TERMS & CONDITIONS
TERMS AND CONDITIONS, INCLUDING THE RULES OF AUCTION
Updated: 03 August 2023
“Auctioneer” means DealersOnline;
"Buyer" means the purchaser of the Goods;
"Cleared Funds" means the approved bid purchase price paid by the Buyer into the Seller's nominated bank account, which funds are cleared by such nominated bank and to which the Seller has immediate access;
"Company" means Zenith Car Rental (Pty) Ltd t/a Avis, a company duly incorporated in accordance with the laws of South Africa, with registration number 2019/420358/07;
"Contract" means any contract or agreement arising out of the acceptance of any offer, whether that contract arises out of an offer made by the Company and accepted by the Customer, or an offer made by the Customer and accepted by the Company;
“Company Authorised Seller” means the respective entities duly authorised by the Company to utilise this Auction Portal for the listing and sale of their respective Goods from time to time;
"ECTA" means the Electronic Communications and Transactions Act, No 2 of 2002 and can be accessed at https://www.gov.za/sites/default/files/gcis_document/201409/a25-02.pdf;
"Effective Date" means the date of payment of the approved bid purchase price;
"FICA" means the Financial Intelligence Centre Act, No 38 of 2001 and can be accessed at https://www.gov.za/sites/default/files/gcis_document/201409/a38-010.pdf;
"Goods" means the motor vehicles and/or any other item listed for sale on the Website;
“PAIA” means the Promotion of Access to Information Act, No 2 of 2000 (as amended), and can be accessed at https://www.gov.za/sites/default/files/gcis_document/201409/a2-000.pdf;
"Party" shall mean either the Buyer, Seller and/or the Company as the context may apply and "Parties" shall mean a collection of the Buyer, Seller and/or the Company as the context may apply;
“POPIA” means the Protection of Personal Information Act, No 4 of 2013 and can be accessed at https://www.gov.za/sites/default/files/gcis_document/201409/3706726-11act4of2013popi.pdf;
"Reserve Price" means the minimum VAT inclusive price at which the Seller is prepared to sell the Goods;
"Seller" means the seller of the Goods of which includes the Company and the Company Authorised Sellers, where context applies;
"User" means the user, juristic or natural, of the Website and includes the Buyer where context applies;
"Website" means www.avisauction.co.za .
This document contains the standard terms and conditions of auction on which the Company and Company Authorised Sellers auctions the Goods to the User.
In the event that a further risk assessment is required, the Seller reserves the right to conduct such assessment after the auction process is concluded and may cancel the sale transaction should the Seller no longer deem the transaction to fall within an acceptable threshold of our risk appetite to conclude the sale.
These terms and conditions constitute the entire agreement between the Company and the User relating to the subject matter hereof and shall be binding between the Parties for all current and future online auctions of Goods, unless modified and/or amended by the Company. The Company Authorised Seller shall in addition to being bound to these terms and conditions furthermore be bound to the mandate (if applicable) entered into between the Company and the Company Authorised Seller.
Nothing in these terms and conditions are intended to or must be understood to unlawfully restrict, limit or avoid any rights, obligations, as the case may be, in the event of the CPA applying.
The User, by its application for registration and subscription to the Website, logging in on the Website and the submission of electronic bids, warrants that it has read and understood all the terms and conditions contained in this document and agrees to be bound hereby.
The Seller, by listing the Goods on the Website, warrants that it has read and understood all the terms and conditions contained in this document and, where applicable, agrees to be bound thereby.
The Company is Zenith Car Rental (Pty) Ltd t/a Avis (Registration Number: 2019/420358/07) is in the business of offering for auction on behalf of the Seller, from time to time, motor vehicles and accessories using an electronic internet-based auction system.
The Auctioneer is DealersOnline (Pty) Ltd, which auction takes place online, and whose registered address is situated at GF001B Phumelela Park, Cnr Montague Drive and Racecourse Road, Montague Gardens, 7441.
A representative of the Auctioneer can be contacted at email@example.com or (021) 551 8059.
