The following sets out the terms and conditions on which carsales.com limited, abn 91 074 444 018 ("Partsales") offers you access to the Partsales website located at www.Partsales.com ("site") and its services. This agreement is effective from 1 February 2016 for all users of the Partsales site. By becoming a seller or by clicking the “Purchase” button in the cart or by ticking the checkbox on the join page, you accept the terms and conditions.
Before proceeding to use our services, you should read this user agreement carefully. If you find do not agree to these terms, you must not use the site. If, however, you agree to these terms unconditionally you will be given the opportunity to accept these terms during the registration process or cart process and you will then be able to use the site to which this user agreement applies.
This user agreement may be amended by Partsales at any time by posting the amended terms on this site. The amended terms will automatically be effective 7 days after they are initially posted on the site. As such, you should periodically check to see what amendments have been made to these terms. Your continued use of the site or the services provided on the site following the posting of any amendments will mean that you accept these amendments.
1.1 Definition of words and phrases.
In these terms, the following words and expressions shall have the following meanings:
"add to cart" means a listing feature that lets a buyer purchase an item immediately for a fixed price set by the seller.
"buyer" means a user who has used the add to cart function to purchase or prospectively purchase an item from a seller using this site.
"item" means a good offered for sale on the site pursuant to these terms.
"seller" means a person offering an item for sale on the site.
"services" means the online shopping platform and all other services offered by Partsales through the site.
"user" means as a user of the site, including but not limited to its members, buyers and sellers, and unless the context requires otherwise includes you.
"you" means the person accepting this user agreement to become a member of Partsales.
headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of any term.
2. Formation of contract
2.1 You acknowledge that this user agreement forms a legally binding contract between you and Partsales.
2.2 Partsales reserves the right in its absolute discretion to refuse, suspend or cancel a user’s access without notice where that user breaches the terms of this user agreement.
2.3 This user agreement overrides any contrary terms or conditions published by Partsales or appearing on the site pertaining to members.
2.4 In consideration of Partsales agreeing to your use of the site, you agree to comply with this user agreement.
3. User responsibilities
3.1 Your Partsales account, user id, password, should you be issued with those, may not be transferred or sold to another party.
3.2 When registering as a user, you must ensure your user id is not abusive, illegal, indecent, obscene, offensive, racist or threatening in any way and is not otherwise in breach of any Partsales policy or rule.
3.3 When creating a user id, you may not use a term that could be confused with someone else's trade mark or brand (e.g. nikeshoes), unless you have authority from the trade mark owner.
3.4 You may not register a user id that is or represents an email address or a web site address (url).
3.5 You must ensure that your access to and use of this site is not illegal or prohibited by laws which apply to you.
3.6 You must take your own precautions to ensure that the process which you employ for accessing the site does not expose you to risk of viruses or other forms of interference which may damage your computer system.
3.7 You acknowledge that Partsales does not act as agent for either buyer or seller and is not a party to any contract arising from the sale of an item through the site.
3.8 Unless Partsales agrees otherwise in writing, you are provided with access to the site only for your personal use. Without limiting the foregoing, you may not without Partsales' written permission on-sell or otherwise on-transmit information obtained from this site.
4.1 As a user on Partsales, you may submit content to the service, which may include images, descriptions and comments.
4.2 You agree and acknowledge that you are solely responsible for the content you submit to Partsales. furthermore, you represent and warrant to Partsales that:
- the content submitted by you does not infringe any party's intellectual property right, rights of publicity or privacy, right to confidentiality or other proprietary rights;
- you have all necessary rights, licenses and consents to submit, publish and communicate the content;
- the content is not obscene, does not contain defamatory, libellous, unlawfully threatening or unlawfully harassing material and is not otherwise contrary to law;
- the content is unique for the particular item which you are selling and must not be used for multiple items;
- all persons appearing in the content have consented to the use of their image and appearance in the content; and
- the content complies with applicable Partsales policies and guidelines.
