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Sellers Contract

Auction 4 Cars Seller’s Contract Page 1 of 9 AUTHIS SELLER’S CONTRACT IS THE BASIS OF AUCTION4CARS’ AGREEMENT WITH YOU, THE SELLER. WE ARE MOTORPOINT LIMITED (T/A AUCTION4CARS) AND FULL DETAILS ABOUT US CAN BE FOUND IN THE AUCTION PARTICIPATION TERMS. UNDER THIS CONTRACT WE ACT AS YOUR AGENT. YOU WILL BE RESPONSIBLE FOR ALL STATEMENTS AND REPRESENTATIONS MADE BY US ON YOUR BEHALF. YOU WILL BE THE PRINCIPAL TO THE CONTRACT FOR SALE WITH THE BUYER OF THE LOT AND RESPONSIBLE FOR BREACHES OF THAT CONTRACT. AS YOUR AGENT, WE ARE NOT UNDER ANY OBLIGATION, EITHER TO YOU OR TO ANY BUYER, UNDER THE CONTRACT FOR SALE WHICH YOU MAKE THROUGH US. WE RESERVE THE RIGHT TO AMEND THIS CONTRACT FROM TIME TO TIME. ANY CHANGES WILL BE POSTED ON OUR WEBSITE. BY ENTERING INTO THIS SELLER’S CONTRACT WITH US, YOU CONSENT TO OUR SELLING THE LOT ON YOUR BEHALF IN ACCORDANCE WITH OUR AUCTION PARTICIPATION TERMS AND ON THE TERMS OF THE CONTRACT FOR SALE WITH ANY BUYER. YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 5 (LIMITATION OF LIABILITY). 1. OUR SERVICES 1.1. Sale format. 1.1.1. We retain complete discretion to offer the Lot, in particular in relation to: 1.1.1.1. the date(s) of the Sale of the Lot, including rescheduling or cancelling the Sale; 1.1.1.2. the production or publication of catalogue pages on our Website; 1.1.1.3. the description of the Lot on our Website and other materials; and 1.1.1.4. the manner in which any Sale is conducted, including who we permit to participate in the Sale, or whether we accept any Offer. 1.2. Unless otherwise agreed by us in writing, a Vehicle shall not be deemed accepted into any auction / sale unless and until you have produced a complete Vehicle Entry Form, and such other information, images and documentation we may require from time to time. 1.3. We may, at our discretion, reject any Vehicle if you fail fully to complete the Vehicle Entry Form and to deliver it to us and/or fail to provide such other information, images and documentation we may require from time to time. 1.4. Reasonable care and skill. We will exercise reasonable care and skill in the performance of our obligations under this Contract. 1.5. Descriptions. 1.5.1. Based on any information you give to us in the Vehicle Entry Form, we will publish an Entry about the Lot for sale on our Website on the basis explained in clause 1.5.3 and Auction 4 Cars Seller’s Contract Page 2 of 9 clause 1.5.4. We may at our discretion include photograph(s) of the Lot in the Entry, but we are not under any obligation to do so. The Entry is published by us as your agent on your behalf. 1.5.2. A copy of the Entry may be made available to you prior to the Sale and you must notify us immediately (and in any event before the Sale) in writing to A4cteamleaders@auction4cars.com if there is anything in either the Entry in relation to the Lot which you are aware is, or may be, inaccurate or incorrect or, in the case of any Description of the Lot, incomplete in any material respect. 1.5.3. Anything stated or represented by us in any Entry and/or Description will be given by us pursuant to information provided by you (including in relation to the condition, history, age, suitability, quality, roadworthiness, origin or value of any Lot whether on our Website or otherwise, whether made orally or in writing). 1.5.4. Any Entry may be revised from time to time at our discretion. 1.6. Reserves. 1.6.1. The Lot will be sold Without Reserve unless a Reserve has been agreed in accordance with this clause. 1.6.2. If the Vehicle Entry Form states: 1.6.2.1. a figure for the Reserve, then that is the agreed Reserve with which the Lot will be sold; and 1.6.2.2. that the space provided for stating a Reserve is completed “zero”, “N/A” or is not completed (or similar), the Lot will be sold Without Reserve. 1.6.3. A Reserve or the agreement that the Lot is to be soldWithout Reserve cannot be altered without our written consent. In particular, where a Lot is set to be sold Without Reserve then this cannot be changed, unless by written notice received by us at least 24 hours prior to the start of the Sale, you ask us to place a Reserve on the Lot at a particular figure and we acknowledge that figure as the Reserve. 1.6.4. All Reserves will be in pounds sterling (GBP). 1.6.5. You authorise us to refuse Offers from any bidder, including from the highest bidder, where there is a Reserve, if such refusal is reasonable for the protection of your and/or our interests in the circumstances. 1.7. The Sale. 1.7.1. We will conduct the Sale in accordance with our Auction Participation Terms and will sell the Lot on your behalf on the terms of the Contract for Sale subject to any alteration by us made at our discretion by notices and announcements. You authorise us to charge the Buyer the Buyer Fee and any applicable VAT in accordance with our Auction Participation Terms. 