These standard terms and conditions (“Conditions”) constitute a legally binding agreement between Dealer Auction and the User and govern the provision and use of products and features supplied by Dealer Auction to the User which enable access to Dealer Auction’s trade-to-trade used car marketplace and allows the User to buy vehicles from multiple sources and sell vehicles to other trade dealers.
Dealer Auction may modify these Conditions from time to time and you should ensure that you review these Conditions regularly.
Your attention is drawn in particular to clause 11 (Liability and Indemnity). Note, Dealer Auction does not create or monitor Adverts and accordingly Dealer Auction provides no warranty as to the accuracy of vehicle descriptions and/or condition unless expressly set out in these Conditions. Before buying a vehicle, you are expected to have considered additional repairs and maintenance which may be required prior to use and/or resale.
1. DEFINITIONS AND INTERPRETATION
1.1. In these Conditions, unless the context otherwise requires, the following terms have the following meanings:
“Advert” means any copy, artwork, text, data, photographs, slides and/or video clips advertising a vehicle that is to be published on the Platform, including the content of a Condition Report;
“Auction Vehicle” means a vehicle listed for sale using the auction functionality on the Platform;
“Bidder” means a User who bids for an Auction Vehicle using the auction functionality on the Platform;
“Business Day” means a day (excluding Saturdays, Sundays or a public holiday in England) when banks are open for the transaction of normal business;
“Buyer” means (i) in the context of auction functionality, a Bidder who submits the winning bid on an Auction Vehicle listing on the Platform, and (ii) in the context of a Buy it now Vehicle, a User who submits a binding Offer for the advertised price displayed on a Buy it now Vehicle listing on the Platform;
“Buy it now Purchase” means a binding Offer for the advertised price displayed on a Buy it now Vehicle listing on the Platform which is accepted by the Seller simultaneously;
“Buy it now Vehicle” means a vehicle listed for sale on the Platform which is immediately available for purchase by a User at the price listed and which is labelled or visually identifiable as ‘Buy it now’;
“Charges” means the charges to be paid by the User for the Services which will consist of the Subscription Fee and any additional transaction fees on the Platform in relation to the sale and purchase of any Vehicle, as set out on the Order Confirmation and/or Order Variation;
“Condition Report” means a report provided by a Seller to other Users via the Platform for a Vehicle, based on a template provided by Dealer Auction or otherwise provided in a format uploaded by the Seller, which sets out an accurate reflection of the condition of such Vehicle, including (but not limited to) exterior and interior damage and tyre depth;
“Contract of Sale” means the contract between Seller and Buyer for the purchase of a Vehicle, which comprises these Conditions and is formed upon the Seller’s acceptance of the Buyer’s Offer;
“Cox Automotive” means Cox Automotive UK Limited (company no. 03183918) whose registered office is at Central House, Leeds Road, Rothwell, Leeds LS26 0JE;
“Data” means information regarding the User and the Vehicle Information;
“Data Protection Legislation” means the Data Protection Act 2018, the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) and any other data protection legislation applicable in the UK from time to time, and the terms “Data Controller”, “Data Processor”, “Personal Data”, “Processing”, and “Sub-Processor” shall, unless the context otherwise requires, each have the respective meaning as given in that legislation;
“Dealer Auction” means Dealer Auction Limited (11514206) whose registered office is at Central House, Leeds Road, Rothwell, Leeds, LS26 0JE.
“Dealer Auction Data” means the data provided by Dealer Auction to the User via the Platform, including the Supplemental Information;
“Dealer Auction Group” means Dealer Auction Limited, its parent undertakings, its subsidiary undertakings and the subsidiary undertakings of any of its parent undertakings from time to time, and for these purposes, “parent undertaking” and “subsidiary undertaking” each have the meaning given to them in section 1162 of the Companies Act 2006;
“Intellectual Property Rights” means all intellectual property rights wherever in the world arising whether registered or unregistered (including any application for registration), including without limitation, all copyright, trademarks, trade names, logos, patents, design rights, database rights and/or know how;
“Insurance Total Loss” means that a Vehicle has been categorised by insurers as any of a category A (scrap metal only), category B (break for spare parts only), category F (fire damage), category N (repairable Vehicle), and category S (repairable Vehicle where repair costs exceeded the Vehicle’s pre-accident value);
“Listing Period” means a period of 10 Business Days during which a Vehicle benefitting from Remarketing Services is published as an Advert on the Platform;
“Manheim” means Manheim Limited (company no. 00448761) whose registered office address is at Central House, Leeds Road, Rothwell, Leeds, LS26 0JE;
“Market Value” means the mean average trade sales price achieved for a Vehicle during the previous 3 (three) months for a Vehicle of a type and condition the same as or substantially the same as the relevant Vehicle;
“Materials” means any copy, artwork, data, photographs, slides, video clips, information and/or other material provided or selected by the User for inclusion in an Advert or otherwise uploaded to the Platform;
“Offer” means an offer of money to another User for the purchase of a Vehicle via the Platform which signifies the intention to pay the sum of money offered for the Vehicle;
“Order Confirmation” means the order communication sent by Dealer Auction to the User confirming details of the User’s order;
“Order Variation” means the form detailing changes requested by the User to the Services, including additional products;
“Platform” means the platform owned and operated by Dealer Auction accessed via the website at www.dealerauction.co.uk or such other domain name used by Dealer Auction from time to time;
“Proxy Bidding” means bidding functionality on the Platform which allows bids for Auction Vehicles to be made on the Bidder’s behalf (with notification of a maximum bid by the Bidder);
“Remarketing Conditions” means the additional terms and conditions set out in Schedule 1 of these Conditions which relates to the Remarketing Services provided by Dealer Auction to the Seller;
“Remarketing Services” means where agreed between Dealer Auction and the Seller, the additional services provided by Dealer Auction as further described in the Usage Agreement;
“Roadworthy” means that a Vehicle complies with all legislation in force from time to time to ensure that a Vehicle does not cause any danger on the roads and highways (including any regulations as to brakes, steering, gears, tyres, lighting equipment or any other such matter);
“Safety Recall” means a recall issued by a Vehicle manufacturer regarding defects, which have the potential to cause serious injury, including instructions for remedying the defect
“Seller” means a User who lists for sale a Vehicle on the Platform, and that has instructed Dealer Auction to perform the Services on its behalf in relation to the sale of Vehicles;
“Seller Transfer” means the transfer of the Seller from Dealer Auction to Manheim, upon the Vehicle not being successfully sold by Dealer Auction during the Listing Period;
“Services” means the products and services provided by Dealer Auction to the User pursuant to the Usage Agreement (and subject to and in accordance with these Conditions) which constitutes a trade-to-trade used car marketplace and allows the User to buy vehicles from multiple sources and sell vehicles to other Users (and includes auction functionality and the ability to list for sale vehicles which are immediately available for purchase by a User at the price listed), and further recommends and profiles vehicles that meet the User’s sourcing strategy taking into account data derived market insight;
“Stolen Recovery” means a Vehicle that has been stolen and recovered
“Subcontractor” means any third party engaged by Dealer Auction to provide any services under these Conditions, including Cox Automotive and Manheim;
“Subscription Fee” means the sum payable every month by the User to Dealer Auction for access to the Platform as set out in the Order Confirmation and/or Order Variation;
“Supplemental Information” means information used by Dealer Auction to supplement and enhance the Vehicle Information, including verification, enhancement or amendment of the Vehicle Information;
“SureCheck” means where a vehicle has been described as coming with the benefit of SureCheck protection, which consists of certain additional contractual rights for a Buyer, should a vehicle deviate during a limited period of time after a Contract of Sale has been concluded from certain statements deemed made by Dealer Auction concerning its condition as at the date of that Contract of Sale. Any vehicle purchased with the benefit of SureCheck shall be subject to SureCheck Terms and Conditions;
“SureCheck Terms and Conditions” means the additional terms and conditions which apply in respect of the provision of SureCheck and form part of these Conditions which are available at: https://www.dealerauction.co.uk/surecheck/;
“Usage Agreement” means the agreement between Dealer Auction and the User for the purchase and supply of the Services, incorporating the Order Confirmation and/or Order Variation and these Conditions;
“User” means the person, firm or company who enters the Usage Agreement with Dealer Auction and has subsequently been issued with username(s) and password(s) for accessing the Platform;
“Vehicle” means an Auction Vehicle or Buy it now Vehicle; and
“Vehicle Information” means any data regarding the User’s vehicles including but not limited to vehicle registration details, images, prices and sales information which is uploaded to the Platform or otherwise communicated or made available to Dealer Auction.