Information about the particular Goods on the Website is as provided by the Seller. Neither the Company or Auctioneer makes any representations or warranties with respect to the accuracy or completeness of any description. The responsibility for the information provided in the listing of the Goods lies with the Seller.
will complete, in full, the registration documents provided on the Website;
certifies that the information provided by the User in all respects is true and correct;
will furnish the Company with such supporting documentation as may be required by the Company for any reason whatsoever including, without limitation, documentation required for FICA purposes;
certifies that the User and/or Buyer is a motor dealer registered in terms of the laws of the Republic of South Africa; and
acknowledges that the bidding for any Goods on auction on the Website and any sale concluded as a result thereof will give rise to a contractual relationship between the Seller and the Buyer.
At the Company's absolute and sole discretion and upon compliance with the requirements of clause 4.1 above, the Company and Auctioneer shall activate the User as a subscriber to the Website and will, within a reasonable period of time, provide the User access to the Website for the purposes of viewing and bidding for Goods listed on auction on the Website.
The Company and/or the Auctioneer reserves the right to decline or at any time cancel a User's registration for any reason whatsoever and for which the User will have no recourse.
The User's registration to the Website shall be deemed to provide consent by the User that the Company and/or the Auctioneer may conduct various checks on the User including, without limitation, credit reference checks with a registered credit bureau.
The User shall furthermore make available to the Company, the Auctioneer and/or the Seller such information as may be required by the aforementioned parties including, without limitation:
the User's information for FICA purposes;
the User's registration and/or founding documentation and/or any other documentation verifying the identity of the User;
proof of the User's VAT registration number; and
proof of the User's registration as a motor vehicle dealer.
The purpose of collection and processing of the information as contained within clause 4.5 above shall be in terms of the following:
In order to comply with legislation including, but not limited to the Consumer Protection Act and the Financial Intelligence Centre Act (FICA), the Company and/or the Auctioneer may from time to time request updated information from the User or from registered credit bureaus, to verify the User's information.
Should updated information be requested and be received within 7 (seven) business days of the request, the Users profile will remain active.
It is required by law that the Company and/or the Auctioneer is notified without delay of any changes to the Users information.
Any documentation held by the Company and/or the Auctioneer may be provided by the Company and/or the Auctioneer, to a party with whom the User has successfully concluded a transaction on the Website. The documents and information shall only be provided in relation to and as is necessary for the concluded transaction.
The Company and the Auctioneer shall comply with any lawful request for information, with regards to Goods or Users.
By accepting these terms and conditions, the User consents to the use and transfer of information to third parties, to conduct the procedures as set out in this clause 4.6.
The User furthermore agrees and consents to the Company and the Auctioneer having access to and/or conducting credit reference checks in relation to the User.
DealersOnline shall act as the Auctioneer and the auction is a closed auction as defined in the Regulations.
All bids will be submitted electronically through the Website and no alternative form of a bid will be accepted or considered valid for any reason whatsoever.
Where the auction is subject to a Reserve Price, the Seller reserves the right to reject any bid below the minimum Reserve Price.
By placing a bid, the User warrants that they have the ability and the intention to proceed with the purchase of the Goods. All successful bids placed by the User constitute an irrevocable offer by the User to the Seller and may not be withdrawn by the User, unless otherwise agreed in writing by the Seller, or if the User falls within the ambit of the CPA (insofar as the CPA is applicable).
The Company, the Auctioneer and/or the Seller reserves the right, in its sole and absolute discretion to withdraw its listed Goods from auction at any time before acceptance of a bid.
Each and every auction shall open when the Goods are uploaded onto the Website, unless indicated otherwise on the Website.
All auctions and biddings shall close on its respective indicated closing date on weekdays or Saturday at 15h00.
The Company and/or the Auctioneer endeavours to use its best efforts to notify a bidding subscriber, per short message service or electronic mail, if any higher bids are placed on the Website immediately before the 15h00 close time.
Where such a bid is placed the User will have an additional 6 (six) minutes in which to continue bidding.
The process referred to in this clause 5.6.3 shall continue until the competitive bidding ends.
By way of an example and in order to clarify the provisions of this clause 5.6.3, if bidder places a bid at 14h59 then the bidding process will continue up until and including 15h05 and if a bid is then placed at 15h05 then the bidding process will continue up until and including 15h05. This process will continue until no more bids are placed on the particular Goods within the last 6 (six) minutes of the auction (which continuation of the aforementioned competitive process shall be at the sole and exclusive discretion of the Company).
