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Buyers Contract for Sale with Seller

Auction 4 Cars Buyer’s Contract for Sale with Seller Page 1 of 6 THIS CONTRACT FOR SALE AND THE AUCTION PARTICIPATION TERMS GOVERN THE BASIS ON WHICH A LOT IS SOLD TO THE BUYER BY THE SELLER. AUCTION4CARS RESERVE THE RIGHT TO AMEND THIS CONTRACT FOR SALE FROM TIME TO TIME. ANY CHANGES WILL BE POSTED ON THE WEBSITE. THE BUYER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 6 (LIMITATION OF LIABILITY). BASIS OF CONTRACT Subject to clause 1.2, the Seller sells the Lot as the principal. This Contract of Sale is made between the Seller and the Buyer through Auction4Cars which acts in the sole capacity as the Seller’s agent and not as an additional principal. If the Entry or other notice connected with the Sale states or otherwise indicates that Auction4Cars sells the Lot as principal, then Auction4Cars is the Seller, and the separate contract Buyers contract for sale with Auction4Cars will be the relevant contract rather than this Contract for Sale. The Contract for Sale will be made either: 1.3.1. with the user who has submitted the highest Offer in an auction Sale (achieving the Winning Bid Price) on the End Date; or 1.3.2. with the user who submits an Offer which is accepted by Auction4Cars in the case of a “Buy It Now” or other private treaty sale. SELLER’S WARRANTIES The Seller warrants and undertakes to the Buyer that: 2.1.1. it is the owner of the Lot; 2.1.2. it sells the Lot with full title guarantee or, where the Seller is an executor, trustee, liquidator, receiver or administrator, with whatever right, title or interest it may have in the Lot; 2.1.3. it is legally entitled to sell the Lot; 2.1.4. it is legally capable of conferring on the Buyer quiet possession of the Lot and that the Sale conforms in every respect with the terms implied by the Sale of Goods Act 1979, Sections 12(1) and 12(2); 2.1.5. it has complied with all requirements, legal or otherwise, relating to any export or import of the Lot, and all duties and taxes in respect of the export or import of the Lot have (unless otherwise agreed in writing with Auction4Cars) been paid and, so far as the Seller is aware, all third parties have complied with such requirements in the past; 2.1.6. the Lot is not connected with or derived from any criminal activity, including tax evasion; 2.1.7. the Lot bears the complete and proper chassis number and registration marks; and Auction 4 Cars Buyer’s Contract for Sale with Seller Page 2 of 6 2.1.8. subject to any alterations expressly identified as such made by notice on the Website, the Lot corresponds with the Description and images of the Lot given in the Entry. Any statement or representation other than the Description of the Lot given in the Entry, whether made orally or in writing, including on the Website or otherwise, and whether by or on behalf of the Seller or Auction4Cars and whether made prior to or during the Sale, is not part of the Description of the Lot given in the Entry upon which the Lot is sold. The Buyer accepts the bodywork, the tyres, the exhaust, the battery and the upholstery of the Lot with all damage and defects (if any) which an inspection of the photograph(s), Description and other detail provided in the Entry for the Lot ought reasonably to reveal. Save as expressly set out in this Contract for Sale, the Seller does not make and does make any contractual promise, undertaking, obligation, guarantee, warranty, or representation of fact in relation to the satisfactory quality of the Lot or its fitness for any purpose. In particular: 2.4.1. the Seller will not be liable for any breach of any undertaking, whether implied by the Sale of Goods Act 1979 or otherwise, as to the satisfactory quality of the Lot or its fitness for any purpose; and 2.4.2. the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Contract for Sale. Subject to the remainder of this clause, the Buyer shall have the right (subject to first notifying Auction4Cars) to rescind the Contract for Sale (and obtain a full refund of the Purchase Price from the Seller, and the Buyer’s Fee from Auction4Cars) where: 2.5.1. the Lot has been materially misrepresented or misdescribed in the Description or Entry; 2.5.2. the mileage as per the odometer having been warranted in the Description in the Entry, evidence is obtained and produced to Auction4Cars which shows that the Lot’s true mileage materially exceeds the mileage shown in the Description in the Entry. For the purposes of this sub-clause, there is no right to rescind the Contract for Sale where the mileage has not been warranted, even when a service history, MOT or any other documentary evidence is produced which shows