1.2. In these Conditions, references to the singular include plural and vice versa; references to numbered clauses are references to the relevant clause in these Conditions; the headings to the clauses will not affect interpretation; any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and a reference to writing includes emails and electronic communications via the Platform.
1.3. In the case of any conflict or ambiguity between any provision contained in these Conditions and any provision contained in an Order Confirmation and/or Order Variation, the following order of precedence shall apply in ascending order with Conditions taking precedence at the top:
1.3.1. Conditions;
1.3.2. Order Variation; and
1.3.3. Order Confirmation.
2. USAGE AGREEMENT
2.1. Each order for subscription to the Services shall be deemed to be an offer by the User to subscribe to the Services subject to these Conditions.
2.2. Orders placed by the User shall only be deemed accepted by Dealer Auction when Dealer Auction sends an Order Confirmation or Order Variation (as applicable) to the User. The User shall ensure that the terms of its order are complete and accurate. If changes are required, the User should inform Dealer Auction as detailed on the Order Confirmation or Order Variation.
2.3. Dealer Auction shall be entitled to modify these Conditions from time to time and any modifications shall be effective immediately from the time they are notified to the User. Display of the modified Conditions on the Platform shall be deemed to be notice to the User. The User agrees to review the Conditions regularly to ensure they are aware of any modifications.
2.4. These Conditions govern the Usage Agreement to the exclusion of any other terms and conditions (including any terms the User seeks to impose) unless expressly stated otherwise in writing by Dealer Auction.
3. SERVICES
General
3.1. The User will subscribe to the Services as detailed in an Order Confirmation.
3.2. In consideration of payment of the Charges by the User in accordance with clause 6, Dealer Auction will provide the Services to the User commencing on the date set out in the Order Confirmation (or, if no such date is set out, the date that access to the Platform is initiated for the User).
3.3. If after entering the Usage Agreement, the User requests a change to the Services and Dealer Auction agrees, Dealer Auction shall confirm details of the requested change via an Order Variation. Except as expressly amended by any Order Variation the original Usage Agreement shall remain in full force and effect.
3.4. Dealer Auction shall provide additional technical specification details for Adverts which shall solely consist of details that Dealer Auction can obtain from its current supplier’s dataset. The User acknowledges that the technical specification will be for the most recent model of the vehicle in question and will not be the technical specification for the exact vehicle in question. Such details will only be provided by Dealer Auction upon provision by the User of a valid registration number for the vehicle in question. The provision of a valid registration number is the User’s sole responsibility. It is the User’s responsibility to ensure any inaccuracies in the technical specification are corrected in the Advert and at the point of sale of the vehicle.
3.5. Dealer Auction shall use reasonable endeavours to publish Adverts on the Platform within 1 (one) Business Day of such Adverts being uploaded by the User (excluding Adverts relating to Remarketing Services). However, there may be instances where there are delays to the publication of Adverts on the Platform. For the avoidance of doubt, time shall not be of the essence for publishing Adverts on the Platform.
3.6. Upon listing a Vehicle for sale on the Platform, the Seller undertakes that:
3.6.1. it is the owner of the Vehicle or has valid documented authority from the owner to sell the Vehicle in accordance with section 12 of the Sale of Goods Act 1979;
3.6.2. It acknowledges the restrictions on the number of times a Vehicle can be listed for sale on the Platform as contained in clauses 3.16 and 3.21;
3.6.3. it shall not advertise the Vehicle for sale elsewhere or otherwise seek to dispose of the Vehicle during the time it is listed on the Platform; and
3.6.4. it shall not bid on the Vehicle (using its own name or another name) or arrange for any third party to bid on the Vehicle in order to push up the price of the Vehicle (a practice called “Shill Bidding”). Any Seller or User suspected of Shill Bidding shall have access to the Platform revoked and may be reported to the relevant law enforcement agency.
Auctions
3.11. Once a Bidder has made an Offer for an Auction Vehicle on the Platform it cannot be withdrawn and is binding on the Bidder for the purposes of these Conditions. Upon making an Offer for an Auction Vehicle, the Bidder is agreeing to purchase the Auction Vehicle for the price offered in the event that it is the highest Bidder. Once a bid has been accepted by a Seller the Bidder is bound to the Seller to complete the transaction and pay the purchase price offered.
3.12. To win an auction for a particular Auction Vehicle, the Offer submitted must be the highest bid of the auction and must meet any other criteria which may be specific to the auction. Where Proxy Bidding is utilised and the Bidder’s maximum bid amount exceeds the reserve price for the Auction Vehicle, Proxy Bidding will submit an amount equal to the reserve price as an Offer on behalf of the Bidder, whereupon a “reserve met” status will become visible on the listing. Proxy Bidding will then continue submitting Offers on the Auction Vehicle, as subsequent Offers are placed by other Bidders, up to the Bidder’s maximum bid amount.
3.13. Upon listing an Auction Vehicle for auction on the Platform, the Seller agrees to sell the Auction Vehicle to the Buyer should it reach or go beyond its reserve price.
3.14. In certain circumstances, a Bidder may be eligible to make an Offer for an Auction Vehicle on the Platform at a price which is different from the asking price. Any Offer or counter-offer made under this clause 3.14 will automatically expire on the next Business Day at the time stated on the Platform. If an Offer is accepted by the Seller, the Bidder confirms that it agrees to purchase the Auction Vehicle for the price offered. The Seller reserves the right to reject an Offer for an Auction Vehicle and submit a counter-offer to the Bidder for consideration. If a counter-offer is accepted by the Bidder, the Bidder confirms that it is bound to purchase the Auction Vehicle for the price offered and complete the transaction. For the avoidance of doubt, clauses 3.11, 3.12 and 3.13 shall not apply to Auction Vehicles sold under this clause 3.14.
3.15. Risk and title in the Vehicle remains with a Seller until it has received the purchase price. On payment completion, the Buyer will be responsible for contacting the Seller to arrange a date and time for collection of the Auction Vehicle and the Seller will promptly confirm such collection date and time. Sellers and Buyers agree to complete the transaction for an Auction Vehicle within 72 (seventy two) hours of the relevant auction closing.
3.16. Each User who lists for sale an Auction Vehicle on the Platform acknowledges and agrees that in the event the Auction Vehicle does not sell successfully at the auction into which it is initially entered by the User, that Auction Vehicle may be re-entered for sale as an Auction Vehicle in subsequent auctions on a further 6 occasions. Where that Auction Vehicle is not sold and no Contract of Sale is formed in relation to that Auction Vehicle within those further 6 occasions, it may be listed for sale on the Platform by the User as a Buy It Now Vehicle, subject to clause 3.20, unless otherwise agreed in writing with Dealer Auction.
Buy it now
3.17. A Seller can elect to list a Vehicle as a Buy it now Vehicle. The amount listed as part of the Buy it now Vehicle Advert is the amount for which the Buy it now Vehicle is immediately available for purchase by a Buyer.
3.18. A Buyer can initiate a Buy it now Purchase by submitting an Offer for a Buy it now Vehicle on the Platform. Once a Buyer has made an Offer for a Buy it now Vehicle the Offer cannot be withdrawn, and the Buyer is bound to the Seller to complete the purchase of the Buy it now Vehicle for the purposes of these Conditions.
3.19. Upon listing a Buy it now Vehicle on the Platform, the Seller agrees to sell a Buy it now Vehicle to the Buyer should an Offer be made for the advertised price.
3.20. Risk and title in the Vehicle remains with a Seller until it has received the purchase price for the Vehicle. On payment completion (in full and cleared funds), the Buyer will be responsible for contacting the Seller to arrange a date and time for collection of the Buy it now Vehicle and the Seller will promptly confirm such collection date and time. Sellers and Buyers agree to complete the transaction for a Buy it now Vehicle within 72 (seventy two) hours of the relevant Offer being submitted by a Buyer.
3.21. Each User who lists for sale a Buy It Now Vehicle on the Platform acknowledges and agrees that each Buy It Now Vehicle Advert will be live for a period of 7 (seven) days, after which time it will automatically expire. A vehicle may be relisted as a Buy It Now Vehicle on the Platform by a User on a maximum 7 (seven) occasions, each Advert being live for a maximum period of 7 (seven) days. In the event the Buy It Now Vehicle does not sell and no Contract of Sale is formed in relation to that Buy It Now Vehicle within the 7 (seven) occasions on which it is listed for sale on the Platform, the User may not relist the Buy It Now Vehicle on the Platform and any attempts to do so will result in the Advert being rejected for publication by Dealer Auction.
3.22. Where a Vehicle listed for sale on the Platform relates to Remarketing Services, the User acknowledges that the Remarketing Conditions shall apply, and that Dealer Auction may (at Dealer Auction’s sole discretion) require the User to contact Manheim directly in certain circumstances, as may be communicated to the User from time to time.