Neither the Company or the Auctioneer will be held liable in the instance where the competitive process referred to in clause 5.6.3 above does not take place and the auction closes, for whatsoever reason, at 15h00. In such an instance the Company and/or the Auctioneer shall have the sole discretion as to re-start the auction, reopen the auction or sell the Goods to a bidder as determined 15h00.
Save for the situation provided for in clause 5.9 below, notice of acceptance of a successful bid will be forwarded by electronic mail, to the Buyer notifying him of his successful purchase of the Goods. The receipt of such notice by the Buyer shall bind him to purchase the Goods from the Seller at the amount bid by the Buyer on the Website.
Receipt of the electronic mail notice referred to in clause 5.8 above sent as a result of, among other things, a Website error or a defect in the Website or server will not be binding on the Company, the Auctioneer and/or the Seller and the Company and/or the Auctioneer reserves the right to retract the notice in such circumstances. The User shall have no recourse against the Company, Auctioneer and/or the Seller in such circumstances whatsoever.
In the event that a sales transaction is in dispute due to, but not limited to, the vehicle not being as described on the auction, either party to the transaction, Buyer or Seller, shall attempt to resolve the matter between themselves. If no resolution is reached between the Buyer and the Seller, the sale transaction shall be cancelled or reversed, however either party can submit complaint to the Auctioneer at firstname.lastname@example.org in order to assist the Parties with the dispute at hand and to provide a viable resolution going forward. Kindly refer to the Dispute Resolution clause (clause 12) below for further information.
In the event where the sale transaction is cancelled for no viable reason or due to fault from the Seller (Example: Seller misrepresented the Goods), then Sellers commission applicable to said transaction shall still be due and payable.
The Seller agrees that in the event where a sales transaction is cancelled or reversed, the Goods shall be re-listed with similar reserve price at least once after said cancellation or reversal for auction on the Website until closing date of said re-listed auction.
The Auctioneer and/or the Company shall notify the successful Buyer, on behalf of the Seller, of its acceptance of its successful winning bid via email at close of auction.
Following receipt of the aforementioned confirmation notice from the Seller the following procedure will apply:
Payment from the Buyer for the respective Goods shall be due within 2 (two) business days of receipt of the Tax Invoice and copy of Natis in Seller’s name from the Seller, by way of electronic funds transfer or bank guaranteed cheque.
The Tax invoice shall consist of the Purchase Price with applicable VAT thereto, the Bank details where payment must be paid into, and the Reference Code to use when making the payment.
A Copy of the Natis document will be supplied with the Tax Invoice to the Buyer, if noted as available on the system.
The Seller must ensure that the Tax Invoice as per clause 6.2.3 above, reflects the Title Holder/Owner details as contained within the copy of Natis document in order to ensure payment from the Buyer.
The Seller shall notify and advise both the Company and Buyer if there are any delays with regards to getting the Natis up to standard in order to reflect the details as per clause 6.2.4 above.
The Buyer shall issue the Seller with a confirmation of payment as soon as payment is made to its nominated/designated email address.
All amounts are quoted and payable in South African Rand, unless otherwise stated and are inclusive of VAT.
The Seller shall give, and the Buyer shall take possession of the Goods within 7 (seven) business days after all sums owing to the Seller have reflected as Cleared Funds in the Seller's nominated bank account. The Buyer shall collect the Goods directly from the Seller.
The Seller shall be liable for any and all fines on the Goods until such time that possession of the Goods have transferred to the Buyer.
Should the Buyer fail to collect the Goods from the Seller within a reasonable time as aforementioned (clause 7.2 above) then the Seller shall be entitled to store the Goods which storage and associated costs shall be for the Buyer's sole account and will not exceed an amount of more than R250.00 (Two Hundred and Fifty Rand) per day (VAT inclusive). The Seller shall be entitled to not release the Goods to the Buyer until such time as the storage and associated costs have been paid by the Buyer and the Seller will hold a lien over such Goods.
The Company and/or the Auctioneer may, at its discretion, terminate the User’s access to buy or sell on auction in the following, but not limited to events:
The User has provided the Company and/or the Auctioneer with false or misleading information;
The User did not make payment for the Goods within viable timeframe;
The Seller has listed Goods not in its possession or ownership;
The User has committed an offence of fraud or money-laundering (this will result in permanent termination and notification to authorities);
The User has outstanding fees owing to the Company (this can result in legal action being taken against User);
The User did not comply with any other terms and conditions and/or any applicable law.
