TERMS & CONDITIONS
TERMS AND CONDITIONS, INCLUDING THE RULES OF
AUCTION
Updated: 24
October 2022
1.
"Buyer" means the purchaser of the Goods;
2.
"Cleared
Funds" means the
approved bid purchase price paid by the Buyer into the Seller's nominated bank
account, which funds are cleared by such nominated bank and to which the Seller
has immediate access;
3.
"Company" means Dealers Bid (Pty) Ltd t/a DealersOnline;
4.
"CPA" means the Consumer Protection Act, 68 of 2008 and
can be accessed at https://www.gov.za/sites/default/files/gcis_document/201409/321864670.pdf;
5.
"Contract" means any contract or agreement arising out of the acceptance of any
offer, whether that contract arises out of an offer made by the Company and
accepted by the Customer, or an offer made by the Customer and accepted by the
Company;
6.
"ECTA" means the Electronic Communications and
Transactions Act, 2 of 2002 and can be accessed at https://www.gov.za/sites/default/files/gcis_document/201409/a25-02.pdf;
7.
"Effective
Date" means the date of payment
of the approved bid purchase price;
8.
"FICA" means the Financial Intelligence Centre Act, 38 of
2001 and can be accessed at https://www.gov.za/sites/default/files/gcis_document/201409/a38-010.pdf;
9.
"Goods" means the motor vehicles and/or any other item
listed for sale on the Website;
10.
"its" shall include "his" and "her";
11.
"Party" shall mean either the Buyer, Seller and/or the
Company as the context may apply and "Parties" shall mean a
collection of the Buyer, Seller and/or the Company as the context may apply;
12.
"Regulations" shall mean the regulations
to the CPA and can be accessed at https://www.gov.za/sites/default/files/gcis_document/201409/34180rg9515gon293.pdf;
13.
"Reserve
Price" means the
minimum VAT inclusive price at which the Seller is prepared to sell the Goods;
14.
"Seller" means the seller of the Goods and may include the
Company where context applies;
15.
"User" means the user, juristic or natural, of the
Website and can include the Buyer and the Seller where context applies;
16.
"Website" means www.dealersonline.co.za .
17.
This document
contains the standard terms and conditions of auction on which the Company
auctions the Goods to the User.
18.
In the event
that a further risk assessment is required the Seller reserves the right to
conduct such assessment after the auction process is concluded and may cancel
the sale transaction should the Seller no longer deem the transaction to fall
within an acceptable threshold of our risk appetite to conclude the sale.
19.
These terms
and conditions constitute the entire agreement between the Company and the User
relating to the subject matter hereof and shall be binding between the parties
for all current and future online auctions of Goods, unless modified and/or
amended by the Company. The Seller shall in addition to being bound to these
terms and conditions furthermore be bound to the Seller's mandate entered into
between the Company and the Seller.
20.
Nothing in
these terms and conditions are intended to or must be understood to unlawfully
restrict, limit or avoid any rights, obligations, as the case may be, in the
event of the CPA applying.
25.
The auctioneer is the Company, which auction takes
place online, and whose registered address is situated at 8b Phumelela Park, Cnr Montague Drive and Racecourse Road, Montague Gardens,
7441.
26.
A
representative of the Company can be contacted at info@dealersonline.co.za or
(021) 551 8059.
27.
The Website is
run by the Company.
28.
These terms
and conditions form the entire agreement for usage of the Website between the
parties. No other terms or conditions, whether express, tacit or implied shall
apply to a Contract irrespective of the circumstances under which the Contract
arose. No alteration or variation of these terms and conditions shall be of any
force or effect unless and until recorded in writing and approved by the
Company. All provisions and various clauses of these terms and conditions are,
notwithstanding the manner in which they have been grouped together or linked
grammatically, severable from each other.
1.
will complete,
in full, the registration documents provided on the Website;
2.
certifies that
the information provided by the User in all respects is true and correct;
3.
will furnish
the Company with such supporting documentation as may be required by the
Company for any reason whatsoever including, without limitation, documentation
required for FICA purposes;
4.
certifies that
the User and/or Buyer is a motor dealer registered in terms of the laws of the
Republic of South Africa; and
5.
acknowledges
that the bidding for any Goods on auction on the Website and any sale concluded
as a result thereof will give rise to a contractual relationship between the
Seller and the Buyer.
31.
At the
Company's absolute and sole discretion and upon compliance with the
requirements of clause 32 above the Company shall activate the User as a
subscriber to the Website and will, within a reasonable period of time, provide
the User access to the Website for the purposes of viewing and bidding for
Goods listed on auction on the Website.
