TopCar Buyer Terms and Conditions of use

Top Car Buyer is strictly a mobile application where, subject to the terms and conditions which follow, you may do trade covers and buy the vehicles published for sale by the seller/s.

DEFINITIONS

a. “Top Car Buyer” shall mean Digital Disposal Solutions
b. “we” shall collectively mean the Sellers of vehicles and Top Car Buyer;
c. “you” shall mean each and every user who makes use of this mobile application;
d. “service” shall mean the trading of vehicles by means of the use of this mobile application;
e. “Top Car Buyer” is a mobile application.

1. REGISTRATION

1.1 In order to use any of the mobile application options you will first be required to register as a user. By your registration, you unconditionally and irrevocably consent to your use of this application (and all transactions concluded on it) being subject to the terms and conditions contained herein.
1.2 Registration can only take place by completing the registration from the mobile application. All prospective users are required to fully complete a registration process. Registration will be conditional upon acceptance of these conditions of use and continued compliance therewith.
1.3 By completing the registration you agree that Top Car Buyer or the seller or their nominated agents may undertake the necessary credit checks on you and / or your business. Should you not agree to this clause Top Car Buyer and / or the seller reserves the right to refuse registration as a user or prevent you from using this mobile application where it is later found that you have circumvented this procedure.
1.4 On registration you will be given a Login ID and password. It is your responsibility to protect such password and you hereby indemnify Top Car Buyer and all Sellers against any loss or damage which may arise as a result of the unauthorised use of your password. Top Car Buyer reserves the right to alter or vary the Login ID or password at any time and will notify the user of such alteration by e-mail or sms.

2. USER CONDITIONS

2.1 You agree and warrant to each seller and separately to Top Car Buyer that:

2.1.1 Your information as provided in your registration:

2.1.1.1 is accurate and not false, misleading, deceptive or fraudulent;
2.1.1.2 does not breach any Intellectual Property Rights of a third party;
2.1.1.3 is made in compliance with all applicable laws, government regulations or guidelines;
2.1.1.4 is not forged, threatening or offensive or otherwise constitute harassment;
2.1.1.5 does not contain confidential information or trade secrets of a third party unless you have obtained the consent of the third party owner;
2.1.1.6 will not defame (libel or slander) another person, transmit misleading or inaccurate information of any nature, whether of a personal or commercial nature;

2.1.2 you will not by virtue of your use of this mobile application insert any matter which contains any viruses, worms, trojan horses or other invidious programs or data, whether attached to or embedded in other programs or data or not, which may result in the failure of this mobile application;
2.1.3 You agree that we may and will monitor your conduct if we believe that you are not complying with the terms of this Agreement. If we do, then we will respect your confidentiality, unless: such behaviour constitutes a crime or the law compels or requires that the seller or Top Car Buyer divulges such information to the relevant authorities.
2.1.4 you have the legal capacity to enter into this agreement and purchase any vehicles that you cover for, and, will not otherwise be breaching any law in purchasing such vehicle/s;
2.1.5 you will not cover for any vehicles on this mobile application unless you are able, and have sufficient, available capacity to pay for such vehicle/s;
2.1.6 the purchase of any vehicle/s on this mobile application is done absolutely at your own risk;
2.1.7 to the extent permitted by law, the seller may exclude all terms, conditions and warranties whether express, implied, statutory, common law, or otherwise, relating to the vehicle/s, in all of the sellers dealings in connection with the vehicle that you may purchase from the seller on this mobile application;

2.1.8 You are responsible for updating your details from time to time.

TRADING CONDUCT3.1 The rules for trading conducted on this mobile application are as follows:
3.2 The seller shall publish vehicles for sale on the mobile application.
3.2.1 The terms and conditions set out herein shall apply to the sale of all vehicle/s on this mobile application but the seller may add further terms and conditions applicable to the sale of a specific vehicle/s from time to time.
3.2.2 A user may not engage in covers on manipulation to unfairly induce any other person to make covers and/or manipulate the cover price. This includes the prohibition against covering for any other person who is not a registered user or any attempts at collusion between traders. Where the seller or Top Car Buyer is of the opinion that any of the aforementioned has occurred they reserve the right to automatically revoke user access to this mobile application or to reject the users cover;

3.2.2.1 Save for any provision to the contrary herein, all cover acceptance are final and irrevocable and a user shall be deemed to be the successful buyer (“the buyer”) if such user placed the accepted cover price;

3.2.3 If the buyer is a successful buyer as determined by Clause 3.2.2.1, and that cover is accepted, or deemed to be accepted, by the seller, the Buyer must complete the purchase of the vehicle/s save in the following exceptional circumstances:

3.2.3.1 the description of the vehicle is materially different following the commencement of cover request; or
3.2.3.2 the seller fails to deliver the vehicle (or fails to procure delivery thereof, as required) to the Buyer, by the date agreed by the seller and Buyer in Clause 4; on the basis that delivery shall be effected by the Buyer collecting the vehicle from the premises so designated by Top Car Buyer from time to time, and

3.2.4 If a seller receives more than one cover, the seller shall use it’s own discretion on acceptance thereof and complete the sale of the vehicles to that Buyer save in the following exceptional circumstances:

3.2.4.1 the customer of the Seller did not complete the transaction and did not trade in the vehicle.

