WINFOOZ USA INC. ARBITRATION POLICY
GENERAL TERMS AND CONDITIONS
“Arbitration” means the dispute resolution process as described in the Arbitration section of these Terms and Conditions;
“Arbitration Dollar Threshold” has the meaning given to that term in section 45;
“Arbitrator” means an individual or individuals appointed by Winfooz USA Inc. to facilitate the resolution of Arbitration claims between Buyer and Seller;
“Available” means that a sold Vehicle is grounded at the Seller’s location, available for pick-up by the Buyer and noted as such in the Winfooz System;
“AS IS” means the Vehicle is being sold with limited Arbitration rights;
“Buyer” means a Customer who offers to bid, offers to purchase or purchases a Vehicle or other assets through the Winfooz USA Inc.;
“Condition Report” means a description of the physical and/or mechanical condition of a Vehicle including any Vehicle photographs and/or multimedia whereas any specific required disclosures are made available to prospective Buyers. The Condition Report must follow the Arbitration policies and disclosure requirements of these Terms and Conditions and must give the Buyer a reasonable understanding as to the true Condition of the Vehicle;
“Customer” means any person or business using or accessing the Winfooz Platform. All users must hold a valid Dealer/Salesperson license, be authorized to represent their dealership and have an assigned username and password;
“Delivered” means a Vehicle that has been picked up from the Seller’s lot by the Buyer and has been marked as such in the Winfooz System;
“Disclosure” means the provision of details regarding material facts, defects or damages of a specific Vehicle as documented in a Vehicle Condition Report. Required Disclosures are set forth in the Arbitration Policy;
“If Bids” mean when the bid does not reach the Seller’s Reserve Price, the Seller may initiate the If Bid feature on the Winfooz Platform to negotiate directly with a bidder regarding the tendered bid price;
“Major Deception” means an act, representation or omission that, having regard to all of the circumstances would reasonably be regarded as misleading, unprofessional, or unethical and includes, but is not limited to, the failure to make a Disclosure which materially affects the value of the Vehicle;
“Marketplace Platform” means the Winfooz online Marketplace Platform including all of its associated products and services;
“Material Fact” means any fact about a Vehicle that, if disclosed, could reasonably be expected to influence the decision of a reasonable purchaser and/or would significantly affect the value of a Vehicle;
“Reserve Price” means the minimum price established by the Seller at which a Vehicle will be sold if bidding is completed and the Reserve Price is met or exceeded. If the Reserve Price is not met at the completion of the bidding, the high bidder automatically goes into an “If Bid” status where the Seller can either accept or reject the high bid or enter negotiations with the Buyer;
“Seller” means a Customer who offers a Vehicle for sale or who sells a Vehicle on the Marketplace Platform;
“Services” means the tools and Services provided by Winfooz Ltd. and Winfooz USA Inc. to facilitate the sale of Vehicles, including any associated products and services provided to its Customers;
“Vehicle” means any automobile, truck or sport utility Vehicle listed on the Marketplace Platform. Vehicle may also include, but is not limited to, recreational Vehicles, motorcycles, trailers, boats and off-road sport Vehicles.
“Vehicle Release Form” means an electronic or paper documents that must be presented by the Buyer or Buyer’s representative to the Seller or Seller’s Representative at the grounding location in order to obtain the release of a purchased Vehicle.
2. Vehicle History Reports
By default, any car added to Winfooz will have a Vehicle History Report attached to it. With or without this report, Sellers are bound to properly disclose all Material Facts about a Vehicle they are offering for sale. Sellers are responsible to ensure all material facts are disclosed in the Condition Report. Winfooz is not responsible for inaccurate information provided by any Vehicle History provider.
Every dealer and salesperson must comply with all federal, state and local laws with respect to their buying and selling activities on Winfooz.
4. Winfooz Marketplace Platform
Winfooz Ltd. provides a Marketplace Platform to facilitate wholesale automobile transactions. The responsibility for completion of such transactions rests solely on the Buyer and Seller. Winfooz does reserve the right to suspend and remove any delinquent Buyers or Sellers from the Marketplace Platform.
5. Liability and Risk
Winfooz USA Inc. assumes no liability for loss or damage to Vehicles listed on the Winfooz System. Winfooz does not provide insurance coverage for Vehicles.
6. Limitation of Liability
Customer agrees that Winfooz USA Inc. will not be liable for loss of profits or for any claim against the Buyer or Seller or any third party. It is the Sellers responsibility to secure proper payment before releasing a Vehicle. Winfooz USA Inc. will not take responsibility for any claims arising from the purchase or sale of Vehicles on the Marketplace Platform. The Customer agrees to indemnify and hold Winfooz USA Inc. harmless from, and against any and all liabilities, damages, losses, expenses, demands, claims or suits. Winfooz USA Inc. is a software service provider and is not a party to transactions conducted on the Marketplace Platform between Buyers and Sellers. Winfooz USA Inc. does not own or take title to Vehicles listed or sold on the Marketplace Platform.