Condition Reports
3.23. Subject to clause 3.25, Sellers are required to provide a Condition Report for all Auction Vehicles and Buy it Now Vehicles. Auction Vehicles and Buy it now Vehicles cannot be listed on the Platform without a Condition Report. Condition Reports are not mandatory for any other vehicles listed on the Platform, unless otherwise requested by Dealer Auction in writing.
3.24. Subject to clause 3.25, the Seller is solely liable for the content of any Condition Report and Dealer Auction is unable to check the information contained in any such Condition Report. Condition Reports shall be deemed Materials for the purposes of these Conditions and the Seller is therefore solely responsible for, without limitation, ensuring that the Condition Report is complete, accurate, legal, non-defamatory, decent, honest and truthful and comply with all relevant codes under the regulation of the Advertising Standards Authority and all current relevant legislation. Accordingly, Dealer Auction shall not be liable to any User or any third party, to the maximum extent permitted by law, in respect of the content of any Condition Report.
3.25. Where the Seller has agreed for Remarketing Services to be provided by Dealer Auction and/or its Subcontractor, Dealer Auction shall collate the Vehicle Information from the Seller and include any Supplemental Information to form part of the Condition Report prior to the Advert being published on the Platform. The Seller agrees that in such circumstances the Condition Report shall be deemed to consist of Dealer Auction Data.
3.26. Users acknowledge that all Vehicles on the Platform are previously owned and used vehicles, and all conditions and warranties implied by law, trade, custom or practice are excluded to the fullest extent permitted by law.
SureCheck
3.27. Dealer Auction may, at its sole discretion, offer a Vehicle for sale with the benefit of SureCheck, which is provided by Manheim. Any Vehicle which benefits from SureCheck shall be identified as such within the Advert on the Platform.
3.28. Any Vehicle sold with the benefit of SureCheck shall be subject to the SureCheck Terms and Conditions.
Disputes and Complaints
3.29. The Platform is merely a platform to facilitate the buying and selling of vehicles by introducing Users to each other. Dealer Auction will not, and is not obliged to assist, in any disputes between any Users (including any disputes between the Seller and any Bidder or Buyer in the context of Auction Vehicles or Buy it now Vehicles), except where such Vehicle relates to the Remarketing Services, in which case the Remarketing Conditions shall apply. Nevertheless, Dealer Auction reserves the right to refuse or remove Offers and/or suspend, cancel or extend auctions at its absolute discretion, including where there are or have been obvious typographical or arithmetical errors.
3.30. Without prejudice to clause 3.29 above, Users may submit complaints about other Users’ Use of the Platform. Dealer Auction will investigate all such complaints and take such action as it deems necessary, including any rights it has under clause 10.
Dealer Auction Data
3.31. Dealer Auction grants to the User a personal, non-exclusive, non-transferable licence, for the period of the Usage Agreement, to use the Dealer Auction Data solely for its own internal business purposes within the motor industry.
3.32. The User warrants that it will not alter, adapt, merge, copy or modify the Dealer Auction Data in any way for any purpose, including without limitation, for error correction.
3.33. The User is prohibited from reselling or otherwise making available to any third party any Dealer Auction Data.
3.34. The User acknowledges and agrees that the Dealer Auction Data is comprised of data provided by third parties and that in providing this information, Dealer Auction does not warrant the accuracy of any information provided, and any information provided shall be for guidance purposes only. Any business decisions taken in reliance of such information shall be at the User’s sole risk.
Feedback
3.35. Feedback must only be provided by Users as an accurate and truthful reflection of their experiences whilst conducting business with other Users on the Platform.
3.36. Users must not take any actions that may undermine the integrity of the feedback system. All feedback content on the Platform is the sole responsibility of the Users who originate such content. Dealer Auction does not monitor or control any feedback content posted via the Platform and it cannot take responsibility for such content.
Use of Information relating to others
3.37. The User agrees to only contact other Users regarding the sale and purchase of Vehicles advertised on the Platform and not to use contact details of any third party for any other purpose.
3.38. The User agrees not to disclose any contact details or Advert details of any User to any third party who is not a User.
Subcontractors
3.39. The User agrees that Dealer Auction may provide the Remarketing Services via the use of a Subcontractor. Dealer Auction shall ensure that all personnel who are engaged in the provision of the Remarketing Services, possess the adequate skill and experience to carry out their appointed duties.
3.40. Dealer Auction shall not be liable for any services provided by a third party subcontractor nominated by the User, and the User shall at all times remain responsible for any Vehicle Information provided as part of the Condition Report.
3.41. The User agrees that Dealer Auction shall not be liable for the acts or omissions of a Subcontractor, unless otherwise agreed in writing with the User.
Service Standards
3.42. The Seller may request that Dealer Auction provides the Remarketing Services, which for the avoidance of doubt are separate to the Services.
3.43. In the event that Dealer Auction agrees to provide the Remarketing Services, Dealer Auction shall provide only those Remarketing Services as requested by the Seller, and shall charge the Seller for the same in accordance with Dealer Auction’s standard charges prevailing at that time or as otherwise specified in an Order Confirmation.
3.44. Dealer Auction shall engage sufficient personnel to carry out the Remarketing Services in accordance with the requirements of these Conditions.
4. COPY, ARTWORK AND PHOTOGRAPHS
4.1. Dealer Auction may refuse to publish an Advert and/or edit or require an Advert to be amended so as to comply with legal or moral obligations placed on either party; to avoid infringing third party rights, any codes under the regulation of the Advertising Standards Authority and/or any relevant regulations or legislation; to respond to any complaints; to correct typographical errors or technical inaccuracies that may appear from time to time; and/or for any other technical and/or quality reasons.
4.2. Dealer Auction has the right, at its sole discretion, to remove from the Platform, at any time and for any reason, any Adverts which Dealer Auction reasonably believes contain misleading information.
4.3. The User shall be solely responsible for uploading any images (including photographs and video) and for checking the accuracy of any Advert for errors and amending copy. Dealer Auction reserves the right in its sole discretion not to include a photograph or video in an Advert.
4.4. Dealer Auction may receive Materials via such means as specified by Dealer Auction from time to time. However, the User shall submit Materials at its own risk and Dealer Auction shall not be liable or responsible for non-receipt or corruption of Materials sent by the User and/or arising out of any third-party data feed errors.
4.5. The User is solely responsible for correctly completing all mandatory data fields for each Advert and for submitting Material to Dealer Auction in the correct format as specified and by any deadlines specified by Dealer Auction. Dealer Auction has no liability in respect of any Advert not appearing on the Platform where the User has failed to submit Material in accordance with this clause 4.5.
4.6. The User is prohibited from supplying any contact details, including but not limited to, any telephone numbers or e-mail addresses, website addresses or URLs in additional data fields. Failure to comply with this rule may, at Dealer Auction’s sole discretion, result in the removal of all the User’s Adverts.
4.7. The User shall ensure that all hyperlinks in an Advert link directly through to the page on the User’s website displaying the exact vehicle identified in the Advert. Failure to provide direct and correct links may, at Dealer Auction’s sole discretion, result in the removal of all the User’s Adverts.
5. USER’S OBLIGATIONS AND WARRANTIES
5.1. The User warrants that it shall not:
5.1.1. upload information to the Platform about any business except its own and shall not otherwise use the Platform for any business other than its own;
5.1.2. access any unauthorised areas of the Platform;
5.1.3. reverse engineer, decompile, disassemble or modify the whole or any part of any software (nor attempt to do any of the same) of the Platform (except to the extent permitted by law);
5.1.4. copy, reproduce, redistribute, download, republish, transmit, display, adapt, alter, create derivative works from or otherwise extract or re-utilise any of the contents of the Platform, including taking screenshots of the Platform, scraping or caching any of the contents for access by third parties, nor mirror or frame any of the content of the Platform nor incorporate it into another website without Dealer Auction’s express written permission;
5.1.5. upload files to the Platform that contain a virus and/or corrupted data and/or development code or scripts;
5.1.6. use any software that causes damage or delay to the Platform; and
5.1.7. place more than one Advert for any one vehicle on the Platform. Dealer Auction shall be entitled to remove any Adverts that duplicate other existing Adverts on the Platform, at its sole discretion.
5.2. The User shall keep safe and confidential all passwords, security identification and/or encryption details relating to the Platform and will follow all security instructions issued by Dealer Auction from time to time. The User will promptly update their password details and notify Dealer Auction if it believes that any password and/or other security information has been disclosed or is otherwise at risk. The User is responsible for the security of its account and shall notify Dealer Auction of any authorised users and any changes to such users.
