OF WEBSITE AND MOTOR VEHICLE REPLACEMENT PLATFORM
1.1 Your viewing and use of the Website and the Motor Vehicle Replacement Platform is governed by and subject to You agreeing to this Agreement. The conduct of a Motor Vehicle Replacement Auction is further subject to the Motor Vehicle Replacement Terms and Conditions at Annexure A.
1.2 By applying to become a Registered Bidder, logging onto and using the Website and the Motor Vehicle Replacement Platform, and making or purporting to make a Bid at any Motor Vehicle Replacement Auction, You irrevocably submit that You:
1.2.1 have read, understood and agree to be bound by this Agreement;
1.2.2 have examined, to the best of Your ability and knowledge, all information relevant to the risks, contingencies and other circumstances affecting the Website and Motor Vehicle Replacement Platform;
1.2.3 have had an opportunity to clarify any questions or issues in relation to the Website or the Motor Vehicle Replacement Platform (you may enquire by telephoning the MVR Service Desk on 1800 001 278); and
1.2.4 acknowledge that MVR, as the auctioneer, is acting as an agent for the Insurer. If any dispute arises in relation to the supply of a Vehicle or payment the dispute will be between You and the Insurer and You acknowledge and agree that MVR will be excluded from any subsequent action or court proceedings. If MVR is subsequently included in any such action or proceedings, You agree to indemnify MVR for any liability or costs incurred by MVR in relation to such action or proceedings, except to the extent caused or contributed to by the negligence of MVR.
1.3 If You fail to comply with any of the terms and conditions, MVR reserves the right to be reimbursed on demand for all costs, fees and charges reasonably incurred by MVR pertaining to a Motor Vehicle Replacement Auction.
1.4 MVR does not provide, and has no control over, communications, networks or services, the internet or other technology required or used across the Website and the Motor Vehicle Replacement Platform and accepts no responsibility for any direct or indirect loss in any form associated with them, whether due to congestion, technical malfunction, viruses or otherwise.
2. REGISTRATION OF BIDDERS
2.1 A person may not participate in a Motor Vehicle Replacement Auction unless the person is a Registered Bidder under clause 2.2.
2.2 Applications for Registration
2.2.1 You must apply to MVR to become a Registered Bidder by completing the online application form (Application).
2.2.2 By submitting an Application to MVR, You represent and warrant to MVR that all information provided by You to MVR is complete and accurate.
2.2.3 MVR may accept or reject an Application in its absolute discretion by notice to You. If MVR accepts the Application, You become a Registered Bidder for the purposes of this Agreement.
2.3 Use of login and password
If MVR provides You with a login and password to use the Motor Vehicle Replacement Platform, You:
2.3.1 acknowledge that the login and password are for the personal use of the named entity;
2.3.2 agree to maintain the confidentiality of the login and password;
2.3.3 agree not to disclose the login or password to any other person;
2.3.4 agree that where a login and password are provided to another individual at Your request, to ensure that the individual complies with clauses 2.3.1 to 2.3.4;
2.3.5 accept full responsibility and indemnify MVR for any expenses, loss, damage, costs, demands or liabilities incurred by MVR directly or indirectly, out of or in connection with the use, including (without limitation) any improper or unauthorised use of the login and password except to the extent caused by the negligence of MVR;
2.3.6 agree to only access the Website and Motor Vehicle Replacement Platform for legitimate and lawful purposes and in accordance with any instructions or directions given to You on the Website or Motor Vehicle Replacement Platform from time to time; and
2.3.7 agree and acknowledge that MVR may, in its absolute discretion, withdraw or restrict your access to the Website or Motor Vehicle Replacement Platform at any time and without reason, explanation or prior notice.
3. SUSPENSION OF SERVICE
3.1 No Warranty or Representation of Availability
MVR expressly disclaims any representation or warranty that the Motor Vehicle Replacement Platform will be available for use by You, at all times or at any particular time, during and for the duration of any particular Motor Vehicle Replacement Auction or at all.