Winfooz USA Inc. will not be liable to either the Buyer or Seller for any defects of any Vehicle. Winfooz USA Inc. does not make any guarantees or warranties with respect to any Vehicle offered for sale on the Marketplace Platform.
All representations and warranties stated by the Seller are those of the Seller only. Winfooz hereby expressly disclaims any and all representations, warranties, and guarantees of every kind, whether expressed or implied, as to any vehicle sold or offered for sale, including, without limitation, the vehicle description, condition, structural integrity, equipment, warranties, service policy, ownership status/accuracy, liens/encumbrances, or odometer reading or disclosure.
Although a beneficiary of certain rights in the bill of sale, Winfooz is not a party to the contract of the sale. The sales transaction is between the Seller and the Buyer only. The Seller is required to give an accurate odometer disclosure in connection with any sale. Winfooz is not responsible for the accuracy of odometer readings, odometer statements, or damage disclosure statements.
By doing business on the platform, you authorize Winfooz USA Inc. to comply with authorities requests for information and/or documents concerning you and your business if, and when, reasonable requests from such authorities arise.
9. Listing a Vehicle on the Platform
A Seller will provide all required Disclosures and any and all other required information to list a Vehicle for sale on the Marketplace Platform.
10. Bidding on the Platform
A Buyer may bid on a Vehicle that is listed for sale by entering the dollar amount they wish to bid. Once a bid is submitted, it cannot be withdrawn. All bids are final and binding.
11. Vehicle Payment Terms
Customer shall pay Winfooz USA Inc. the total purchase amount via electronic funds transfer in American dollars or such other payment method approved by Winfooz USA Inc. who reserves the right to specify the type of payment instrument it will accept from the Customer. Payment is required before the close of business on sale day. If payment in full is not received within 48 hours of the sale day, the Vehicle may be re-sold at the next Winfooz sale on an unreserved basis. The Buyer will be liable to Winfooz USA Inc. for all Losses incurred including the difference in sales price (if any) plus an $100 late payment Fee and collection costs including legal fees. Failure to pay promptly can result in the permanent loss of your Auction privileges
12. Liens on Vehicles
Sellers are responsible to ensure all vehicles sold on the Marketplace Platform are free of liens and encumbrances. If a lien has been paid out but is still listed on the lien registration system, the Seller must provide proof of lien release in the form of a letter from the secured party. Sellers have a maximum of 7 calendar days to provide proof of lien release. For Live Appraisals, this 7-day period cannot start prior to a Vehicle being available for pick-up from the Seller’s lot, also referred to as the Arrival date. If a Seller cannot provide proof of lien release within 7 calendar days, the buyer may file an Arbitration claim with Winfooz USA Inc. Any decision to cancel the sale or to extend the 7-day deadline will be at the sole discretion of Winfooz USA Inc. In the event a sale is cancelled as the result of an open and unreleased lien; the Seller will be held responsible for all reasonable expenses incurred by the Buyer. The Winfooz USA Inc. Arbitrator will determine what reasonable expenses are eligible for reimbursement from the Seller.
13. Seller Content
The Seller is solely responsible for all content they post on the Marketplace Platform and Winfooz USA Inc. shall not be responsible or liable to any Customer or third party for damages or costs resulting from such content. Winfooz USA Inc. reserves the right to modify, refuse or remove any and all Seller content at its sole discretion. The Seller represents that all Seller content is accurate and truthful and in compliance with applicable American laws.
14. Sale Cancellation
Winfooz USA Inc. may, at its sole discretion, cancel any sale transacted on the Winfooz platform. Reasons for cancellation include, but are not limited to, errors or omissions in vehicle descriptions or disclosures, pricing errors, title problems or any other matters deemed to be relevant by Winfooz USA Inc.
15. Fair and Reasonable Sale
Sales made on the Winfooz Platform are intended to promote fair and reasonable treatment of both the Buyer and the Seller. If Winfooz determines that a sale is not fair and reasonable with respect to either party, or that a clerical or administrative error has occurred, the Seller and the Buyer agree that Winfooz may, at its sole discretion, cancel or adjust the sale. This Winfooz USA Inc. Arbitration Policy applies to all vehicles offered for sale through the Winfooz USA Platform. Any arbitration conducted under this Policy is also subject to the Winfooz Terms and Conditions, to be read consistently with this Policy.