5.3. The User will treat as confidential all information contained in or concerning the Platform or the Services generally. The User will not disclose such information to any third party, except to the extent that:
5.3.1. it is required to do so by a court or other competent authority if such notice of disclosure as is possible is given to Dealer Auction; or
5.3.2. the information is already, or becomes, public knowledge except by way of any breach of confidence.
5.4. The Platform and any Dealer Auction Data is provided on an “as is”, “as available” basis and although Dealer Auction makes reasonable efforts it does not guarantee the timelines, completeness or performance of the Platform, the goods and services advertised on the Platform or any Dealer Auction Data. No warranty is given by Dealer Auction that the Platform and the Dealer Auction Data is free from computer viruses or any other malicious or impairing computer programs and the User shall report to Dealer Auction any suspected faults to the Platform promptly after such suspected faults come to the User’s attention.
5.5. The User shall be solely responsible for obtaining, operating and maintaining all necessary computer hardware, software, modems and telecommunications links which it requires to access and use the Platform.
5.6. The User agrees that any questions and complaints regarding the vehicles offered for sale by the User on the Platform are the exclusive responsibility of the User.
5.7. The User warrants that:
5.7.1. it carries on a business as a motor/vehicle dealer, fleet and/or rental company, auction house or other representative acting on behalf of a motor/vehicle dealer, fleet and/or rental company or auction house for the purposes of the Usage Agreement;
5.7.2. it will only use the Platform in accordance with these Conditions and shall only supply Materials which comply in all respects with these Conditions;
5.7.3. all Materials are complete, accurate, legal, non-defamatory, decent, honest and truthful and comply with the all relevant codes under the regulation of the Advertising Standards Authority and all current relevant legislation;
5.7.4. it shall comply with all current applicable legislation, advertising codes and any other regulatory requirements, including without limitation the Consumer Rights Act 2015; the Consumer Protection from Unfair Trading Regulations 2008; the UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing; and the Financial Conduct Authority’s Consumer Credit Sourcebook;
5.7.5. it contracts with Dealer Auction as a principal (notwithstanding that the User may be acting in some representative capacity) and the User has the legal right to offer for sale any Vehicle, product or service advertised by it on the Platform;
5.7.6. where the User is a representative, that it is authorised to place the Advert;
5.7.7. the reproduction and/or publication of any Advert and its content (including but not limited to any Materials contained in the Advert) by the Dealer Auction Group and/or the use of the User’s logo and trade marks in accordance with these Conditions will not: breach any contract; infringe any third party Intellectual Property Rights; render the Dealer Auction Group liable to any proceedings whatsoever; and/or harm or detriment the reputation of the Dealer Auction Group;
5.7.8. the Advert will not contain any text, photographs or videos by which any living person is or can be identified; and
5.7.9. any individual purchasing products or services from Dealer Auction pursuant to the Usage Agreement on behalf of the User accepts and confirms that it has the User’s primary decision-maker’s permission.
5.8. The User agrees to observe and comply with all applicable regulations and legislation, including obtaining all necessary customs, import or other permits to sell and/or purchase Vehicles advertised on the Platform. Dealer Auction makes no representation and accepts no liability in respect of the export or import of the Vehicles advertised on the Platform or in alerts such as emails sent to the User by Dealer Auction.
5.9. Dealer Auction uses reasonable endeavours to ensure that this Platform is accessed and used only by professional members of the motor trade.
6. PAYMENT
6.1. The User shall pay to Dealer Auction the Charges on or before the due date, which shall be: (a) 30 (thirty) days from the date of invoice for the Subscription Fee; (b) and immediately on the date of invoice for any transaction fees, unless notified otherwise. Time for payment is of the essence.
6.2. Dealer Auction or its nominated third parties (including Cox Automotive or Manheim) may act as agent on behalf of the Seller, for the invoicing of and collection of the Charges and any sale proceeds in relation to the Vehicle.
6.3. The Charges are exclusive of VAT which shall be payable by the User in addition. Note that Dealer Auction has an agreement with HM Revenue & Customs (HMRC) to operate a self-billing system for VAT purposes in respect of vehicles sold through the Dealer Auction platform on behalf of a Seller. Under the terms of the agreement with HMRC, Dealer Auction will issue the Seller with a self-billed invoice and the Seller hereby agrees to receive self-billed invoices. The Seller must account for any output tax shown on the invoice to HMRC and agrees not to issue a VAT invoice in respect of any self-billed invoice issued by Dealer Auction. The Seller must provide Dealer Auction with details of the VAT number issued by HMRC and notify Dealer Auction immediately if the VAT number is changed or cancelled.
6.4. The User shall pay all sums due to Dealer Auction under the Usage Agreement without any set-off, deduction, counterclaim and/or other withholding of monies. The existence of a query on an individual item in an account shall not affect the due date of payment of the remaining balance in an account.
6.5. If the User fails to make full payment by the due date, then all monies owing by the User to Dealer Auction shall immediately become due and payable.
6.6. In the event the User provides credit card details to Dealer Auction, the User authorises Dealer Auction to collect an amount equal to the Charges from that credit card as they become due, which for the transaction fees shall be immediately upon the issue of invoice.
6.7. In the event a Direct Debit mandate is cancelled by the User or the User’s bank, Dealer Auction reserves the right to suspend the Services immediately. If the mandate is not reinstated and payment of all outstanding amounts has not been made within 7 (seven) days of the cancellation, Dealer Auction may continue to suspend the Services or terminate the Usage Agreement immediately without notice. Dealer Auction reserves the right to charge an administration fee, each month, for payments not made by Direct Debit.
6.8. Dealer Auction shall be entitled to take a 4-week pre-payment from the User as security against future Charges payable. Where Dealer Auction takes a pre-payment, Dealer Auction shall be entitled to retain this for a maximum period of 6 months or, until valid termination of the Usage Agreement and payment of all outstanding sums due to Dealer Auction (whichever is the earlier). The pre-payment shall not be used to discharge any Charges due by the User in respect of the Services unless expressly detailed by Dealer Auction in writing. The User shall be liable to pay all Charges to Dealer Auction in accordance with clause 6.1 above. Should the User opt to cancel the Usage Agreement, the User will be obliged to pay an administration fee (as determined by Dealer Auction) in addition to a further 4 week pre-payment in order to reactivate the Services at a future date.
6.9. When a sum owing has not been received in full by Dealer Auction within 30 (thirty) days from the date of invoice, or within specified terms of contract, Dealer Auction shall be entitled (without prejudice to any other right or remedy it may have) to:
6.9.1. charge the User interest on any unpaid sums (both before and after judgment) at the current statutory rate set out in the Late Payment of Commercial Debts (Interest) Act 1998 and related secondary legislation as amended or re-enacted from time to time; and
6.9.2. suspend or terminate all products and services provided to the User pursuant to any agreement with Dealer Auction (or any part of them) until payment has been received in full (including any interest payable pursuant to clause 6.9.1 above).
6.10. If the User genuinely disputes an invoice, the User must notify Dealer Auction within 7 (seven) days of the date of invoice. If the User fails to notify Dealer Auction within this time period, payment in full shall be due and Dealer Auction shall have the rights and remedies set out in clause 6.9 above.
6.11. Unless Dealer Auction authorises payment to be made by Direct Debit, payment must be sent to the address on the invoice and any payment sent by post shall be at the User’s sole risk. All cheques must be payable as per the instructions on the invoice unless notified otherwise. Dealer Auction reserves the right to decide the amount of any credit extended to the User in its sole discretion and Dealer Auction shall be entitled to withdraw credit facilities from the User at any time without reason.
6.12. Dealer Auction will under no circumstances be liable to refund all or any part of the Charges (including but not limited to any pre-payment) in the event of the suspension of the Services and/or cancellation or termination of the Usage Agreement (for any reason).
6.13. In the event a Contract of Sale cannot be fulfilled due to the Seller having disposed of the Vehicle to a third party, the Buyer may request a credit from Dealer Auction equivalent to the value of the transaction fee paid by the Buyer for that transaction. The Buyer must provide evidence of such a failed transaction (of the type required by Dealer Auction) within 30 (thirty) days of the Contract of Sale being formed. Dealer Auction shall apply the appropriate credit against the Buyer’s next invoice. No credit shall be given where the request and/or evidence is received by Dealer Auction after 30 (thirty) days. No refund or credit shall be payable by Dealer Auction in any other circumstance, including where a Contract of Sale is not fulfilled for reasons not set out in this clause 6.
6.14. The User agrees that where the Seller has opted for Remarketing Services, the payment provisions in the Remarketing Conditions shall apply in addition to the conditions of this clause 6.
7. CHARGES
7.1. Dealer Auction shall have the right to change the Charges at any time and for any reason on not less than 7 (seven) days’ written notice to the User, after which the amended Charges shall apply.