32.
The Company
reserves the right to decline or at any time cancel a User's registration for
any reason whatsoever and for which the User will have no recourse.
33.
The User's
registration to the Website shall be deemed to provide consent by the User that
the Company may conduct various checks on the User including, without
limitation, credit reference checks with a registered credit bureau.
34.
The User shall
furthermore make available to the Company and/or the Seller such information as
may be required by the aforementioned parties including, without limitation:
a)
the User's
information for FICA purposes;
b)
the User's
registration and/or founding documentation and/or any other documentation
verifying the identity of the User;
c)
proof of the
User's VAT registration number; and
d)
proof of the
User's registration as a motor vehicle dealer.
35.
The purpose of
collection and processing of the information as contained within clause 34
above shall be in terms of the following:
2.
Should updated
information be requested and be received within 7 (seven) business days of the
request, the Users profile will remain active.
3.
It is required
by law that the Company is notified without delay of any changes to the Users
information.
5.
The Company
shall comply with any lawful request for information, with regards to Goods or
Users.
36.
The User furthermore
agrees and consents to the Company having access to and/or conducting credit
reference checks in relation to the User.
37.
The User
acknowledges that the Company:
1.
is not a party
to the sale of any Goods, unless where the Company is also regarded as the
Seller;
2.
does not
warrant that the Seller is willing and/or able to perform its obligations to
the Buyer as contained herein; and
3.
will not be a
party to any dispute between the Seller and the Buyer in relation to the Goods.
38.
The Company is
the auctioneer and the auction is a closed auction as defined in the
Regulations.
39.
All bids
placed through the Company will be submitted electronically through the Website
and no alternative form of a bid will be accepted or considered valid for any
reason whatsoever.
40.
Where the
auction is subject to a Reserve Price, the Seller
reserves the right to reject any bid below the minimum Reserve Price.
41.
In the case
where Goods are listed for Auction as STC (“Subject to Confirmation”) and the
respective Goods:
41.1.
Does not sell
within the assigned Auction listing time-frame;
41.2.
Are de-listed
prior to conclusion of its respective Auction;
41.3.
Was not
successfully sold through Auction;
Then the Seller shall be liable for a fee of
R300.00 (Three Hundred Rand) excl. VAT per unsuccessful weekly listing period of
said respective Goods to the Company.
42.
By placing a
bid, the User warrants that they have the ability and the intention to proceed
with the purchase of the Goods. All successful bids placed by the User
constitute an irrevocable offer by the User to the Seller and may not be
withdrawn by the User, unless otherwise agreed in writing by the Seller, or if the
User falls within the ambit of the CPA (insofar as the CPA is applicable).
44.1.
Each and every auction shall open
when the Goods are uploaded onto the Website, unless indicated otherwise on the
Website.
44.2.
All auctions and biddings shall close
on its respective indicated closing date on weekdays or Saturday at 15h30.
44.3.
The Company endeavours to use its
best efforts to notify a bidding subscriber, per short message service or
electronic mail, if any higher bids are placed on the Website immediately before
the 15h30 close time.
§
Where such a bid is placed the User
will have an additional 6 (six) minutes in which to continue bidding.
§
The process referred to in this
clause 44.3 shall continue until the competitive bidding ends.
§
By way of an example and in order to
clarify the provisions of this clause 44.4, if bidder places a bid at 15h29
then the bidding process will continue up until and including 15h35 and if a
bid is then placed at 15h36 then the bidding process will continue up until and
including 15h36. This process will continue until no more bids are placed on the
particular Goods within the last 6 (six) minutes of the auction (which
continuation of the aforementioned competitive process shall be at the sole and
exclusive discretion of the Company).
45.
The Company will not be held liable
in the instance where the competitive process referred to in clause 44.3 above
does not take place and the auction closes, for whatsoever reason, at 15h30. In
such an instance the Company shall have the sole discretion as to re-start the
auction, reopen the auction or sell the Goods to a bidder as determined 15h30.
46.
Save for the situation provided for
in clause 47 below, notice of acceptance of a successful bid will be forwarded
by electronic mail, to the Buyer notifying him of his successful purchase of
the Goods. The receipt of such notice by the Buyer shall bind him to purchase
the Goods from the Seller at the amount bid by the Buyer on the Website.
48.
The Seller shall compensate the
Company for all auction sales (auction commission) as per the sliding scale
contained in the “Instrument of Agreement” for all successful sale transactions
concluded using the Website platform.
49.
