UNITED AUTOMART AUCTION
USER AGREEMENT AND TERMS AND CONDITIONS
Please read the terms and conditions of this User Agreement carefully. This agreement constitutes a legally binding and enforceable agreement between you and United Motors Lanka PLC (‘UML’), a company incorporated and existing in Sri Lanka located at 100, Hyde Park Corner, Colombo 2, Sri Lanka, the owner and operator of the ‘United Automart Auction’ online platform and related website. This Agreement governs the terms and conditions subject to which you may use the Website and the Services provided by UML through the Website, including the listing and advertising of vehicles, the conducting of the online auction and completion of vehicle sale transactions through the “United Automart Auction” platform.
The terms and conditions contained herein may be amended from time to time with or without notice to you. Whenever this User Agreement is amended, the revised version of the User Agreement will be posted on our Website and when you click on the ‘Terms’ link you will be directed to such revised version of the User Agreement. You should therefore read this User Agreement periodically so as to keep yourself updated with the terms and conditions applicable to the Services in force at any given time. Your acceptance of the terms and conditions includes acceptance of any amendments to such terms and conditions done from time to time.
· “Auctioneer” means United Motors Lanka PLC and where the context so permits, includes the person actually conducting Auction on behalf of United Motors Lanka PLC.
· “Bidder” means the person who uses the Platform (as defined below) to bid for Vehicles listed for auction on the Platform acting as the principal or as an agent of another party (in which case prior consent of such other party and identity details shall be provided to the Auctioneer)
· “Buyer” means the person in who’s name the auctioned Vehicle is purchased consequent to a successful bid and the person bound as purchaser on a Contract of Sale for the relevant Vehicle
· “Content” means any and all content, information, data provided by a user of the Website or Services for the purposes of obtaining the Services and using the Website
· “Contract of Sale” means the contract between the Seller and Buyer for the sale and purchase of a Vehicle pursuant to a successful bid for the Vehicle made on the Platform
· “Platform” means vehicle auction platform operated by UML through the Website
· “Seller” means the registered owner of a Vehicle listed for auction on the Platform and the person bound on a Contract of Sale of that Vehicle consequent to a successful bid made on or through the Platform
· “Service” or “Services” means all the services and any other features, technologies and/or functionalities offered by us on our Website and Platform or through any other means.
· “Vehicle” means a vehicle listed by a Seller on the Platform for sale by auction – for the purposes of the Auction, the listed Vehicle shall be referred to as a ‘Lot’.
· “we,” “us” or “our” means United Motors Lanka PLC
· “Website” means the www.unitedautomart.lk website
2.1 Eligibility – To be eligible to use the Platform and the Services and to participate in an Auction, you must be at least 18 years old. For the avoidance of doubt, all Bidders, Buyers and Sellers must be at least 18 years old.
2.2 Information – In order to use the Services, you must provide us with correct and up-to-date Information.
2.4 Primary e-mail. At the time of registration, you will be required to provide an e-mail address which will function as your primary e-mail address when we communicate with you electronically. It is your responsibility to keep your primary email address up to date and operational at all times. You understand, acknowledge and agree that if we send you an electronic communication but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic communications, we will be deemed to have provided the communication to you effectively.
3. LISTING OF VEHICLES FOR AUCTION
3.1 Listing of Vehicles
3.1.1 Vehicles for sale by auction through the Platform may be listed on the Website subject to this User Agreement.
3.1.2 By accepting this User Agreement and submitting your Vehicle for listing, you agree that your Vehicle can be listed for sale by auction on our Website.
3.1.3 You agree and understand that the decision to list a Vehicle on the Website shall be at our complete discretion.
3.1.4 You agree and understand that we are entitled to remove your listing from our Website at our discretion, with or without notice to you.
3.1.5 You are entitled to request us to remove your listing from our website, or amend the details relating to your listing, at any time after accepting these Terms and Conditions and prior to any bids being received in respect of the relevant Vehicle.