7.2. Any free trials of any products shall be offered by Dealer Auction at its sole discretion.
8. INTELLECTUAL PROPERTY RIGHTS
8.1. The User grants Dealer Auction a non-exclusive, irrevocable, perpetual, worldwide and royalty free licence to:
8.1.1. use, process, analyse, publish, reproduce, sublicense and share the Data and Materials with third parties; and
8.1.2. create, use and publish any derivatives of the Data and Materials or the results of any analysis of the Data and Materials for any purpose, including within other products and to share and/or sublicense the same with other customers of Dealer Auction and third parties in both aggregated and non-aggregated form.
8.2. The User acknowledges that in the event Dealer Auction alters the Vehicle Information provided by the User and/or creates or incorporates Supplemental Information to enhance the Vehicle Information then the Data shall become a work of joint copyright co-owned by the User and Dealer Auction. To the extent that any such joint Intellectual Property Rights are not automatically vested in Dealer Auction, the User hereby assigns to Dealer Auction all such rights.
8.3. The User acknowledges and agrees that all trademarks, names or logos of Dealer Auction (including without limitation the trade mark “Dealer Auction”) and all Intellectual Property Rights in the Platform (including the content and Dealer Auction’s database of vehicles) together with all goodwill arising out of or in connection with these, belong to Dealer Auction and/or its licensors (as appropriate) and nothing in the Usage Agreement confers on the User any licence or right to use the same except as expressly set out in the Usage Agreement.
8.4. The User warrants that it has all necessary rights, licences and consents for Dealer Auction to publish and/or use the Materials (including, for the avoidance of doubt, any Vehicle Information you have obtained from third parties) as part of an Advert, in the provision of the Services or as otherwise set out in the Usage Agreement.
8.5. Dealer Auction has no liability or responsibility of any kind for the accuracy or content of any information or any other aspect of any third party website and the inclusion of hypertext links to such websites does not imply any endorsement of the material contained on such websites or of the owners. When a User accesses any other website from the Platform it acknowledges and agrees that it is independent from the Platform and that Dealer Auction has no control over the content or availability of that website.
8.6. Third party banner advertisements, pop-up advertisements and other virtual advertising may be experienced whilst using the Platform. Such third party advertisements may not have been approved by Dealer Auction and may appear on the website without its knowledge or consent, and Dealer Auction accepts no responsibility or liability in respect of the content or display of any such third party advertisements.
8.7. Dealer Auction does not permit any links to be made to the Platform without its written permission. Hypertext links to Platform on non-consumer facing sites only may be made without the need for Dealer Auction’s written consent, provided there is no express or implied endorsement or sponsorship of the User, its commercial entity or any other website by Dealer Auction. Dealer Auction may at any time and for any reason require the User to remove any hypertext links to the Platform from any website controlled by the User.
8.8. The User agrees that it will give all necessary assistance to Dealer Auction and complete all acts as may reasonably be required by Dealer Auction to enable it to protect and enforce its Intellectual Property Rights and those of its licensees against third parties.
9. DATA PROTECTION AND CREDIT REFERENCE CHECKS
9.1. The User and Dealer Auction warrants to the other that it shall comply with the provisions of the Data Protection Legislation; in so far as the Usage Agreement relates to or involves the processing of Personal Data.
9.2. The User acknowledges and agrees that in entering the Usage Agreement, the User will provide Dealer Auction with and Dealer Auction may collect certain Personal Data relating to the User and/or employees, consultants and/or contractors engaged by the User. This Personal Data will be processed in accordance with Dealer Auction’s Privacy Policy and may be used for a number of purposes as further detailed therein. Dealer Auction’s Privacy Policy can be found at www.dealerauction.co.uk/privacy.
9.3. Further to clause 9.2, the User acknowledges that Dealer Auction are the Data Controller for any Personal Data processed as part of the User’s Dealer Auction account creation and usage.
9.4. The User acknowledges and agrees that in entering the Usage Agreement, Dealer Auction may carry out credit reference checks and identification checks on the User or any individual employed or otherwise engaged by the User. Dealer Auction reserves the right, at its sole discretion, to refuse to provide any products or services to the User if in Dealer Auction’s sole opinion any check results are unsatisfactory.
10. CANCELLATION AND TERMINATION
10.1. The Usage Agreement shall continue in force unless or until terminated by either party in accordance with these Conditions.
10.2. The User shall be entitled to terminate the Usage Agreement, by giving one month’s written notice to accounts@dealerauction.co.uk, unless it relates to Remarketing Services, in which case the Remarketing Conditions and any other applicable terms shall apply in respect of termination.
10.3. In the event the User breaches any payment term, including where the User has chosen a pre-payment option and the pre-paid funds are insufficient to cover the User’s accrued sum of Charges, Dealer Auction shall be entitled to serve a formal notice of termination of the account in writing, allowing the User 7 (seven) days to remedy any such breach and/or deficient funds. This is without prejudice to any other rights available to Dealer Auction.
10.4. Dealer Auction shall be entitled to terminate the Usage Agreement at any time on 7 (seven) days’ written notice to the User for convenience.
10.5. Dealer Auction shall be entitled at its sole discretion to immediately suspend or terminate the Usage Agreement on the giving of notice by telephone, email or by letter to the User where:
10.5.1. the User breaches the terms of the Usage Agreement (and, if the breach is capable of remedy, has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied);
10.5.2. the User commits a material breach of the Usage Agreement;
10.5.3. the User persistently breaches any one or more terms of the Usage Agreement;
10.5.4. the User is in breach of any other agreement with Dealer Auction or the Dealer Auction Group and/or is in legal proceedings with Dealer Auction or the Dealer Auction Group in respect of any other agreement;
10.5.5. the User ceases, or threatens to cease, to carry on its business;
10.5.6. the User becomes insolvent or unable to pay its debts as they fall due or becomes subject to, or itself takes any steps to invoke, any law, proceedings, procedure or third party action preliminary or relating to its insolvency, winding-up, liquidation, administration or receivership (or any analogous proceedings in any jurisdiction) or any enforcement of any security against it, or to a rescheduling, composition or arrangement in respect of any of its debts;
10.5.7. the User is refused credit by Dealer Auction and/or another company within the Dealer Auction Group;
10.5.8. Dealer Auction receives persistent complaints about Adverts placed by the User and/or regarding the User’s business practices;
10.5.9. if an individual, the User commits a criminal offence (other than a road traffic offence that does not carry a custodial sentence) and/or any offence which involves fraud or dishonesty;
10.5.10. the User acts in a way which exposes Dealer Auction and/or any users of the Platform to financial loss and/or legal liabilities and/or in a way which Dealer Auction reasonably believes may be detrimental to the reputation and/or business of Dealer Auction and/or any other company in the Dealer Auction Group;
10.5.11. in the reasonable opinion of Dealer Auction, the User and/or its employees have been abusive to Dealer Auction’s staff or Dealer Auction receives a complaint from a third party regarding the User’s conduct in the sale or purchase of an advertised vehicle;
10.5.12. the User has provided false information, opened an account with Dealer Auction in another individual’s name or has otherwise acted dishonestly in their dealings with Dealer Auction; and/or
10.5.13. the User or someone associated with the User has used the Services or the Platform illegally or fraudulently.
10.6. Dealer Auction may at its sole discretion immediately suspend provision of the Services, terminate the Services or change the Services and/or remove any or all Adverts submitted by the User from the Platform, where:
10.6.1. the User fails to comply or, Dealer Auction reasonably suspects the User is not complying, with clause 5.1 and/or clause 5.7; and/or
10.6.2. any competent law enforcement or compliance authority instructs, advises or makes a recommendation to Dealer Auction to take down any of the User’s content and/or suspend the delivery of any of the Services to the User.
10.7. Termination of the Usage Agreement shall be without prejudice to any rights accrued by Dealer Auction prior to termination and the User shall repay Dealer Auction on a full indemnity basis for all costs and expenses (including administration and legal costs) incurred by Dealer Auction in recovering any sums due to it under the Usage Agreement.
11. LIABILITY AND INDEMNITY
11.1. The User acknowledges and accepts that it is technically impossible to provide the Platform and the Services free of faults, interruptions or errors and that Dealer Auction does not undertake to do so. Dealer Auction shall have no responsibility or liability arising out of or about any communications or network defects, delays or failures (whether temporary or otherwise) (a) experienced by the User or any third party while accessing the Platform; and/or (b) which impact on the Services.
11.2. Where Dealer Auction is transferring User information to any third party about the Services, the User acknowledges that it is technically impossible to guarantee continuity of service or corruption-free or error-free transfer. Dealer Auction’s sole liability in respect of any transfer is to liaise with the relevant third party and to re-transfer the relevant information.
