DEALERS BID (PTY) LTD t/a DEALERS ONLINE
TERMS AND CONDITIONS, INCLUDING THE RULES OF AUCTION
Upated: 6 November 2018
DEALERS BID(PTY) LTD t/a DEALER’S ONLINE
"Buyer" means the purchaser of the Goods;
"Cleared Funds" means the approved bid purchase price paid by the Buyer into the Seller’s nominated bank account, which funds are cleared by such nominated bank and to which the Seller has immediate access;
"the Company" means Dealers Bid (Pty) Ltd t/a Dealer’s Online;
"CPA" means the Consumer Protection Act, 68 of 2008 and can be accessed at http://www.info.gov.za/view/DownloadFileAction?id=99961;
"Contract" means any contract or agreement arising out of the acceptance of any offer, whether that contract arises out of an offer made by the Company and accepted by the Customer, or an offer made by the Customer and accepted by the Company;
"ECTA" means the Electronic Communications and Transactions Act, 2 of 2002 and can be accessed at http://www.info.gov.za/view/DownloadFileAction?id=68060;
"Effective Date" means the date of payment of the approved bid purchase price;
"FICA" means the Financial Intelligence Centre Act, 38 of 2001 and can be accessed at https://www.fic.gov.za/DownloadContent/LEGISLATION/ACTS/01.a38-01b.pdf;
"Goods" means the motor vehicles and/or any other item listed for sale on the Website;
"its" shall include "his" and "her";
"party" shall mean the Buyer, the Seller and/or the Company and includes "parties";
"Regulations" shall mean the regulations to the CPA and can be accessed at http://www.polity.org.za/article/consumer-protection-act-682008-regulations-gazette-no-34180-regulation-293-2011-04-01;
"Reserve Price" means the minimum VAT inclusive price at which the Seller is prepared to sell the Goods;
"Seller" means the seller of the Goods and may include the Company;
"User" means the user, juristic or natural, of the Website and includes the Buyer and the Seller;
"Website" means www.dealersonline.co.za.
This document contains the standard terms and conditions of auction on which the Company auctions the Goods to the User.
These terms and conditions constitute the entire agreement between the Company and the User / Buyer relating to the subject matter hereof and shall be binding between the parties for all current and future online auctions of Goods, unless modified and/or amended by the Company. The Seller shall in addition to being bound to these terms and conditions furthermore be bound to the Seller’s mandate entered into between the Company and the Seller.
Nothing in these terms and conditions are intended to or must be understood to unlawfully restrict, limit or avoid any rights, obligations, as the case may be, created either of the User / Buyer or the Company in the event of the CPA applying.
ASSENT TO TERMS AND CONDITIONS
The User, by its application for registration and subscription to the Website and the submission of electronic bids, warrants that it has read and understood all the terms and conditions contained in this document and agrees to be bound hereby.
The Seller, by listing the Goods on the Website, warrants that it has read and understood all the terms and conditions contained in this document and, where applicable, agrees to be bound thereby.
INTRODUCTION AND COMPANY INFORMATION
The Company (Registration Number: 2010/015381/07) is in the business of offering for auction on behalf of the Seller, from time to time, used motor vehicles using an electronic internet-based auction system.
Information about the particular Goods on the Website are as provided by the Seller to the Company and the Company makes no representations or warranties with respect to the accuracy or completeness of any description. Save where the Company is the Seller of the Goods, the Company confirms that they have not inspected the Goods. The responsibility for the information provided in the listing of the Goods lies with the Seller.
The Company’s directors are Willam Miller and Renaldo de Jager.
A representative of the Company can be contacted at email@example.com or (021) 551 8059.
The Website is run by the Company.
These terms and conditions form the entire agreement between the parties. No other terms or conditions, whether express, tacit or implied shall apply to a Contract irrespective of the circumstances under which the Contract arose. No alteration or variation of these terms and conditions shall be of any force or effect unless and until recorded in writing and approved by the Company. All provisions and various clauses of these terms and conditions are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other.
These standard terms and conditions may be periodically modified and/or amended by the Company at any time and in their sole discretion and it is the User’s and the Seller’s responsibility to ensure that they are familiar with the updated and/or amended terms. The User and the Seller’s continued use of the Website signifies their acceptance of these terms and conditions and any updates and/or amendments thereof.