1.7.2. Neither you nor any person on your behalf may make an Offer for the Lot, whether a Reserve has been placed or not. If any such Offer is nonetheless made, we may sell the Lot to you without observing any Reserve and you will pay to us the Buyer Fee and applicable VAT. Auction 4 Cars Seller’s Contract Page 3 of 9 1.8. Unsold Lots. 1.8.1. Where your Lot fails to sell by the End Date, we will notify you accordingly by e-mail, and: 1.8.1.1. we may re-offer the Lot for sale via the Website where you have requested that we do so (whether in the Vehicle Entry Form originally submitted or otherwise); 1.8.1.2. you may make arrangements to re-offer the Lot for sale via the Website; 1.8.1.3. we may determine not to re-auction a Lot, whereupon we will remove the Lot listing and/or the Entry (if any) from our Website; or 1.8.1.4. you may withdraw our authority to sell a Lot by giving us written notice for which proof of delivery is required, whereupon we will remove the Lot listing and/or the Entry (if any) from our Website. 1.8.2. Provided that the Sale has not commenced, and no Offer has been made on a Lot, you may revoke our authority to sell a Lot by written notice. Where you do so, we reserve the right to charge you a Defaulter’s Fee in respect of the Lot withdrawn (plus VAT where applicable), and you shall pay our invoice for the same within 10 days of receipt. 2. YOUR OBLIGATIONS 2.1. We are selling the Lot on your behalf as your agent and you therefore warrant and undertake to us that: 2.1.1. you are the owner of the Lot; 2.1.2. you sell the Lot with full title guarantee free from all liens, charges, encumbrances and third party claims, or where you are an executor, trustee, liquidator, receiver or administrator, with whatever right, title or interest you may have in the Lot; 2.1.3. where a Lot entered for Sale is subject to a hire purchase, conditional sale or other finance interest, you shall ensure that all finance outstanding on the Lot is settled prior to collection by the Buyer (as confirmed in writing by the finance provider(s)); 2.1.4. you are legally entitled to sell the Lot; 2.1.5. you are legally capable of conferring on the Buyer quiet possession of the Lot and that in the event our selling the Lot, the Sale will conform in every respect with the terms implied by the Sale of Goods Act 1979, Sections 12(1) and 12(2); 2.1.6. you have complied with all requirements, legal or otherwise, relating to any export or import of the Lot, all duties and taxes in respect of the export or import of the Lot have (unless otherwise agreed in writing with us) been paid and, so far as you are aware, all third parties have complied with such requirements in the past; 2.1.7. every representation made by you (in any form) concerning the Lot is wholly accurate and informed, and you acknowledge that such representations will be relied upon by us and the Buyer; Auction 4 Cars Seller’s Contract Page 4 of 9 2.1.8. in completing and providing us with the Vehicle Entry Form: 2.1.8.1. you have notified us in writing of any material alterations to the Lot and provided us accurately with all information (including any concerns expressed by third parties relating to the condition, age and quality of the Lot) in relation to the Lot, or any Description of it, of which you are aware or which is in your possession; and 2.1.8.2. you have notified us of all information of which you are aware or reasonably ought to be aware relating to the present or past ownerships or use of the Lot; 2.1.9. the Lot bears the proper and complete chassis number and registration marks; 2.1.10. in so far as you may become aware of any information (including any concerns expressed by third parties) in relation to the Lot, or any Description of it, after this agreement has been made, you will promptly inform us of it; and 2.1.11. the Lots is not connected with any criminal activity, including tax evasion. 2.2. In the event we have agreed with you, that any Entry or material related to the sale of the Lot(s) under this Contract shall include your name, then you grant to us a non-exclusive licence to use such name in pre- and post- sale publicity materials for such Lot(s). 2.3. You authorise us to give to the Buyer on your behalf the warranties, undertakings or information referred to in this clause 2. 