AutoFlip Business Terms and Conditions

Effective 22 June 2024

1. Introduction

1.1 These terms and conditions govern the relationship between Davey NZ Limited, trading as AutoFlip, and its Customers.

1.2 AutoFlip provides an online platform to enable Sellers to sell motor vehicles to Buyers.

1.3 AutoFlip acts as the Seller’s agent but is not a party to the contract between the Buyer and the Seller.

1.4 These terms and conditions are divided into three parts and a Schedule:

a. Part A governs AutoFlip’s Agreement with Customers and contains the terms of the contract between the Buyer and the Seller should they agree to buy and sell a Vehicle.

b. Part B governs AutoFlip’s Agreement with Buyers.

c. Part C governs AutoFlip’s Agreement with Sellers.

d. The Schedule contains key information referred to in the body of the terms and conditions.

Part A – Relationship between AutoFlip and Customers

2. Definitions and Interpretation

2.1 In these terms and conditions:

a. Agreement means an Agreement between AutoFlip and its Customers on the terms set out in these terms and conditions (or any replacement conditions imposed in accordance with clause 3.5).

b. AutoFlip means Davey NZ Limited, trading as AutoFlip.

c. Buyer Claim any claim by a Buyer founded on a breach of contract or warranties relating to the Vehicle including statutory warranties, conditions or guarantees which apply to the sale of the Vehicle, or a breach of any other obligation at law including a breach of the Fair Trading Act 1986, Consumer Guarantees Act 1993, any applicable consumer law or standard, the Motor Vehicle Sales Act 2003 or any other law or regulation whatsoever.

d. Buyer means licensed motor vehicle traders who use the Platform to offer vehicles for sale.

e. Business Day means a day that is not a Saturday, Sunday, or a public holiday in New Zealand.

f. Claim means any claim, allegation, cause of action, proceeding, liability, suit or demand however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

g. Contract Date means the date on which the Seller and the Buyer become bound under the Vehicle Contract.

h. Customers means Buyers and Sellers.

i. Delivery means the completion of the delivery of the Vehicle from the Seller to a Buyer in accordance with clause 7.9.

j. Liability means any liability or obligation however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

k. Platform means the online platform owned and operated by AutoFlip enabling Sellers to list Vehicles for sale and Buyers to bid for and purchase Vehicles.

l. Privacy Policy means AutoFlip’s privacy policy published on its website from time to time.

m. Reserve Price means the price notified by the Seller to AutoFlip in writing as the lowest price for which the Seller would agree to sell the Vehicle.

n. Security Interest has the meaning set out in section 17 of the Personal Property Securities Act 1999.

o. Seller means Vehicle owners who use the Platform to offer Vehicles for sale to Buyers.

p. Seller Information means information provided to the Buyer regarding the Seller and Vehicle including such information as is necessary to effect inspection, delivery, and any warranty registration or other information which may be required by the Buyer to fulfil the Buyers statutory obligations relating to registration. The parties acknowledge that the collection of this information by AutoFlip is necessary to enable it to perform its obligations under Agreements.

q. Transfer Documentation means the Notice of Sale / Recipient Created Tax Invoice, the AutoFlip Deal Form, a Statement by a Supplier (IRD), and a Dealer Application for Transfer of Registration, and any other document notified by AutoFlip to a Buyer from time to time in writing.

r. Vehicle means a motor vehicle which a Seller has listed for sale on the Platform.

s. Vehicle Bid means a bid amount submitted by a Buyer for a Seller’s vehicle, inclusive of GST.

t. Vehicle Contract means the contract between the Buyer and the Seller whereby the Buyer agrees to purchase the Vehicle and the Seller agrees to sell the Vehicle to the Buyer.

2.2 Unless the context otherwise requires or specifically otherwise stated:

a. Headings are to be ignored;

b. “Including” and similar words do not imply any limitation;

c. References to any form of law is to New Zealand law, including as amended or re-enacted;

d. If a party comprises more than one person, each of those person’s liability is joint and several;

e. References to a party or a person includes any form of entity and their respective successors, assigns and representatives;

f. Every right, power and remedy of a party remains unrestricted and may be exercised without prejudice to each other at any time;

g. Singular includes plural and vice versa;

h. References to a gender covers all the genders;

i. Reference to any monetary amount is a reference to that amount in New Zealand currency;

j. Any word or expression cognate with a definition in this agreement has a meaning corresponding or construed to the definition;

k. References to sections, clauses, schedules, annexes or other identifiers are to those in these Terms and Conditions;

l. References to a document or agreement includes it as varied, novated or replaced;

m. Each schedule and any other attachment is part of this agreement; and

n. This agreement prevails if any ambiguity or inconsistency arises with any other document or agreement relating to it;

o. “Written” and “in writing” include any means of reproducing words, figures or symbols in a tangible and visible form;

3. Effect of these Terms and Conditions

3.1 These terms and conditions bind AutoFlip and Customers.

3.2 A Buyer is bound to these terms and conditions when they register to use the Platform.

3.3 A Seller is bound to these terms and conditions when they list a Vehicle for sale on the Platform and each such listing will create an Agreement between the Seller and AutoFlip on the terms of these terms and conditions (subject to variation in accordance with clause 3.5).