3.2.4.2 the Buyer fails to complete the purchase of the vehicles (for example, the Buyer fails to pay for the vehicles).

3.2.5 In all instances the seller shall have the sole discretion to actually accept a cover or to reject it.
3.2.6 Trade Covers shall close on the date and time as indicated on the reference to a specific vehicle and no further extensions of time or negotiations with regard thereto shall be entered into.

COMPLETION OF SALE AND PURCHASE OF GOODS OR SERVICES4.1 Top Car Buyer shall notify the successful Buyer, on behalf of the seller, of its acceptance of its cover by notification, email or sms.
4.2 Following receipt of the aforementioned confirmation notice from the seller the following procedure will apply:
4.3 The Buyer has two working days, excluding public holidays and weekends, from receipt of the confirmation notice to confirm details of payment to the seller of the full accepted cover price; failing which the sale will be cancelled. On cancellation of the sale, the Buyer’s business activity will be rated by the Seller. Top Car Buyer will monitor failed/cancelled transaction behaviour and impose a penalty to the guilty Buyer as per the below table.
Only once the penalty fee has been paid, will the Buyer’s access be un-blocked so as to allow participation on the Top Car Buyer mobile application again.

Penalty fee

First offence R 3 000
Second offence R 5 000
Any offence thereafter R 10 000 each time
4.5 Payment shall be made by means of an electronic transfer into the bank account nominated by the seller on his confirmation notice.
4.6 All payments shall be subject to the requirements of the Financial Intelligence Centre Act, as amended.
4.7 On receipt of payment the Buyer may collect the vehicle together with all documentation from the Sellers premises as notified in the confirmation notice. The vehicle will only be released once the seller has received the buyers proxy, or the NCO forms are completed and signed.
4.8 Ownership and risk shall pass from the seller to the Buyer on receipt of full payment by the Buyer to the seller.
4.9 The Buyer shall comply with all the formalities required and sign all documentation required in order to transfer ownership of the vehicle.
4.10 Any enquiries, of whatever nature, with respect to the vehicle purchased must be directed to the seller and not to Top Car Buyer and the seller shall deal with the matter in its own discretion.

4.11 Failure by the Buyer to comply with its obligations in terms of this clause either partially or completely shall constitute a material breach of these conditions and should the Buyer fail to remedy such breach within 48 hours following receipt by the Buyer of a written notice to that effect from the seller, the seller shall be entitled, without prejudice to any other right which it may have in terms of this agreement or in law to cancel the sale or to claim specific performance of all the Buyers obligations whether or not such obligations would otherwise have fallen due for performance without prejudice to the Sellers right to claim damages.

5. CONDITIONS OF SALE

5.1 Whilst the seller has made every effort to ensure that the description, condition and details with regards to the vehicle/s are accurate and correct, the seller accepts no liability for any errors in the aforementioned description and the Buyer, by virtue of his cover, acknowledges that he has satisfied himself as to the correct condition and description of the vehicle/s for which he enters a cover.
5.2 Save for the warranties, undertakings and representations made in this agreement the vehicle/s have been inspected by the Buyer and are sold voetstoots and subject to any manufacturers warranties which may still be applicable to the vehicle and the seller accepts no liability for any patent or latent defects in the vehicle.
5.3 Whilst every effort is made to ensure that the vehicle is correctly registered and that the documentation is an accurate reflection of the status of the vehicle the seller is unable to warrant that such documentation is correct and the risk of any errors made by the licensing authorities shall be borne by the Buyer.
5.4 The seller does not warrant that the vehicle is fit for the purpose or purposes intended by the Buyer.

6. RELYING UPON TOP CAR BUYER

The quality and continuity of the services on this mobile application depends on many factors over which we have no control and cannot seek to control. While we will always endeavour to maintain ongoing access, disruptions and failures of this mobile application, any or all computer systems, network resources and the services, are probable in such an operating environment. Recognising this, you agree that: we cannot and do not guarantee, warrant or otherwise imply that you will receive constant and uninterrupted access to this mobile application or the services.