3.2 Seller obligations and representations
3.2.1 You acknowledge that we do not carry out an independent verification of the truth, accuracy or adequacy of Content provided in respect of Vehicles listed on the Website and that, in particular, we do not verify the Seller’s right, title, or interest to the Vehicles or the Seller’s right to sell the Vehicles. The Seller takes sole responsibility and liability for the Content provided for the listing.
3.2.2 The Seller Content provided by the Seller in respect of a Vehicle shall include all information pertaining the brand, model, year of manufacture, mileage, specifications, history and condition and other information pertaining to the Vehicle and shall include photographs. UML shall have the right to require the Seller to provide further information pertaining to a Vehicle as and when required. The Seller warrants and undertakes that he will disclose all material information pertaining to the Vehicle, including its history and condition, necessary for a Bidder to form an informed opinion about the Vehicle.
3.2.3 By accepting this User Agreement and submitting a Vehicle for listing, the Seller undertakes, warrants and represents that the Seller is the registered owner of the relevant Vehicles, that the Seller has full legal right and title to the Vehicles and the full legal right to sell the Vehicles, that the Vehicles are not subject to any mortgage or encumbrance in favour of any third party, or any hire purchase or leasing arrangement whereby the absolute ownership of the Vehicle vests in a third party. The Seller also agreed unconditionally and irrevocably to be bound by a Contract of Sale of the relevant Vehicle pursuant to a successful bid for the Vehicle at an Auction carried out through the Platform.
3.2.4 The Seller warrants and represents that all Content provided by the Seller in respect of his identity and Vehicles listed by him is true and accurate.
3.2.5 By submitting Content for purposes of listing, publishing and promoting a Vehicle on the Website, the Seller warrants and undertakes that he has the necessary right and authority to so, and that such listing, publication and promotion and/or use and/or dissemination of the Content will not violate or infringe any third party copyrights or other intellectual property rights in or to the Content or any data or information included in the content or breach any non-disclosure obligation.
3.2.6 The Seller acknowledges that the listing of a Vehicle on the Website does not guarantee that the Vehicle will be sold by Auction and/or that the price required by the Seller will be realized. The Seller agrees and acknowledges that in the event the there are no bids that are equal to or in excess of the Reserve Price for the Vehicle (as defined below), the relevant Vehicle may be withdrawn from the Auction.
3.2.7 The Seller shall indemnify us as well as our officers, directors, employees, agents and contractors from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any breach of your above warranties, representations and undertakings.
4. THE AUCTION
4.1 The Auction shall be conducted in accordance with the following terms.
4.2 Bidder Registration
4.2.1 All prospective Bidders shall complete the Bidder’s Registration Form giving full contact details, including residential address, and obtain a Bidder’s Number prior to bidding for any Lots. Bidders shall also provide such proof of identity as may be required by the Auctioneer.
(a) All bids shall be made online through the Platform (‘Bids’) and shall be in the format provided, and shall be subject to this User Agreement
(b) By submitting a Bid, the Bidder represents and warrants that he is able to purchase the relevant Lot bid for at the price stated in the bid, and that he or, where the Bidder is acting as the agent for a Buyer, the Buyer, will be irrevocably bound on a Contract of Sale for the relevant Lot in the event the bid is successful. The Bidder further represents and warrants that all information submitted in connection with a Bid (including information pertaining to the Buyer, where the bid is submitted as an agent on behalf of a Buyer) is true, accurate and not misleading.
(c) The Bidder agrees and acknowledges that he is and will be personally liable on all Bids submitted, and that will be jointly and severally liable with the Buyer (where the Bidder is not himself the Buyer) on any Contract of Sale resulting from a successful Bid.
(d) The Auctioneer has the right to refuse or accept a Bid without any reason.
(e) The Auctioneer shall have the right to bid on behalf of the Seller with or without disclosure.
(f) Bids once made cannot be withdrawn.
(g) When demanded by the Auctioneer, non-refundable cash deposit of 5% of the Reserve Price (as defined below), or such other amount as may be determined by the Auctioneer, shall be deposited with the Auctioneer by the winning Bidder.