2.4. You agree that a Lot will only be released to the Buyer on production of a Release Code at the point of collection of the Lot. 2.5. You agree to indemnify us against all claims, proceedings, liabilities, costs, expenses and losses arising from: 2.5.1. any actual or alleged breach of any undertaking, warranty or obligation in this Contract, whether by act or omission or otherwise; 2.5.2. any injury, loss or damage caused to any person by you; 2.5.3. our exercise any of our rights, powers and/ or duties under clause 3; 2.5.4. your fraud; and 2.5.5. without prejudice to clause 2.5.1, any error, misdescription or omission in the Vehicle Entry Form and/or any Description of the Lot. 3. OUR RESERVED RIGHTS 3.1. We may refuse to publish an Entry about a Lot, or withdraw a Lot, or refuse any Lot for Sale at our sole discretion without liability, including if we have reasonable cause for believing that: 3.1.1. we and/or you may be or are restrained by order of the court or other competent authority in respect of the Lot, or may be or are otherwise not legally entitled to sell the Lot; 3.1.2. you are in actual or potential breach of any of the warranties and undertakings set out in clause 2; Auction 4 Cars Seller’s Contract Page 5 of 9 3.1.3. the information about the Lot given to us by you is inaccurate or misleading in any material respect; or 3.1.4. sale of a Lot is or could be unlawful or that it might give rise to liability to us or cause damage to our reputation. 3.2. In the event of any misrepresentation or fraud by you or on your behalf which has induced the Buyer to purchase the Lot, we will be entitled at our discretion and irrespective of whether we are personally liable to the Buyer to act in any reasonable manner which appears to us to be best calculated to compensate the Buyer (which may include rescinding the Contract for Sale or repurchasing the Lot from the Buyer). 3.3. If and to the extent that any information about, or photographs of, the Lot given to us by you is found to be inaccurate or misleading in any material respect, we reserve the right to charge you a Defaulter’s Fee in respect of the Lot (plus VAT where applicable), and you shall pay our invoice for the same within 10 days of receipt. 3.4. Without prejudice to any of our other rights under this Contract, we reserve the right to declare any purported Sale null and void if in our opinion, and on complaint by the Buyer within 90 days of collection of a Lot, there has been any misrepresentation concerning the Lot’s mechanical condition or any material misstatement concerning the Lot’s mileage, accident, ownership history or age by the Seller. The Buyer’s right to take action against the Seller beyond this period is unaffected. 4. OUR CHARGES 4.1. We reserve the right to charge a fee: 4.1.1. when a Lot is entered for Sale, such fee will be agreed between you and us at the relevant time; and 4.1.2. if for any reason the Lot is entered for re-sale subsequent to the initial auction or private treaty sale (otherwise than due to our fault). 4.2. Such fee will be fixed at a reasonable amount deemed appropriate by us in respect of the relevant administration costs we incur. 5. LIMITATION OF LIABILITY 5.1. References to liability in this clause 5 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise. 5.2. We will be entitled to rely entirely upon the Description of the Lot given by you (via the Vehicle Entry Form or otherwise) in any Entry and/or Description we give. Our liability in respect of any Description given by us is excluded except to the extent that we fail accurately to reflect any Description of the Lot given to us by you. 5.3. Without prejudice to clause 5.2, we will not be liable whether as a result of an act or an omission, whether before or after this agreement, for any lack of conformity with or inaccuracy, error or misdescription or omission in any Description of a Lot or any Entry (whether made in writing, on our Website, orally or otherwise) or in the setting of any Reserve or for any failure to achieve a Sale or Auction 4 Cars Seller’s Contract Page 6 of 9 a Sale at a higher price than was achieved, except in so far as it is caused by our breach or in the case of fraud by us or on our behalf. 5.4. We will not be liable: 5.4.1. to you under or in connection with this Contract for: 5.4.1.1. loss of profits; 5.4.1.2. loss of sales or business; 5.4.1.3. loss of agreements or contracts; 5.4.1.4. loss of anticipated savings; 5.4.1.5. loss of use or corruption of software, data or information; 5.4.1.6. loss of or damage to goodwill; and 5.4.1.7. indirect or consequential loss. 5.4.2. to the extent that any breach of obligation by you has caused or contributed to any liability arising in connection with this Contract. 5.5. Our total liability to you arising under or in connection with this Contract will be limited to £100. 5.6. This clause 5 will survive termination of this Contract. 6. GENERAL 6.1. Implied Terms: These terms apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. 6.2. Force Majeure. We will not be in breach of this Contract nor liable for delay in performing, or failure to perform, any of our obligations under this Contract if such delay or failure result from events, circumstances or causes beyond our reasonable control. 6.3. Notices. 