16. Required Disclosure
The Seller is responsible to ensure all material facts relating to the history and condition of each Vehicle listed for sale on the Marketplace Platform is disclosed. It is the Seller’s sole responsibility to ensure accuracy for all Vehicles listed. Condition Reports prepared by Winfooz USA Inc. are intended to provide our customers with a brief summary of the general features and condition of a Vehicle offered for sale. Although Winfooz tries to ensure that all Condition Reports are accurate, it is the Seller’s responsibility to correct any errors and to ensure that all Vehicles listed for sale are accurately described and that all required disclosures have been made. Winfooz USA Inc.’s Arbitration Policy, included herein, is compliant with the NAAA Arbitration Policy.
17. Vehicle History Reports
Winfooz provides an optional CarFax Report integration for Sellers. With or without the integration, Sellers are bound to properly disclose all Material Facts about a Vehicle they are offering for sale.
When you mark a Vehicle as Available, you are guaranteeing, representing and warranting to Winfooz USA Inc. and to the Buyer that you are authorized to sell the Vehicle, have good title to the Vehicle and that the Vehicle is free of all liens, charges, hypothecs, and encumbrances of any nature or kind whatsoever. Seller is required to provide Winfooz USA Inc. with a photograph of the original ownership in Seller’s name within 48 hours of the date the Vehicle is marked Available in the Winfooz USA Inc. system. Regardless of the method of payment and the status of the ownership registration, title to a purchased Vehicle does not pass to the Buyer until payment in full has been made and the funds have actually been received by Winfooz USA Inc. Seller reserves ownership of the Vehicle, and title to and ownership of the Vehicle will not transfer to Buyer until the sale price for the Vehicle has been paid in full to Winfooz USA Inc. for the benefit of Seller. If the purchase of the Vehicle is financed by any lender (a “Lender”) and the purchase price for
the Vehicle is paid to Seller (via Winfooz USA Inc.) by such Lender on behalf of Buyer (or by Buyer out of the proceeds of such financing), (i) Seller hereby assigns all of its rights under this contract, including its reservation of ownership, to Lender, and Buyer consents to such assignment, (ii) Buyer consents to the publication of a reservation of ownership by Seller and of the assignment thereof to Lender, by Seller, Lender or their representatives, (iii) Seller shall remain responsible as seller hereunder notwithstanding such assignment and shall indemnify and hold Lender harmless of any liability hereunder, and (iv) all terms and conditions of the loan and security agreement entered into or to be entered into from time to time by Buyer and Lender shall be applicable hereto and the purchase price of the Vehicle shall be payable in accordance with the provisions applicable to an advance made thereunder. If the purchase of the Vehicle is not financed by any lender, the Seller hereby assigns all of its rights with respect to the Vehicle to Winfooz USA Inc..
19. Price Boosting
Price boosting is strictly prohibited. Neither you nor any of your representatives, or agents may directly or indirectly bid on any Vehicles offered for sale by you through the Winfooz System for the purpose of attempting to increase the sale price.
20. Pre- Sale Inspection Services
Sellers may request a pre-sale inspection be performed on a Vehicle by contacting Winfooz USA Inc. or selecting this service on the applicable section of the Winfooz platform. All inspections are subject to the terms and conditions associated with the type of inspection selected.
21. Online Photographs and Videos
Photographs and videos must accurately and fairly represent the condition of the Vehicle. Photographs/videos of damage or other conditions that could materially affect the value of the Vehicle should be provided.
22. Payment Terms
Buyers must pay for all Vehicles purchased plus all applicable Fees by the end of business on the date of sale. Without limiting any other remedies available to it, Winfooz USA Inc. may retain possession of Vehicles purchased by Customers and/or withhold ownership documents until all amounts owed by the Customer to Winfooz have been paid.
23. Review of Vehicle Disclosures
This is a used Vehicle Auction. Most used Vehicles have defects, flaws and/or wear and tear. Please allow for this in your bidding. Before bidding on any vehicle, it is the Buyers’ responsibility to review all Vehicle information that is made available through the Marketplace Platform including Seller Disclosures, Vehicle History Reports and Condition Reports, online Remarks, Comments and Announcements Buyers are expected to carefully review all photographs. Any Vehicle damage apparent in the photos is not subject to Arbitration. It is the Buyers’ responsibility to verify the condition of the Vehicle within the time period for Arbitration as set out in the Arbitration Policies. Failure to file an Arbitration claim within the required time frame may result in the loss of Buyer Arbitration rights.
24. Information Inconsistencies
Information regarding the description, condition or history of a Vehicle may come from multiple sources (e.g. condition report, pictures, Vehicle History Reports, text announcements, etc.) which occasionally can result in duplicate and/or inconsistent information and Disclosures. If the information provided is inconsistent or unclear, please contact your Customer Service Representative for clarification prior to bidding.
