WINFOOZ USA INC
Terms and Conditions
Winfooz Limited 13-18 City Quay Dublin 2, D02 ED70, Ireland, Winfooz USA Incorporated 12007 Sunrise VAlley Drive, Suite 200 Reston, VA 20191, and Winfooz USA Incorporated 1209 Orange Street, City of Wilmington, 19801 are party to these terms in different capacities, as specifically indicated herein or within incorporated documents. Generally, Winfooz USA Incorporated is responsible for the sales, payments, arbitration and other operational aspects as might be indicated herein and elsewhere and Winfooz Limited is the provider of the platform and technology. Where a party is specifically indicated in incorporated documents, that party will take precedence over the other. If not specifically indicated, the primary party to these terms and incorporated documents is considered to be Winfooz Limited. Reference to “Winfooz” means the applicable Winfooz entity with which you enter into Agreement.
Winfooz enters into this agreement with you on behalf of your company, employer or other legal entity and you represent and warrant that you have the authority to do so OR with you as the consumer (“Customer”), depending on the account type registered. If you do not have the authority to enter into this agreement or if you do not accept the terms of this agreement, you must not use the Winfooz Site or Offerings.
Winfooz is an all in one dealer-to-dealer marketplace (“platform”) to buy and sell vehicles online which requires all users to hold a valid dealer/salesperson license in their respective province or state. Our goal at Winfooz is to connect buyers and sellers through our online marketplace platform in a fair and ethical manner.
Any party which intentionally sets out to deceive or defraud others or to use unethical practices may be suspended or banned from the Winfooz platform according to the procedure outlined herein, incorporated elsewhere or generally provided for in law. Upon removal from the Winfooz platform, appropriate notifications may be sent immediately to other automobile auction organizations across the United States and elsewhere.
These terms and conditions form “the Agreement” as defined below and as contained in provisions herein and otherwise incorporated. This Agreement is a binding agreement between you and Winfooz. It sets out the terms and conditions governing you accessing and/or using the Site, the Winfooz Marketplace Platform and related products and services, as well as selling and purchasing goods and services on this Site, so please read it carefully. This agreement applies to every transaction between parties facilitated by Winfooz, online or offline. If you are uncertain, or you do not agree with the terms and conditions or any of the Annexures then you should not accept them. By using or accessing the Winfooz system, products or services, you, your business and your representative expressly agree to be legally bound by this Agreement set out in this document and as updated or amended from time to time. Winfooz reserves the right to amend these Terms and Conditions at any time by posting the revised Terms and Conditions on the Winfooz platform at https://www.winfooz.com/.
We will provide you with the Services only once you have accepted the terms and conditions of this Agreement by clicking on the “REGISTER” button when registering with us.
By entering any and all personal data on this Site in the creation of an account, in registering with Winfooz, in making a sale or purchase, participating in any auction and/or sale and/or by accepting this Agreement, you acknowledge that you are aware of the legal basis Winfooz relies on to process your personal data in terms of the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and Data Protection Act 2018 (“DPA”) and other Data Protection law as applicable and as laid out in the Privacy Notice and other related Data Protection and Privacy Policies.
3.1. “Agreement” means these terms and conditions together with the following
3.1.1. Winfooz USA Inc. Arbitration Policy,
3.1.2. Consumer Auction Terms and Conditions,
3.1.3. Fees and Payments Policy,
3.1.4. Conduct of Auction Policy,
3.1.5. Dealer Account Guide,
3.1.6. Rating Rules/Community Guidelines,
3.1.7. and Privacy Notice.