3.2 Interruption to Service during Motor Vehicle Replacement Auction
If the Motor Vehicle Replacement Platform is interrupted (either generally or specifically to You) for any reason during a Motor Vehicle Replacement Auction (whether by way of suspension by MVR under clause 3.3 or otherwise) MVR may, but is not obliged to, declare the Motor Vehicle Replacement Auction void and recommence the Motor Vehicle Replacement Auction from the beginning.
3.3 Suspension of Service
3.3.1 MVR may from time to time suspend the provision of the Motor Vehicle Replacement Platform.
3.3.2 Where possible, MVR will notify You in advance of the time and duration of any suspension of the Motor Vehicle Replacement Platform, but does not represent or warrant that it will do so on every occasion, on any particular occasion or any occasion at all.
4. LIABILITY AND INDEMNITY
4.1 Necessary Authority
If You make use of the Motor Vehicle Replacement Platform, whether for You or another person, You acknowledge and warrant to MVR that:
4.1.1 You have full authority to engage in the transactions You undertake;
4.1.2 You will and have authority to provide a Vehicle if you are the successful Bidder in a Motor Vehicle Replacement Auction;
4.1.3 You are properly authorised to provide MVR with any information which You provide;
4.1.4 You are not breaching any obligation of confidence or any requirement of any applicable law relating to the privacy of Personal Information by providing the information to MVR; and
4.1.5 all information You provide to MVR is true and complete to the best of Your knowledge.
4.2 Limitation of Liability
4.2.1 To the full extent permitted by law, all conditions, warranties, guarantees, undertakings, rights, remedies, liabilities and other terms implied or imposed on MVR by statute, custom, equity or the common law are excluded from this Agreement.
4.2.2 If a supply under this Agreement is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law, nothing contained in this Agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, provided that, to the extent that the Australian Consumer Law permits MVR to limit its liability, then its liability shall be limited to:
(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
4.2.3 Subject to clause 4.2.2, You agree and acknowledge that MVR is not liable to You or any third party, whether in contract (including negligence), equity, under statute or on any other basis, and whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage, for any direct or consequential loss, damage or expense of any kind or nature and You release and forever discharge MVR from any such liabilities and claims, demands or causes of action in respect thereof.
4.2.4 You agree that any information you provide MVR in relation to any Vehicle will be complete and accurate (including, without limitation, any information in relation to the distance travelled by a Vehicle or its machine or engine hours). MVR will not be liable for any loss, damage, cost or expense suffered or incurred due to You providing incorrect or incomplete information.
4.2.5 Subject to clause 4.2.2, MVR does not accept any responsibility for any interpretation which may be placed upon the information provided to You on the Motor Vehicle Replacement Platform by MVR or an Insurer.
4.3 Indemnity
Subject to clause 4.2.2, You agree to indemnify MVR for the full amount of any claim, suit or demand and all costs of such a claim, suit or demand (including, without limitation, legal costs on a full indemnity basis) made by You or any other person in relation to a Motor Vehicle Replacement Auction or Your use of the Motor Vehicle Replacement Platform or the Website.
5. PRIVACY
5.1 MVR protects the privacy of individuals in accordance with the Australian Privacy Principles set out under the Privacy Act 1988 (Cth) (Privacy Act).
5.2 The terms of our Privacy Policy (available at privacy policy) form part of these terms and conditions. Our Privacy Policy sets out how we collect, use and disclose Your personal information (as defined under the Privacy Act) (Personal Information).
5.3 If we do not collect Personal Information from You, You will not be able to bid at a Motor Vehicle Replacement Auction.
5.4 By entering into this Agreement with us and by providing us with Personal Information, You represent and we will proceed on the basis that You have read and agree to the terms of our Privacy Policy.
5.5 The Personal Information collected from You at the time of registration and otherwise in connection with this Agreement is collected by MVR for the purpose of complying with this Agreement and may be disclosed to the Insurer, the MVR Group and other third parties, unless otherwise required under the Australian Privacy Principles. MVR is required and/or authorised to identify Registered Bidders and Insurers under applicable Commonwealth, State and Territory legislation including the Motor Car Traders Act, Australian Consumer Law, Competition and Consumer Act and Unclaimed Money Act.