(h) The decision of UML/the Auctioneer on any dispute over bidding shall be final and binding on all parties.
4.2.3 Reserve Price
Unless otherwise specifically mentioned each Lot shall be subject to a minimum bid price (’Reserve Price’) and if there is no bid that is equal to in excess of the Reserve Price at the end of the Auction, the relevant Lot shall be withdrawn from the Auction.
(a) Each Lot will display a planned Auction start time, the planned Auction closing time and the extension period (if applicable). The start time and closing time may be varied by the Auctioneer at his discretion. Granting of an extension for closing shall likewise be at the discretion of the Auctioneer.
(b) All Lots are open for inspection at United Motors Head Office location No 100 Hyde Park Corner Colombo 02. Or specified location of United Motors; prior to the Auction, and are sold ‘AS IS’ with all defects, faults and damages, if any. No error or misdescription shall vitiate a Contract of Sale pursuant to a successful Bid and the Buyer shall be bound to pay the amount of the winning Bid (the ‘Sale Price’) and take delivery of the Vehicles without allowance or abatement in price. No condition or warranty, either expressed or implied, is given by the Auctioneer on any Lot or Lots listed for auction.
4.2.5 The Auction
(a) The Auction will commence at the start time and a countdown clock will display the time until the Auction ends. The Auction will end at the stated time and date, unless extended by a Bid being received at or above the Reserve price within the specified period (normally 1 minute before the intended end time), whereupon the Auction will continue until there has been a set period where no additional higher Bids have been received (usually 1 minute).
(b) The highest unique Bid meeting or exceeding the Reserve Price shall be deemed the successful Bidder.
(c) If two or more Bidders attempt to lodge identical Bids, the first Bid received and acknowledged by the Platform will take precedence.
(d) The outcome of the Auction will be notified through the Platform at the end of the Auction.
(e) When, for any reason whatsoever, an Auction or Lot needs to be temporarily suspended, the current bidding price and the current highest Bidder will be recorded. Temporarily suspended Auctions and Lots will be clearly indicated when applicable.
4.2.6 Execution of Contract of Sale, payment and delivery
(a) As soon as possible after Bid closing time and upon the selection of the highest Bidder, the Buyer and the Seller authorize the Auctioneer to complete the Contract of Sale on their behalf, which, together with this User Agreement, shall constitute the whole contract between the Seller and Buyer relating to the sale and purchase of the relevant Vehicle/Lot to the exclusion of everything else.
(i) All Vehicles/Lots lie at the Buyer’s risk from the point of selection of the highest Bidder. While UML/the Auctioneer takes all due care in respect of the Vehicles/Lots, UML and/or the Auctioneer shall not be liability for any loss, damage or defect arising is accepted for any deficiency, damage or loss which may arise thereafter.
(ii) The highest Bidder/Buyer shall, within a period of five (05) working days from the selection of the highest Bid, deposit with the Auctioneer the Sale Price (less the refundable deposit paid in accordance with clause 4.2.2(g) above. The Sale Price shall be paid in cash or by way of bank draft.
(c) Upon payment of the Purchase Price, the Seller and the Buyer shall execute the requisite vehicle transfer forms (MTA 6, Forms A, A1, B and B1), and the MTA 8 Form shall be handed over to the Buyer. Duly executed MTA 6, A and A1 shall be handed over to the Seller and MTA 6, B and B1 shall be handed over to the Buyer. The Buyer undertakes to take all necessary steps as required by applicable laws and regulations to register the transfer of ownership of the relevant Vehicle in the name of the Buyer and shall keep UML/the Auctioneer freed and indemnified in this regard.
(d) All lots are available for immediate collection, under the supervision of the Auctioneer, on payment of the Sales Price and execution of the relevant transfer documents. The Buyer shall make arrangements to collect the purchased Vehicle within three (03) days of paying the Sale Price. Any Vehicle not so removed will incur a storage charge of Rs.1000/- per Vehicle/Lot per day, plus interest calculated at the applied weeks bank lending rates together with handling fees, at the Auctioneer’s discretion.
