Motor Dealer Xchange User Agreement
Before using the our online motor vehicle dealer exchange platform, including the website on which it is hosted (“Motor Dealer Xchange”) you must read and accept all of the terms in, and linked to, this User Agreement (“Agreement”). By accepting this User Agreement, you agree that this Agreement will apply whenever you use Motor Dealer Xchange, or when you use the tools we make available to interact with Motor Dealer Xchange.
2. Use of the Motor Dealer Xchange
MDX grants you a non-exclusive, non-transferable, licence to use the Motor Dealer Xchange to:
(a) list motor vehicles for sale on the Motor Dealer Xchange (“Listing”) and accept offers for such motor vehicles and/or sell via the “Buy it Now” function; and
(b) make offers on motor vehicles listed for sale by sellers or buy via the “Buy it Now” function.
3. Your Account
(a) You must register an account (“Account”) in order to use the full functionality of the Motor Dealer Xchange.
(b) You agree that you will keep your Account up to date. If any of your Account information changes after you have registered your Account, you must update your details in your Account as soon as possible.
(c) You must maintain the confidentiality of all your email and password information required to access your Account and immediately change the password if it is lost, stolen or compromised in any way. You are responsible for all transactions entered into under your Account.
(d) You may not sell, transfer or assign your Account to any third party unless you have obtained prior written consent from us.
(e) We reserve the right to terminate your Account and restrict access to all or part of the Motor Dealer Xchange at any time at our sole discretion and without notice.
4. Your Obligations
While using Motor Dealer Xchange, you will not:
(a) post content or items in inappropriate categories or areas on our sites and services;
(b) infringe any laws, third party rights or our policies, such as the prohibited and restricted items policies;
(c) fail to deliver payment for vehicles purchased by you, unless upon physical inspection by you the vehicle’s condition is materially different to that in the Listing;
(d) fail to deliver vehicles purchased from you;
(e) circumvent or manipulate our fee structure, the billing process, or fees owed to us;
(f) post false, inaccurate, misleading, defamatory or offensive content (including personal information);
(g) take any action that may undermine the feedback or ratings systems (such as displaying, importing or exporting Feedback information or using it for purposes unrelated to Motor Dealer Xchange);
(h) distribute or post spam, unsolicited or bulk electronic communications, chain letters or pyramid schemes;
(i) distribute viruses or any other technologies that may harm Motor Dealer Xchange, us or the interests or property of Motor Dealer Xchange users;
(j) copy, modify or distribute rights or content from Motor Dealer Xchange or our copyrights and trademarks; or
(k) harvest or otherwise collect information about users, including email addresses, without their consent.
5.1 General Compliance
(a) You must ensure that the vehicles you list for sale on the Motor Dealer Xchange comply with all relevant laws, by-laws, regulations and other legislative instruments applicable to the sale of motor vehicles within the jurisdiction in which you are located.
(b) You warrant that the information you provide on any Listing is correct, complete, accurate and up to date, and is not misleading or deceptive or likely to mislead or deceive.
(c) You acknowledge and agree that buyers rely on the accuracy and completeness of information in your Listing.
5.2 Listing Details
(a) Listings must include all relevant information which a buyer would typically require to know in order to make a fully informed decision to buy a vehicle. This includes listing any damage that is not fair wear and tear given the vehicle’s age and mileage or material repairs needed.
(b) Photographs submitted with Listings must:
(i) be current photographs of the actual vehicle for sale, such that the vehicle is shown in the same condition as it is anticipated that it will be delivered to the buyer;
(ii) not be digitally altered; and
(iii) not contain any watermarks.
5.3 Publication of Listings
(a) We are not bound to publish your Listing until accepted by us. Your Listing is accepted when we publish your Listing.
(b) If your Listing is in breach of this Agreement, or otherwise contains content that we deem inappropriate to include in a Listing, we may refuse to publish your Listing or remove any unauthorised content from the Listing before publication.