that the true mileage exceeds that shown on the odometer and the Entry Form; 2.5.3. the condition implied by Section 12 of the Sale of Goods Act 1979 (as amended) has been breached; or 2.5.4. the Lot has been recorded as a total loss. RISK AND TITLE Risk in, and title to the Lot, shall pass to the Buyer in accordance with clause 5 of the Auction Participation Terms. Auction 4 Cars Buyer’s Contract for Sale with Seller Page 3 of 6 BUYER'S OBLIGATIONS The Buyer’s obligation to pay the Purchase Price and the Buyer Fee (plus VAT and any other applicable charges), arises: 4.1.1. in the case of an auction sale, when the Buyer’s Offer is the highest Offer in respect of the Lot (the Winning Bid Price) on the End Date; or 4.1.2. in the case of “Buy It Now” or other private treaty sale, when Auction4Cars accepts the Buyer’s Offer. All sums must be paid by the Buyer in accordance with clause 6 of the Auction Participation Terms. Time is of the essence in relation to payment by the Buyer. Payments made by anyone other than the registered Buyer will not be accepted. Collection of the Lot must be made by the Buyer in accordance with clause 7 of the Auction Participation Terms. The Seller is entitled to withhold possession from the Buyer until payment in full and in cleared funds of all sums due to the Seller and/or Auction4Cars in respect of the Lot has been received. BUYER’S DEFAULT If the Buyer: 5.1.1. does not pay the Seller in accordance with this Contract for Sale, clause 8.1 of the Auction Participation Terms will apply; and 5.1.2. fails to collect the Lot as required by the Auction Participation Terms, clause 8.2 of the Auction Participation Terms will apply. The Buyer agrees to indemnify the Seller against all legal and other costs of enforcement, all losses and other expenses and costs (including any monies payable to Auction4Cars) incurred by the Seller (whether or not court proceedings will have been issued) as a result of: 5.2.1. taking steps under clause 8.1 and/or clause 8.2 of the Auction Participation Terms; or 5.2.2. the Buyer’s breach of clause 4.6 above. LIMITATION OF LIABILITY References to liability in this clause 6 include every kind of liability arising under or in connection with this Contract for Sale including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise. Nothing in this clause shall limit the Buyer's payment obligations under this Contract for Sale. The Seller’s total liability to the Buyer shall not exceed the amount of the Purchase Price and Buyer Fee in respect of the Lot. The following types of loss are wholly excluded: 6.4.1. loss of profits; 6.4.2. loss of sales or business; 6.4.3. loss of agreements or contracts; 6.4.4. loss of anticipated savings; Auction 4 Cars Buyer’s Contract for Sale with Seller Page 4 of 6 6.4.5. loss of use or corruption of software, data or information; 6.4.6. loss of or damage to goodwill; and 6.4.7. indirect or consequential loss. This clause 6 shall survive termination of this Contract for Sale. GENERAL Implied Terms. These terms apply to the exclusion of any other terms that either the Buyer or the Seller seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. Disputes. If a dispute arises out of or in connection with this Contract or Sale or the performance, validity or enforceability of it, then the parties shall attempt in good faith to resolve the dispute. Auction4Cars is under no obligation to assist or engage with, and accepts no liability in respect of, any dispute between the Seller and the Buyer. Notices. 7.3.1. Any notice or other communication given by one of us to the other under or in connection with this Contract for Sale must be in writing and be delivered by hand, sent by pre-paid first class post or other next working day delivery service at its registered office, or e-mail: (i) in the case of the Seller, to the Seller’s e-mail address shared with the Buyer following the Sale; and (ii) in the case of the Buyer, to the e-mail to such e-mail address as it may be notify to the Seller for the purposes of this clause. 7.3.2. A notice or other communication is deemed to have been received: 7.3.2.1. if delivered by hand, at the time the notice is left at the proper address; 7.3.2.2. if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second working day after posting; or 7.3.2.3. if sent by e-mail, at the time of transmission. 