3.4 These terms and conditions supersede any earlier terms and conditions regulating the relationship between AutoFlip and Customers.

3.5 AutoFlip may modify these terms and conditions from time to time. From such modification, such modified terms and conditions will bind AutoFlip and Customers.

4. Relationship

4.1 The Seller appoints AutoFlip as its exclusive agent to sell the Vehicle on the terms set out in Part C.

4.2 In providing the Platform, AutoFlip is not a party to the Contract between the Seller and the Buyer.

4.3 The Seller acknowledges that, while AutoFlip is the Seller’s agent, AutoFlip receives fees from the Buyer as set out in these Terms and Conditions.

5. Licence

5.1 AutoFlip grants Customers a limited, non-exclusive, non-transferable and revocable licence to use the Platform in accordance with these Terms and Conditions.

5.2 AutoFlip retains all of its intellectual property rights, including its rights in the software and source code used in the Platform. Customers may not adapt, reproduce, copy, store, distribute, publish or create derivative works from any part of the Platform, or commercialise or on-sell any information obtained from the Platform, without AutoFlip’s prior written consent.

6. Platform Use

6.1 When using the Platform or dealing with other Customers, Customers will:

a. Conduct themselves honestly and in good faith;

b. Comply with all laws, including sale of goods and intellectual property laws;

c. Be friendly, kind, and respectful and not use inappropriate or offensive language, or abuse, harass, or be disparaging toward Customers or AutoFlip.

6.2 AutoFlip reserves the right to restrict or prohibit a Customer’s access to the Platform. If AutoFlip has done this for a reason, it will tell the Customer why.

7. Vehicle Contract between Buyer and Seller

7.1 The Buyer and the Seller have entered into a Vehicle Contract:

a. Once a written agreement has been entered into by the Buyer and by AutoFlip as agent for the Seller; or

b. Once AutoFlip notifies the Buyer that the Vehicle has been sold to the Buyer.

7.2 The Buyer must pay the Purchase Price for the Vehicle to AutoFlip in cleared funds by cash or electronic transfer before Delivery.

7.3 The Buyer must provide the Transfer Documentation to AutoFlip as soon as reasonably practicable and in no event later than within 48 hours after the Contract Date. AutoFlip will complete and return the Transfer Documentation within two Business Days.

7.4 The Vehicle is at the Seller’s risk until Delivery.

7.5 The Seller represents and warrants to AutoFlip and the Buyer that:

a. The Seller is the owner of the Vehicle or has the authority of the owner to sell the Vehicle;

b. The Vehicle is not liable to be seized or forfeited to any person and that title will pass to the Buyer free of all registered or unregistered Security Interests;

c. All details of the Vehicle provided by the Seller are true and correct;

d. The Seller has disclosed to AutoFlip all information concerning the Vehicle which might be relevant to a buyer; and

e. If the Vehicle is subject to road user charges, all charges are paid up to date at the time of sale.

7.6 The Buyer acknowledges that the Buyer has relied on no warranty or representation from AutoFlip and has relied on no warranty or representation from the Seller aside from:

a. The warranties contained in clause 7.5; and

b. Any other warranty provided in writing by the Seller before the Vehicle Contract was entered into.

7.7 The Buyer has relied on its own judgement and has acquired the Vehicle “as is where is”.

7.8 The Buyer is in trade and agrees that the provisions of the Consumer Guarantees Act 1993 shall not apply to the Vehicle Contract.

7.9 The Buyer agrees to, at no extra charge (unless agreed by AutoFlip in writing at the time the Vehicle Bid is accepted by AutoFlip), collect the Vehicle directly from:

a. The Seller; or

b. Another party or location if specified by the Seller.

7.10 AutoFlip will advise the Buyer of the pickup instructions for the Vehicle in writing upon or prior to AutoFlip accepting a Vehicle Bid.

7.11 AutoFlip will not be responsible for any default by either party to the Vehicle Contract.

8. Interest on Late Payments

8.1 In the event that any Customer fails to pay any amount owing to AutoFlip when due, such amount will accrue interest at an interest rate of 5% per month, which will accrue from day to day from the due date until the outstanding balance is paid.