3.2. “Buyer” means an individual consumer or person, firm or company who makes a bid for, and/or purchases, any goods or services offered for sale on this Site;
3.3. “Buy Now Item” means an item in which a Buy Now Fixed Price has been specified for the relevant goods or services offered for sale by the Seller, and to which the item procedures as in the Conduct of Auction Policy (as applicable) apply, except that a bidder may at any time choose to purchase the relevant goods or services at the Buy Now Price, and further, would also include items in the category of “Make an Offer”;
3.4. “Buy Now Price” means the price specified by the Seller for goods or services offered by the Seller for sale at a Buy Now Item;
3.5. “Confirmation Notice” means the notification set out in Clause 17.1;
3.6. “Customer” includes Buyer, Seller and other user types of the Site;
3.7. “Data Protection and Privacy Laws” means the following as applicable by governance of choice of law clauses
|State and/or Country of Incorporation||Applicable Law|
|Ireland||General Data Protection Regulation (EU Regulation 679/2016)
Data Protection Act 2018
Regulations flowing from DPA 2018
Data Protection Acts 1988 as amended in 2003, sections not repealed
ePrivacy Regulations 2011 implementing EU Privacy and Electronic Communications Directive 2002/58/EC on Privacy and Electronic Communications, otherwise known as ePrivacy Directive (ePD)
|Ontario, Canada||Personal Information Protection and Electronic Documents Act (PIPEDA)
Canadian Anti-Spam Law (CASL)
The CRTC Regulations and Interpretation Guidelines
Industry Canada Regulations (issued December 4, 2013)
|United Kingdom||General Data Protection Regulation (EU Regulation 679/2016)
Data Protection Act 2018
Regulations flowing from DPA 2018
Data Protection Act 1988, sections not repealed
Privacy and Electronic Communications (EC Directive) Regulations 2003 implementing EU Privacy and Electronic Communications Directive 2002/58/EC on Privacy and Electronic Communications, otherwise known as ePrivacy Directive (ePD)
3.8. “Fees” means any charges which Winfooz (all or either entities) charge as per the Fees and Payments Policy;
3.9. “Indemnified Party” means each of Winfooz, its officers, employees, contractors, consultants and agents from time to time, and any related entities, associates or affiliates of Winfooz, and each of their respective officers, employees, contractors, consultants and agents from time to time;
3.10. “Intellectual Property Rights” means industrial and intellectual property whether protected by common law or under statute including (without limitation) copyright and neighbouring rights, all rights in relation to inventions (including registered patents and the benefit of any applications for a patent), plant varieties, plant breeders, registered and unregistered trademarks, registered and unregistered designs including drawings, circuit layouts and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields anywhere in the world;
3.11. “Listings” means the offering for sale, placing of or creating any type of auction or Buy Now sale item on this Site;
3.12. “Make an Offer” means listing a car for sale to get offers from different buyers with ability to negotiate the prices between seller and buyer. Each buyer does not have access to other buyers offers however the seller has access to all buyer offers.
3.13. Seller is able to submit counter offers and has up to three trials and number of trials are subject to be changed as needed by Winfooz
3.14. “Personal data” or “Your data” means “Personal Data”, “your data” or “data” are used interchangeably in this Agreement and all mean any and all information you provide to us in using this Site including, but not limited to, information identified in the Privacy Notice and that information defined as Personal Data in the GDPR and DPA;
3.15. “Seller” means a person, firm, company or entity who offers for sale, or sells goods or services on this Site;
3.16. “Services” means the general sales, online auction, Buy Now and other classifieds type services provided by Winfooz by which a person, firm or company may sell or buy goods or services on this Site;
3.17. “Site” or “Website” means the Internet website, mobile applications and/or other applications by which Winfooz offers the Services from time to time;
3.18. “Standard Auction” means an auction to which the auction procedures, as applicable, in the Conduct of Auction Policy apply;
3.19. “Trade” or “Trading” means any form of listing on the Site, including but not limited to, general sales, Standard Auctions and Buy Now Items;
3.20. “user” or “users” for the purposes of Clauses 22 and 23, means any Consumer, Buyer or Seller, or someone who is otherwise using the Site;
3.21. “VAT” means any value added tax, or other consumption tax such as HST or GST;
3.22. “we”, “us”, “our”, “ourselves” and “Winfooz” are used interchangeably in this Agreement and all mean Winfooz;
3.23. “you” or “your” means you, whether as a Buyer and/or you as a Seller, as the case requires, or otherwise, and your successors and permitted assigns;
4.1. To access the Winfooz System, you must complete the Winfooz’s online registration package.
4.2. Upon receipt and approval of your registration documents, you and your Authorized Users will be issued unique usernames and passwords to access the Winfooz System.