The Company and/or the Auctioneer shall duly notify the User if said access is terminated, with explanation as to why such termination occurred and the respective re-activation fee applicable thereto (if any).
Should the User, wish to gain access to participate in the Company's auctions again, the Company can, at its discretion and depending on degree of offence committed, allow participation once the payment of a non-refundable re-activation fee is made, as follows:
First Offence: R 2 500
Second Offence: R 5 000
Any Offence thereafter: R 10 000 per cancellation
Where access was terminated in the case of outstanding payment to the Company (clause 8.1.5), then the outstanding amount must be paid in full as well as respective re-activation fee.
the information provided by it during the Website registration process is true and correct in all respects;
upon the submission of a bid, the User is willing and able to effect payment of that sum plus any additional costs specified on the Website;
it has not, directly or indirectly, engaged in or been involved in bid manipulation and/or unfairly induced any other person to make bids and/or alter and/or affect the bid price and/or in any way colluded with any person whomsoever, juristic or natural, to alter or attempt to alter a fair bidding process;
it agrees that the successful bid shall be the final purchase price for the Goods, and it shall not negotiate the purchase price of the Goods with the Seller;
it shall not contact or request the Seller to remove the Goods from auction;
it has viewed and/or inspected the Goods and/or hereby waives its right to view and/or inspect the Goods and has satisfied itself as to the condition thereof;
The User furthermore warrants that he/she is over the age of 18 (eighteen) years.
it is the owner or authorised agent of the Goods;
it shall act in good faith and has used its best endeavours to conduct all necessary checks on the Goods in order to accurately describe the Goods on the Website and the listing description is accurate (it however being understood that it is the obligation of the Buyer to conduct the necessary investigation to satisfy itself as to the correctness of the information therein contained);
it shall use its best endeavours to not provide a wilful misrepresentation in the description of the Goods;
the Goods will be made available for inspection by the User on reasonable notice;
it shall not remove the Goods from auction to accommodate or by request from potential Buyer;
the Goods will, as at the Effective Date, be in the same or similar condition as at the listing date; and
the Goods will be available for collection within business hours immediately after confirmation of receipt of Cleared Funds into the Seller's nominated bank account.
Other than the representations stated in these terms and conditions or the warranties as provided for in the CPA (if applicable) and ECTA, where applicable, the User acknowledges that neither the Company or the Auctioneer has made any representations or warranties, implied or otherwise, to the User and/or the Seller in connection with the Goods, prior to the Contract having been made or the terms and conditions.
In the event of the User breaching (Breaching Party) any of the terms and conditions, the Company and/or the Non-Breaching Party (where applicable) shall be entitled (but not obliged) by written notice to the Breaching Party to:
claim specific performance; or
cancel the Contract (and any sale concluded in terms thereof); and
In either of the above instances the Non-Breaching Party may claim such damages as it may have suffered as a consequence of the Breaching Party’s breach.
The aforegoing remedies shall be in addition to such remedies which the Non-Breaching Party may have available provided by law.
The Website, these online terms and conditions, the Contract and any contract entered into between the Company and the Buyer and/or Seller shall be subject to the laws of the Republic of South Africa.
In the event of the User and/or the Seller committing any breach or in the event of the Company being required to take any legal action, the User and/or Seller agrees and undertakes to pay the Company's legal costs on the scale as between attorney and client, including collection commission, tracing fees, valuation charges, transport costs and other expenses in connection therewith.
As mentioned in clause 5.10 above, the Auctioneer and/or the Company can be asked to assist where there is a dispute between the Parties regarding a transaction.
Either Party to the transaction can notify the Auctioneer and/or the Company to fulfil this role in order to assist with the dispute to assist in finding an amicable solution to resolve the dispute in question.
The following procedure shall be followed in the case where the Auctioneer and/or the Company is asked to assist with the dispute between the Parties:
Either Party to the transaction in dispute must notify the Auctioneer and/or the Company in writing of the respective dispute and intend of appointing the Auctioneer and/or the Company to assist in trying to resolve the dispute.
The Auctioneer and/or the Company shall notify both Parties to the transaction in dispute in writing of its acceptance in this role and request from both Parties (as required) any information, including testimonies by the Parties regarding the dispute at hand.
