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Terms and Conditions

SEARCH THE MARKET - TERMS AND CONDITIONS

This online platform (Platform) is operated by Search the Market Pty Ltd ABN 40 631 748 564 its successors and assignees (we, our or us). It is available at: http://searchthemarket.com.au and may be available through other addresses or channels.

In these terms and conditions, the term ‘Platform' refers to our vehicle search and dealer/seller directory regardless of how you access it. The Platform connects sellers of vehicles, including but not limited to cars, trucks and boats, and including but not limited to private, individual sellers of vehicles and dealerships (Sellers) with individuals or other entities interested in purchasing one or multiple of the vehicles listed on the Platform (Buyers) by facilitating introductions between Sellers and Buyers, including by providing a directory of Sellers and of available vehicles on the Platform.

Accepting these terms and conditions

By accessing and/or using our Platform, you; each person, entity or organisation using our Platform (referred to as you) (1) warrant to us that you have reviewed these terms and conditions, including our Privacy Policy (available on the Platform) (Terms); (2) warrant to us that you have the legal capacity to enter into a legally binding agreement or (if you are under 18 years of age) you have your parent's or legal guardian's permission to access and use the Platform and they have agreed to the Terms on your behalf; and (3) agree to use the Platform in accordance with these Terms.

If you are agreeing to these Terms not as an individual but on behalf of a company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” or “your” means the Represented Entity and you are binding the Represented Entity to these Terms. If you are accepting these Terms and using our services on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.

We may use Google Maps/Earth mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.

Platform Summary

  1. The Platform provides a service for Sellers to sell their vehicles and Buyers to find vehicles and Sellers, including dealerships, located in Australia.

  2. A Seller with an ability to sell or supply a vehicle, including but not limited to cars, trucks and boats (a Vehicle) (1) creates an account on the Platform and (2) posts an accurate and complete description of the Vehicle available for sale and details of the price for which the Vehicle is on offer, any terms and conditions relevant to the sale, the location of the Vehicle and any other matters relevant to the sale (Listing).

  3. A Buyer wishing to purchase a Vehicle (1) creates an account on the Platform, (2) reviews the Listings uploaded by Sellers or performs a tailored search via the Platform (and may elect to receive the results via a free text message to their phone) and (3) contacts the relevant Seller through the Platform, using the contact details set out on the Listing.

  4. A Seller may use the Platform to create a page, outlining information about the business, including but not limited to the locations it services and the types of cars it sells (Seller Page).

  5. Buyers may browse Seller Pages for information about a Seller.

  6. You understand and agree that the Platform is an online introductory platform only, and that our responsibilities are limited to facilitating the user functionality and availability of the Platform. We are not an employment agency, labour hire business or car or vehicle dealership and Sellers are not our employees, contractors, partners or agents.

  7. We are not a party to any agreement entered into between a Seller and a Buyer. We have no control over the conduct of Sellers, Buyers or any other users of the Platform.

  8. We accept no liability for any aspect of the Buyer and Seller interaction, including but not limited to the description of Vehicles offered. We do not assist or involve ourselves in any way in any dispute between a Buyer and a Seller.

Listings

  1. In order to create a Listing, you must:

    1. be 18 years or over;

    2. create an account, or have an existing account, on the Platform;

    3. pay the relevant listing fee to us;

    4. describe the Vehicle accurately;

    5. provide all listing information we request, which may include photos of the Vehicle;

    6. if you are not the owner of any intellectual property you intend to use to create your Listing (this may include photos or written descriptions of the Vehicle), obtain written permission from the owner of the materials to include them in the Listing; and

    7. if we request it, provide us with proof of ownership of the Vehicle, proof that the Vehicle is located within Australia or has been cleared by customs.

  2. You must remove a Listing if the Vehicle for the Listing is sold or you withdraw the Vehicle from sale. If you do not log on to your Account for a period of 90 consecutive days while you have an active Listing, we may deactivate your Listing. We will provide you with notice prior to us taking any such action.