(c) If accepted, we will publish your Listing on the terms and conditions of this Agreement and with any amendments required by or authorised by this Agreement.
(d) Our acceptance of your Listing does not create any relationship of agency between you and us.
(e) You acknowledge and agree that while every endeavour will be made to publish your Listing as submitted, we will not be liable for any error, omission or failure to publish your Listing in the form uploaded, including acts or omissions by us, our employees or agents.
(f) We may refuse to publish, withdraw or terminate the publication of your Listing (or any part of your Listing) if:
(i) we determine, in our absolute opinion without notice, you are not entitled to place the Listing (for example, because you do not own the vehicle); or
(ii) you are in breach this Agreement (for example you have not paid any fees); or
(iii) we determine, in our absolute discretion without notice, that such refusal, withdrawal or termination is appropriate.
(g) Despite anything in this Agreement, we have absolute editorial control in relation to the publication of your Listing, including, but not limited to the format, position and placement of your Listing.
6. Buying and Selling Vehicles
(a) Each time you:
(i) list a vehicle for sale under Buy it Now or accept an offer, you’re agreeing to sell the vehicle; and
(ii) make an offer or select Buy it Now, you’re agreeing to pay for the vehicle and you’re obliged to complete the purchase by sending full payment to the seller.
(b) We are not involved in the actual transaction between buyers and sellers. We have no control over and do not guarantee the quality, safety or legality of vehicles advertised, the truth or accuracy of users’ content or listings, the ability of sellers to sell items, the ability of buyers to pay for items or that a buyer or seller will actually complete a transaction.
(c) All transactions performed using the Motor Dealer Xchange is exclusively between the seller and the buyer, and MDX shall not be responsible or liable for any discrepancies between the Listing and the vehicle purchased. Any such issues should be addressed directly to the seller.
(d) We do not take ownership of the vehicles at any time and do not transfer legal ownership of vehicles from the seller to the buyer.
6.2 Offer Listings
(a) You may list your vehicle for sale by seeking offers to purchase the listed vehicle.
(b) If you make an offer for a vehicle the seller is not obliged to accept it and is not obliged to respond to offers which it considers are not within the Listing price parameters.
(c) All offers made expire after the period notified on Motor Dealer Xchange from time to time.
(d) If your offer is accepted you will be notified by us, the vehicle will be considered sold and you are obliged to complete the purchase.
6.3 Fixed Price Listings
Buy it Now is the simplest and easiest way to purchase a vehicle on Motor Dealer Xchange, allowing you to pay for the item right away without bidding or waiting for the listing to end. This option is available whenever the seller has set a fixed-price for the vehicle. When you select this option, you agree to pay the seller’s asking price.
(a) When a sale and purchase has been effected by acceptance of an offer or choose Buy it Now, Motor Dealer Xchange will automatically provide the seller with the necessary details of the buyer so that it can upload to Motor Dealer Xchange a tax invoice made out to the buyer. Sellers must upload tax invoices with 24 hours of a sale and purchase being effected.
(b) The seller’s invoice will be automatically uploaded to the buyer’s Account and the buyer will be notified upon it being uploaded to Motor Dealer Xchange.
6.5 Paying for vehicles
(a) Once you have bought a vehicle, you must pay the seller for it within 48 hours of the seller’s invoice being uploaded to your Account.
(b) Payment is made directly to the seller outside the Motor Dealer Xchange platform in accordance with the payment directions in the seller’s invoice.
6.6 Cancelling a transaction
(a) If you have bought or sold a vehicle, either through Buy it Now or by acceptance of an offer and you have made a mistake, you can make a request through Motor Dealer Xchange to cancel the transaction.
(b) The recipient of a cancellation request may provide feedback to MDX about the cancelling party, and MDX may record the cancellation and any feedback on the cancelling party’s profile. The same applies if you fail to pay after receipt of a seller invoice unless clause 6.7(b) applies.
