TERMS OF ACCESS AND USE
A These Terms of Access and Use ("Terms") govern your use of this site and any associated or linked sites ("Site") and form a binding contractual agreement between you, the user of the Site, and us, FPND Pty Ltd (ACN 612 352 217) trading as Carbiz Online ("Carbiz").
B For this reason the Terms are important and you should ensure that you read them carefully and contact Carbiz with any questions before you access and use the Site.
C By using the Site or by accepting any products and services offered by or on behalf of Carbiz, including brokerage services and sales and purchases of motor vehicles ("Products and Services"),you acknowledge and agree that you have had sufficient chance to read and understand the Terms and you agree to be bound by them. If you do not agree to the Terms, please do not use the Site.
1.1 You acknowledge and agree that, to the full extent permitted by law, Carbiz:
1.1.1 makes the following available to you without assuming a duty of care:
- (a) the Products and Services;
(b) the Site; and
(c) all information about the Products and Services or any other content on the Site, including without limitation information regarding any vehicle prices, quotes and description of vehicles ("Content");
1.1.2 has not assessed the suitability of any Products and Services or the Content to your individual circumstances;
1.1.3 recommends that you obtain an independent legal, accounting and financial advice in connection with Products and Services and the Content; and
1.1.4 gives no warranty, guarantee or representation about the Products or Services or the accuracy, completeness or currency of the Content or their compliance with the relevant laws and regulations.
1.2 You further acknowledge and agree that:
1.2.1 your act of accessing and using the Site constitutes your electronic signature to the Terms; and
1.2.2 the Terms may not be denied legal effect or enforceability solely because the agreement between the parties as to the Terms was formed electronically.
2 GENERAL DISCLAIMER
2.1 To the full extent permitted by law, Carbiz disclaims any warranty, guarantee or representation, whether express or implied, in connection with:
2.1.1 the Products and Services;
2.1.2 the accuracy, completeness or currency of the Content;
2.1.3 the compliance of the Products and Services or the Content with the relevant laws and regulations;
2.1.4 the merchantability of the Products and Services; and
2.1.5 the fitness of the Products and Services or the Content for any particular purpose.
2.2 Carbiz is not be liable under any circumstances for any losses, damages, costs, expenses, demands, claims or proceedings suffered or incurred by you or brought against you (even if Carbiz has been advised of their possibility) in connection with:
- 2.2.1 any part of the Products and Services or the Content;
2.2.2 your acquisition or use, or your inability to acquire or use, any Products and Services or the Content;
2.2.3 your actions or omissions in connection with the Products and Services or the Content (including without limitation as a result of any information provided by you); and
2.2.4 the modification or removal of any part of the Products and Services or the Content.
2.3 You acknowledge and agree that the only warranties, if any, that may apply to any of the Products and Services are those offered by the relevant manufacturer, supplier, installer or any entity providing a warranty.
2.4 When Carbiz acts as a reseller of products and services supplied by third parties, you acknowledge and agree that:
2.4.1 Carbiz is not be liable under any circumstances for any losses, damages, costs, expenses, demands, claims or proceedings suffered or incurred by you or brought against you (even if Carbiz has been advised of their possibility) in connection with any of those products or services; and
2.4.2 the only warranties, if any, that may apply to any of those products or services are those offered by the relevant manufacturer, supplier, installer or any entity providing a warranty.
2.5 When Carbiz offers extended warranty products, it does so as an authorised representative of Australian Warranty Network Pty Ltd trading as AWN Insurance (ABN 78 075 483 206), holder of AFS Licence No. 246469. You acknowledge and agree that Carbiz offers general advice on extended warranty products only, which does not take into account your personal financial circumstances.
3 DISCLAIMER REGARDING USE OF SITE
3.1 To the full extent permitted by law, Carbiz disclaims any warranty, guarantee or representation, whether express or implied that:
3.1.1 the Site, or the server that makes the Site available for your use, is free of software viruses;
3.1.2 the functions contained in any software contained on the Site will notbe interrupted or are error-free; and
3.1.3 errors and defects in the Site will be corrected.