In the event that a sale transaction
is cancelled or reversed for reasons other than provided for in clauses 51 and 52
below, then the Seller shall not be liable for payment of the auction commission
due, provided that the Seller has notified the Company of such cancellation in
writing, within 3 (three) business days of the sale at creditrequest@dealersonline.co.za.
50.
In the event
that a sales transaction is in dispute due to, but not limited to, the vehicle
not being as described on the auction, either party to the transaction, Buyer
or Seller, shall attempt to resolve the matter between themselves. If no
resolution is reached between the Buyer and the Seller, the sale transaction
shall be cancelled or reversed, however either party can submit complaint to the
Company at hello@dealersonline.co.za in order to assist the Parties with the dispute at
hand and to provide a viable resolution going forward. Kindly refer to the Dispute
Resolution clause (clauses 80 - 83) below for further information.
51.
In the event
where the sale transaction is cancelled due to fault from the Seller (Example:
Seller misrepresented the Goods), then Sellers commission applicable to said
transaction shall still be due and payable to the Company by the Seller.
52.
In the event
where the sale transaction is cancelled due to the Seller cancelling the
transaction for no viable reason or with no degree of fault from the Buyer,
then Sellers commission applicable to said transaction shall still be due and
payable to the Company by the Seller.
53.
The Seller
agrees that in the event where a sales transaction is cancelled or reversed, the
Goods shall be re-listed with similar reserve price at least once after said
cancellation or reversal for auction on the Website until closing date of said re-listed
auction.
54.
Insofar as the
CPA, including the Regulations (if any) apply to the online auction, then:
1.
the rules of
auction shall be in accordance with section 45 of the CPA and the Regulations;
2.
when Goods are
put up for sale by auction in lots, each lot is, unless there is evidence to
the contrary, regarded to be the subject of a separate transaction;
3.
an auction
will commence at the published time, as published on the Website from time to
time, and will not be delayed to enable any specific person or more persons in
general to take a part in the auction;
4.
a person who
attends at the auction to bid on behalf of another person must produce a letter
of authority meeting the requirements of Regulation 26(3) in order to so bid on
behalf of that person;
5.
all moneys
will be paid directly by the Buyer to the Seller;
6.
the Company
will post the reason for the auction of each particular Goods on the Website
unless the reason is the normal and voluntary disposal of the Goods by the
Seller;
7.
a person who
intends to bid at the auction must register on the Website prior to the
commencement of the auction as contemplated in Regulation 26(2) together with a
description of the requirements for registration and in accordance with the
provisions of these terms and conditions;
8.
the bidders'
record contemplated in Regulation 26 and the vendor roll contemplated in
Regulation 28(4) are available for inspection during normal business hours
without the charge of a fee; and
9.
the
advertisement / vehicle details will contain a statement indicating whether
additional costs are payable and how such additional costs will be computed.
55.
All amounts
are quoted and payable in South African Rand, unless otherwise stated and are inclusive
of VAT.
56.1.
Payment from
the Buyer for the respective Goods shall be due within 2 (two) business days of
receipt of the Tax Invoice and copy of Natis in Seller’s name from the Seller,
by way of electronic funds transfer or bank guaranteed cheque.
56.2.
The Tax
invoice shall consist of the Purchase Price with applicable VAT thereto, the Bank
details where payment must be paid into, and the Reference Code to use when
making the payment.
56.3.
A Copy of the
Natis document will be supplied with the Tax Invoice to the Buyer, if noted as
available on the system.
56.4.
The Seller
must ensure that the Tax Invoice as per clause 56.3 above, reflects the Title
Holder/Owner details as contained within the copy of Natis document in order to
ensure payment from the Buyer.
56.5.
The Seller
shall notify and advise both the Company and Buyer if there are any delays with
regards to getting the Natis up to standard in order to reflect the details as
per clause 56.4 above.
56.6.
The Buyer
shall issue the Seller with a confirmation of payment as soon as payment is
made to its nominated/designated email address.
57.1.
Payment from
the Buyer for the respective Goods shall be due within 2 (two) business days of
receipt of the Tax Invoice from the Company, by way of electronic funds
transfer or bank guaranteed cheque.
57.2.
The Tax
invoice shall consist of the Purchase Price with applicable VAT thereto, the
Bank details where payment must be paid into, and the Reference Code to use
when making the payment.
57.3.
All payments
made by the Buyer to the Company shall be made without deduction, bank charges
or set-off.
57.4.
A Copy of the
Natis document will be supplied with the Tax Invoice to the Buyer, if noted as
available on the system.
57.5. The Buyer shall issue the Company with a
confirmation of payment as soon as payment is made to the following email
address invoicing@dealersonline.co.za.
57.6.
