- 1.a. Carbar Holdings Pty Ltd trading as Carbar Autos ("Carbar") is an online buying and selling service for used cars.
- 1.b. Please read these Terms and Conditions carefully before you start to use the Carbar Autos Portal.
- 1.c. These Terms and Conditions cover Users of the Carbar Autos Portal. A User may be a Seller or a Buyer of a Vehicle, but may not. The extent of a Buyer’s obligations are outlined in in Carbar Autos’s 3-Day/300km Try/Buy Agreement. The extent of a Seller’s obligations are outlined in the Carbar Autos’s 40 Day Purchase Agreement.
- 2.a. If you wish to use the Carbar Autos Portal you can create an account with us via www.carbar.com.au . Your Account will be operated by a username and password, which you may change online at your convenience. The owner of the Account is solely responsible for the activity conducted on the Account.
- 2.b. Subject to these Terms and Conditions, you are granted a non-exclusive, personal, non-transferable and non-sub-licensable licence to use and access the Carbar Autos Portal solely for personal or domestic purposes. You shall not acquire or be entitled to any rights other than those rights expressly set out in these Terms and Conditions.
- 2.c. In relation to your Account, you undertake that :
- i. You will not disclose your Password to any third party and take reasonable measures to prevent disclosure of your Password to any third parties. You are liable for all use of the Carbar Autos Portal using your Account or Password. Please notify us immediately if you become aware that your Account or Password is being used without authorisation or any other security breach relating to your Account or Password.
- ii. You will provide only accurate, complete registration information, and you will update that information if it changes. You will create only one account on the Carbar Autos Portal and you will remain responsible for anything that happens through your Account. You must provide and keep us up-to-date with accurate information, including name, address, email address and telephone number.
- iii. You will not impersonate another buyer or seller or provide false identity information to gain access to or use the Carbar Autos Portal, Website or Services.
- 2.d. We have the right to disable any Account or Password, whether chosen by you or allocated by us, at any time, if in our opinion you have failed to comply with any of the provisions of these Terms and Conditions.
- 3.a. You acknowledge and agree that, to the extent permitted by law, Carbar Autos makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Carbar Autos Portal (or any goods or services provided in connection with the Carbar Autos Portal). Carbar Autos will not be liable if the Carbar Autos Portal (or any Services provided in connection with the Carbar Autos Portal) are unavailable for any reason, including directly or indirectly as a result of:
- i. telecommunications unavailability, interruption, delay, bottleneck, failure or fault.
- ii. negligent, malicious or wilful acts or omissions of third parties (including Carbar Autos’s third party service providers).
- iii. maintenance carried out by Carbar Autos or any third party service provider in respect of any of the systems used in connection with the provision of the Carbar Autos Portal.
- iv. services provided by third parties (including internet service providers) ceasing or becoming unavailable.
- v. Force Majeure Event.
- 3.b. Carbar Autos does not warrant or guarantee:
- i. the suitability of the Carbar Autos Portal or any Services for any particular purpose or use under specific conditions.
- ii. the sale of any vehicle on the Carbar Autos Portal within a certain timeframe or at all.
- 3.c. The Pre-Purchase Inspection Services are supplied by a Third Party Provider (and not by Carbar Autos) and Carbar Autos in no way:
- i. endorses the Pre-Purchase Inspection or the Pre-Purchase Inspection Services.
- ii. warrants that the Vehicle is roadworthy, safe, in good working order, condition or repair, of merchantable quality, or fit for the purposes intended.
- iii. endorses the appraisal or valuation of the Vehicle‘s Sales Price as accurate or reliable.
- iv. is responsible for the accuracy or reliability of any information disclosed or displayed as part of the Pre-Purchase Inspection.
- 3.d. No warranty is given and Carbar Autos will not be liable for:
- i. any act of omission of a third party, including any failure of a buyer to purchase the vehicle.
- ii. any loss, damage, cost, expense, personal injury or death to you or any third party arising out of the transaction relating to the Vehicle, use or the test drive of the Vehicle by a Buyer or anyone else.
- iii. the security of the Vehicle or any damage to the Vehicle prior to or after delivery on the scheduled collection date.
- iv. the suitability or use of any Third Party Providers or Third Party Products, third party materials or information, goods or services, which may be purchased, advertised or obtained in connection with the Carbar Autos Portal.
- v. any loss, damage or injury arising of out any conduct, statement, representation, act or omission made by a seller to a buyer or potential buyer regarding the Carbar Autos Portal, the Services, or your Vehicle.