6.3.1. Any notice or other communication given by one of us to the other under or in connection with this Contract must be in writing and be delivered by hand, sent by prepaid first class post or other next working day delivery service at its registered office, or e-mail: (i) in the case of Auction4Cars, to A4cteamleaders@auction4cars.com, or (ii) in the case of the Seller, to the e-mail address provided during registration or such other address as is provided to Auction4Cars. 6.3.2. A notice or other communication is deemed to have been received: 6.3.2.1. if delivered by hand, at the time the notice is left at the proper address; 6.3.2.2. 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 6.3.2.3. if sent by e-mail, at the time of transmission. 6.3.3. The provisions of this clause 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. Auction 4 Cars Seller’s Contract Page 7 of 9 6.4. Assignment and other dealings. 6.4.1. We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of our rights and obligations under this Contract. 6.4.2. You may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under this Contract without our prior written consent. 6.5. Variation. Any variation of this Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives). 6.6. Third party rights. Unless it expressly states otherwise, this Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement and the rights of the parties to rescind or vary this Contract are not subject to the consent of any other person. 6.7. Entire Agreement. This Contract, 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 or any of them relating to such matters. 6.8. Representations. You acknowledge that by agreeing to the terms of this Contract, and any of the documents referred to in it, that you do 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 (or incorporated documents) as a warranty. 6.9. Governing law and jurisdiction. This Contract and any dispute or claim (including non-contractual 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. 6.10. Definitions and interpretation. 6.10.1. The following words and phrases used in this Contract have (unless the context otherwise requires) the meanings given to them below: “Auction4Cars” means Motorpoint Limited (trading as Auction4Cars) (company number 3482801) which has conduct of auctions and sales and/or any of its other authorised representatives thereof. “Auction Participation Terms” the terms applicable to all entries, sales and purchases of Lots via our Website, available at our auction participation terms. “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. “Contract for Sale” the contract for sale entered into by the Seller with the Buyer. “Defaulter’s Fee” means the greater of: £100; and the Buyer’s Fee payable in respect of the relevant Lot if it had sold for an amount equal to its Reserve. Auction 4 Cars Seller’s Contract Page 8 of 9 “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 we 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 in the Vehicle Entry Form, 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. “Lot” any Vehicle consigned to us with a view to its Sale at auction or by private treaty via the Website. “Offer” as defined in the Auction Participation Terms. “Release Code” as defined in the Auction Participation Terms. “Reserve” the minimum price at which a Lot may be sold (whether at auction or by private treaty). “Sale” the auction sale or private treaty sale, at which a Lot is to be offered for sale by us. “Seller” the person who offers a Lot for Sale named on the Vehicle Entry Form. “VAT” value added tax at the prevailing rate at the date of the Sale in the United Kingdom. “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. “Vehicle Entry Form” the vehicle entry form, providing details of the Vehicle completed by the Seller listing the Lots to be offered for Sale by us. “Website” the website https://www.auction4cars.com/. “Winning Bid Price” means the highest bid accepted by Auction4Cars including any applicable VAT. “Without Reserve” where there is no minimum price at which a Lot may be sold (whether at auction of by private treaty). 6.10.2. References in this Contract to “writing” or “written” include e-mail but not faxes. 6.10.3. If any of the terms in these Auction Participation Terms are inconsistent with any term of the Entry, the Entry shall prevail. 6.10.4. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). 6.10.5. 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. Auction 4 Cars Seller’s Contract Page 9 of 9 6.10.6. 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. 6.10.7. A reference to a statute or a statutory provision: 6.10.7.1. is a reference to it as amended, extended or re-enacted from time to time; and 6.10.7.2. shall include all subordinate legislation made from time to time under that legislation or legislative provision.