The Company
shall within 2 (two) business days of payment reflecting as Cleared Funds,
provide the Buyer with release note and the original vehicle registration
papers. Kindly Note:
“Potential delays may occur in relation to
obtaining vehicle registration papers and that the Company will not always be in
a position to give the Buyer the original registration papers within the time
frame as provided for above. The Natis status will be noted on the vehicle when
live on auction.”
57.7.
No Goods will
be released to the Buyer until such time as all sums due and owing reflect in
the Company's bank account as Cleared Funds.
58.
Should a Buyer
not make payment within 2 (two) business days of receipt of the Tax Invoice
from the Seller or Company where applicable as per point 56.1 or where
applicable 57.1 above, the sale may
be cancelled, unless otherwise agreed in writing by all Parties to the
transaction.
59.
The Company
may, at its discretion, terminate the User’s access to buy or sell on auction
in the following, but not limited to events:
59.1.
The User has
provided the Company with false or misleading information;
59.2.
The User did
not make payment for the Goods within viable timeframe;
59.3.
The User (Seller) has listed Goods not in its possession or ownership;
59.4.
The User has committed an offence of fraud or money-laundering (this
will result in permanent termination and notification to authorities);
59.5.
The User has outstanding fees owing to the Company (this can result in
legal action being taken against User);
59.6.
The User did
not comply with any other terms and conditions and/or any applicable law.
60.
The Company shall duly notify the User if said access is terminated,
with explanation as to why such termination occurred and the respective re-activation
fee applicable thereto (if any).
61.
Should the User,
wish to gain access to participate in the Company's auctions again, the Company
can, at its discretion and depending on degree of offence committed, allow
participation once the payment of a non-refundable re-activation fee is made,
as follows:
First Offence |
R 2 500 |
|
Second offence |
R 5 000 |
|
Any Offence thereafter |
R 10 000 per cancellation |
62. Where access was terminated in the case of
outstanding payment to the Company (clause 59.5), then the outstanding amount
must be paid in full as well as respective re-activation fee.
63.
All Reserve
Prices quoted on the listing shall be VAT inclusive.
64.
All bids
submitted by Users shall be deemed to be VAT inclusive.
65.
The Seller
shall be liable to furnish the Buyer, against payment of the purchase price,
with a properly constituted Tax Invoice which shall state the VAT applicable in
respect of the Goods purchased.
68.
The Seller
shall give, and the Buyer shall take possession of the Goods within 7 (seven) business
days after all sums owing to the Seller have reflected as Cleared Funds in the
Seller's nominated bank account. The Buyer shall collect the Goods directly
from the Seller.
70. Should the Buyer fail to collect the Goods from the
Seller within a reasonable time as aforementioned (clause 68 above) then the
Seller shall be entitled to store the Goods which storage and associated costs
shall be for the Buyer's sole account and will not exceed an amount of more
than R250.00 (Two Hundred and Fifty Rand) per day (VAT inclusive). The Seller
shall be entitled to not release the Goods to the Buyer until such time as the
storage and associated costs have been paid by the Buyer and the Seller will
hold a lien over such Goods.
71.
Unless
otherwise provided for in the CPA (where applicable), all risk in and to the
Goods shall pass from the Seller to the Buyer upon possession of the Goods by
the Buyer in terms of clause 67 above.
73.
The User
warrants that:
1.
the
information provided by it during the Website registration process is true and
correct in all respects;
2.
upon the submission
of a bid, the User is willing and able to effect payment of that sum plus any
additional costs specified on the Website;
3.
it has not,
directly or indirectly, engaged in or been involved in bid manipulation and/or
unfairly induced any other person to make bids and/or alter and/or affect the
bid price and/or in any way colluded with any person whomsoever, juristic or
natural, to alter or attempt to alter a fair bidding process;
4.
it agrees that
the successful bid shall be the final purchase price for the Goods, and it
shall not negotiate the purchase price of the Goods with the Seller;
5.
it shall not
contact or request the Seller to remove the Goods from auction;
6.
it has viewed
and/or inspected the Goods and/or hereby waives its right to view and/or inspect
the Goods and has satisfied itself as to the condition thereof;
7.
it is a
registered motor vehicle dealer within the Republic of South Africa with an annual
turnover of at least R2 000 000.00 (two million rand) and current
banking account and is registered with the applicable motor vehicle licensing
authority where applicable.
74.
The User
furthermore warrants that he/she is over the age of 18 (eighteen) years.
75.