25. Buyer Vehicle Inspection Obligations
Buyer or Buyer’s agent should carefully inspect the vehicle at the time it is picked up from the Seller’s location. Any concerns must be noted on the Bill of Lading which should be signed by a representative of the Seller. In addition, the Buyer is required to communicate any concerns to Winfooz within the arbitration period.
26. Post Sale Inspection Services
When available customers may request a post-sale inspection be performed on a Vehicle by contacting Winfooz USA Inc. or selecting this service on the applicable section of the Winfooz website. All inspections are subject to the terms and conditions associated with the type of inspection selected.
The Buyer is responsible for observing and understanding the sale lights. See Section 55.
28. Arbitration and Vehicle History Reports
Where a Vehicle History Report is made available to Buyer before or at the time of sale, it is the Buyer’s responsibility to read it. Information disclosed in a Vehicle History Report made available before the bidding begins will not be subject to Arbitration. If a Vehicle History Report is made available after the sale, the arbitration period for matters disclosed in the Vehicle History Report is limited to one day after the Vehicle History Report is made available, not to exceed the applicable Extended Arbitration period. Vehicle History Reports may occasionally contain inaccurate information. Arbitration may not be available for conditions disclosed in a Vehicle History Report if contradicted by other more reliable sources.
29. Collecting Vehicle
Vehicles sold on the Marketplace Platform must be collected from the Seller’s lot at the sole expense of the Buyer within three (3) business days from the date the unit is marked “Available” on the Winfooz Platform or, where a PSI has been requested, within three (3) business days of delivery of PSI results to the Buyer. If a Vehicle is being transported from the Seller to the Buyer, the Buyer is also solely responsible for this expense. If the Vehicle is damaged in transport, it is the sole responsibility of the Buyer and the transport company. Winfooz USA Inc. will not be held liable in any way for any damage to a Vehicle incurred while being transported. At Winfooz’s discretion, storage fees may be charged for failing to pick-up a Vehicle by the deadline. In addition, arbitration time limits may be shortened for failing to pick-up a Vehicle by the deadline.
Customers can arrange transportation directly from our Winfooz Trucking Platform. If you require assistance in arranging transportation, please notify a Customer Service Representative. Please note the limitation of liability section of the Policies regarding Transportation Losses.
If you are planning to export a Vehicle, you are responsible for ensuring that the Vehicle satisfies all American export requirements and all import requirements of the destination country. Winfooz USA Inc. does not supply documentation for import or export purposes. Arbitration is not available on claims that Vehicles do not meet applicable Export or Import requirements. Any Vehicle that has left the USA will not be eligible for Arbitration.
32. Verified Vehicle
Verified Vehicles are captured by trained Winfooz USA Inc. representatives. The Winfooz USA Inc. Vehicle Condition Inspector will ensure that Vehicle’s year, make, model and equipment are accurately recorded and all visual cosmetic damages are properly disclosed. Any undercarriage damage, structural damage or major mechanical problem disclosures are the sole responsibility of the Seller. Winfooz USA Inc. Vehicle Condition Inspectors do their best to ensure all visible damages are disclosed. It is the Buyer’s responsibility to view all photographs provided in the Vehicle listing prior to bidding. Sellers are responsible to review their listings to ensure all damages, required disclosures and mechanical issues are properly described. No one has the opportunity to know more about a vehicle than the Seller.
33. Expected Available Date – Appraisal Vehicles
In the event a Buyer has submitted a winning appraisal bid and the appraised vehicle has not landed at the selling dealership within 5 calendar days of the expected available date listed on Winfooz USA Inc., the buyer has the option to release his interest in the Vehicle and not accept the Bill of Sale. It is the Buyer’s responsibility to notify the Winfooz USA Inc. Arbitrator of their intent to exercise this option. The potential sale will be cancelled and the Seller will be informed of such cancellation.
34. Odometer Readings
Once a Vehicle is in Arbitration, the Buyer must not drive or test drive the Vehicle until a resolution has been determined. If the vehicle has been transported via carrier, no more than 75 additional miles can be recorded on the odometer. If the vehicle is a drive away, no more than 250 additional miles can be recorded on the odometer in order for the claim to be valid. In the event the odometer has exceeded the above guidelines, Winfooz USA Inc., at its sole discretion, can accept or deny the arbitration.
Appraisal valuation Buyers should expect a higher odometer reading than that disclosed at the time of appraisal. A continuation of normal driving based on Vehicle’s history can occur between the appraisal date and the Expected Delivery Date. Additional kilometers driven during this period will not affect a Buyer’s right to Arbitration.