REGISTRATION BY THE USER
will complete, in full, the registration documents provided on the Website;
certifies that the information provided by the User in all respects is true and correct;
will furnish the Company with such supporting documentation as may be required by the Company for any reason whatsoever including, without limitation, documentation required for FICA purposes;
certifies that the User and/or Buyer is a motor dealer registered in terms of the laws of the Republic of South Africa; and
acknowledges that the bidding for any Goods for sale on the Website and any sale concluded as a result thereof will give rise to a contractual relationship between the Seller and the Buyer.
At the Company’s absolute and sole discretion and upon compliance with the requirements of clause 30 above the Company will register the User as a subscriber to the Website and will, within a reasonable period of time, provide the User with a secret name and password and access to the Website for the purposes of viewing and bidding for Goods listed on auction on the Website.
The Company reserves the right to decline or at any time cancel a User’s registration for any reason whatsoever and for which the User will have no recourse.
The User’s registration to the Website is deemed to be consent by the User that the Company may conduct various checks on the User including, without limitation, credit reference checks with a registered credit bureau.
The User shall furthermore make available to the Company and/or the Seller such information as may be required by the aforementioned parties including, without limitation, the User’s information for FICA purposes; proof of the existence of a current bank account in the name of the User; the User’s registration and/or founding documentation and/or any other documentation verifying the identity of the User; proof of the User’s VAT registration number and proof of the User’s registration as a motor vehicle dealer.
The User furthermore agrees and consents to the Company having access to and/or conducting credit reference checks in relation to the User.
The User acknowledges that the Company:
is not a party to the sale of any Goods;
does not warrant that the Seller is willing and/or able to perform its obligations to the Buyer as contained herein; and
will not be a party to any dispute between the Seller and the Buyer in relation to the Goods.
The Company is the auctioneer and the auction is a closed auction as defined in the Regulations.
All bids placed through the Company will be submitted electronically through the Website and no alternative form of a bid will be accepted or considered valid for any reason whatsoever.
Where the auction is subject to a Reserve Price, the Seller reserves the right to reject any bid below the minimum Reserve Price.
By placing a bid the User warrants that they have the ability and the intention to proceed with the purchase of the Goods. All bids placed by the User constitute an irrevocable offer by the User to the Seller and may not be withdrawn by the User, unless otherwise agreed in writing by the Seller or the User falls within the ambit of the CPA (insofar as the CPA is applicable).
The Company and/or the Seller reserves the right, in its sole and absolute discretion and without reason to withdraw from an auction at any time before acceptance of a bid and/or to reject any bid received. If any particular Goods carry a Reserve Price then the Seller reserves the right to reject any bid submitted below that minimum Reserve Price.
In the event of equal and/or similar competing bids being received during an auction the Company may, in their sole and absolute discretion, elect to accept one competitive bid over the other, elect to reject both the bids or withdraw the Goods for auction on the Website.
Each and every auction opens when the Goods are uploaded onto the Website and will close week days at 15h30. The Company endeavours to use its best efforts to notify a bidding subscriber, per short message service or electronic mail, if any higher bids are placed on the Website immediately before the 15h30 close time. Where such a bid is placed the User will have an additional 6 (six) minutes in which to continue bidding. The process referred to in this clause 43 shall continue until the competitive bidding ends. By way of an example and in order to clarify the provisions of this clause 43, if Y places a bid at 15h29 then the bidding process will continue up until and including 15h35 and if a bid is then placed at 15h36 then the bidding process will continue up until and including 15h36. This process will continue until no more bids are placed on a particular Good within the last 6 (six) minutes of the auction (which continuation of the aforementioned competitive process shall be at the sole and exclusive discretion of the Company).
The Company will not be held liable in the instance where the competitive process referred to in clause 43 above does not take place and the auction closes, for whatsoever reason, at 15h30. In such an instance the Company shall have the sole discretion as to whether to re-start the auction, reopen the auction or sell the Goods to a bidder as determined 15h30.
Save for the situation provided for in clause 46 below, notice of acceptance of a successful bid will be forwarded, by electronic mail, to the Buyer notifying him of his successful purchase of the Goods. The receipt of such notice by the Buyer shall bind him to purchase the Goods from the Seller at the amount bid by the Buyer on the Website.
Receipt of the electronic mail notice referred to in clause 45 above sent as a result of, among other things, a Website error or a defect in the Website or server will not be binding on the Company and/or the Seller and the Company reserves the right to retract the notice in such circumstances. The User shall have no recourse against the Company and/or the Seller in such circumstances whatsoever.