(e) In the event of non-compliance with any of the above terms and conditions, any money paid by the Buyer shall be absolutely forfeited, and the Vehicle may be resold, through auction or by any other means, without notification, at the risk and expense of the said Buyer. The Buyer shall be liable for any loss that may arise on such resale.
(f) The Seller agrees and acknowledges that there is no cover or guarantee that a Buyer will always pay the full Sale Price. Provided that if the Sale Price is not so paid within the specified time period, the Seller may withdraw the Vehicles physically or make arrangements for re auctioning. The Seller agrees and acknowledges that UML/the Auctioneer shall not incur any liability towards the Seller or any third party arising from a default by the Buyer of his obligations under the Contract of Sale or this User Agreement.
(g) Upon the execution of the Sale Contract, the payment of the Sale Price and the execution of the relevant vehicle ownership transfer forms, the Auctioneer shall release to the Seller the Sale Price less the Auctioneer’s commission/charges per clause 4.2.7 below.
4.2.7 Auctioneer’s charges
For and in consideration of the services provided by the Auctioneer in respect of an Auction, the Auctioneer shall be entitled to a commission equivalent to
Passenger vehicle Sale value (Rs.)
Commission /Handling fee
3 million to 4.99 million
5 million to 5.99million
6 million to 8.999million
9 million to 14.99million
15 million up word
the Sale Price on every completed Contract of Sale executed in respect of a Vehicle/Lot successfully sold by Auction through the Platform.
The Buyer acknowledges that we do not carry out an independent verification of the truth, accuracy or adequacy of Content provided by a Seller in respect of Vehicles listed on the Website and that, in particular, we do not verify the right, title, or interest of the Seller or his right to sell the relevant Vehicle. We take no responsibility and assume no liability for the Content of any listing on our Website and make no warranty (express or implied), guarantee or representation in respect of any Vehicle listed on the Website.
5.1 Content – All Content submitted for the purposes of using the Services belongs to you [subject to any third party rights in respect of such content and/or data or information included in such content]. You grant us permission to access, copy, distribute, store, transmit, reformat, publicly display and publicly perform the Content you submit to us solely as required for the purpose of providing the Services to you.
5.2 Responsibility for Content – You shall be solely responsible for the Content and all data and information contained therein submitted by you to the Website and the consequences of its transmission or publication. Any Content made public will be publicly accessible through the internet and may be crawled and indexed by search engines. Any Content that you may receive from other users of the Services, is provided to you AS IS for your information and personal use only and you agree not to use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit such Content for any purpose, without the express written consent of the person who owns the rights to such Content. In the course of using any of the Services, if you come across any Content with copyright notice(s) or any copy protection feature(s), you agree not to remove such copyright notice(s) or disable such copy protection feature(s) as the case may be. By making any copyrighted/copyrightable content available on the Services you affirm that you have the consent, authorization or permission, as the case may be from every person who may claim any rights in such content to make such content available in such manner.
Further, by making any Content available in the manner aforementioned, you expressly agree that we will have the right to block access to or remove such Content made available by you if we receive complaints concerning any illegality or infringement of third party rights in or by such content. By using any of the Services and transmitting or publishing any Content using such Service, you expressly consent to determination of questions of illegality or infringement of third party rights in such content by the agent designated by us for this purpose.
6. RESTRICTIONS ON USE
You agree to not use the Services (i) for illegal purposes; (ii) for the transmission of material that is unlawful, defamatory, harassing, libellous, invasive of another’s privacy, abusive, threatening, harmful, vulgar, pornographic, obscene, or is otherwise objectionable, offends religious sentiments, promotes racism, contains viruses or malicious code; (iii) in a manner that infringes or may infringe intellectual property or other rights of another; (iv) for the transmission of “junk mail”, “spam”, “chain letters”, “phishing” or unsolicited mass distribution of email; (v) in a manner that could damage, compromise, over-burden or otherwise impede the proper functioning of our systems, servers or resources. You shall also not use any false identity to mislead any person. We reserve the right to terminate your access to the Services if there are reasonable grounds to believe that you have used the Services for any illegal or unauthorized activity or you have otherwise breached this User Agreement.