4.3 By submitting content to Partsales you grant to Partsales an irrevocable, perpetual, non-exclusive, royalty-free worldwide licence to use, copy, adapt, publish, commercialise, modify, distribute and sub-licence the content. You also warrant to Partsales that you have the right to grant the licence contained in this term 4.3.
4.4 You acknowledge that Partsales has sole editorial control in relation to any advertisement placed by a Seller, including watermarking and placement.
5. Provisions relating to add to cart
5.1 As a buyer in respect of an add to cart item:
- you must complete the transaction in the manner specified unless you have a good reason to suspect that the seller is not who they purport to be or the item is not available as described;
- you warrant and represent to the seller that you have the legal right to enter into and complete the transaction; and
- you must pay to the seller the total due once the total due is confirmed by the seller.
5.2 As a seller in respect of an add to cart item:
- you must ensure that the item being offered for sale is accurately described and available in sufficient quantity, including that at the time of listing at least one item is in your possession and is available for sale;
- you are making an irrevocable offer to sell at your asking price to the buyer unless you have good reason to suspect that the buyer is not who they purport to be or the buyer fails to meet the terms of payment as stipulated by you in your listing.
5.3 Return and exchange policies are determined by the seller - all requests for return of an item must be made directly to the seller. Partsales is not responsible for processing such requests.
5.4 Method of delivery and payment is determined by the seller or by agreement between seller and buyer. Please refer to the description and postage instructions contained in the listing for the item.
5.5 Method of payment is determined by the seller or by agreement between seller and buyer and may be via Braintree, a platform that facilitates payment by Paypal and most credit and debit cards, or otherwise as offered by Partsales from time to time. Each user must comply with all terms and conditions that apply to the method of payment chosen and acknowledge that Partsales is not a party to an agreement between the user and the payment method provider.
6. Provisions relating to sellers
6.1 You must not offer any item for sale on the site:
- which is used or second-hand, though certain reconditioned items may be acceptable;
- that is not immediately available for dispatch to the buyer;
- which you claim is a genuine part when it is not;
- if you do not have at least one image of the item on the site;
- which you are not legally able to sell, or which you cannot sell to the buyer free from all charges, liens and encumbrances;
- which is within Partsales' prohibited item list or which is in contravention of any law or regulations governing the sale of the item;
- the get-up, production or sale of which infringes any third party's intellectual property right, rights of publicity or privacy, right to confidentiality or other proprietary rights;
- which contains defamatory, libellous, unlawfully threatening or unlawfully harassing statements whether such statements be in the form of words, drawings, photographs, 3-dimensional representations or otherwise;
- which is obscene; or
- which is contrary to law.
6.2 By offering an item for sale on this site, you as seller, warrant and undertake to Partsales and all buyers that:
- you do not and will not engage in the prohibited conduct set out in term 6.1 above;
- the information supplied by you is correct and accurate in all material respects and does not contain:
- defamatory, libellous, unlawfully threatening or unlawfully harassing statements;
- obscene material
- any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and
- any hyperlinks unless permitted by Partsales.
- the items offered by you are not within Partsales' prohibited item list;
- you will not list or offer or sell any item which, by Partsales' involvement (including through receiving any payment) could cause Partsales to violate any law, statute, ordinance or regulation.
6.3 In using the site, you must not create any link directly or indirectly to any website other than the site:
- that offers goods or services that are prohibited under this user agreement;
- where that other website lists the exact item that you propose to sell;
- where that other website contains an offer to sell identical items to your item that is listed on the site, but are priced lower that your item's asking price; or
- that you do not otherwise have a right to link to or include.
6.4 As a seller on Partsales, you must not:
- use the site to conduct transactions outside of Partsales;
- include in any listing description suggestions to conduct transactions outside of Partsales; and
- offer a potential buyer another item which is not listed on Partsales.