  3. You must not offer for sale a Vehicle:

    1. if you are not the owner of such Vehicle, or, if you are not the owner of a Vehicle, where you do not have the right to offer that Vehicle for sale;

    2. which is not available immediately for sale, for example where you seek to auction the Vehicle; and

    3. that is not accurately described by the vehicle category in which the Vehicle is advertised.

  4. You must not create a Listing which:

    1. includes an offer or referral to any third party services, for example vehicle financing;

    2. does not comply with all relevant laws;

    3. infringes the intellectual property rights of any person including any company or organisation;

    4. is illegal, fraudulent, obscene, offensive, defamatory, or in any way unsuitable for people under the age of 18 years;

    5. is misleading or deceptive or likely to mislead or deceive;

    6. comprises anything which may adversely affect our reputation;

    7. includes references or links to other websites or HTML enhancement text; or

    8. offers more than one Vehicle in a single Listing.

Image requirements for Listings

  1. If you submit a photograph to be used with a Listing, the photograph must:

    1. not include images of any people;

    2. not contain watermarks;

    3. be in a format, such as JPEG format, able to be uploaded onto the Platform;

    4. be a current photograph of the Vehicle for sale, such that the Vehicle is shown in the same condition that it is anticipated to be sold in; and

    5. not be digitally altered.

Publishing a Listing

  1. We are not bound to publish a Listing until we accept the Listing for publication. Your Listing is accepted when we publish the Listing.

  2. If your Listing contains inappropriate material, or breaches any of the requirements or image requirements as set out above, we may refuse to publish your Listing.

  3. Our acceptance of your Listing does not create any relationship of agency between you and us.

  4. We may republish your Listing on other websites, applications and print or other media as we determine from time to time.

  5. You acknowledge and agree that while we make reasonable efforts to publish your Listing as it was submitted, we will not be liable for any error, omission or failure to publish your Listing in the form it was submitted, including acts or omissions of us, our employees or agents.

  6. We may refuse to publish your Listing, or any part of your Listing if:

    1. you breach these Terms;

    2. we determine that your Listing, or any part of your Listing is inappropriate; or

    3. you have failed to pay us any amount due to us under these Terms.

  7. Please note that we have absolute editorial control in relation to the publication of your Listing, including but not limited to the format, positioning and placement of the Listing.

Registration

  1. You can browse and view the Platform as an unregistered user of the Platform. You must register on the Platform and create an account (Account) to access some features on the Platform, including to post a Listing.

  2. You may only have 1 Account as a Buyer on the Platform. If you are a Seller and you own more than one business, you must apply for a separate Account for each business. We may provide you with multiple logins on request.

  3. You must provide basic information when registering for an Account including name, email address, credit card details, location and you may choose a username and password. The username you choose must not (i) be offensive or in other ways insulting or (ii) contain characteristics which belong to a third party, including names of famous persons, or personal names to which you do not own the rights.

  4. If you are a Seller, we may review your request for an Account before approving the request. We may request additional information, including details of any applicable insurance, licence details if you are a licensed dealer and further details of your legal entity. If you do not provide us with information we reasonably request, we may refuse to create an Account for you. If you provide us with any information which indicates you are not a fit and proper person to be provided with an Account, we may refuse to provide you with an Account, in our sole discretion.

  5. You must provide accurate, current and complete information during the registration process and you must update such information to keep it accurate, current and complete.

  6. You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details, whether or not you authorised such activities or actions.

  7. You will immediately notify us of any unauthorised use of your Account.

  8. At our sole discretion, we may refuse to allow any person to register or create an Account.

Forum

  1. The Platform may have a forum available on which registered users are able to communicate.

  2. We ask you to limit your discussions to topics which are relevant to the Platform.

  3. We reserve the right to remove any posts which we, in our sole discretion, deem to be inappropriate.

Fees and Payments

  1. Any fees paid between Sellers and Buyers are strictly independent of the Platform. The Platform does not facilitate payment of the purchase price of any Vehicles.