The Parties must furnish the Auctioneer and/or the Company with the requested information (if any) within 1 (one) business day of request.
The Auctioneer and/or the Company shall review and evaluate the information and testimonies received and provide the Parties with feedback within 3 (three) business days after receiving all required and requested information.
The Auctioneer and/or the Company shall make a finding on the most amicable solution to resolve the dispute, supported by all information provided by the Parties.
Kindly note, that neither the Auctioneer and/or the Company is an Arbitrary tribunal and possible solutions provided by the Auctioneer and/or the Company cannot be enforced and shall only serve as the most viable solution/s or advice to follow from the perspective of the Auctioneer and/or the Company in terms of the dispute in question.
Where the Parties can’t resolve the dispute by means of discussions and dispute resolution, they may proceed with any route available to them in law.
Save for the provisions of section 43(5) and 43(6) of ECTA, neither the Auctioneer, the Company nor its duly authorised agents or representatives shall be liable for damages, loss or inability to use the Website, the services or content provided therein. Furthermore neither the Auctioneer or the Company makes any representation or warranties whatsoever that the content and/or the technology available on the Website is free of errors, omissions, and viruses of any nature or free of interruption.
Any and all information on the Website should not be regarded as professional advice or the official opinion of the Company and/or the Auctioneer and it is the User's responsibility to ensure the correctness of any of the content displayed on the Website.
No right or license is hereby granted to any User, whether juristic or natural, to any trademark, mark, branding, design or any other intellectual property of the Company or Auctioneer whatsoever.
All material located on the Website including, without limitation, text, logos and images may not be copied, reproduced, republished, downloaded, posted, broadcast or transmitted in any way whatsoever except for the User's personal non-commercial use.
The User agrees not to adapt, alter or create any derivative work from any of the Company's or Auctioneers (as applicable) material contained on the Website nor to use any of the Company's or Auctioneers (as applicable) content for commercial use in any way whatsoever, without the Company's or Auctioneers (as applicable) prior written approval.
Notwithstanding, and in addition to any other provision in this terms and conditions, you agree that neither the Company or the Auctioneer will 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 site, the services, or as a consequence of such use, access, reliance, or inability to access the site, including, but not limited to any loss relating to one or more, or a combination, of the following:
in relation to trading on this site, that bids were not processed or accepted due to technical difficulties or for any reason whatsoever;
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;
any errors or omissions in any documentation or other provided by us and any errors or omissions in any data on this site, or any breach of contract or negligence on the part of us, our employees, agents or authorised representatives;
any reliance on, the information and material contained on this site about any vehicles or any other information whatsoever.
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.
Notwithstanding anything else in this terms and conditions 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 terms and conditions, 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).
The Company shall take reasonable steps to protect the personal information of the User collected by the Company through the Website. For the purposes of this clause "personal information" shall have the same meaning assigned to it and as defined in POPIA.
The personal information will not be made available to any third party without the User's consent or unless required by means of complying with legislation, in legal process or proceedings or to protect the rights, property or safety of the Company or other parties or as required for the performance of the obligations of the Company. The User acknowledges that the Company will supply the Seller and all other necessary third parties with the User's personal information for the purpose of necessary performance and/or conclusion of a transaction for the sale of Goods.
The User recognises that it is the User's sole responsibility to protect its Website username and password.
The User agrees that the Auctioneer and the Company may use its confidential information to communicate with the User from time to time, unless otherwise specified by the User in writing.
Please open the link attached to review our PAIA Manual: Company PAIA Manual.
The Company shall have an absolute discretion to change these terms and conditions at any time. If we do so, we will post the amended terms on the Website, which amended terms shall be effective forthwith. By accepting these terms and conditions and continued usage of the Website, 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 Website and services after any changes to these terms and conditions have taken effect in accordance with this clause will be deemed to be your acceptance of those changes to these terms and conditions.
These terms and conditions constitute the entire agreement between the Parties hereto.
Nothing in these terms and conditions shall be deemed to constitute any Party as the agent, partner or joint venture of another Party.
The Users 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 terms and conditions.
Other than as otherwise specified in this terms and conditions, neither the failure of a Party to enforce at any time any of the provisions of this terms and conditions 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.