35. Arbitration Claim Submission
In the event a Buyer feels there are inaccuracies or misrepresentations in a vehicle Condition Report, the Buyer has the right to contact the Seller directly for clarification or to seek a resolution. In the event a resolution is not attained, the Buyer can file an Arbitration claim with Winfooz USA Inc. The claim must be submitted within the Arbitration deadlines and after the Vehicle has been paid for and is in the Buyer’s possession. The Arbitrator will determine if the claim is on time and valid. Buyer’s can complete an Arbitration Request Form available on the Marketplace Platform. If a Buyer is unsure whether a claim is valid they should submit the claim regardless, or they can contact the Arbitration Department directly at email@example.com. Arbitration claims must be submitted for verification before submitting. Arbitration submissions and inquiries must be made within the Arbitration deadlines.
36. Normal Arbitration Deadlines
The Normal Arbitration claims deadline is two (2) business days following receipt of the vehicle. Day 1 of the Arbitration time frame is the day of delivery and receipt of the Vehicle. (e.g. if a vehicle is delivered on a Monday at 1PM, any arbitration claim must be started by Wednesday at 1PM). In some circumstances, where the Vehicle is delivered via transport and delivered on a weekend, Day 1 for Arbitration will commence on the Monday of that week. The Buyer may be required to submit the transport bill of lading for proof of delivery date.
37. Extended Arbitration Deadlines
The Extended Arbitration claims deadline is ten (10) calendar days following receipt of the vehicle. The extended deadline is offered for issues that are more difficult to determine and/or more serious in nature.
38. NOT Eligible for Arbitration
Vehicles that are not paid and picked up within ten (10) calendar days of being available, are not eligible for arbitration unless the vehicle has been transported. In the event the vehicle is delivered via carrier, a 4-day grace period will be granted. (14 Total Calendar Days from the Date of Sale)
A Vehicle is not eligible for Arbitration if it is no longer in the Buyer’s possession or ownership.
Any single mechanical issue that can be repaired for $500 or less is not subject to any type of arbitration. This expense belongs solely to the buyer.
Any minor physical damage under $500 repair cost, non-cumulative.
39. Absent Title Policy
The arbitration window for absent vehicle titles is 31 to 90 calendar days after the vehicle’s sale date. Sellers have up to 30 calendar days from the date the vehicle is sold in the Winfooz System to deliver the vehicle title to Winfooz. The date the vehicle is sold is counted as Day 1. After 30 days (but before 90), the Buyer can open an arbitration claim if the Seller has not delivered the vehicle title. The Seller will have 48 hours after the arbitration claim is initiated to deliver the vehicle title. If the Seller fails to do so, the sale will be cancelled. Arbitration for absent vehicle titles will not be permitted before 30 days or after 90 days.. Sellers must provide a current KSR report for vehicles with California titles. Sellers will be responsible for all charges/penalties listed on the KSR report and Seller will be assessed additional charges if a current KSR report does not accompany the vehicle title.
40. AS IS
Vehicles sold for less than $3000 are considered AS IS and are not eligible for normal Arbitration. AS IS vehicles can only be Arbitrated for the following:
- Odometer issues such as rollback, replacement, TMU/NAM;
- Title issues;
- Branding issues;
Unless otherwise indicated, vehicles 10 model years and older are not subject to mechanical arbitration and are considered AS IS condition.
Unless otherwise indicated, vehicles over 100,000 miles are not subject to mechanical arbitration and are considered AS IS condition.
41. Major Deception
Sellers are cautioned that Winfooz does not tolerate deceptive selling practices. Accordingly, Winfooz reserves the right to allow expanded arbitration notwithstanding a vehicle’s “AS-IS” designation if Winfooz determines that the Seller has engaged in major deception. An arbitration ruling in favor of the Buyer will occur in cases of major deception on the part of the Seller. Arbitration for mechanical issues will be rarely permitted and generally will be limited to undisclosed major engine/transmission issues making the vehicle undriveable. For “AS-IS” vehicles that sell for less than $3,000, arbitration is limited solely to mileage/odometer and title issues.
42. Open Recalls
Winfooz USA Inc. follows the NAAA standards for Open Recalls (https://www.naaa.com/Policy/open_recall.html). The National Highway Traffic Safety Administration (NHTSA) launched a VIN lookup tool in August of 2014, available at www.safercar.gov, which provides open recall status on vehicles. A Seller will build credibility in its product, and a Buyer will have more confidence in its purchase decisions, when there is disclosure and/or awareness of all material facts about a vehicle being offered for sale/considered for purchase. As such, Winfooz USA Inc. recommends Sellers use NHTSA’s VIN lookup tool on each vehicle registered for sale and provide disclosure to Buyers of such information in the event an open recall exists on any particular vehicles and that Buyers use NHTSA’s VIN lookup tool on each vehicle being considered for purchase to ensure awareness of all material facts prior to bidding on vehicles. The US National Highway Traffic Safety Administration (NHTSA) both offer search tools which provide open recall status on vehicles. A Seller will build credibility in its product, and a Buyer will have more confidence in its purchase decisions when there is disclosure and/or awareness of all material facts about a vehicle being offered for sale or considered for purchase. *Please note, this recommendation does not change current arbitration policies. If, due to the nature of the recall, the dealer is prohibited by law from retailing the vehicle in the USA, the outstanding recall must be disclosed.