  2. It is free to browse the Platform and to register an Account on the Platform as a Buyer or Seller.

    For Sellers

  3. You must pay a listing fee for each Vehicle you list on the Platform (Listing Fee). Such Listing Fee will be set out on the Platform.

  4. The Listing Fee for a Listing and any other charges applicable to the use of the Platform, such as any applicable taxes, will be charged at the time that you submit a Listing to us. You agree and acknowledge that you must have sufficient funds in your selected payment account in order to pay the Listing Fee. You are responsible for paying any fees, such as bank fees, for any payments that are dishonoured.

  5. If you purchase a one-off fixed fee offering or service on the Platform, such as a fee to boost the exposure of a Listing on the Platform, the fee for this purchase will be displayed on the Platform and must be paid in advance via your selected payment method as available on the Platform. We provide no guarantee and make no representation that buying any extra services will result in an increase in the number of Buyers contacting you in relation to your Listing.

  6. Any payments will be made through our third party payment processor, or by any other payment method set out on the Platform.

  7. All Listing Fees and any other fees charged by us are stated in Australian dollars and are exclusive of GST.

Cancellation and Refund Policy

  1. You may remove a Listing at any time after it is published. You are not entitled to a refund of any Listing Fees paid if you cancel your Listing.

  2. For the avoidance of doubt, if you have created a Listing and you reduce the listing price of your Vehicle, you are not entitled to a refund or partial refund of the Listing Fees.

  3. Any refunds or cancellations in relation to Vehicles and the purchase of any Vehicles is solely a matter between the relevant Buyer and Seller.

Licence to use our Platform

We grant you a non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Platform in accordance with these Terms. All other uses are prohibited without our prior written consent.

Prohibited conduct

You must not do, or attempt to do, anything that is unlawful; anything prohibited by any laws which apply to our Platform or which apply to you or your use of our Platform; anything which we would consider inappropriate; or anything which might bring us or our Platform into disrepute, including (without limitation):

  1. anything that would constitute a breach of an individual's privacy (including uploading private or personal information without an individual's consent) or any other legal rights;

  2. using our Platform to defame, harass, threaten, menace or offend any person;

  3. interfering with any user using our Platform;

  4. as a Seller, uploading inaccurate or misleading descriptions of Vehicles;

  5. tampering with or modifying our Platform, knowingly transmitting viruses or other disabling features, or damaging or interfering with our Platform, including (without limitation) using trojan horses, viruses or piracy or programming routines that may damage or interfere with our Platform;

  6. anything that might violate any local, state, national or other law or regulation or any order of a court, including, without limitation, vehicle and tax laws and regulations;

  7. as a Seller, offering any Vehicles that you do not intend to honour or cannot provide;

  8. as a Buyer, making any offers to Sellers that you do not intend to offer;

  9. sending any unsolicited messages using our Platform or to users of our Platform, including in breach of the Spam Act 2003 (Cth); or

  10. facilitating or assisting a third party to do any of the above acts.

Exclusion of competitors

You are prohibited from using our Platform, including the information and materials available on it (Content), in any way that competes with our business. If you breach this term, we will hold you responsible for any loss, damage or expense, howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent (Liability) we suffer, and hold you accountable for any profits that you may make from non-permitted use.

Information

The Content is not comprehensive and is for general information purposes only. It does not take into account your specific needs, objectives or circumstances, and is not advice. While we use reasonable attempts to ensure the accuracy and completeness of the Content, we make no representation or warranty regarding it, to the extent permitted by law. The Content is subject to change without notice. However, we do not undertake to keep our Platform up-to-date and we are not liable if any Content is inaccurate or out-of-date.

Intellectual Property rights

Unless otherwise indicated, we own or licence all rights, title and interest (including intellectual property rights) in our Platform and all of the Content. Your use of our Platform and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to our Platform or the Content.