11.3. Any credits offered to the User in respect of faults in the operation of the Platform shall only be payable by Dealer Auction at its sole discretion.
11.4. From time to time, Dealer Auction will need to carry out maintenance work on its equipment and systems, and shall use its reasonable endeavours to ensure that, in doing so, reasonable notice is given where possible and minimum disruption to the Platform is caused. However, the User acknowledges that Dealer Auction cannot guarantee that the Platform will be continuously available. For the avoidance of doubts, no credits shall be offered to the User in respect of interruptions to the Platform arising as a result of maintenance work and/or due to circumstances outside of Dealer Auction’s reasonable control.
11.5. Dealer Auction does not monitor or control and shall not be responsible for, and shall have no liability to the User and any third party in respect of:
11.5.1. the content of Adverts and/or Materials (including any errors or inaccuracies) posted by the User and/or any third party or the User’s rights in or to the Materials;
11.5.2. any vehicles or services advertised on the Platform or which are sent by email (and it is the User’s responsibility to satisfy itself as to the quality and nature of any goods to be purchased by it using the Platform);
11.5.3. any payment for vehicles or services advertised on the Platform or which are sent by email (and it is the User’s responsibility to satisfy itself as to the validity of any payment for vehicles sold by it using the Platform); and/or
11.5.4. any feedback content submitted on the Platform, and the User agrees that such matters are its sole responsibility.
11.6. Dealer Auction shall not be liable to the User:
11.6.1. for any loss or damage suffered by the User arising out of or about any total or partial failure to publish an Advert and/or for removing any Materials or Data from the Platform;
11.6.2. for any loss or damage suffered by the User arising out of or about a failure by the User to keep safe and confidential all passwords, security identification and/or encryption details. The obligation to keep details secure includes the requirement that the User only submits its details to access the Dealer Auction log in page that uses Extended Validation SSL;
11.6.3. for any loss or damage suffered by the User arising out of the User’s use or inability to use the Platform or any action or inaction occurring as a result of using the Platform (including any decisions and/or actions that the User takes based on and/or in reliance of the Dealer Auction Data);
11.6.4. for any loss or damage suffered by the User arising out of the supply by the User of any inaccurate, incomplete, illegible or incorrect information;
11.6.5. in contract, tort (including without limitation negligence), statutory duty or otherwise arising out of or about the Usage Agreement (including arising out of any Advert placed or arising out of any vehicles or services sold or purchased using the Platform) for:
a) consequential, indirect or special loss or damage;
b) any loss of goodwill or reputation;
c) loss of contracts, business and/or opportunity;
d) loss of profits;
e) loss of revenue or anticipated savings;
f) business interruptions;
g) loss of or corruption to data howsoever caused (including caused as a result of cyber-attacks by third parties); and/or
h) any economic and/or other similar losses;
and in each case such liability is excluded whether it is foreseeable, known, foreseen or otherwise and whether such losses are direct, indirect, consequential or otherwise; and
11.6.6. unless a claim is brought by the User against Dealer Auction within 3 months of the date of the cause, or first in the series of causes of related events, giving rise to the claim.
11.7. Subject to clause 11.6 and save as provided in clause 11.8, 11.9 and 11.10, the total aggregate liability of Dealer Auction in contract, tort (including without limitation negligence), statutory duty or otherwise (unless otherwise excluded), in respect of all claims arising under or in connection with the Usage Agreement shall not exceed 125% of one month’s Subscription Fee.
11.8. Dealer Auction shall have no liability for the fair wear and tear of any Vehicle.
11.9. Where a Vehicle has been damaged as a direct consequence of the negligence of Dealer Auction or its Subcontractor, Dealer Auction shall (with the agreement of the Seller) either:
11.9.1. Arrange for the repair of the vehicle at its own cost; or
11.9.2. Not arrange for the loss or damage to be made good and proceed to sell that vehicle through the Platform, in which case Dealer Auction shall indemnify the Seller for the amount by which the value of that vehicle at the date upon which the damage was caused (if this date is known, and if it is not known, the date upon which that damage was discovered) as quoted by CAP exceeds the price achieve by that vehicle at the relevant Auction (if any); except
11.9.3. Where that vehicle is beyond economic repair, in which case Dealer Auction shall pay the Seller the Market Value for that vehicle. Where Dealer Auction has paid the Seller the Market Value of a Vehicle in accordance with this clause, all rights, title and interest in that Vehicle shall transfer to Dealer Auction or Manheim (at Dealer Auction’s sole discretion).
11.10. Nothing in the Usage Agreement shall exclude or restrict any liability Dealer Auction may have for death or personal injury caused by its negligence, for fraudulent misrepresentation and/or for any other liability which it is not permitted to exclude by law.
11.11. Any warranties, terms or conditions of any kind (including in respect of the Platform, vehicles or services advertised on the Platform or in any Dealer Auction alerts and/or any data Dealer Auction provides to the User) whether express or implied, statutory or otherwise are hereby expressly excluded to the maximum extent permitted by law, including without limitation:
11.11.1. implied terms of satisfactory quality or fitness for purpose;
11.11.2. any warranty that the Dealer Auction Data is accurate or complete; and
11.11.3. any warranty that the Dealer Auction Data does not infringe the intellectual property rights or other rights of a third party.
11.12. The User shall indemnify and keep Dealer Auction fully indemnified against all claims, costs, proceedings, demands, losses, damages, expenses or liability whatsoever arising out of or in connection with any breach of the Usage Agreement by the User, any third party complaints or claims brought against Dealer Auction in respect of any Advert or Materials, any claim that the use by Dealer Auction of any Materials infringes any third party Intellectual Property Rights or other third party rights and/or any third party claim against Dealer Auction relating to the sale and/or purported sale of a vehicle by the User including where the User has failed to fulfil any offer accepted by it, or relating to the purchase and/or purported purchase of a vehicle where the User has made an offer which has been accepted but not subsequently fulfilled.
12. FORCE MAJEURE
Dealer Auction shall not be liable to the User and/or be deemed to be in breach of the Usage Agreement by reason of any delay in performing and/or any failure to perform its obligations under the Usage Agreement if the delay and/or failure is due to any cause beyond Dealer Auction’s reasonable control (including but not limited to any act of God, lock out or other industrial action, governmental action or restriction, war, terrorism, cyber-attack, fire, flood, infrastructure failure, power failure, strike or civil commotion, interruptions in electrical or telecommunications services or delays or failures of the internet or other communications systems necessary for the provision of the Services) and time for performance of that obligation shall be extended accordingly.
13. GENERAL
13.1. The Usage Agreement contains the entire agreement and understanding between the parties and supersedes all prior agreements, arrangements, statements and understandings between the parties relating to the subject matter of the Usage Agreement. Each party acknowledges that it has not entered the Usage Agreement in reliance upon any representation not expressly set out in the Usage Agreement and neither party shall be liable in respect of any representation made prior to and not contained in the Usage Agreement. Nothing in these Conditions shall exclude or limit Dealer Auction’s liability for fraudulent misrepresentation.
13.2. The Usage Agreement is personal to the User, and the User may not assign or transfer the Usage Agreement without the prior written consent of Dealer Auction. Dealer Auction reserves the right to assign or subcontract the Usage Agreement and any of its rights and obligations under the Usage Agreement to a third party.
13.3. Where two or more persons are named on the Usage Agreement as the User, their liability shall be joint and several.
13.4. Except as set out in these Conditions, no variation of the Usage Agreement shall be binding unless agreed in writing and signed by an authorised representative of Dealer Auction.
13.5. No failure or delay by Dealer Auction to exercise any right or remedy under the Usage Agreement shall constitute a waiver of that right or remedy nor shall it prevent or restrict the further exercise of that right or remedy. No single or partial exercise by Dealer Auction of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.6. If any provision of the Usage Agreement is found by any competent authority to be invalid, unlawful or otherwise unenforceable then such provision shall be severed from the remaining provisions in the Usage Agreement which shall continue to be valid and enforceable fully permitted by law.
13.7. Nothing in the Usage Agreement shall confer any rights or benefits, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise in favour of any person other than the User and Dealer Auction.
13.8. The Usage Agreement shall be governed by and construed in accordance with English law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts.
SCHEDULE 1
REMARKETING CONDITIONS
The following terms (Remarketing Conditions) shall apply in addition to the Conditions, where the Seller has instructed Dealer Auction to perform certain Remarketing Services on its behalf in relation to the Vehicles.
Remarketing Services
1. Where a Vehicle is offered for sale on the Platform, the Seller acknowledges and agrees that such Vehicle will be published as an Advert on the Platform for the Listing Period. The Seller acknowledges and agrees that time for performance of the services shall not be of the essence for the purpose of these Remarketing Conditions, unless otherwise agreed in writing with Dealer Auction.