The Seller shall compensate the Company for all auction sales (auction commission) as per the sliding scale contained in the Instrument of agreement for all successful sales transaction concluded using DealersOnline. In the event that a sales transactions is cancelled or reversed, then the Seller shall not be liable for payment of the auction commission due provided that the Seller has notified the Company of such cancellation, within 72 (seventy-two) hours of the sale in writing to the designated contact.
In the event that a sales transaction is cancelled or reversed due to, but not limited to, the vehicle not being as describe on the auction, either party to the transaction, Buyer or Seller, shall attempt to resolve the matter between themselves. If no resolution is reached between the Buyer and the Seller, either party can submit complaint to mediator at firstname.lastname@example.org in order to assist with resolution.
RULES OF AUCTION AND THE CONSUMER PROTECTION ACT, WHERE APPLICABLE
Insofar as the CPA, including the Regulations, apply to the online auction, if any:
the rules of auction are in accordance with section 45 of the CPA and the Regulations;
when Goods are put up for sale by auction in lots, each lot is, unless there is evidence to the contrary, regarded to be the subject of a separate transaction;
an auction will commence at the published time, as published on the Website from time to time, and will not be delayed to enable any specific person or more persons in general to take a part in the auction;
a person who attends at the auction to bid on behalf of another person must produce a letter of authority meeting the requirements of Regulation 26(3) in order to so bid on behalf of that person;
all moneys will be paid directly by the Buyer to the Seller;
the Company will post the reason for the auction of each particular Goods on the Website unless the reason is the normal and voluntary disposal of the Goods by the Seller;
a person who intends to bid at the auction must register on the Website prior to the commencement of the auction as contemplated in Regulation 26(2) together with a description of the requirements for registration and in accordance with the provisions of these terms and conditions;
the bidders’ record contemplated in Regulation 26 and the vendor roll contemplated in Regulation 28(4) are available for inspection during normal hours without the charge of a fee; and
the advertisement / vehicle details will contain a statement indicating whether additional costs are payable and how such additional costs will be computed.
Payment from the Buyer or Seller, is due within 48 (forty eight) hours of receipt of the Tax Invoice from the Company, by way of cash or via electronic funds transfer or bank guaranteed cheque. Bank details will be supplied on the Tax Invoice. A Copy of the Natis document will be supplied with the invoice to the Buyer, if noted as available on the system. Where the Company is the Seller, the Goods will not be released to the Buyer until such time as all sums due and owing reflect in the Seller’s bank account as Cleared Funds.
All payments made by the Buyer or Seller to the Company shall be made without deduction, bank charges or set-off.
Where the Company is the Seller, the Seller shall, within 48 (forty eight) hours of payment reflecting as Cleared Funds, provide the Buyer with a receipt of payment received and the original vehicle registration papers, save that the Buyer accepts that from time to time delays may occur in relation to obtaining vehicle registration papers and that the Seller will not always be in a position to give the Buyer the original registration papers against delivery of the goods. The Natis status will be noted on the vehicle when live on auction.
Should a Buyer not make payment within 48 hours of receipt of the Tax Invoice from the Company (excluding public holidays, Saturdays and Sundays) as per point 48, the sale will be cancelled.
The Company may, at its discretion, revoke the Buyers and/or Sellers access to buy or sell on auction. Should the Buyer or Seller, wish to gain access to participate in the Company’s auctions again, the Company can, at its discretion allow participation once the payment of a non-refundable cancellation fee is made, as follows:
|First Offence||R 2 500|
|Second offence||R 5 000|
|Any Offence thereafter||R 10 000 per cancellation|
VALUE ADDED TAX (“VAT”)
All Reserve Prices quoted on the listing shall be VAT inclusive.
All bids submitted by Users shall be deemed to be VAT inclusive.
The Seller shall be liable to furnish the Buyer, against payment of the purchase price, with a properly constituted VAT invoice in respect of the Goods purchased.
TRANSFER OF OWNERSHIP
Notwithstanding delivery of the Goods and/or registration papers, transfer of ownership in and to the Goods shall remain vested in the Seller until such time as the successful bid purchase price has been paid in full by way of payment of Cleared Funds into the Seller’s nominated bank account.
Ownership in and to the Goods shall be deemed to pass from the Seller to the Buyer once the Company has confirmed receipt of all Cleared Funds owing to the Seller.