(c) Excessive cancellation requests and/or negative feedback may result in range of actions, including suspension or termination of your Account.
6.7 Vehicles which don’t fit the Listing description
(a) Buyers acknowledge and agree that any purchase of motor vehicles through the Motor Dealer Xchange shall be at their own risk. Buyers are responsible for performing all relevant due diligence prior to purchasing any motor vehicle through MDX, including, without limitation, performing checks of the vehicle against the PPSR and otherwise to ensure that it is not encumbered and has not been written off.
(b) Notwithstanding, if you consider within 48 hours after taking delivery of a vehicle you have purchased that the condition of the vehicle is materially different to the Listing description, the Listing description omitted material information about the condition of the vehicle or the Listing was misleading, then you should contact the seller directly to resolve the matter.
7. Fees and GST
(a) A transaction fee is payable in respect of each vehicle sold, based on our fees schedule, which we may change from time to time. Changes to that schedule are effective after we provide you with at least 14 days’ notice by posting the changes on the Motor Dealer Xchange website or your registered email address.
(b) The buyer will be liable to pay for all transaction fees arising out of all sales made using Motor Dealer Xchange. Fees will be charged upon a sale being made by the seller accepting an offer or a buyer clicking Buy it Now.
(c) MDX will invoice buyers for all transaction fees incurred during the month. Fees are payable within 14 days of invoice date. If your payment method fails or invoices are not paid on time, we may collect fees owed using other collection mechanisms. (This includes charging other payment methods on file with us, retaining collection agencies and legal counsel for accounts over 180 days past due or using any credits on your account.)
(a) All fees are GST exclusive, and you must pay to us the GST component in respect all fees payable at the same time as payment for the supply to which it relates.
(b) Any amount to be reimbursed or paid under an indemnity shall be the sum of the amount of the reimbursable expense net of input tax credits and, if the recovery is a taxable supply, any GST payable.
(c) We will provide you with a valid tax invoice before payment.
8. Intellectual Property
You hereby grant to MDX in respect of all copyright materials included in your Listings or materials otherwise submitted by you to MDX or to Motor Dealer Xchange, a perpetual, royalty free and irrevocable licence to use, reproduce, adapt, commercialise or otherwise utilise in any manner those materials.
9. Warranties and Indemnities
(a) You represent and warrant to MDX that:
(i) you are the owner of all vehicles included in your Listings and/or you have the authority to sell those vehicles;
(ii) you are entitled to publish the Listing and all materials contained in the Listing, including text and images;
(iii) you have the authority to grant to MDX the licence contained in clause 8;
(iv) all contact and other details you have provided to MDX are accurate; and
(v) your use of the Motor Dealer Xchange website will comply with the terms and conditions set out in this Agreement and any other requirements or directions issued by MDX from time to time.
(b) You acknowledge and agree that any services or information provided on or through the Motor Dealer Xchange is to be provided “as is”, and that you have not relied upon any representations made (if any) by us other than in this Agreement.
(c) To the full extent permitted by law, all guarantees and implied and express warranties in respect of any goods or services provided by MDX are hereby excluded.
You indemnify MDX against all actual or threatened loss, damage, actions, claims and / or demands (including the cost of defending or settling any actions, claims and demands) which may be instituted against MDX arising out of:
(a) a breach of this Agreement by you;
(b) any wilful, unlawful or negligent act or omission by you;
(c) the publication by us or any other person of Listings; and
(d) any transaction made on or through the Motor Dealer Xchange.
10. Limitation of Liability
(a) You acknowledge and agree that MDX is an intermediary only, and facilitates the transaction via the Motor Dealer Xchange. MDX does not take part in the transaction between seller and buyer, and MDX shall not be liable for any vehicle sold or traded through the Motor Dealer Xchange.