43. Arbitration Policies
Winfooz USA Inc. disclosure requirements and Arbitration Policy are compliant with the the National Auto Auction Association (NAAA). Winfooz USA Inc. offers an arbitration service to resolve disputes between Buyer and Seller. Our arbitration service is governed by the Terms and Condition. The arbitration process is designed to be fair, impartial, efficient and economical. In addition, the supplementary arbitration rules set out in these Terms and Conditions apply to all vehicles offered for sale through the Winfooz Platform. If there is a conflict between the NAAA Arbitration Policy and these Terms and Conditions, these Terms and Conditions shall prevail to the extent of the inconsistency. The NAAA Arbitration Policy can be viewed at: www.naaa.com under the Policy section. The decision of the arbitrator is final and binding on both Buyer and Seller.The arbitration process is designed to be fair, impartial, efficient and economical.
By accessing the Winfooz System or otherwise using Winfooz Services, you acknowledge and agree that any dispute arising due to the purchase or sale of a Vehicle will be resolved in accordance with the Winfooz Arbitration Policy. You hereby appoint Winfooz USA Inc. to serve as Arbitrator and empower it to render a final, binding decision in settlement of all Claims submitted for arbitration.
45. Arbitration Dollar Threshold
Where the cost of repair exceeds the Arbitration Dollar Threshold, the Seller must disclose body damage (including hail damage), interior damage, non-mechanical or non-electrical defects (excluding Wearable items and Normal Exterior Wear and Tear). General Reconditioning items and Normal Wear and Tear are not subject to Arbitration.
Arbitration Dollar Threshold:
Major Components & Accessories – $500 repair cost
Body/Interior damage & Defects – $500 repair cost
The Arbitration Dollar Threshold is calculated before taxes, on a non-cumulative basis and in accordance with standard Mitchell warranty rates.
Wearable Items and Normal Exterior Wear and Tear are not subject to arbitration.
Wearable Items are parts of the Vehicle that the manufacturer recognizes the need for replacement or adjustment during the expected life of the vehicle. These items are normally identified in the Owner’s Manual for routine check and replacement and include, but are not limited to: wipers, brake pads, shoes, rotors, calipers, belts, hoses, lubricants, fluids, timing belts, bulbs, filters, manual clutch, shocks and struts.
Normal Exterior Wear and Tear means damage that would be considered normal wear and tear given the distance travelled and the age of the Vehicle and is easily seen, such as scratches that do not break the paint, minor nicks, cuts and/or scuffs.
Noise and Inherent Conditions. Arbitration cannot be based on noises or conditions that are inherent or typical to a particular model or manufacturer, unless deemed “excessive” by the arbitrator on non-warranty items. OEM dealer warranty guidelines will be used where applicable to determine whether the condition is excessive.
46. Buyer’s Obligation
Before bidding on a vehicle, Buyer is required to know the Arbitration rules in place for the Vehicle. In addition, Buyers should carefully review all disclosed information including but not limited to descriptions, photos, videos, condition reports and vehicle history reports. To preserve arbitration rights, Buyers are strongly encouraged to be diligent in their inspections and research of Vehicle purchases within the relevant arbitration period.
47. AS-IS Vehicles
Arbitration rights are limited for AS-IS Vehicles (see Section 40, 55 and 56). Vehicles that are 10 or more years older than the current model year of that have been driven 100,000 miles or more will automatically be listed AS-IS by the Winfooz System unless the Seller elects to override the AS- IS label.
48. Making an Arbitration Claim
- Start Arbitration Claim. Before starting a Claim, buyer must pay all amounts owing for the Vehicle including any transportation costs. Buyer starts an arbitration Claim by submitting the appropriate information and documentation online to Winfooz Canada Inc.’s Arbitration Department through the Winfooz Customer Portal. If the Buyer is unable to access the Arbitration Portal, they may also reach out via email to firstname.lastname@example.org or by phone at (858) WIN-FOOZ Ext. 3 / (858) 946-3669 Ext. 3 (choose the arbitration option) before the expiry of the arbitration period. Buyer must submit the following information: Buyer’s name and contact person and telephone number, Vehicle VIN, make, model and year, Delivery time and a description of the issue(s) to be arbitrated.