You must not, without the prior written consent of ourselves or the owner of the Content (as applicable):

  1. copy or use, in whole or in part, any Content;

  2. reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content to any third party; or

  3. breach any intellectual property rights connected with our Platform, including (without limitation) by:

    1. altering or modifying any of the Content;

    2. causing any of the Content to be framed or embedded in another website; or

    3. creating derivative works from the Content.

User Content

You may be permitted to post, upload, publish, submit or transmit relevant information and content including (without limitation) photos of Vehicles, descriptions of Vehicles and your business' trade mark or logo, (User Content) on our Platform. By making available any User Content on or through our Platform, you grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content, with the right to use, view, copy, adapt, modify, distribute, license, sell, transfer, communicate, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content on, through, or by means of our Platform and our associated social media applications.

You agree that you are solely responsible for all User Content that you make available on or through our Platform. You represent and warrant that:

  1. you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content as contemplated by these Terms; and

  2. neither the User Content nor the posting, uploading, publication, submission or transmission of the User Content or our use of the User Content on, through or by means of our Platform will infringe, misappropriate or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

We do not endorse or approve and are not responsible for any User Content. We may, at any time at our sole discretion, remove any User Content.

Third party sites and offers: Our Platform may contain links to websites operated by third parties. Unless expressly stated otherwise, we do not control, endorse or approve and are not responsible for the content on those websites. You should make your own investigations with respect to the suitability of those websites. Third party offers to republish your Listing in print or other media are subject to separate terms and conditions. We are not responsible for third party terms and conditions or any services provided by the third party.

Discontinuance: We may, at any time and without notice to you, discontinue our Platform, in whole or in part. We may also exclude any person from using our Platform, at any time at our sole discretion. We are not responsible for any Liability you may suffer arising from or in connection with any such discontinuance or exclusion.

Consumer Guarantees

  1. Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights).

  2. Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL.

  3. The Vehicles provided by a Seller might also confer you certain Statutory Rights.

Warranties, disclaimers and indemnity

To the extent permitted by law, we make no representations or warranties about our Platform, the Content, Sellers, Buyers, Vehicles or Listings including (without limitation) that:

  1. they are complete, accurate, reliable, up-to-date and suitable for any particular purpose;

  2. access will be uninterrupted, error-free and free from viruses;

  3. our Platform will be secure;

  4. Vehicles will be requested by Buyers or that Buyers will find desirable the Vehicles; or

  5. Vehicles are of a particular standard of workmanship or meet the Listing description.

You read, use, and act on our Platform and the Content at your own risk. It is your responsibility to check the personal property securities register prior to purchasing a Vehicle, to ensure that the Vehicle is not encumbered in any way.

Limitation of liability: Despite anything to the contrary, to the maximum extent permitted by law:

  1. our maximum aggregate Liability arising from or in connection with these Terms (including the services we provide and/or the subject matter of these Terms) will be limited to, and must not exceed the aggregate amount of fees paid by you to us during the three-month period immediately preceding the event that gave rise to the Liability; and

  2. we will not be liable to you for any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data,

    whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

  3. Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you release and discharge us from all Liability, arising from or in connection with any:

    1. loss of, or damage to, any property, or any injury or loss to any person;

    2. failure or delay in providing the Platform or our services; or

    3. breach of these Terms or any law,

      where caused or contributed to by any:

    4. event or circumstance beyond our reasonable control;

    5. a fault, defect, error or omission in your computing environment; or

    6. act or omission of you or your related parties,

    7. and, in any event, any defect, error, omission or lack of functionality or suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Vehicles.

  4. You acknowledge and agree that (i) you use the Platform or our services at your own risk, (ii) the provision of the Platform or our services may be contingent on, or impacted by, third parties, suppliers or other subcontractors (Third Party Inputs), and despite anything to the contrary, the maximum extent permitted by law, we will not be responsible and will have no Liability for any default or breach of these Terms or any law if such default or breach was caused or contributed to by any Third Party Inputs.

  5. You agree that, to the maximum extent permitted by law, these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in these Terms.