3.2 Carbiz is not be liable under any circumstances for any losses, damages, costs, expenses, demands, claims or proceedings suffered or incurred by you or brought against you (even if Carbiz has been advised of their possibility) in connection with:
3.2.1 your access to, or use of, the Site;
3.2.2 errors or omissions in the Site;
3.2.3 delays to, interruptions of, or cessation of, any of the Products and Services; and
3.2.4 defamatory, offensive or illegal conduct of any user of the Site, whether caused as a result of the negligence of Carbiz or any other cause.
3.3 You agree to accept the full cost of any necessary repair, correction or maintenance of any of your computer software or hardware, which may be necessary as a consequence of you accessing or using the Site.
4 RESTRICTIONS ON USE
4.1 You acknowledge and agree that:
4.1.1 Carbiz owns all intellectual property rights in connection with the Products and Services, the Site and the Content; and
4.1.2 nothing in the Terms constitutes a transfer of any intellectual property rights to you.
4.2 Carbiz grants you a non-exclusive and non-transferable licence to use the Site and the Content in accordance with the Terms.
4.3 Except for the limited use set out in clause 4.2, you may not use the Site or any part of the Content for any purpose, including without limitation:
4.3.1 reproducing any part of the Content in any form;
4.3.2 transferring or distributing any part of the Content in any form;
4.3.3 transmitting any part of the Content by any medium of communication;
4.3.4 uploading or reposting any part of the Content to any other site;
4.3.5 recompiling, disassembling or modifying any part of the Content;
4.3.6 making any derivate works of any part of the Content; and
4.3.7 using any part of the Content for any commercial purpose.
4.4 You may not modify, copy or reproduce:
4.4.1 the layout of the Site; or
4.4.2 any computer software and code contained in the Site.
5 APPLICATION FOR VALUATION
5.1 ou may apply for an estimate of value of your motor vehicle or another vehicle having similar characteristics to that motor vehicle as listed on the Site ("Online Estimate") by completing a free online valuation request form.
5.2 By submitting a valuation request form, you represent and warrant that all information provided by you is complete and accurate.
6.1 Unless notify otherwise, the Online Estimate is made on the basis of assumptions that the relevant motor vehicle:
6.1.1 is registered for the 12 month period;
6.1.2 is in an excellent condition;
6.1.3 has no mechanical, electrical, structural or aesthetic defects;
6.1.4 is not damaged;
6.1.5 has had no previous major accident damage;
6.1.6 does not contain any non-factory approved parts or non-standard paint work or colouring;
6.1.7 has not been partially or fully immersed in water;
6.1.8 has a working odometer;
6.1.9 has not had the odometer replaced;
6.1.10 has an accurate odometer reading and record of distance or hours travelled;
6.1.11 if older than 7 years, has travelled 15,000km per year;
6.1.12 is not on the Written Off Vehicle Register (as maintained by the various Australian roads and licensing authorities);
6.1.13 does not have personalised registration plates;
6.1.14 is not imported (in the circumstances where the motor vehicle is not traditionally or regularly imported by the manufacturer);
6.1.15 has not ever been used for public or private hire, rental, driving tuition or as an emergency vehicle;
6.1.16 has 2 sets of keys; and
6.1.17 has a full service history and service books.
7 REPRESENTATIONS AND WARRANTIES
7.1 If you are selling a motor vehicle through the Site or otherwise with Carbiz's assistance, you represent and warrant that:
7.1.1 you are legally capable of entering into a binding contract to sell the motor vehicle;
7.1.2 you are the sole owner of the motor vehicle;
7.1.3 you have an unfettered right to sell the motor vehicle;
7.1.4 on completion of the sale, you have clear title to the motor vehicle; and
7.1.5 the relevant motor vehicle is not subject to any security interest, including without limitation that under the Personal Property Security Act 2009 (Cth), which will not be released on or before completion of the sale.
8.1 The Online Estimate is made in reliance on the information provided by you and on the matters referred to in clauses 5 to 7.
8.2 You acknowledge and agree that the Online Estimateis a guide only and is not a price at which Carbiz is bound to purchase the motor vehicle nor does it constitute an offer to purchase the motor vehicle.
8.3 The Online Estimate is valid for 7 days from the time it is issued.
8.4 After you receivethe Online Estimate, you may book an appointment with Carbiz for an onsite inspection of the motor vehicle.