5.6 It is not likely that the Personal Information collected at the time of registration and/or updated by You hereafter and otherwise collected in connection with this Agreement will be disclosed to any third parties located overseas.
5.7 You agree that You will only collect, hold, use, disclose or otherwise deal with any Personal Information disclosed to You by MVR or the Insurer for the purpose in which it was disclosed.
5.8 MVR’s Privacy Policy contains information about how individuals may:
5.8.1 access and correct the Personal Information held about them by MVR; and
5.8.2 complain to MVR about a breach of privacy and how MVR will deal with such a complaint.
6. TERMINATION
6.1 Termination by MVR
6.1.1 MVR may terminate this Agreement and cease to provide access to the Motor Vehicle Replacement Platform to You for convenience by giving reasonable notice to You.
6.1.2 Without limiting any other right of MVR, MVR may terminate this Agreement:
(a) immediately if MVR reasonably suspects You have engaged in fraudulent or illegal conduct in relation to the Motor Vehicle Replacement Auction; or
(b) subject to clause 6.1.2(a), if You breach this Agreement and:
- fail to rectify the breach as directed by MVR within a reasonable time period specified by MVR (which need not be more than 2 Business Days); or
- the breach is incapable of remedy.
6.2 Termination by You
You may cease to remain a Registered Bidder by notice in writing by email via the website account or by mail to MVR, provided that You do not have any active or outstanding Bid in the Motor Vehicle Replacement Platform. Any purported termination of this Agreement by You does not release You from, or affect, any accrued obligation under this Agreement.
6.3 Upon termination of this Agreement:
6.3.1 You must immediately cease to use the Motor Vehicle Replacement Platform;
6.3.2 if the termination is for default by You, any amounts You owe to MVR, whether under this Agreement or otherwise become immediately due and payable; and
6.3.3 You must destroy or delete any information collected from the Motor Vehicle Replacement Platform which You have in Your possession or under Your control.
7. GENERAL
7.1 Notices
7.1.1 MVR may give You notice of any matter or thing required or permitted to be notified to You under this Agreement by either:
(a) sending You an email to an electronic mail address nominated by You; or
(b) posting the notice to the Website.
7.1.2 Such notice takes effect and is deemed served from the time the electronic mail message leaves the MVR system or is visible on the Website, as the case may be.
7.2 Governing Law
Except to the extent any specific State, Territory or Commonwealth laws apply, this Agreement shall be governed by and construed in accordance with the law for the time being in force in Victoria and the parties submit to the non-exclusive jurisdiction of the courts of Victoria.
7.3 Personal Knowledge
A reference to a matter being to the knowledge of a person means the matter is to the best of the knowledge and belief of the person after making proper enquiry including enquiry which a reasonable person would be prompted to make by reason of knowledge of a fact.
7.4 Severance
If any provisions of this Agreement 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 terms and conditions.
7.5 Whole Understanding
This Agreement represents the entire understanding between You and MVR.
7.6 Variation of this Agreement
7.6.1 MVR may amend this Agreement (including any fees charged by MVR to You) at any time by giving You at least 30 days’ notice, either by sending a notice of variation to your email or postal address (as set out at the time of your registration) or by posting the notice of the variation to the Website (Notice of Variation).
7.6.2 If You do not agree to be bound by the varied Agreement, You may, subject to clause 6, terminate this Agreement by notifying MVR in writing within 30 days of the Notice of Variation.
7.6.3 If You do not notify MVR within 30 days of a Notice of Variation that You wish to terminate this Agreement, You agree to be bound by the Agreement as varied.
7.7 Waiver and Exercise of Rights
7.7.1 A single or partial exercise or waiver of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right.
7.7.2 Subject to clause 4.2.2, 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.
7.8 No Relationship
No party to this document has the power to obligate or bind any other party. Nothing in this document will be construed or deemed to constitute a partnership, joint venture or employee, employer or representative relationship between any of the parties.
7.9 Assignment
You may not assign any of Your rights or obligations contained in these Terms.