  6. Indemnity: To the maximum extent permitted by law, you must indemnify us, and hold us harmless, against any Liability suffered by us arising from or in connection with your use of our Platform or any breach of these Terms or any applicable laws by you. This indemnity is a continuing obligation, independent from the other obligations under these Terms, and continues after these Terms end. It is not necessary for us to suffer or incur any Liability before enforcing a right of indemnity under these Terms.

  7. This clause will survive the termination or expiry of these Terms.

Termination

  1. You may cancel your Account and terminate these Terms at any time via the “Cancel Account” feature (or similar) on our Platform or by sending us an email to the address at the end of these Terms. You can also deactivate your Account at any time via the Platform. If you cancel or deactivate your Account as a Seller, any Listings will be automatically removed. No refunds will be made upon cancellation.

  2. At our sole discretion, we may suspend your Account or terminate these Terms immediately with notice if (i) you are in breach of these Terms, any applicable laws, regulations or third party rights (ii) as a Seller your Listings or Vehicles at any time fail to meet any applicable quality or safety criteria or rules, (iii) or we have received complaints about you including due to repeated problems with your Listings.

  3. If we suspend your Account or terminate these Terms, we will cancel any existing Listings connected to your Account.

Disputes between Sellers and Buyers: We encourage Sellers and Buyers to attempt to resolve disputes (including claims for returns or refunds) with each other directly. We do not assist or involve ourselves in any way in any dispute between Seller and a Buyer.

Disputes with us: In the event of any dispute arising from, or in connection with, these Terms (Dispute), the party claiming there is a Dispute must give written notice to the other party setting out the details of the Dispute and proposing a resolution. Within 7 days after receiving the notice, the parties must meet at least once to attempt to resolve the Dispute or agree on the method of resolving the Dispute by other means, in good faith. All aspects of every such conference, except the fact of the occurrence of the conference, will be privileged. If the parties do not resolve the Dispute or (if the Dispute is not resolved) agree on an alternate method to resolve the Dispute, within 21 days after receipt of the notice, the Dispute may be referred by either party (by notice in writing to the other party) to litigation.

Insurance

We recommend that Sellers obtain appropriate insurance for supplying Vehicles. If you are a Seller and you obtain an insurance policy, please review any relevant insurance documentation carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy. 

Collection Notice

  1. We collect personal information about you in order to enable you to access and use the Platform, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy.

  2. We may disclose that information to third party service providers who help us deliver our services (including information technology service providers, data storage, web-hosting and server providers, professional advisors, third party payment processors and our business partners) or as required by law. If you do not provide this information we may not be able to provide you with access to our Platform.  In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.

  3. Our Privacy Policy contains further information about: (i) how we store and use your personal information; (ii) how you can access and seek correction of your personal information; (iii) how you can make a privacy-related complaint; and (iv) our complaint handling process. 

  4. By providing personal information to us, you consent to us collecting, holding, using and disclosing your personal information in accordance with our Privacy Policy.

General

Variation: We may modify these Terms from time to time by posting the amended Terms on the Platform and notifying you by email. By accessing and continuing to use the Platform after such modification or 30 days after notification (whichever date is earlier), you agree to the amended terms. If you do not agree to the modifications, you must terminate your Account and stop using the Platform.

Assignment: You may not assign, transfer or delegate your rights and obligations under the Terms without our prior written consent. We may without restriction assign, transfer or delegate our rights and obligations under these Terms with 30 days prior notice.

Severance: The provisions of these Terms are severable and if any provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

Jurisdiction: Your use of our Platform and these Terms are governed by the laws of Queensland, Australia. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in Queensland, Australia and any courts entitled to hear appeals from those courts and waive any right to object to proceedings being brought in those courts.

For any questions and notices, please contact us at:

Search the Market Pty Ltd ABN 40 631 748 564

PO Box 522

Springwood QLD 4127

Email: hello@searchthemarket.com.au

Last update: 1 March 2019

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