8.5 You acknowledge and agree that Carbiz will require an onsite inspection of the motor vehicle before offering topurchase it.
8.6 On carrying out an onsite inspection of the motor vehicle, Carbiz will provide a further estimate of value of the motor vehicle("Onsite Estimate") and may offer to buy it for a price nominated by Carbiz ("Price").
8.7 The Onsite Estimate is valid for 24 hours from the time it is issued.
8.8 You acknowledge that:
8.8.1 the Onsite Estimate and the Price may differ to the Online Estimate, including without limitation due to the motor vehiclehaving different particulars to those provided by you or assumed by Carbiz at the time of issuing the Online Estimate;
8.8.2 the Online Estimate and the Onsite Estimate are subject to change prior to any contract of sale of the motor vehicle being entered into, including without limitation due to changing market values of motor vehicles and stock levels; and
8.8.3 Carbiz has the absolute right to withdraw the Online Estimate, the Onsite Estimateor the offer to purchase the motor vehicle at any time without any liability owed to you.
8.9 If Carbiz offers to buy the motor vehicle and you accept that offer, the offer will only become binding on the parties when a contract for sale of the motor vehicle ("Contract") has been entered into by both parties.
8.10 Prior to entering into the Contract, you are required to provide Carbiz with the following for the motor vehicle:
8.10.1 all keys;
8.10.2 current registration certificate and proof of ownership documentation;
8.10.3 service history, service books and owner's manual;
8.10.4 all accessories;
8.10.5 your identification documents requested by Carbiz; and
8.10.6 your bank account details.
8.11 Prior to entering into the Contract, you must remove your personal belongings from the motor vehicle. Any personal belongings remaining in the motor vehicle after the Contract is entered into become the property of Carbiz, which Carbizis entitled to dispose of, or sell,in its discretion.
9 DISCHARGE OF SECURITY INTEREST
9.1 Carbiz may agree to purchase a motor vehicle despite it being subject to a security interest, but only provided that Carbiz receives from the security holder a discharge and release of that security interest in an approved form, together with a written statement confirming that the outstanding debt secured by that interest ("Secured Debt") has been repaid in full.
9.2 Carbiz will pay, out of the Price,the security interest holder the amount of the Secured Debt, subject to your agreement and subject to receivingfrom you any applicable difference referred to in clause 9.3.2.
9.3 If the Price is:
9.3.1 higher than the Secured Debt, Carbiz will pay you the difference; or
9.3.2 lower than the Secured Debt, you must pay Carbiz the difference by clear funds as a pre-condition to Carbiz purchasing your motor vehicle.
10.1 You are responsible for delivering the motor vehicle to a location nominated by Carbiz at your own expense.
10.2 You must not leave the motor vehicle at the nominated location, unless:
10.2.1 you have entered into the Contract with Carbiz; and
10.2.2 Carbiz agreed to take possession of the motor vehicle at that time.
10.3 On delivery of the motor vehicle, you must provide your identification documents requested by Carbiz.
11 PRICE AND PAYMENT
11.1 Once you have handed over the motor vehicle in accordance with clause 10.1, Carbiz will pay you the Price less the Secured Debtand less any applicable administration fees that Carbiz charges from time to time.
12 LIMITATION OF LIABILITY
12.1 You acknowledge and agree that your payment for any Products and Services or the Content (as the case may be) is not refundable under any circumstances.
12.2 However, in the event that the disclaimers or exclusions of liability set out in clauses 2 or 3 are not effective to the full extent, you acknowledge and agree that Carbiz's liability in respect of the Products and Services is limited, at the choice of Carbiz , to one or more of the following (as determined by Carbiz in its discretion):
12.2.1 if the breach of an implied warranty or condition relates to products:
(a) replacement of the products or the supply of equivalent products; or
(b) reimbursement of payments made by you for the products (excluding any fees or payments charged by, or made to, any government authorities or any other third parties); or
12.2.2 if the breach of an implied warranty or condition relates to services:
(a) re-supply of the services or the supply of equivalent services; or
(b) reimbursement of payments made by you for the services (excluding any fees or payments charged by, or made to, any government authorities or any other third parties).