2. On successful sale of the Vehicle, where applicable, the Seller authorises Manheim to act as a disclosed agent of Dealer Auction for the purposes of generating and issuing invoices on acceptance of a purchase price for a Vehicle benefitting from the Remarketing Services on behalf of the Seller.
3. In the event that a Vehicle does not sell successfully within the Listing Period, such Vehicle will be automatically subject to a Seller Transfer and managed directly by Manheim on its own auctions platform (“Manheim Auctions”). If a Vehicle is not sold following a Seller Transfer, Manheim shall invoice the Seller the Withdrawn Fee as well as the relevant Charges as set out in the Order Confirmation.
4. In the event of a Seller Transfer, the provision of Services by Dealer Auction to the Seller shall come to an end, and the Seller agrees that the it will become a Manheim customer and subject to the following terms and conditions: https://www.manheim.co.uk/legal/terms-and-conditions.
Seller’s Duties
5. Unless the Seller has otherwise instructed Dealer Auction in writing prior to a Vehicle being listed for sale on the Platform, and Dealer Auction has agreed to act in accordance with that instruction, the Seller warrants and promises to both Dealer Auction and the Buyer that unless disclosed otherwise as part of the sales process, that where relevant:
a. the Seller owns the Vehicle and accordingly has unencumbered title to and a right to sell the Vehicle;
b. the Vehicle has not been subject to an Insurance Total Loss
c. the Vehicle is not a Stolen Recovery;
d. the odometer (or the total mileage of a Vehicle if stated to be different from the odometer) if noted as “warranted” will be true and accurate;
e. the Vehicle has its true and proper registration mark and chassis number and/or vehicle identification number and which corresponds to the Vehicle registration documents;
f. if the Vehicle is listed for sale on the Platform with a cherished registration plate that is assigned to the Vehicle, the Seller has all rights, title and interest to sell that cherished registration plate;
g. the year registered, or year of manufacture, whichever is earlier, which has been provided by a Seller is correct (save that when the expression “unknown” or “year as seen” is used – no warranties or representations are given regarding the age of a Vehicle);
h. any Safety Recall, where applicable to the Vehicle, have been dealt with in accordance with manufacturer instructions and, where required, any default(s) fully remedied;
i. the Vehicle has not been used by the police, used as a taxi, re-registered, imported and/or registered outside of the United Kingdom;
j. all documents and information provided by the Seller are true, accurate and complete in all material respects.
6. If the Seller is in breach of the warranty set out in paragraph 5.d above, the Seller shall only be liable to the Buyer:
a. in respect of any negative difference between the Market Value of the Vehicle on the date of acceptance of the purchase price and the actual price paid for the Vehicle by the Buyer arising from a discrepancy between any mileage warranted in relation to the Vehicle at the time of acceptance and the actual mileage of the Vehicle; and
b. only then if the discrepancy is at least 1,000 (one thousand) miles or 10% (ten per cent) more than the actual mileage of the Vehicle (whichever is greater); and
c. the Buyer gives notice in writing to Dealer Auction (as agent of the Seller) of said discrepancy within 3 (three) Business Days of the date of acceptance (failing which the Seller will have no further liability in relation to the warranty set out in paragraph 5.d above.
7. Save as set out in paragraph 5, no warranties or representations are made by a Seller regarding the mechanical condition or general quality of the Vehicle.
8. It is the duty of the Seller to ensure the Vehicle is insured against third party damage and/or theft whilst on Manheim’s premises or otherwise in the Manheim’s control, and shall remain insured until risk passes to a Buyer upon acceptance of the purchase price. Risk in the Vehicle remains with the Seller at all times until a Contract of Sale has been entered into.
9. The Seller warrants to Dealer Auction that it will immediately inform Dealer Auction if a Vehicle is known by it not to be Roadworthy.
10. The Seller agrees to fully and effectively indemnify the Dealer Auction on demand against any losses, costs, expenses (including legal fees on a full indemnity basis), liabilities or claims suffered by Dealer Auction by reason of a breach of the warranties given in these Remarketing Conditions.
11. The Seller agrees that where it uses Dealer Auction’s Platform, that it shall do so using all due care and attention and shall use its best endeavours to ensure that no viruses, worms or disabling devices are uploaded onto Dealer Auction’s systems.
12. In the event a cherished registration plate is assigned to a Vehicle but it is not offered for sale with that Vehicle, the Seller must inform Dealer Auction in writing of this prior to the Vehicle being offered for sale on the Platform.
13. The Seller must inform Dealer Auction in writing of the VAT status of a Vehicle prior to that Vehicle being offered for sale on the Platform. The VAT status of a Vehicle as notified to Dealer Auction prior to the sale of a Vehicle shall be binding and may not be changed following a Contract of Sale arising in respect of that Vehicle.
14. The Seller must supply Dealer Auction with accurate information regarding its VAT status and registration and of any amendments to the same. The Seller shall be responsible and shall hold Dealer Auction harmless on demand against any loss suffered by Dealer Auction as a consequence of Dealer Auction or Manheim acting on inaccurate information.
Buyer’s Duties
15. Risk in the Vehicle passes to the Buyer upon acceptance of the purchase price. It is therefore the Buyer’s duty to insure the Vehicle from that time.
16. Each prospective Buyer shall provide their true name and address and such other information and proof of identity (whether in respect of money laundering procedures or otherwise) as may reasonably be required by Dealer Auction and/or Manheim for the purpose of providing the Remarketing Services.
17. The Buyer warrants, represents and undertakes that it will do all things necessary to ensure that the Vehicle is Roadworthy or, where not Roadworthy, that they are put in a condition so as to be Roadworthy and safe for use before putting them on the road.
18. The Buyer warrants and represents to Dealer Auction that all information provided by it shall in all respects be true, accurate and complete.
19. The Buyer warrants and represents to Dealer Auction and a Seller that it understands and agrees that:
a. all Vehicles only come with those representations and warranties described in these Remarketing Conditions (except where SureCheck applies); and
b. it has no rights against Dealer Auction in respect of the quality, condition or merchantability of the Vehicles (except where SureCheck applies); and
c. Dealer Auction does not conduct any Safety Recall checks; and
d. prior to making any Offer in respect of any Vehicle, it will satisfy itself regarding the value and condition of the Vehicle by inspecting them and / or making such other background checks as are prudent and sensible.
20. It is the Buyer’s responsibility and it shall accordingly and additionally warrant and represent to Dealer Auction that it will do all things necessary to ensure (including by undertaking repair or maintenance as necessary) that the Vehicle is safe for operation and use and that the Buyer has all necessary permits, certificates or any other legally required documentation or insurance as may be necessary to use the Vehicle (whether on the highways or otherwise).
21. The Buyer agrees to fully and effectively indemnify the Dealer Auction on demand against any losses, costs, expenses (including legal fees on a full indemnity basis), liabilities or claims suffered by Dealer Auction by reason of the prospective Buyer being in breach of these Remarketing Conditions.
Buyer’s Rights
22. The Buyer shall have the benefit of the Seller’s warranties and representations incorporated into the Contract of Sale at paragraph 5 of these Remarketing Conditions.
23. Subject to paragraph 24 below, in the event that any of the warranties and representations given at paragraph 5 are untrue, the Buyer has the right to either:
a. at least in so far as it relates to title, to rescind the Contract of Sale (subject to the time limit specified below) and be refunded the purchase price in full and final settlement of any claim the Buyer may have; or
b. if a sufficiently material misrepresentation has been made, to rescind in accordance with paragraph 23.a or alternatively (and in all other circumstances where not a sufficiently material misrepresentation) to retain possession of the Vehicle and claim for any losses directly suffered by the Buyer (subject to the time limits set out in paragraph 24 below and subject at all times to the restrictions set out in paragraph 6 and exclusions and caps on liability set out at paragraphs 31 to 33 of these Remarketing Conditions).
24. The time limit for bringing a claim for breach of warranty or representation under paragraph 5 is 3 (three) days from the date of acceptance of the purchase price, unless it relates to title in which case it is 6 (six) months from the date of acceptance of the purchase price.
25. For the avoidance of doubt, paragraphs 22 to 24 of these Remarketing Conditions form part of the Contract of Sale.
Contract of Sale
26. When an Offer relating to a Vehicle for the purpose of the Remarketing Services is accepted by the Seller, a Contract of Sale is formed between the Buyer and the Seller. Dealer Auction is not a party to the Contract of Sale and has no liability or responsibility in respect of the Contract of Sale.