9. Dispute Resolution

9.1 A party must not commence court proceedings (other than seeking injunctive or other emergency relief against the other at any time) in respect of a dispute arising out of or in connection with an Agreement or Vehicle Contract without first complying with the provisions of this clause 9.

9.2 In case of any dispute:

a. The party claiming a dispute must notify the other party in writing of the dispute and provide reasonable details of the dispute;

b. A senior representative of each party, who shall each have authority to settle the dispute, shall meet (either in person or via teleconference) in good faith as soon as reasonably practicable and in any event no later than 10 business days after a written notice from either party to the other; and

c. The parties must use their reasonable endeavours to negotiate and attempt to resolve the dispute before commencing court proceedings.

9.3 If the dispute cannot be resolved by negotiation as set forth in clause 9.2, then either party may commence whatever action it wishes to resolve the dispute.

9.4 All negotiations shall be conducted in strict confidence. Those negotiations shall be without prejudice to the rights of the parties (and shall not be used in evidence or referred to in any way without the prior written consent of both parties) in any future court proceedings except in so far as necessary to enforce any compromise agreement entered into by the parties.

10. General

10.1 Entire Agreement: These terms and conditions record the entire agreement between the parties, and prevail over any earlier agreement concerning its subject.

10.2 Governing Law: New Zealand law governs. New Zealand courts have non-exclusive jurisdiction.

10.3 Waiver: No party will be deemed to have waived any right under these Terms and Conditions unless such waiver is in writing and signed by such party. Any such waiver by a party of a breach of any provision of these Terms and Conditions will not constitute a waiver of any subsequent or continuing breach of such provision or of the breach of any other provision of this agreement by that party.

10.4 Severance: Any unlawful provision in these Terms and Conditions will be severed, and the remaining provisions enforceable, but only if the severance does not materially affect the purpose of, or frustrate, these Terms and Conditions.

10.5 Privacy: Personal information collected By AutoFlip for the purposes of performing its obligations under these Terms and Conditions is governed by AutoFlip’s Privacy Policy.

Part B – Relationship between AutoFlip and Buyers

11. Motor Vehicle Trader

11.1 The Buyer warrants to AutoFlip and the Seller that the Buyer is a motor vehicle trader, as defined in section 7 of the Motor Vehicle Sales Act 2003.

12. Vehicle Bids

12.1 The Platform allows Buyers who have registered on the Platform to make a Vehicle Bid.

12.2 A Buyer whose Vehicle Bid is accepted by AutoFlip as an agent for the Seller becomes bound by the Vehicle Contract to the Seller to complete the purchase of that Vehicle at the accepted price.

12.3 AutoFlip may refuse any Vehicle Bid.

13. Fees

13.1 From the Contract Date, the Buyer shall be liable to pay AutoFlip the Procurement Fee set out in Item 1 of the Schedule.

13.2 AutoFlip will provide the Buyer with an invoice for the Procurement Fee for a transaction relating to a Vehicle.

13.3 If the Buyer revokes any Vehicle Bid that has been accepted by AutoFlip in accordance with the terms of this Agreement without any valid grounds including, without limitation, a misdescription of the Vehicle by the Seller (which will be determined at AutoFlip's sole discretion) without prejudice to any claim that the Seller may have against the Buyer, a cancellation fee of $200 (including GST) will be payable by the Buyer to AutoFlip.

13.4 AutoFlip will provide notice in writing to the Buyer if it considers that a cancellation fee is payable, specifying the amount and the payment deadline. The Buyer must promptly pay any cancellation fee to AutoFlip, in accordance with any such notice issued by AutoFlip and the terms of this Agreement.

13.5 Any dispute or disagreement regarding the imposition of the cancellation fee on the Buyer will be resolved in accordance with clause 9 (Dispute Resolution).

13.6 By engaging in any transaction contemplated under this Agreement or via the AutoFlip Platform, the Seller acknowledges and agrees to the terms of this "Cancellation Fee" clause.

14. Buyer’s Obligations

14.1 The Buyer will exclusively contact the Seller in relation to the Vehicle on the Platform, provided however that the Buyer may contact the Seller for the purposes of a Vehicle inspection or, if directed by AutoFlip or its Representatives, provided that the Buyer and its Representatives must follow all directions from AutoFlip in communicating with a Seller, including any direction to cease contacting a Seller under any circumstances.

15. Term and Termination

15.1 The Agreement begins on the date that the Buyer first registers on the Platform, and ends on the date this Agreement is terminated in accordance with this clause 15.

15.2 Without prejudice to its rights under clause 6.2, AutoFlip may terminate the Agreement and cease to provide the Buyer access to the Platform and other services by providing 5 business days’ notice in writing to the Buyer.

15.3 AutoFlip may terminate the Agreement and cease to provide the Buyer access to the AutoFlip Platform and other services immediately if AutoFlip reasonably suspects the Buyer has engaged in fraudulent or illegal conduct.