7. OUR RIGHTS AND LIABILITIES
7.1 We reserve the right to suspend and/or cancel and/or modify and/or withdraw, temporarily or permanently, the Services and/or the Platform (or any part thereof) with or without notice to you and you agree and acknowledge that we shall not be liable to you or any third party for any modification to or withdrawal of the Services and/or the Platform.
7.2 We do not warrant an error free or uninterrupted performance of Website or the Services and/or the Platform or part or feature of the Website, the Services or the Platform.
7.3 We will use all reasonable endeavours to maintain the Website, the Platform and the Services and keep same operational so as to provide you with an uninterrupted service. However, there may be situations that render the Website and/or the Platform and/or the Services and/or any part or feature thereof temporarily not operational due to reasons beyond our control and/or where we may be compelled to take the Website and/or the Platform and/or Services and/or any part or feature thereof offline and/or interrupt the Services or any part or feature thereof for, inter alia, maintenance, rectification or updating. In such event we will use our best endeavours to keep you informed and updated of the operational status of the Website, platform and the Services so as to minimise any inconvenience to you. However, notwithstanding anything to the contrary contained elsewhere in this Agreement, we shall not be liable to you and/or any third party for any damages, including lost profits, lost savings or other incidental, consequential or special damages arising from or attributable or incidental to the Website and/or the Platform and/or the Services and/or any part or feature of the Website, the Platform or the Services being offline and/or not operational and/or taken down and/or suspended and/or inaccessible and/or interrupted and/or due to any error in the Website, the Platform or the Services due to any reason whatsoever even if we had been advised of the possibility of such damages.
7.4 In respect of Vehicles auctioned on and through the Platform, we act only as an intermediary between Seller and Buyer. We are not parties to, are not liable and will not assume any liability under the Contract of Sale in respect of any Vehicle/Lot purchased through the Platform.
8. GENERAL TERMS
8.1 Limitation of liability – IN NO EVENT SHALL WE, OUR PARENT, SUBSIDIARIES AND AFFILIATES, OUR OFFICERS, DIRECTORS, AGENTS, JOINT VENTURES, EMPLOYEES OR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF DATA OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THE APPLICATION, THE SERVICES, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE) AND ALL SUCH LIABILITY TO YOU OR TOO ANY THIRD PARTY WHATSOEVER IS EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN ANY EVENT, AND WITHOUT PREJUDICE TO THE FOREGOING, THE ABSOLUTE MAXIMUM EXTENT OF OUR LIABILITY TOWARDS ANY PARTY IN RESPECT OF ANY AUCTION SHALL BE THE AMOUNT RECEIVED BY THE AUCTIONEER AS FEES OR COMMISSION ON THE RELEVANT AUCTION.
8.2 No Warranty – THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OF WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. UML, AND AFFILIATES, OUR OFFICERS, DIRECTORS, AGENTS, JOINT VENTURES, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.3 Indemnification – You agree to defend, indemnify and hold us, our affiliates and our officers, directors, agents, joint ventures, employees and suppliers harmless from any claim, demand (including reasonable attorneys’ fees), fine, or other liability incurred by any third party due to or arising out of your breach of this User Agreement and/or use of the Services.
8.5 Assignment – You may not transfer or assign any rights or obligations you have under this Agreement without our prior written consent. We reserve the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
8.6 No Waiver – Our failure or delay to act with respect to a breach by you or others does not waive our right to act with respect to such breach or any subsequent or similar breaches.
The appropriate Courts of Colombo, Sri Lanka shall have jurisdiction to hear and determine any matter arising from this User Agreement.
10. GOVERNING LAW
This User Agreement shall be governed by and construed in accordance with the laws of Sri Lanka.