POSSESSION, RISK AND DELIVERY
The Seller shall give and the Buyer shall take possession of the Goods within 48 (forty eight) hours after all sums owing to the Company and the Seller have reflected as Cleared Funds in the Seller’s nominated bank account. The Buyer shall collect the Goods directly from the Seller.
Should the Buyer fail to collect the Goods from the Seller within a reasonable time as aforementioned then the Seller shall be entitled to store the Goods which storage and associated costs shall be for the Buyer’s sole account and will not be less than R250.00 per day (VAT inclusive). The Seller shall be entitled to not release the Goods to the Seller until such time as the storage and associated costs have been paid by the Buyer and the Seller will hold a lien over such Goods.
Unless otherwise provided for in the CPA (where applicable), all risk in and to the Goods shall pass from the Seller to the Buyer upon receipt by the Buyer of the notice of acceptance of its successful bid in terms of clause 45.
In so far as the CPA and Regulations are applicable to a transaction and in conflict with the provisions below, the provisions of the CPA will take preference:
The Goods are sold voetstoots and as listed on the Website and/or inspected by the Buyer (in their sole discretion);
The Seller and/or the Company shall not be liable for any latent or patent defects in and to the Goods;
The Seller and/or the Company does not warrant the accuracy of the description of the Goods (as per the vehicle details listing and/or the advertisement);
The Seller and/or the Company do not warrant the accuracy of the estimated reconditioning costs as may be provided with the vehicle details listing;
Neither the Company nor the Seller shall be liable for any representations made to the Buyer by any person whatsoever prior to the conclusion of the sale, whether express, oral, implied or in any other form whatsoever.
The User warrants that:
the information provided by it during the Website registration process is true and correct in all respects;
upon the submission of a bid, the User is willing and able to effect payment of that sum plus any additional costs specified on the Website;
it has not, directly or indirectly, engaged in or been involved in bid manipulation and/or unfairly induced any other person to make bids and/or alter and/or affect the bid price and/or in any way colluded with any person whomsoever, juristic or natural, to alter or attempt to alter a fair bidding process;
it has viewed and/or inspected the Goods and/or hereby waives its right to view and/or inspect the Goods and has satisfied itself as to the condition thereof;
it is a registered motor vehicle dealer within the Republic of South Africa with a current banking account and VAT registration number and is registered with the applicable motor vehicle licensing authority as a motor dealer with a dealer code.
The User furthermore warrants that he/she is over the age of 18 (eighteen) years.
The Seller warrants that:
it is the owner or authorised agent of the Goods;
it has used its best endeavours to accurately describe the Goods on the Company’s Website and the listing description is accurate (it however being understood that it is the obligation of the Buyer to conduct the necessary investigation to satisfy itself as to the correctness of the information therein contained);
the Goods will be made available for inspection by the User on reasonable notice;
the Goods will, as at the Effective Date, be in substantially the same condition as at the listing date; and
the Goods will be available for collection immediately after confirmation of receipt of Cleared Funds into the Seller’s nominated bank account.
Other than the representations stated in these terms and conditions or the warranties as provided for in the CPA and ECTA, where applicable, the User acknowledges that the Company has made no representations or warranties, implied or otherwise, to the User and/or the Seller in connection with the Goods, prior to the Contract having been made or the terms and conditions.
In the event of the Buyer breaching any of the terms and conditions of this Agreement, the Seller and/or the Company shall be entitled (but not obliged) by written notice to the Buyer to:
claim specific performance; or
cancel the Contract (and any sale concluded in terms thereof); and
In either of the above instances the Seller and/or the Company may claim such damages as it may have suffered as a consequence of the Buyer’s breach.
The aforegoing remedies shall be in addition to such remedies which the Seller and/or the Company may have under the common law.
LIMITATIONS AND INDEMNITY
In addition to any other specific exclusions of liability contained herein and unless otherwise expressly stated herein, the Parties agree that the Buyer shall have no claim against the Company for any loss or damage, of any nature whatsoever, occasioned by any defect, whether patent or latent, or product liability in the Goods supplied by the Seller or any failure to provide adequate instructions in respect of any hazards that might arise from the use or incorrect use of the Goods or the User’s use or inability to use any Goods sold on the Website, save to the extent that the User is a consumer for the purposes of the CPA and such loss or damage is contemplated in section 61 of the CPA and provided that nothing in these terms and conditions must be construed as in any way limiting the rights of the Company to raise such defences as may be available to it at common law or in terms of any statute.