6.5 Partsales will charge each seller fees of 4.5% of the total transaction cost processed via the site plus GST. The total transaction cost includes the sell price of the item, tax and delivery cost. Partsales may change its seller fees from time to time by posting the changes on the site 30 days in advance, but with no advance notice required for temporary promotions where that promotion reduces the fees payable by the seller. Partsales requires that sellers provide their credit card details for the purposes of payment of the seller fees set out in this clause 6.5. The seller authorises Partsales to deduct the seller fees on the first day of each month for the seller's previous month's outstanding charges. Partsales will send the seller an email to the email address on file with notice of any payment made and transaction details for the previous month. If a seller's credit card payment has failed, Partsales will send an email to the seller requesting that they update their credit card information or supply a new credit card. In its absolute discretion Partsales may agree with a seller to accept payment by the seller within 14 days of receipt of an invoice instead of payment by credit card.
6.6 Partsales reserves the right to suspend your access to the site where you fail to make payment and you have not provided new credit card details and made payment of the full amount outstanding within 5 days from a request by Partsales to provide those details. In addition Partsales may require you to pay
- interest to Partsales, on the daily amount outstanding at the rate applicable from the time to time under the Penalty Interest Rates Act 1983 until all monies due are paid; and
- any expense (including legal fees) incurred by Partsales in recovering the outstanding fees from you.
6.7 Upon establishment of your Partsales seller account, Partsales may complete a pre-authorisation on your credit card to verify that the card has been issued, which may appear as a $0 or $1 transaction on your credit card statement. This is not a charge and will be removed for your statement.
6.8 Your use of data and information provided by PARts Australia Pty Ltd, TecAlliance GmbH and TecDoc Information System Pty Ltd is governed by the terms of the agreement between that seller and that third party data and information provider. If you breach a contract with one or more of those third parties Partsales may, in its sole discretion, suspend or terminate your account without any compensation.
6.9 Upon Partsales accepting you as a seller you will be issued with a user id and password. You may provide this user id and password only to authorised staff and contractors you authorise to make commitments on your behalf. You are responsible for all transactions entered into under the user id and password issued to you.
7. Social, ratings, messages and forum boards
7.1 Partsales may provide a platform to communicate with other users and leave comments, rating and reviews regarding the items and the other users of the site. Partsales may also provide a communications channel which enables users to send messages to other users through the Partsales site. These are “communications systems”.
7.2 You agree that in your use of the communications systems you will abide by this user agreement and any other terms and conditions on the Partsales site.
7.3 In using the rating system on the Partsales site you must:
- leave only genuine and bona fide comments on the trade conduct of other users with whom you have dealt on the Partsales site;
- not take any actions which may undermine the integrity of the rating system, such as leaving a rating for yourself using a secondary user id or third party; leaving ratings for other users using secondary accounts or third parties; or leaving ratings if a user fails to perform an action that is outside the scope of the sale or purchase.
7.4 In using any communication systems provided by Partsales you must not post, upload or publish any materials that
- interfere with another user's use of the site;
- are abusive, illegal, indecent, obscene, offensive, racist or threatening in any way;
- encourage anyone to trade outside of Partsales;
- encourage anyone to break the law;
- violate any third party's copyright or other intellectual or other property right;
- interfere with the privacy of any other person;
- contain a virus or other harmful component;
- contain false or misleading statements of fact or descriptions of the origin of the material or the communication;
- advertise a website; or
- breach any of Parsales' policies or rules.
7.5 Partsales does not and is under no obligation to monitor or review ratings, messages or forum boards, discussions, postings, transmissions and the messages posted or sent through or on the site and assumes no liability or responsibility arising from the contents of any such communications or for any defamation, error, inaccuracy, libel, obscenity or profanity contained in any such communication. You hereby irrevocably and unconditionally waive any claim against Partsales for defamation, libel or whatsoever arising out of any such communication. Partsales may reject or remove your material or conversations that are illegal, indecent, obscene or offensive, or that violates this user agreement in any way or request you to make suitable amendments in order to comply with the terms herein, and Partsales reserves the right to claim damages and or apply for other legal remedies in relation thereto.
8. Rights of Partsales
8.1 Partsales may, in its sole discretion, suspend or terminate your account without any compensation if, in Partsales' opinion:
- you have breached this user agreement;
- you appear to have engaged in fraudulent activity in connection with this site; or
- your continued use of the site may impact on Partsales' reputation or business.