15.4 The Buyer may terminate this Agreement by providing 14 days' prior written notice to AutoFlip by email and cease to be registered on the AutoFlip Platform but such termination will not affect any active or unperformed Vehicle Contracts, outstanding Vehicle Bids or outstanding Procurement Fees payable to AutoFlip which obligations the Buyer will be obliged to continue to perform in accordance with this Agreement until completely performed.

15.5 Any purported termination of this Agreement by the Buyer does not release the Buyer from or affect any accrued obligations under this Agreement.

15.6 Immediately upon termination:

a. The Buyer must cease to use the Platform;

b. Any amounts owed by the Buyer to AutoFlip, whether under this Agreement or otherwise become immediately due and payable; and

c. The Buyer must destroy or delete any copy or copies of the Platform or any information collected from the Platform the Buyer has in its possession or control.

Part C – Relationship between AutoFlip and Sellers

16. Appointment

16.1 The Seller appoints AutoFlip as its exclusive agent to sell the Vehicle on the Seller’s behalf on the Platform at or above the Reserve Price.

16.2 While AutoFlip is appointed as the Seller’s agent, the Seller will not appoint any other person to sell the Vehicle.

17. Seller Data

17.1 AutoFlip will hold all Seller Information subject to its obligations under the Privacy Act 2020.

18. Payments

18.1 The Seller must pay to AutoFlip the Sale Fee set out in Item 2 of the Schedule (as amended or agreed in writing from time to time by the parties). The Seller becomes liable to pay the Sale Fee on the Contract Date.

18.2 AutoFlip may require the Seller to complete an inspection of the Vehicle and, in that event, the Seller will be liable for the relevant fee set out in Item 3 of the Schedule.

18.3 AutoFlip will invoice the Buyer of a Vehicle and collect the invoiced amount from the Buyer.

18.4 AutoFlip will remit the amount received from the Buyer of a Vehicle less the amounts due to AutoFlip by the Seller under this Agreement within 2 business days of receipt by AutoFlip of the relevant amount from the Buyer. However, failure of the Buyer to pay the purchase price shall not excuse the Seller from liability to AutoFlip for amounts owed to AutoFlip by the Buyer.

18.5 The proceeds of sale of any Vehicle sold by AutoFlip will be remitted to the Seller or at the Seller’s direction, less:

a. Any fees and charges owing by the Seller to AutoFlip under this Agreement (irrespective of whether the fees and charges relate to the Vehicle sold) deducted in accordance with this Agreement; and

b. Any amount directed by the Seller to be paid by AutoFlip to any financier of the applicable Vehicle, which for the avoidance of doubt, AutoFlip will be permitted to deduct or set-off from any amounts payable by AutoFlip to the Seller under this Agreement.

19. Vehicle Report

19.1 Where the Seller requests and AutoFlip consents, AutoFlip may prepare and make available a full or partial report on the condition of the Vehicle. The Seller acknowledges the significant limitations of this process and that it does not in any way diminish the Seller’s disclosure obligations to prospective buyers, or the representations and warranties given to Buyers pursuant to clause 7.

20. Delivery

20.1 The Seller will be solely responsible for all collection and delivery arrangements (including engaging any freight forwarder) with respect to any Vehicle sold to a Buyer and for arranging for the transfer of legal ownership of any Vehicle to the relevant Buyer (including entry into all documents required to effect the sale and purchase of a Vehicle from the Seller to the Buyer).

21. Term and Termination

21.1 Either party may terminate an Agreement made on these Terms and Conditions in respect of any Vehicle by giving the other party 30 days’ notice in writing.

21.2 The Seller is responsible for payments of fees and charges that relate to the sale of Vehicle in the period prior to the date termination of an Agreement.

21.3 Without limiting its rights under clause 6.2, AutoFlip may terminate this agreement with immediate effect should in the event that, in AutoFlip’s sole opinion, the Seller is in breach of its obligations under the Agreement.

22. Indemnity

22.1 The Seller shall at all times hold AutoFlip harmless and indemnify AutoFlip in respect of all payments made by AutoFlip, damages or penalties imposed on AutoFlip and costs incurred by AutoFlip in relation to any Buyer Claim or other claims made by any person in relation to the services provided under these terms or the sale of any Vehicle, whether AutoFlip is legally liable or not, and includes a breach by any person of the Consumer Guarantees Act 1993, Fair Trading Act 1986, any applicable consumer law or standard, the Motor Vehicle Sales Act 2003 or any other law or regulation whatsoever, and any failure by the Buyer to provide correct information to AutoFlip, and in relation to the sale of a Vehicle, includes any breach of the warranties and any statutory warranties, conditions or guarantees by any person.

Schedule