In the event of the breach of these terms and conditions by the Company, the User’s remedies shall be limited to damages which shall under no circumstances exceed the purchase price of the Goods.
The User hereby indemnifies and holds the Company and/or the Seller harmless against any losses, expenses, costs or damages of whatsoever nature incurred by the User and/or the Seller howsoever arising, including from any wilful misconduct or gross negligence of the Company. The Company shall under no circumstances whatsoever be liable for damages, directly or indirectly caused, or consequential loss of any nature whatsoever. Where applicable, this clause 70 will not apply to a User insofar as it is in conflict with the CPA.
The User hereby indemnifies and holds harmless the Seller and/or the Company and waives any right that it may have to claim against the Seller and/or the Company in relation to any loss which it may suffer occasioned by the unauthorised use of the User’s Website secret password and user name.
ASSIGNMENT AND SUCCESSION
The User may not actually or purportedly cede, assign or otherwise alienate any rights or obligations which it may have in terms hereof or in terms of any Contract with the the Seller, without the prior written consent of the Company and/or Seller, which consent will not be unreasonably withheld.
These terms and conditions and the Contract, where applicable, shall be binding on the Buyers heirs, trustees, liquidators, curators and/or successors in title.
DOMICILIUM CITANDI ET EXECUTANDI
The User elects as his domiciliumcitandietexecutandi the physical address as stipulated in the registration documents completed by the User on the Website for service of all notices or legal processes.
The Company elects as its domiciliumcitandietexecutandi its registered address specified at clause 24.
GOVERNING LAW AND JURISDICTION
The Website, these online terms and conditions, the Contract and any contract entered into between the Company and the Buyer and/or Seller shall be subject to the laws of the Republic of South Africa.
In terms of section 45 of the Magistrates Court Act 32 of 1944, as amended, the User hereby consents to the jurisdiction of the Magistrates Court having jurisdiction in terms of section 28 of the said Act in respect of any action to be instituted against the User and/or the Seller by the Company. It shall nevertheless be entirely within the discretion of the Company as to whether to proceed against the User and/or the Seller in such Magistrates Court or any other court having jurisdiction.
In the event of the User and/or the Seller committing any breach or in the event of the Company being required to take any legal action, the User and/or Seller agrees and undertakes to pay the Company’s legal costs on the scale as between attorney and client, including collection commission, tracing fees, valuation charges, transport costs and other expenses in connection therewith.
The Company shall take reasonable steps to protect the personal information of the User collected by the Company through its Website. For the purposes of this clause “personal information” shall be defined as detailed in the Promotion of Access to Information Act, 2 of 2000 (“PAIA”). The PAIA can be accessed at http://www.info.gov.za/view/DownloadFileAction?id=68186.
The personal information will not be made available to any third party without the User’s consent or unless required in legal process or proceedings or to protect the rights, property or safety of the Company or other parties. The User acknowledges that the Company will supply the Seller and all other necessary third parties with the User’s personal information for the purpose of concluding a sale of Goods.
The User recognises that it is the User’s sole responsibility to protect its Website username and password.
The User agrees that the Company may use its confidential information to communicate with the User from time to time, unless otherwise specified by the User in writing.
It is recorded that the Website may collection cookies and/or make use of tracking. All Users of the Website accept that the Company may collect the User’s computer IP address in order to, among other things, measure the number of visitors to the Website for marketing purposes. The Company is under no obligation to protect this information and may make use of this information without limitation.
USE OF THE WEBSITE
Save for the provisions of section 43(5) and 43(6) of ECTA, neither the Company nor its duly authorised agents or representatives shall be liable for damages, loss or inability to use the Website, the services or content provided therein. The Company furthermore makes no representation or warranties whatsoever that the content and/or the technology available on the Website is free of errors, omissions, and viruses of any nature or free of interruption.
Any and all information on the Website should not be regarded as professional advice or the official opinion of the Company and it is the User’s responsibility to ensure the correctness of any of the content displayed on the Website.
No right or license is hereby granted to any User, whether juristic or natural, to any trademark, mark, branding, design or any other intellectual property of the Company whatsoever.
All material located on the Website including, without limitation, text, logos and images may not be copied, reproduced, republished, downloaded, posted, broadcast or transmitted in any way whatsoever except for the User’s personal non-commercial use.
The User agrees not to adapt, alter or create any derivative work from any of the Company’s material contained on the Website nor to use any of the Company’s content for commercial use in any way whatsoever, without the Company’s prior written approval.