The Seller
warrants that:
1.
it is the
owner or authorised agent of the Goods;
2.
it shall act
in good faith and has used its best endeavours to conduct all necessary checks
on the Goods in order to accurately describe the Goods on the Company's Website
and the listing description is accurate (it however being understood that it is
the obligation of the Buyer to conduct the necessary investigation to satisfy
itself as to the correctness of the information therein contained);
3.
it shall use
its best endeavours to not provide a wilful misrepresentation in the
description of the Goods;
4.
the Goods will
be made available for inspection by the User on reasonable notice;
5.
it shall not
remove the Goods from auction to accommodate or by request from potential
Buyer;
6.
the Goods
will, as at the Effective Date, be in the same or similar condition as at the
listing date; and
7.
the Goods will
be available for collection within business hours immediately after
confirmation of receipt of Cleared Funds into the Seller's nominated bank
account.
76.
Other than the
representations stated in these terms and conditions or the warranties as
provided for in the CPA and ECTA, where applicable, the User acknowledges that
the Company has made no representations or warranties, implied or otherwise, to
the User and/or the Seller in connection with the Goods, prior to the Contract
having been made or the terms and conditions.
77.
In the event
of the User breaching (Breaching Party) any of the terms and conditions, the other
User in question and/or the Company (Non-Breaching Party) shall be entitled
(but not obliged) by written notice to the Breaching Party to:
1.
claim specific
performance; or
2.
cancel the
Contract (and any sale concluded in terms thereof); and
78.
In either of
the above instances the Non-Breaching Party may claim such damages as it may
have suffered as a consequence of the Breaching Party’s breach.
79.
The aforegoing remedies shall be in addition to such remedies
which the Non-Breaching Party may have available provided by law.
80.
As mentioned
in clause 50 above, the Company can be asked to assist where there is a dispute
between the Parties regarding a transaction.
81.
Either Party
to the transaction can notify the Company to fulfil this role in order to
assist with the dispute to assist in finding an amicable solution to resolve
the dispute in question.
82.
The following
procedure shall be followed in the case where the Company is asked to assist
with the dispute between the Parties:
82.1. Either Party to the transaction in dispute must
notify the Company in writing of the respective dispute and intend of
appointing Company to assist in trying to resolve the dispute.
82.2. The Company shall notify both Parties to the
transaction in writing of its acceptance in this role and request from both
Parties (as required) any information, including testimonies by the Parties
regarding the dispute at hand.
82.3. The Parties must furnish the Company with the
requested information (if any) within 1 (one) business day of request.
82.4. The Company shall review and evaluate the information
and testimonies received and provide the Parties with feedback within 3 (three)
business days after receiving all required and requested information.
82.5. The Company shall make a finding on the most
amicable solution to resolve the dispute, supported by all information provided
by the Parties.
82.6. Kindly note, that the Company is not Arbitrary
tribunal and possible solutions provided by the Company cannot be enforced and
shall only serve as the most viable solution/s or advice to follow from the
perspective of the Company in terms of the dispute in question.
83.
Where the
Parties can’t resolve the dispute by means of discussions and dispute
resolution, they may proceed with any route available to them in law.
85.
In the event
of the breach of these terms and conditions by the Company, the User's remedies
shall be limited to damages which shall under no circumstances exceed the
purchase price of the Goods.
90.
The User
elects as his domicilium citandi et executandi the physical
address as stipulated in the registration documents completed by the User on
the Website for service of all notices or legal processes.
91.
The Company
elects as its domicilium citandi et executandi its
registered address specified at clause 25.
93.
In terms of
section 45 of the Magistrates Court Act 32 of 1944, as amended, the User hereby consents to the jurisdiction of the
Magistrates Court having jurisdiction in terms of section 28 of the said Act in
respect of any action to be instituted against the User and/or the Seller by
the Company. It shall nevertheless be entirely within the discretion of the
Company as to whether to proceed against the User and/or the Seller in such
Magistrates Court or any other court having jurisdiction.
95.
The Company
shall take reasonable steps to protect the personal information of the User
collected by the Company through its Website. For the purposes of this clause
"personal information" shall be defined as detailed in the Protection
of Personal Information Act, 4 of 2013 ("POPI"). The POPI Act can be
accessed at https://www.gov.za/sites/default/files/gcis_document/201409/3706726-11act4of2013popi.pdf.
Our Privacy
Statement can be accessed here
99.
It is recorded
that the Website may collect cookies and/or make use of tracking. All Users of
the Website accept that the Company may collect the User's computer IP address
in order to, among other things, measure the number of visitors to the Website
for marketing research purposes. The Company shall only use the information for
the intended purpose of collection. Kindly refer
to our Cookie
Policy for more
information.
106.
Please open
the link attached to review our PAIA Manual: Company PAIA Manual.