8.2. Partsales has the absolute and unfettered right to reject or remove any information, content or materials supplied by you without notice or compensation. without limiting this right, Partsales may reject or remove any information, content or materials supplied to it if Partsales considers (without having to assign any reason therefore) that the information, content or material, if published or continued to be published, could cause Partsales to incur any liability to third parties, could cause Partsales to be in breach of any law or regulations of any competent jurisdiction or rights of third parties, or could otherwise impact on Partsales.
8.3 Partsales has the absolute and unfettered right to withdraw any item without notice or compensation to a seller or prospective buyer. Without limiting this right, Partsales may withdraw an item if:
- the item is within Partsales' prohibited items list (as updated from time to time);
- it appears to Partsales that you have breached this user agreement or your account is suspended by Partsales pursuant to these terms;
- if Partsales is unable for any reason whatsoever to verify or authenticate any information provided by you; or
- the item is in breach of Partsales' listing policy (as updated from time to time).
8.4 Partsales may assign the rights and benefits you have granted to it under this user agreement in favour of any party at Partsales' sole discretion.
9. Security of information and privacy
9.1 You acknowledge that no data transmission over the internet can be guaranteed as totally secure and Partsales does not warrant to you and cannot ensure the security of any information which you transmit to it. Accordingly, any information which you transmit to Partsales is transmitted at your own risk. Nevertheless, once Partsales receives your transmission, it will take reasonable steps to preserve the security of such information.
9.3 Partsales does not undertake to retain listings or other records of specific transactions, it is your sole responsibility to ensure you maintain accurate records of your dealings on the site.
10. Exclusion of warranties and limitation of liability
10.1 Partsales provides a service through the site where members may offer, sell or buy items, it does not examine items that are listed for sale and has no control whatsoever on the actual quantity, quality, safety, legality or the fitness for any purpose of any item.
10.2 The site is provided by Partsales on an "as-is" basis and the only obligations on Partsales are set out in this user agreement. Partsales does not warrant that the functions contained in the site and the services provided will be uninterrupted or error free, that defects will be corrected, or that the site or its servers are free of viruses or other harmful components
10.3 You acknowledge that Partsales makes no representations or warranty in respect of:
- the availability of the site or any services;
- the use or the results of the use of the site;
- the ownership of or title to any item advertised on the site;
- the quality, authenticity or suitability of any item advertised on the site;
- the manner in which an item advertised on the site is described or representations made by the seller;
- the information provided by any person using the site;
- the ability of any person to complete the sale of an item advertised on the site;
- the warranty obligations associated with an item purchased through the site;
- the returns policy of a person using the site; or
- the identity of any person using the site.
10.4 To the full extent permitted by law, Partsales excludes all responsibility for any loss or damage (including any indirect or special or consequential loss or damage), however caused (including through negligence) which you may directly or indirectly suffer in connection with your use of the site (including but not limited to a failure of Partsales to process a transaction; a failure of an item to be delivered by the seller; or a failure on the part of a buyer or seller to complete the sale or accept the return of an item), nor does it accept any responsibility for any such loss arising out of your use of or reliance on information contained on or accessed through the site.
10.5 In case of any dispute between users or any dispute arising from the use of the services, you hereby release Partsales to the full extent permitted by law from all liabilities claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
10.6 To the extent permitted by law, Partsales expressly excludes all guarantees, terms, representations and warranties that would otherwise arise or be implied by law in respect of the site, any services and any item.
10.7 Partsales does not approve or validate transactions, advice or communications made through the site, you accept sole responsibility for the legality of your actions under laws applying to you.
10.8 Partsales does not accept any obligation to protect you from any unsafe merchandise, products or services that may be offered on the site. It is your sole responsibility to satisfy yourself of the suitability and safety of items.