- vi. any loss or damage caused by Force Majeure Event.
4. Terms & Conditions
- 4.a. You acknowledge that Carbar Autos may use Third Party Products and Third Party Providers to enable us to provide you with the Carbar Autos Portal and that your use of and reliance on it is solely at your own risk.
- 4.b. Carbar Autos makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content displayed on the Carbar Autos Portal by a Third Party Provider or the use of any such Third Party Products, or any transactions completed, and any contract entered into by you, with a buyer, seller or Third Party Provider.
- 4.c. Carbar Autos recommends that you refer to the Third Party Provider’s terms and conditions prior to using the relevant Third Party Products or the Carbar Autos Portal.
- 4.d. Carbar Autos does not endorse, sponsor or approve any Third Party Products or Third Party Providers made available via the Carbar Autos Portal. It is your sole responsibility to determine that specific products or services used by you, meet your individual needs and/or are suitable for the purposes for which they are used.
- 4.e. Any rights you may have to access Third Party Products or Third Party Provider’s shall be limited to:
- i. the extent of Carbar Autos’s ability to pass on such rights to you; or
- ii. the relevant Third Party Provider’s licensor terms.
5. Confidential information
- 5.a. Save as required by law, all information supplied by us in relation to Carbar Autos, the Carbar Autos Portal, the services or any terms of this Agreement is confidential and must not be disclosed by you to a third party (except your professional advisors) without our written consent. This includes, without limitation, information provided to you in any form (including written and electronic) and by any means (including during any conversations with you).
6. Intellectual property
- 6.a. Using the Carbar Autos Portal or Services does not give you ownership of, or any right, title or interest in, the Carbar Autos Portal (or any Intellectual Property Rights contained therein) or any information, content or technology that may be provided to, or accessed by, you in connection with your use of the Carbar Autos Portal or Services, all of which is owned by Carbar Autos or our licensors.
- 6.b. Unless otherwise agreed to in writing by the parties, all Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with the Carbar Autos Portal or the performance of the services will vest in, and are assigned to, Carbar Autos.
- 6.c. You will remain the owner of your Content, subject to a royalty-free, transferable, worldwide and perpetual licence for Carbar Autos to use and sub-license any Content you make available to us (and all Intellectual Property Rights contained therein) to perform the Services or any ancillary services, including, without limitation, for marketing purposes.
- 6.d. You agree not to submit Content or any information through the Carbar Autos Portal unless you have the rights to do so and we do not undertake any pre-screening of such Content.
7. Limitation of liability and indemnities
- 7.a. To the maximum extent permitted by law, Carbar Autos excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the provision of the Services or the Carbar Autos Portal.
- 7.b. Nothing contained in this Agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Consumer and Competition Act 2010 or any other national, State or Territory legislation (the Acts) where to do so is unlawful.
- 7.c. To the fullest extent permitted by law, Carbar Autos will not be liable to you or any third party for:
- i. indirect, consequential, incidental, special or exemplary damages, expenses, losses or liabilities; or
- ii. loss of profits, business interruption, loss of revenue, economic loss, loss of goodwill, loss of data, downtime costs, loss of use, failure to realise anticipated savings, loss of opportunity or expectation loss or loss of production; or
- iii. loss of or damage to any property or Vehicle advertised, displayed for sale or sold or bought by you on the Carbar Autos Portal or any personal injury or death to you or any third person, arising out of, relating to or connected to the provision or use of the Services, the Carbar Autos Portal and these Terms and Conditions, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.
- 7.d. Under no circumstances will Carbar Autos’s aggregate liability whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the Vehicle Price.
- 7.e. You agree to defend, indemnify and hold Carbar Autos and its Personnel harmless from and against any and all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against Carbar Autos or which Carbar Autos may pay, sustain or incur as a direct or indirect result of or arising out of:
- i. the use by you or any third party of the Services or the Carbar Autos Portal.
8. Force majeure
- 8.a. Carbar Autos shall have no liability to you under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business by a Force Majeure Event.
- 9.a. These Terms and Conditions contain the entire understanding between Carbar Autos and the User and supersedes all prior communications. You acknowledge that you have not relied on any representations made by Carbar Autos which are not set out in this Agreement and to the extent permitted by law.