(b) To the full extent permitted by law, we will only be liable to you:
(i) pursuant to any guarantee, right or contractual term that arises, is created or is implied by operation of law and cannot be excluded provided that, to the full extent permitted by law, any such liability of MDX is limited, at MDX’s option, to:
(A) supplying the relevant services again; or
(B) paying the cost of such replacement, repairs or supply.
(c) To the full extent permitted by law, MDX will not be liable to You:
(i) for claims arising out of or in connection with this Agreement or the publication of your Listing whether arising in contract, tort (including negligence), indemnity, strict liability, breach of warranty or statute; and
(ii) for loss of use, production, profit, revenue, business, data, contract or anticipated savings or for delay or for any financing costs or increase in operating costs or any economic loss for any indirect or consequential loss or damage.
(d) For the purposes of clauses 9.2 and 10, the term MDX will mean MDX, its officers, employees, contractors and agents, whether individually or collectively.
(e) This clause will survive the expiration or termination of this Agreement.
11. Modification or Variation of Terms
We may change any of the terms of this Agreement at any time by posting a notice on Motor Dealer Xchange notifications tab and/or by email to you at the email address linked to your Account. You agree that you will be deemed to have notice of any modifications once we post them on the Motor Dealer Xchange website or notify you by email. You agree that your continued use of Motor Dealer Xchange after such notice will be taken as your acceptance of the modified terms. It is your responsibility to check Motor Dealer Xchange periodically for any such modifications. If you do not agree with the modified terms, you must close your Account and immediately stop using the Motor Dealer Xchange.
Without limiting other remedies available to MDX at law, in equity or under this Agreement, we may, without notice to you and in our sole discretion (which shall be exercised reasonably, having regard to the circumstances), delay listing your vehicle, delete your Listing, issue you a warning, restrict your activities through our site (including but not limited to buying, selling and posting activities), temporarily suspend, indefinitely suspend or terminate your Account and refuse to provide our services to you, or require you to pay additional fees if:
(a) you have, or we believe that you have, breached this Agreement;
(b) we believe that your actions may cause loss or damage to or otherwise unlawfully harm you, our users, third parties or us, our related bodies corporate or affiliates, our directors, employees or agents; or
(c) if we reasonably believe that any of your information (which includes a Listing on the site) is inappropriate or of an offensive nature.
13. Dispute Resolution
If a dispute arises between you and MDX, our goal is to resolve the dispute quickly. We strongly encourage you to first contact us to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
(a) Headings in the Agreement are provided for convenience only, and shall not be used to construe meaning or intent.
(b) If any part of this Agreement is deemed invalid or unenforceable by a court, that part shall be modified or severed as appropriate to reflect the parties’ intention, and the rest shall remain in full force and effect as if the invalid or unenforceable term had never been included.
(c) You agree that we will not be held liable for any delay or failure in its performance of its obligations cause by force majeure, including without limitation act of government or state, natural disaster, fire, flood, civil commotion, epidemic, industrial action or organised protests by third parties, war, failure of payment systems, or any event beyond our reasonable control.
(d) Any failure or delay in or by us in enforcing any part of this Agreement is not to be construed as a waiver of our rights. Any waiver of our rights must be given in writing.
(e) Each term under this Agreement which expressly or by its nature survives termination of this Agreement shall remain fully enforceable notwithstanding such termination.
(f) Our rights and obligations under this Agreement may be transferred or assigned at any time at our sole discretion.
(g) You may not assign, licence or otherwise transfer your obligations under this Agreement without our express written consent.
(h) This Agreement is governed by the law of Queensland. You and MDX agree to submit to the non-exclusive jurisdiction of the courts of Queensland.
15. Legally Binding Contract
This Agreement constitutes a legally binding agreement between you and Auctions Online Australia Pty Ltd t/a Motor Dealer Xchange (ACN 617 096 714), (“MDX”; “We”; “Us” or “Our”) regarding your use of and interaction with the Motor Dealer Xchange.
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