12.3 In the event that Carbiz makes a reimbursement referred to in clause 5.2, this payment will be made strictly to the payment method used by you in the relevant transaction.
13 LINKS TO THIRD PARTY CONTENT
13.1 The Site contains or may contain links to sites, products, services, information or contentowned, provided byor operated by third parties and which are not under Carbiz'scontrol ("Third Party Content").
13.2 You acknowledge and agree that:
13.2.1 the links to the Third Party Contentare provided as a convenience to you and strictly for information purposes;
13.2.2 the existence of a link to the Third Party Content does not imply any endorsement of it by Carbiz and is not to be construed as an offer to sell, or solicitation of an offer to buy, any products or services referred to in the Third Party Content;
13.2.3 Carbiz does not make any proprietary claim to any intellectual property associated with any Third Party Content;
13.2.4 Carbiz is not responsible for any Third Party Content; and
13.2.5 Carbiz is not be liable under any circumstances for any losses, damages, costs, expenses, demands, claims or proceedings suffered or incurred by you or brought against you (even if Carbiz has been advised of their possibility) in connection with the Third Party Content.
14 BILLING AND PAYMENTS
14.1 You agree to pay all fees and charges for any Products and Services, obtained by you whether through the Site or otherwise, in accordance with the payment terms disclosed to you prior to the relevant transaction. .
14.2 If applicable, prior to the relevanttransaction, you must nominateyour preferred payment method from the available options. You warrant that you are authorised to use that payment method. You authorise Carbiz to charge you for the relevant Products and Services using the payment method nominated by you.
14.3 Following the acceptance of your payment, Carbiz will use reasonable endeavours to provide you with the relevant Products and Services within the agreed period of time and in any event as soon as reasonably practicable in the circumstances. However, you acknowledge that there may be delays in delivering the Products and Services for the reasons outside Carbiz’s control. Carbiz is not be liable under any circumstances for any losses, damages, costs, expenses, demands, claims or proceedings suffered or incurred by you or brought against you (even if it has been advised of their possibility) as a result of the delays in the delivery of the Products and Services.
15 INFORMATION PROVIDED BY YOU
15.1 You represent and warrant in relation to any data or information you provide to Carbiz or the Site (including any information about another person or entity) that:
15.1.1 you are authorised to provide such data or information;
15.1.2 to the best of your knowledge, such data or information are true, accurate, correct and complete;
15.1.3 you will notify Carbiz immediately of any changes in the data or information previously provided by you;
15.1.4 you do not impersonate any other person or entity nor do you use a false name or a name that you are not authorised to use when accessing or using the Site; and
15.1.5 the provision of such data or information by you does not breach any laws or regulations.
15.2 Carbiz reserves the right:
15.2.1 to inspect and verify correctness of the data or information provided by you if it deems necessary; and
15.2.2 not to activate or terminate your account if Carbiz has any suspicious regarding the date or information provided by you, irrespective of any payment made.
16 USE OF GATHERED INFORMATION AND CONTACT BY CARBIZ
16.1.1 which you may provide when accessing the Site, including your name, address, telephone number, email address and other personal information about you; and
16.1.2 regarding the way in which you use the Site, including without limitation information acquired through the use of "cookies" programmed during the access to the Site.
16.3 You expressly consent to Carbiz contacting you by email, telephone, text messages or other electronic means for a period of up to 90 days after you have submitted a request for an Online Estimate of a motor vehicle to determine your requirements for a Onsite Estimate and potential sale of that motor vehicle.
17.1 Carbiz reserves the right to modify or remove any Content on the Site or vary the Terms:
17.1.1 at any time;
17.1.2 with or without further notice to you; and
17.1.3 without giving you any explanation or justification for such variations.
18 WITHDRAWAL OF OFFER OR SUSPENSION OR TERMINATION OF ACCESS
18.1 Carbiz may suspend, temporarily restricts, limit or modify your access to the Products and Services, the Site or the Content (as the case may be) at any time and without notice if Carbiz, it its discretion, determines or suspects that your activities in connection with the Products and Services, the Site or the Content:
18.1.2 harm or threaten to harm the interest of Carbiz or any of Carbiz's associated entities;
18.1.3 have given rise, or may give rise, to legal disputes or liabilities for Carbiz or any of Carbiz's associated entities;
18.1.4 have infringed, or may infringe,any intellectual property rights; or
18.1.5 have, or may have, an adverse effect on Carbiz's goodwill or reputation.