- 9.b. These Terms and Conditions cannot be amended or varied except in writing signed by both parties. You must not assign or otherwise deal with its rights or obligations under this these Terms and Conditions without Carbar Autos’s prior written consent.
- 9.c. If the whole or any part of any clause of these Terms and Conditions is illegal or unenforceable, that part or whole of that clause will be severed and will not affect the continued operation of the remaining provisions.
- 9.d. If there are any inconsistencies between the terms contained in these Terms and Conditions and the 40 Day Purchase Agreement for Sellers and the 3 Day/300km Try/Buy Agreement for Buyers the respective Seller and Buyer agreements will prevail to the extent of the inconsistency.
- 9.e. Nothing in these Terms and Conditions is to be construed as constituting an agency, partnership, joint venture, or any other form of association between the parties in which one party may be liable for the acts or omissions of any other party. You do not have the authority to incur any obligation or make any representation or warranty on our behalf, or to pledge our credit. We are mere facilitators in procuring an opportunity for you to purchase a motor vehicle and you do so at your own risk.
In these Terms and Conditions, unless the context otherwise requires:
- 10.a. 3 Day/ 300km Try/Buy Agreement is an agreement to purchase the vehicle pending a trial of the vehicle of 3 days or 300 km, whichever comes first, after delivery. Purchasers may return the vehicle, with all monies returned and no obligation to purchase within 3 days or 300km.
- 10.b. 40-day Purchase Agreement is a deferred purchase agreement, where by Carbar Autos’s nominee agrees to buy your Vehicle at an agreed price, buy paying a deposit, with the balance due any time up to and including 40 days after the date of the agreement
- 10.c. ‘Business Days’ means each day excluding Saturdays, Sundays and Public Holidays in Victoria.
- 10.d. ‘Business Hours’ means 9:00am to 5:00pm on Business Days.
- 10.e. ‘Buyer’ means the third party private buyer of the Vehicle.
- 10.f. ‘Content’ means all content, text, emails, files, names, artwork, graphics, video, reports, policies, or other information or materials downloaded, uploaded, sent or received.
- 10.g. ‘Force Majeure Event’ means acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default by or act or omission of a third party such as a Third Party Provider or a Seller, hosting or data centre providers or other suppliers or sub-contractors.
- 10.h. ‘Intellectual Property Rights’ means any intellectual or industrial property rights that have been or may be created or developed, whether or not registered or registrable, including without limitation a patent, trade mark or service mark, copyright, visual image, performance, recording or broadcast, registered design, business name, trade secret, confidential information (including the confidential information), or database or list of information.
- 10.i. ‘Personnel’ includes any officer, employee, agent, contractor, sub-contractor or consultant of Carbar Autos.
- 10.j. ‘Pre-Purchase Inspection has the same meaning given to such phrase in item 4 of the Schedule.
- 10.k. ‘Pre-Purchase Inspection Services’ has the same meaning given to such phrase in item 4 of the Schedule.
- 10.l. ‘Sales Price’ means the sales price for the Vehicle as displayed on the Carbar Autos Portal and includes Taxes, compulsory third party insurance, stamp duty and dealer delivery.
- 10.m. ‘Seller’ means the dealer, wholesaler or third party private seller of the Vehicle
- 10.n. ‘Services’ means the services to be performed by Carbar Autos or its Personnel as part of these Terms and Conditions
- 10.o. ‘Third Party Provider’ means the supply of Third Party Products.
- 10.p. ‘Third Party Products’ means software, products, services or content (including all Intellectual Property Rights contained therein) that:
- i. (a) are provided by third parties;
- ii. (b) interoperate with the Services or the Carbar Autos Portal; or
- iii. (c) may be identified as third party products.
- 10.q. ‘Carbar Autos Portal’ means the portal provided by us to facilitate the sale of motor vehicles including the provision of Services and access to the Website.
- 10.r. ‘User’ means someone who comes onto and interacts with the Carbar Autos Portal.
- 10.s. ‘Vehicle’ means a vehicle which has been displayed, posted or published on the Carbar Autos Portal by you for the purposes of sale by Carbar Autos to a third party buyer.
- 10.t. ‘Vehicle Price’ means the Sales Prices for the Vehicle less the Deposit paid by the Buyer to purchase the Vehicle.
- 10.u. ‘Website’ means the Carbar Autos website located at www.carbar.com.au or any other internet site notified by Carbar Autos from time to time.
- 10.v. ‘you’ means the person or entity and includes anyone acting on your behalf or with your express or implied authority