7.10 Survival of Indemnities
Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement.
7.11 Enforcement of Indemnities
It is not necessary for You to provide a Vehicle due to being a successful Bidder before enforcing a right of indemnity conferred by this Agreement.
7.12 No Merger
The warranties, undertakings, agreements and continuing obligations in this document do not merge on completion.
7.13 Rule of Construction
In the interpretation of this document, no rule of construction applies to the disadvantage of the party preparing the document on the basis that it put forward this document or any part of it.
7.14 Interpretation
In this Agreement, a reference to a statute includes regulations under it and consolidations, amendments, re-enactments or replacements of any of them.
8. DEFINITIONS
In these terms and conditions, unless expressed or implied to the contrary:
Agreement means this document and includes all Schedules and Annexures to it.
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Australian Privacy Principles means the Australian Privacy Principles set out under the Privacy Act 1988 (Cth).
Bid means an offer to supply a Vehicle at a specified price in a Motor Vehicle Replacement Auction.
Bidder means a person who has made or purported to make a Bid.
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Victoria, Australia.
Insurer means the insurance company receiving Bids from Registered Bidders in a Motor Vehicle Replacement Auction.
Motor Vehicle Replacement Auction means a sale or prospective sale by auction of a Vehicle conducted by way of the Motor Vehicle Replacement Platform in accordance with this Agreement including the Motor Vehicle Replacement Terms and Conditions.
Motor Vehicle Replacement Platform means the online system used by MVR to hold Motor Vehicle Replacement Auctions.
Motor Vehicle Replacement Terms and Conditions means the terms and conditions under which Motor Vehicle Replacement Auctions under this Agreement will be conducted as set out in Annexure A.
MVR means Cox Automotive MVR Pty Ltd ACN 169 442 013.
MVR Group means MVR and each related body corporate (as that term is defined in section 50 of the Corporations Act 2001 (Cth) of MVR and any agent, officer or employee of any of them.
Registered Bidder means a person who has agreed to be bound by the terms of this Agreement and been accepted by MVR to participate as detailed under clause 2.
Security Interest means ‘security interest’ as defined in the Personal Property Securities Act 2009 (Cth) and any regulations under that Act.
Vehicle means any new replacement vehicle which is the subject of a Bid under the terms of this Agreement.
Website means this Website, located at the uniform resource locator www.motorvehiclereplacement.com.au and includes any part of this website.
You and Your means the user of the Website or the person using the MVR Motor Vehicle Replacement Platform including, without limitation, a Registered Bidder.
ANNEXURE A – MOTOR VEHICLE REPLACEMENT TERMS AND CONDITIONS
Unless otherwise defined, a defined term in these Motor Vehicle Replacement Terms and Conditions has the same meaning given to it in the Terms and Conditions for Online Bidding.
CONDUCT OF MOTOR VEHICLE REPLACEMENT AUCTION
- Registered Bidders may submit Bids at any time prior to the end of the Motor Vehicle Replacement Auction by submitting a “Submit Bid” request via the Website.
- Registered Bidders may also submit Bids by proxy set prior to, or during, the Motor Vehicle Replacement Auction. This is performed on this Website by submitting a “Submit Bid” request.
- The Motor Vehicle Replacement Auction may incorporate a proxy bidding facility. The proxy bidding facility allows Registered Bidders to enter a minimum Bid amount and a decreasing Bid amount which the proxy bidding facility will automatically submit to the Motor Vehicle Replacement Platform on the Registered Bidder’s behalf in response to a lower Bid submitted by another Bidder, until the minimum Bid amount specified by the Registered Bidder is reached.
- Each Bid constitutes an irrevocable offer by the Registered Bidder to supply a specified Vehicle at the specified price which may be accepted or rejected by the Insurer or MVR. Once a Bid has been made, it cannot be revoked and remains open for acceptance by the Insurer or MVR until the Motor Vehicle Replacement Auction is complete.