- Submit Supporting Documentation. No later than 2 business days after starting the Claim, Buyer is required to submit supporting documentation including but not limited to the original online description of the Vehicle (condition reports, Vehicle Detail page, etc.) digital photographs of the defects underlying the Claim, wholesale (not retail) repair estimates from a third party diagnosing facility designated or approved by Winfooz and bill of lading, transportation release form or other forms of delivery receipt from transportation company if applicable to Winfooz USA Inc. If the buyer is unwilling to provide the requested documentation within the timeframe requested Winfooz may deny the claim and the buyer will not be permitted to re-open the arbitration. For the purposes of calculating repair costs, a flat labor rate of $100 per hour will apply and part costs will be calculated at wholesale cost or retail cost minus 20%.
49. Buyer’s Obligations
Buyer will not use any Vehicle or make any repairs or improvements to a Vehicle that is subject to an arbitration claim. Buyer may lose the right to make or continue a claim if the Buyer drives the Vehicle other than for test-driving purposes (not to exceed 75 miles if the Vehicle is transported by carrier, or 250 miles if Vehicle transported by drive-away). Pending a final decision on the claim, Buyer must, at its own expense, take reasonable steps to care for, preserve, secure and store the Vehicle until the Vehicle is properly returned. Buyer is not entitled to charge any parking, marshaling or other fees in connection with its preservation of the Vehicle. Buyer will be charged the cost of damage repair and/or assessed a penalty fee for any breach of this provision. If the Buyer makes any repairs or improvements to a Vehicle while an arbitration claim is pending, it does so at its own risk. Generally, these costs will not be recoverable from the Seller; however, exceptions may be made in very limited circumstances at the Arbitrator’s discretion. Winfooz reserves the right to assess an arbitration fee for invalid arbitration claims.
50. Arbitration Periods
Depending on the nature of the claim, the Arbitration period will either be Regular or Extended. The Regular arbitration period is 2 business days after the Vehicle is picked up by the Buyer. The Extended arbitration period is 10 calendar days from when the Vehicle is picked up by the Buyer. A Buyer is required to pick up the vehicle no later than 3 business days after the vehicle is marked Available in the Winfooz System. Failure to do so can result in loss of arbitration rights and/or assessment of storage fees at Winfooz’s discretion.
51. Vehicle History Report Disclosures
Arbitration is not available for disclosures in a Vehicle History Report. Please ensure that you review the Vehicle History Report carefully before the expiration of the arbitration period.
52. Extending the Arbitration Period
Winfooz USA Inc. reserves the right to extend the Arbitration period when, in the opinion of Winfooz it would be fair and reasonable to do so. Although the Seller is required to make all applicable Disclosures, the Buyer is also required to be diligent in its inspection and research of its Vehicle purchases. Thus, if, by exercising reasonable diligence, the Buyer could have discovered a potential Arbitration issue within the applicable time period, it is unlikely that an exception to the Arbitration time limits will be made.
53. Arbitration Process and Costs
Once an Arbitration is accepted, the Arbitrator will review all the details and work through the Arbitration process towards a final and binding resolution. The Arbitrator will only consider matters listed on the claim. If a third party Arbitration inspection is required, the party determined to be at fault will be responsible to pay the cost of inspection. Post Sale Inspections (PSI) conducted at the request of the Buyer will remain a Buyer expense and cannot be charged to the Seller.
After completion of the investigation, the Arbitrator will decide whether the Arbitration is valid. Before deciding what the remedy should be, the Arbitrator may attempt to mediate a resolution between the Buyer and the Seller. If agreement cannot be reached, the Arbitrator will decide the appropriate remedy, if any. The Arbitrator has a broad discretion to grant any remedy or relief that he/she considers to be fair and reasonable in the circumstances. The purpose of the Arbitration remedy is to ensure that the aggrieved party is fairly compensated for its loss. In some circumstances, such as where a Disclosure does not affect the value of the particular Vehicle, there may be no loss and thus no remedy. Remedies could involve: cancellation of the sale and refund of the purchase price, reimbursement of costs and/or expenses incurred, partial refund of the purchase price, repair of defect at Seller’s expense, repair of defect with the costs apportioned between the Buyer and the Seller, no financial or other compensation, or similar remedies.
In the event of a cancelled sale through Arbitration, the Vehicle must be returned to the Seller in the same or better condition than when it was sold. Additional damage incurred on the Vehicle in the Buyer’s care may result in Buyer’s loss of right to cancel or financial compensation from the Buyer to the Seller. Winfooz USA Inc. will make the final decision in such cases.