10.9 Any payment gateway or ancillary payment processing facilities provided to you are for convenience only and Partsales gives no warranty, expressed or implied, in connection with such facilities. To the full extent permitted by law, Partsales will in no event be liable for any loss, damages, costs or expenses suffered or incurred by you arising out of or as a result of any error and/or mistake and/or misstatement in debiting or crediting your credit card account, as well as any malfunction, failure, disruption, downtime, interruption, miscalculation, delay, inaccuracy, loss or corruption of data, or any other non-performance related to the payment gateway facilities.
10.10 To the extent that any liability of Partsales in connection with the supply of goods or services cannot be excluded, then, to the full extent permitted by law, that liability is limited, at Partsales' option, to (i) replacing or repairing the relevant goods, (ii) supplying goods equivalent to the relevant goods, (iii) supplying the relevant services again or (iv) paying the cost of such replacement, repairs or supply.
10.11 If Partsales is required by you or by your order in any litigation in which you are involved whether under subpoena or order of the court of any competent jurisdiction, including complying with any order for discovery or attending court for giving evidence, you shall bear all costs incurred by Partsales in connection with the provision of such service, including Partsales' costs for taking legal or other professional advice or representation (in all such cases, the costs shall be calculated on an indemnity basis).
10.12 For the purposes of this clause, the term Partsales will mean carsales.com ltd, its officers, employees, contractors and agents, whether individually or collectively, and its related bodies corporate and their officers, employees, contractors and agents, whether individually or collectively.
10.13 This clause 13 will survive the expiration or termination of this any contract.
Copyright in the site (including text, graphics, logos, icons, audiovisual material and software) is owned by or licensed to Partsales. Other than for the purposes of and subject to the conditions described under the copyright act 1968 (cth) and except as expressly authorised by these terms and conditions, you may not in any form or by any means adapt, reproduce, store, distribute, print, display, perform, publish, or create derivative works from, any content of the site, or commercialise any information, products or services obtained from any part of this site without Partsales' prior written permission.
You agree to indemnify and hold Partsales, its subsidiaries and each of Partsales' and its subsidiaries' affiliates, officers, directors, agents, and employees, harmless from and against any claims, demands, proceedings, losses and damages (actual, special and consequential) of every kind and nature, known and unknown, including reasonable solicitors' fees, made by any third party due to or arising out of your breach of this user agreement or the terms of guidelines and policies it incorporates by reference, or your violation of any law or the rights of a third party.
13.1 You must not:
- use any device, software or routine to interfere or attempt to interfere with the proper working of the site;
- take any action which imposes an unreasonable or disproportionately large load on the infrastructure of the site; or
- disclose or share your account details and / or password to any third parties or use any third party's account and / or password.
13.2 You must comply with all applicable laws, statutes, ordinances and regulations regarding your use of the site and any services and any bidding on, listing, purchase and sale of an item through the site.
13.3 Nothing in this user agreement will constitute or create any relationship of agency, partnership, joint venture, employee/employer or franchiser/franchisee between Partsales and any seller, buyer or other users of the site or any services.
13.4 Except as explicitly stated otherwise, any notices shall be given by way of email, and in respect of the user, notices shall be deemed given if sent to the email address provided by the user to Partsales during registration process or such other address as the user shall specify, or by posting such notices on this site.
13.5 Any term contained in this user agreement prohibited by or unlawful or unenforceable under any applicable law actually applied by any court of competent jurisdiction shall, to the extent required by such law, be severed from this user agreement and rendered ineffective so far as is possible without modifying the remaining provisions of this user agreement. Where, however, the provisions of any such applicable law may be waived, they are hereby waived by the parties hereto to the full extent permitted by such law to the end that this user agreement shall be valid, binding and enforceable.
13.6 If any provision of this user agreement is held to be invalid or unenforceable, such provision shall be struck out and the remaining terms shall remain in force.
13.7 Partsales' failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches.
14. Governing law and jurisdiction
14.1 This user agreement is subject to the laws of Victoria, Australia.
14.2 This user agreement and/or your access to the site may be terminated by Partsales at any time without notice. Where the contract between you and Partsales is terminated, those terms capable of surviving such termination shall do so.
(Version 1, February 2016)