- All Bids must be bona fide and must not be fixed or adjusted in collusion (or otherwise in accordance with any arrangement or agreement) with any third party (including but not limited to providing information relating to intended Bids or attempting to manipulate the Motor Vehicle Replacement Auction in any way, or otherwise contravene or attempt to contravene Part IV of the Competition and Consumer Act 2010 (Cth)).
- A Bid is taken to be a representation and warranty by the Registered Bidder that the Bid is a genuine offer to provide the specified Vehicle at the specified price. If MVR or any member of the MVR Group becomes aware of any form of collusive activity by a Registered Bidder, MVR may terminate the Registered Bidder’s right to participate in the Motor Vehicle Replacement Auction, or if the Registered Bidder’s Bid has been accepted by MVR, MVR may terminate any contracts that were entered into by the Registered Bidder relating to the Bid.
- MVR may hold a Bid and refer the Bid to the Insurer before acceptance. MVR reserves the right to further negotiate with other Bidders.
- The Motor Vehicle Replacement Auction is completed upon the acceptance and declaration by MVR of the winning Bid at the time and date nominated in the Motor Vehicle Replacement Platform. MVR or the Insurer will notify You if you are the winning Bidder. If any dispute arises as to the winning Bidder, MVR at its sole discretion may hold a new Motor Vehicle Replacement or negotiate with another Bidder.
- All Bid prices are GST inclusive and are the final Drive Away Price, unless the Insurer is not registered or required to be registered for GST (in which case no GST is payable on supply of the Vehicle by You). Insurers not registered or required to be registered for GST will be separately identified in the Motor Vehicle Replacement Platform.
- MVR may refuse to accept any Bid or withdraw a supply of vehicle opportunity from the Motor Vehicle Replacement Auction.
PAYMENT AND DELIVERY
- If You are the winning Bidder, You must supply the Vehicle to the Insurer as soon as the Vehicle is available, and in any event within 14 Business Days of being notified that You are the successful Bidder. This condition applies even if you have not yet received payment.
- The Insurer will pay you within 5 Business Days of being issued with an invoice, however invoices will not be accepted by the Insurer earlier than 5 Business Days before the delivery of the Vehicle.
- MVR will issue You with an invoice on acceptance of your bid by the Insurer, or upon You issuing an invoice to the Insurer, whichever is the earlier, for a Supply Fee which You must pay within 3 Business Days of being issued the invoice.
- MVR and the Insurer reserve the right to cancel the order and will not be liable to You or a third party for any costs if You do not supply the Vehicle to the customer within 14 Business Days of being notified that You are the successful Bidder.
- You warrant that the Vehicle supplied to the Insurer will:
- be as described in Your winning Bid;
- be free from any defect in material or workmanship;
- will comply with all relevant Australian statutory requirements, standards and regulations relating to manufacture, delivery, use and supply of the Vehicle;
- be free of any Security Interests; and
- be registered, if this was expressly stated in the winning Bid.
- Title in the Vehicle or any part thereof shall pass to the Insurer when You receive clear funds on the full payment for the Vehicle from the Insurer.
- If a Registered Bidder fails to comply with any of the terms and conditions in this Annexure A, the defaulting Registered Bidder will reimburse MVR for all costs and charges consequent upon the failure to comply and may result in MVR terminating this agreement.
CANCELLATION DUE TO ERROR
- MVR has the right to cancel any transaction due to error. MVR may exercise this right up until the time the Dealer delivers the Vehicle.
LICENSING
(a) The Dealer grants a non-exclusive, perpetual, royalty free licence to use any data that is provided by it to MVR. The data which is the subject of this licence may be used for any reasonable business purpose, including but not limited to, statistical analysis purposes or repackaging and remarketing that data in other products.
(b) The Dealer must seek MVR consent for use of any MVR data.
DEFINITIONS
Drive Away Price means inclusive of GST (if applicable), stamp duty, registration fees, compulsory third party insurance, luxury car tax (if applicable) and any other fees and charges applicable to the purchase of new vehicle.
Supply Fee the fees and charges payable by the Dealer to MVR in relation to the Motor Vehicle Replacement Auction is $350 plus GST. This may vary from time to time.
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