On completion of Arbitration, the party at fault will be responsible for Arbitration inspection fees (if applicable) and the transport fee (if qualified with proper documentation). Where the Seller is at fault, inspection and transport costs must be paid directly to the Buyer. Failure to make such payment may result in loss of auction privileges. Sellers with multiple recurring arbitrations may be subject to a fee of $200 per valid Arbitration and will be invoiced directly by Winfooz USA Inc.
54. Legal Proceedings
- a) No action or legal proceedings will be commenced or prosecuted by the Buyer or the Seller against the other concerning: i. Any matter that is or was the subject of Arbitration unless to enforce the terms or conditions of the Arbitrator’s decision; or ii. Any matter for which Arbitration is not available under the Terms and Conditions unless Arbitration is not available because and only because the time limit for submitting the matter to Arbitration including any extension of the time period has expired.
- b) No action or legal proceeding will be commenced or prosecuted by the Buyer or the Seller against Winfooz USA Inc or Winfooz Ltd. for any matter, cause or thing directly or indirectly related to Winfooz’s System or Services or the failure to provide Services, including but not limited to Arbitration services. The Buyer and the Seller release and waive all rights, remedies, claims, and causes of action against Winfooz USA Inc or Winfooz Ltd. from any claim or remedy whatsoever, whether known or unknown, for or by reason of using the Winfooz Services or facilities including but not limited to its Arbitration services.
Please Note: In no way should the Winfooz USA Inc. Arbitration Policy be a way for buyers to negotiate a lower price or seek discounts. Buyers must remember that they are purchasing used vehicles which may have minor defects, and which have been exposed to certain levels of wear and tear during the vehicles’ lifespans.
55. Lights Summary
Winfooz USA Inc. uses a colored light system to give bidders visual information about the conditions under which the Vehicle is being offered for sale. The lights mean:
|Green||Arbitration is allowed on all issues subject to Arbitration|
|Yellow||The Seller has made Disclosure(s) regarding the Vehicle. Arbitration is not available for Vehicle conditions that have been disclosed.|
|Red||The Vehicle is being sold “AS IS”. Arbitration is limited|
|Blue||The Vehicle is being sold as Title Absent|
|NOTE: Under all Lights, for Vehicles that sell for less than $3,000, Arbitration is limited to odometer (e.g. Odo Rollback, Odo Replaced, TMU/NAM), title issues, branding issues and existing structural damage caused by collision.|
|Green||Green Light Sale, Arbitration allowed on all matters normally subject to arbitration.|
|Green and Yellow||Green Light Sale with Disclosure(s). Arbitration allowed on all matters normally subject to arbitration except for disclosed conditions.|
|Red||Red Light Sale. Vehicle is sold AS IS. No specific disclosures have been made. Arbitration is limited.|
|Red and Yellow||Red Light Sale. Vehicle is sold AS IS. Specific disclosure have been made. Arbitration is limited.|
|The Blue Light may be on with any of the above light combinations, indicating that the: ownership/registration documents are not available on sale day, Under any light, arbitration is limited for Vehicles that sell for less than $3,000.|
56. Limitation on the Availability of Arbitration
|Arbitration is not available for the following:||Exceptions:|
|Matters that were properly disclosed as Seller Disclosures.||None|
|Matters disclosed in a Vehicle History Report, Condition Report or similar source made available to the Buyer before the bidding begins. Note: Arbitration may not be available for conditions disclosed in a Vehicle History Report if contradicted by other more reliable sources.||None|
|Vehicles sold for $3,000 or more under a Red Light||Odometer (Odo Roll back, Odo Replaced, TMU/NAM)
|Vehicles sold for less than $3,000||Green Light Sale
Odometer (Odo Roll back, Odo Replaced, TMU/NAM)
|Vehicles with over 100,000 miles||Green Light Sale
Odometer (Odo Roll back, Odo Replaced, TMU/NAM)
|Vehicles older than 10 model years||Green Light Sale
|Matters raised outside of the applicable Arbitration period||At Winfooz USA Inc. discretion|
|Vehicles not intended for use on a public roadway (e.g. boats, snowmobiles, equipment)||N / A|
|Antique vehicles, recreational vehicles, motor homes, or motorcycles||N / A|
|Wearable Items and Normal Wear and Tear.||N / A|
|Minor odometer discrepancies of 2,000 miles or 5% (whichever is less).||N / A|
|Noise and Inherent Conditions. Arbitration cannot be based on noises or conditions that are inherent or typical to a particular model or manufacturer, unless deemed “excessive” by the arbitrator on non-warranty items. OEM dealer warranty guidelines will be used where applicable to determine whether the condition is excessive.||N / A|