7.3.3. The provisions of this clause 7.3 will not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution. Assignment and other dealings. Neither party may assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Contract for Sale without the other party’s prior written consent. Variation. Any variation of this Contract for Sale only has effect if it is in writing and signed by both parties (or their respective authorised representatives). Third party rights. Unless it expressly states otherwise, this Contract for Sale does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract for Sale and the rights of the parties to rescind or vary this Contract for Sale are not subject to the consent of any other person. Entire Agreement. This Contract for Sale, together with the documents referred to in it, constitutes the entire agreement and understanding between the parties in relation to its subject matter and supersedes and extinguishes any previous agreement between the parties relating to such matters. Auction 4 Cars Buyer’s Contract for Sale with Seller Page 5 of 6 Representations. The Buyer acknowledges that by agreeing to the terms of this Contract for Sale, and any of the documents referred to in it, that it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) other than as expressly set out in this Contract for Sale (or incorporated documents) as a warranty. No partnership. Nothing in this Contract for Sale is intended to, or shall be deemed to, establish any partnership or joint venture between the Buyer and the Seller, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Both the Buyer and the Seller confirm they are acting on their own behalf and not for the benefit of any other person. Governing law and jurisdiction. This Contract for Sale and any dispute or claim (including noncontractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim. Definitions and interpretation. 7.11.1. The following words and phrases used in this Contract for Sale have (unless the context otherwise requires) the meanings given to them below: “Auction4Cars” means as defined in the Auction Participation Terms. “Auction Participation Terms” the terms applicable to all entries, sales and purchases of Lots via our Website, available at www.auction4cars.com “Buyer” the person to whom a Lot is sold. “Buyer Fee” the fee payable by the Buyer to Auction4Cars in relation to a Lot, calculated at the rates stated in the Auction Participation Terms and added to the Purchase Price. “Description” any statement or representation in any way descriptive of the Lot, including any statement or representation relating to its condition, age, quality and/or value. “End Date” such expiry date and time as Auction4Cars may allocate and publish on the Website for the relevant auction for a Lot to end, at which point further Offers will not be accepted. “Entry” a written statement on the Website identifying the Lot which may include: a Description and photograph(s) relating to the Lot based on information provided by the Seller, payment details, collection times, the amount of the Buyer Fee, VAT chargeable, and any other relevant terms relating to that particular auction and/or sale, and which in all cases are governed by this Contract for Sale. “Lot” any Vehicle consigned to Auction4Cars with a view to its Sale at auction or by private treaty via the Website. “Offer” as defined in the Auction Participation Terms. “Purchase Price” the Winning Bid Price in the case of an auction sale, or the offered price accepted by Auction4Cars in the case of a “Buy It Now” or other private treaty sale. “Sale” the auction or private treaty sale, at which a Lot is to be offered for sale by Auction4Cars. “Seller” the person who offers a Lot for Sale. “VAT” value added tax at the prevailing rate at the date of the Sale in the United Kingdom. Auction 4 Cars Buyer’s Contract for Sale with Seller Page 6 of 6 “Vehicle” every kind of motor car, motorcycle, trailer and/or motorised caravan and every kind of commercial vehicle one or more of which may comprise a Lot offered for sale or auction. “Website” means the website https://www.auction4cars.com/. “Winning Bid Price” means the highest bid accepted by Auction4Cars including any applicable VAT. 7.11.2. References in this Contract for Sale to “writing” or “written” include e-mail but not faxes. 7.11.3. If any of the terms in this Contract for Sale are inconsistent with any term of the Entry, the Entry shall prevail. 7.11.4. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). 7.11.5. Any words following the terms “including”, “include”, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. 7.11.6. Except where the context requires otherwise words denoting the singular include the plural and vice versa. Words denoting one gender include all genders and vice versa. 7.11.7. A reference to a statute or a statutory provision: 7.11.7.1. is a reference to it as amended, extended or re-enacted from time to time; and 7.11.7.2. shall include all subordinate legislation made from time to time under that legislation or legislative provision.