27. In the event of any errors or inaccuracies with any Advert, Dealer Auction reserves the right to amend the Advert, or, where applicable, to cancel a Contract of Sale. Where Dealer Auction cancels a Contract of Sale and a Buyer has already paid the purchase price, Dealer Auction shall refund the purchase price in full.
28. Whilst risk in the Vehicle passes to the Buyer at the time of acceptance of the purchase price, all ownership and title in the Vehicle remains with the Seller until it has received the purchase price less any Charges. Title in the Vehicle passes to the Buyer upon cleared payment in full of the purchase price for the Vehicle (in full and cleared funds) and the Charges.
29. The Contract of Sale contains the warranties and representations made by the Seller at paragraph 5 of these Remarketing Conditions. The Seller makes no other warranties or representations about the Vehicle. Whenever practical, it shall be for the Buyer to inspect the Vehicle and make such enquiries, as the Buyer considers appropriate concerning the Vehicle, with relevant third party providers of information. It is for the Buyer to satisfy itself about any Offer it wishes to make for the Vehicle.
30. Other than as set out in these Conditions, the Seller expressly excludes any and all representations and warranties about the Vehicle including any which may otherwise be implied into the Contract of Sale by the Consumer Rights Act 2015, any other legislation or by common law (whether this be terms implied by custom and practice or otherwise).
31. The Seller shall not be liable to any Buyer for any special, consequential or indirect losses suffered by a Buyer in relation to the Vehicle.
32. The Seller shall not be liable for any loss of profit, loss of contract, loss of revenue, loss of opportunity or loss of chance (whether such losses are direct or indirect or reasonably foreseeable at the time of the Contract of Sale) suffered by the Buyer.
33. At all times the Seller’s liability to a Buyer shall not exceed the purchase price of the Vehicle.
34. Nothing in the Contract of Sale shall exclude or limit the Seller’s liability for death or personal injury caused by the Seller’s negligence or for any fraud or fraudulent misrepresentation.
35. For the avoidance of doubt, each of the matters set out at paragraphs 25 to 33 of this Schedule are a part of the Contract of Sale.
Storage
36. Dealer Auction and/or Manheim shall have the right to charge storage fees (at the standard rate in force from time to time) where any Vehicles remain on Manheim’s premises (which includes all land leased, owned or utilised by Manheim) and where:
a. a Seller refuses to permit Dealer Auction to enter Vehicles for auction or sale on a date specified by Dealer Auction; or
b. a Seller withdraws a Vehicle from the Platform as an Auction Vehicle or Buy it Now Vehicle; or
c. a Buyer leaves the Vehicle on Manheim’s premises for more than 3 (three) days after acceptance of the purchase price (including where the reason for them being left on Manheim’s premises is that the Buyer has failed to pay the purchase price in respect of those Vehicles); or
d. a Seller or Buyer requests that Vehicles be left on Manheim’s premises; or
e. Vehicles are left on Manheim’s premises for more than 3 (three) days (for whatever reason) except where Manheim has agreed terms for the provision of storage services (in which event those terms shall apply); and
f. where storage fees are chargeable, storage fees will be charged (unless agreed otherwise) from acceptance of the purchase price (or in respect of a Seller, from the point of delivery to Manheim) up to and including the date the Vehicles are removed.
37. Unless agreed otherwise, risk in such Vehicle shall at all times remain with the Seller and/or Buyer (whichever is relevant). Where Vehicles have been left or abandoned on Manheim’s premises, the Seller and/or the Buyer (whichever is relevant) hereby authorise Dealer Auction and Manheim to sell the Vehicles.
Risks
38. All Vehicles are handled, driven (including during collection and delivery of the Vehicle) and left on Manheim’s premises at the risk of:
a. The Seller until acceptance of the purchase price; and
b. The Buyer immediately upon acceptance of the purchase price.
39. Dealer Auction accepts no liability whatsoever in relation to the Vehicle whilst left on Manheim’s premises.
Title to, and Power of Sale of, Vehicles
40. The Seller warrants and represents to Dealer Auction that it has all necessary rights, title, and interest in the Vehicles presented to Dealer Auction to enable it to lawfully advertise such Vehicles for sale on behalf of the Seller.
41. The Seller agrees to fully and effectively indemnify and hold Dealer Auction harmless on demand from and against any losses, costs, charges, expenses (including legal fees on a full indemnity basis), damages and liabilities suffered or incurred by Dealer Auction by reason of a breach by the Seller of clause 36 of the Remarketing Conditions.
42. Ownership and title to any Vehicle shall pass to Dealer Auction or Manheim where:
a. Dealer Auction has paid over the purchase price to the Seller before Dealer Auction is in receipt of those monies from the Buyer; or
b. Dealer Auction or Manheim has paid to the Buyer any amount under SureCheck and where the Vehicle is returned to Dealer Auction or Manheim.
Delivery
43. Where applicable, If Dealer Auction or Manheim is requested to collect or deliver any Vehicle, Dealer Auction will use reasonable efforts to deliver and/or collect the Vehicle within any time agreed with the User. Time shall not be of the essence and Dealer Auction shall have no liability for late or non-delivery or collection on the date and time that has been agreed.
44. Dealer Auction will use reasonable care and skill in delivering and/or collecting any Vehicle but all risk in the Vehicle during transportation shall remain with the User as relevant in accordance with these Remarketing Conditions.
45. Charges for delivery and/or collection will be at Dealer Auction or Manheim’s current rates then in force (as may be communicated to the User). The User agrees to pay any road tolls or congestion charges incurred by Dealer Auction or Manheim in the performance of any delivery and/or collection services.
Payment of Vehicle Purchase Price and Related Matters
Seller
46. The Seller agrees that Dealer Auction and/or Manheim is authorised to receive the sale proceeds of the Vehicle, acting as disclosed agent on its behalf, and issue a self-billed invoice prior to distributing the sale proceeds with the Seller.
47. Dealer Auction and/or Manheim shall in normal circumstances remit the purchase price less any applicable Charges for the Vehicle to the Seller within 5 (five) Business Days of:
a. Dealer Auction and/or Manheim having received the full purchase price in cleared funds from the Buyer; and
b. provided there is no existing dispute in relation to the Vehicle; and
c. any and all third party interests in the Vehicle have been settled in full.
48. The Seller authorises Dealer Auction and/or Manheim to deduct from the purchase price:
a. any and all Charges which are payable by the Seller to Dealer Auction and/or Manheim (whether in respect of the Vehicle to which the purchase price relates or in respect of any other services, products or Vehicles); and
b. any amount equivalent to a third party interest in the Vehicle where Dealer Auction and/or Manheim may have been informed that such interest needs to be settled in order to pass good title to the Vehicle to a Buyer.
49. Where Dealer Auction has agreed to invoice the Seller for any Charges rather than deducting them from the purchase price, all such Charges shall be due and payable within 7 (seven) days of the date of invoice. The method of payment shall be in accordance with Dealer Auction’s then current operating procedures and practices.
Buyer
50. The Buyer must pay the purchase price for the Vehicle (and any VAT, where relevant), and any other Charges by 5.00 pm of the next day following acceptance. Where Dealer Auction and/or Manheim invoices the Buyer for any Charges, all such Charges shall be due and payable within 7 (seven) days of the date of invoice. The method of payment shall be in accordance with Dealer Auction’s then current operating procedures and practices.
Adjustment to Charges and Payment
51. If a Vehicle is returned by the Buyer or the Buyer makes a complaint in accordance with the Conditions, the Seller shall not be entitled to the sale proceeds until such time as the complaint is resolved or, alternatively, shall not be entitled to the sale proceeds at all if the Contract of Sale with the Buyer is rescinded. In the event of any third party finance existing in respect of any Vehicle, Dealer Auction and/or Manheim shall be entitled to pay off that third party finance before forwarding the remaining sale proceeds to the Seller in accordance with the Remarketing Conditions (and in the event that this results in taking longer than the 5 (five) Business Days to pay the Seller the sale proceeds in respect of that Vehicle, this shall not constitute late payment of breach of these Remarketing Conditions).
Data Protection (Remarketing)
52. Unless explicitly agreed otherwise in writing between the Seller and Dealer Auction, the Seller shall be solely responsible for ensuring that any Vehicle to be sold by Dealer Auction is cleansed of any Personal Data, whether manual or digital, prior to the Vehicle being taken into Dealer Auction’s possession. Dealer Auction shall not be liable for any breach of Data Protection Legislation arising as a result of the Seller’s failure to comply with this clause.
53. Where it is agreed in writing between the Seller and Dealer Auction that Dealer Auction will be responsible for ensuring that Personal Data is cleansed from the Vehicle, the Seller agrees that Manheim will act as a Sub-Processor of Dealer Auction within the Listing Period.