18.2 Carbiz is not be liable under any circumstances for any losses, damages, costs, expenses, demands, claims or proceedings suffered or incurred by you or brought against you (even if Carbizhas been advised of their possibility) as a result ofCarbiz's actions under clause 18.1 (including without limitation claims or demands for compensation, refund or any other payment or benefit).
19 SECURITY AND REPORTING
19.1 If applicable, you agree that you are responsible for keeping your login name and password for your account on the Site secret andfor regularly changing your login name and password for security purposes.
19.2 You acknowledge and agree that Carbizis not responsible for any third party accessing your account that results from the theft or misappropriation or sharing by you of your login name and password.
19.3 Carbiz reserves the right to suspend or terminate your access to the Site if Carbiz suspects an unauthorised use of your account or the Site.
19.4 You agree to immediately notify Carbiz regarding:
19.4.1 any breach or violation of the Terms by others of which you become aware; and
19.4.2 any known or suspected unauthorised access to the Site or your account.
20 YOUR WARRANTY AND INDEMNITY
20.1 You represent and warrant that:
20.1.1 you have the legal capacity to enter into the Terms, obtain the Products and Services and access and use the Site and the Content;
20.1.2 if you are acting on behalf of a company or any other entity, you have the authority to bind such company or entity; and
20.1.3 if you are providing data or information about another person or entity, you have an authority from the relevant party for the provision of such information.
20.2 You indemnify and must keep Carbiz indemnified from and against any losses, damages, costs, expenses, demands, claims or proceedings suffered or incurred by Carbiz or brought against Carbiz in connection with:
20.2.1 your use of the Products and Services:
20.2.2 your access to, or use of, the Site and the Content;
20.2.3 any breach of the Terms by you; and
20.2.4 provision, publication or distribution of any data, information or documents by you.
21 DISPUTE RESOLUTION
21.1 If a dispute arises in relation to the Terms, prior to commencing any legal proceedings the parties must negotiate in good faith with a view of resolving that dispute. In the event of your disagreement with any matter arising in connection with your use of the Site you can contact Carbiz's Relationship Manager by using the "Contact Us" form.
21.2 If the dispute was not resolved pursuant to the procedure set out in clause 14.1, prior to commencing any legal proceedings either party must give the other party a notice requiring that the dispute be resolved by an arbitrator to be appointed by the Institute of Arbitrators and Mediators Australia.
21.3 Each of the parties must cooperate fully with the arbitrator.
21.4 The arbitration is to be conducted in accordance with the Institute's Rules for the Conduct of Commercial Arbitrations. Those rules and the decision of the arbitrator are binding on the parties.
22.1 Where context permits, the term "Carbiz" used in the Terms includes all of Carbiz's directors, officers, employees, contractors, consultants, agents and any other person claiming through or under Carbiz.
22.2 The term "associated entity" used in the Terms has the meaning ascribed to this term under the Corporations Act 2001 (Cth).
22.3 Each party must at its own expense do everything reasonably necessary to give full effect to the Terms and the events contemplated by it.
22.4 If any part of the Terms is found to be void, unlawful or unenforceable, then that part will be deemed to be severable from the balance of the Terms. The severed part of the Terms will not affect the validity and enforceability of any remaining provisions.
22.5 You must not assign, sublicence or otherwise deal in any other way with any of your rights, title or interest under the Terms. Carbiz may assign, sublicence or otherwise deal with any of its rights, title or interest under the Terms and in connection with the Site without your consent.
22.6 Nothing on this Site or under the Terms is to be deemed to constitute an offer to sell or serve in jurisdictions where it is illegal to do so.
22.7 The Terms are governed by, and interpreted in accordance with, the laws of the State of New South Wales, Australia, without giving effect to any principles of conflicts of laws.
22.8 You agree to the jurisdiction of the courts of the State of New South Wales, Australia to determine any dispute arising out of the Terms.