7. DISCLAIMER AND LIMITATION OF LIABILITY

7.1 Notwithstanding, and in addition to any other provision in this Agreement, you agree that we will not be liable to you or any other person for any loss, damage, expense, or other amounts incurred, savings foregone, or hardship suffered, by any person however arising (including where the cause cannot be determined), or whether it arose directly or indirectly from any authorised or unauthorised use of, access to, reliance on, or any inability to use or access this mobile application, the services, or as a consequence of such use, access, reliance, or inability to access the mobile application, including, but not limited to any loss relating to one or more, or a combination, of the following:

7.1.1 in relation to trading on this mobile application, that bids were not processed or accepted due to technical difficulties or for any reason whatsoever;
7.1.2 whether we or another person could have foreseen such a loss or type of loss, or were negligent or reckless, whether or not the loss was suffered in connection with a business or commercial enterprise, including, but not limited to, any economic or consequential loss or damage, any and all damage to, or loss of profits, and any losses relating to contracts, business, revenue, goodwill, or any anticipated savings;
7.1.3 any errors or omissions in any documentation or other provided by us and any errors or omissions in any data on this mobile application, or any breach of contract or negligence on the part of us, our employees, agents or authorised representatives;
7.1.4 any reliance on, the information and material contained on this mobile application about any vehicles or any other information whatsoever.

7.2 To the extent permitted by law, all terms, conditions and warranties or representations, or representation whether express, implied, statutory, common law or otherwise relating to the services or anything in these terms and conditions, are excluded unless expressly included in this Agreement.
7.3 Notwithstanding anything else in this Agreement if any party is liable to you, whether in respect of negligence or other delict, breach of contract or warranty, breach of statute or statutory duty, equity or otherwise directly or indirectly in relation to the performance of or any delay or failure in performance of its obligations under this Agreement, the maximum aggregate liability of a party, in respect of all claims made by you for every 12 month period commencing on the execution of this Agreement or the anniversary thereof shall be R 100 000 (one hundred thousand Rands only).

8. BREACH

8.1 If you breach any of the terms and conditions contained in this Agreement we may in our absolute discretion:

8.1.1 withhold from you, your use of any or all of the services, and access to your information;
8.1.2 delete or remove, without incurring any liability to you, any or all of your information and block your access to this mobile application;
8.1.3 restore the services if and when you can demonstrate clear and complete adherence to the terms of this Agreement on a permanent and consistent basis; and
8.1.4 terminate the Agreement that we have entered into with you, and cancel our obligations to provide the services, if we are not satisfied that you will clearly and completely adhere to the terms of this Agreement, on a permanent and consistent basis, if the services are restored to you.

8.2 Nothing in this clause shall be construed to prevent us from invoking any common law emedies which may be available to us.

8.3 Block all users if payment was not received by the 7th of the following month.

DISPUTES9.1 You must follow the procedure for resolving any dispute in connection with or arising out of this Agreement, in accordance with this clause before starting any legal proceedings.
9.2 The procedure for resolving a dispute is as follows:
9.2.1 you give notice to us about the nature of the dispute and we will seek to resolve the dispute in 14 working days of receipt of the notice;
9.2.2 to the extent the aforementioned negotiations fail, any such dispute, if it is arbitral in law, shall be finally resolved in accordance with the rules of UNCITRAL by an independent arbitrator(s) appointed by Top Car Buyer.

GENERAL TERMS AND CONDITIONS10.1 We have an absolute discretion to change the terms of this Agreement at any time. If we do so, we will post the amended terms on this mobile application, which amended terms shall be effective forthwith. By accepting this Agreement, you also agree to accept and be bound by any changes made by us under this clause. In any event, your continued use of the services after any changes to the terms of this Agreement have taken effect in accordance with this clause will be deemed to be your acceptance of those changes to the terms of this Agreement.
10.2 This Agreement constitutes the entire agreement between the parties hereto.
10.3 Nothing in this Agreement shall be deemed to constitute any party as the agent, partner or joint venture of another party.
10.4 A party shall take all such steps, execute all such documents and do all such acts and things as may be reasonably required by another party to give effect to any of the transactions contemplated by this Agreement.
10.5 Other than as otherwise specified in this Agreement, neither the failure of a party to enforce at any time any of the provisions of this Agreement nor the granting of any time or other indulgence shall be construed as a waiver of that provision or of the right of that party thereafter to enforce that or any other provision.
10.6 This Agreement will be governed by the laws in force in the Republic of South Africa and each party unconditionally submits to the non-exclusive jurisdiction of the Courts of the Republic of South Africa in relation to any legal action, suit or proceeding arising out of or with respect to this Agreement.