4.3. You are liable and responsible for all actions, omissions and any failure to act on your Authorized Users.
4.4. You represent and warrant that all information that you provide to Winfooz is accurate and complete and that you will notify us in writing of any changes to the information provided.
4.5. You hereby authorize Winfooz to share the information you provide to use (including, without limitation, financial information) with Winfooz Partners.
4.6. You agree not to give anyone access to the Winfooz System other than your Authorized Users.
5. Provision of Services
5.1. We will provide you with the platform to perform or participate in the Services.
5.2. We will provide you with the facility to generate a username and password in order to login as required.
5.3. Every Customer can choose their username and password and it is the user’s sole responsibility to protect his/her credentials.
5.5. Customers are responsible and liable for all activities conducted under the use of their username and password.
5.6. Unauthorized use of your username or password must be reported immediately to Winfooz in writing.
5.7. We reserve the right to alter or vary your preferred username and password at any time and will notify you of any such alteration (by email where possible).
5.8. You agree to provide all necessary equipment, network connections and software to access this Site.
5.9. You agree that Winfooz may restrict and/or terminate its services to you at any point in time if Winfooz, in its sole and absolute discretion, elects to do so and without having to furnish any reasons for doing so.
5.10. Our provision of Services to you is non-exclusive. Nothing in this Agreement stops us from providing the Services to any other Customer.
6. Electronic Signatures.
6.1. As a User of this Site, you will be required to upload an electronic signature to your account to use to sign documents and agreements during your use of the Site.
6.2. By uploading your electronic signature to your account, you expressly permit Winfooz USA Inc. to capture your signature in electronic or digital form.
6.3. Winfooz technology takes special precautions to secure the storage of this signature and to detect any changes to the signature file using audit techniques.
6.4. Agreements on the Site may be executed by providing an electronic signature and
6.4.1. may not be denied legal effect solely because they are in electronic form or permit the completion of the business transactions referenced herein and performed as part of the use of the Site electronically instead of in person.
6.4.2. such signatures shall be deemed to be as valid as an original signature whether or not confirmed by delivering the original signatures in person, by courier or by mail, although it is the parties’ intention to deliver original signatures after delivery of electronic signatures.
6.5. You hereby authorize Winfooz USA Inc. and the Winfooz USA Inc. Partners to apply your electronic signature to documents necessary or incidental to your use of Winfooz USA Inc.’s services, including, without limitation, bills of sale, odometer disclosure statements, invoices, acknowledgements, approvals, and title documents.
6.6. You agree that your electronic signature is intended to authenticate the document to which it is applied and shall have the same force and effect as a manual signature.
7. Trading on this Site
7.1. As we are not involved in any sale and purchase of any goods and services on this Site, save for providing a venue for the sale and/or auction of goods and services, and as described in Clauses 17.1 and 17.4, you hereby agree and acknowledge that we:
7.1.1. are not, nor do we represent or hold ourselves out as the manufacturer or agent of any such manufacturer or sales representative of any such manufacturer, of any goods offered for sale and/or sold on this Site;
7.1.2. have absolutely no control over, nor do we represent or hold out that we have any control over any one or more of the circumstances described in Clause 11.6;
7.1.3. have absolutely no control over whether, nor do we represent or hold out that the goods and services offered for sale on this Site are legally able to be sold;
7.1.4. cannot guarantee, nor do we represent or hold out that the descriptions of any goods and services on this Site will be accurate;
7.1.5. have absolutely no control over, nor do we represent or hold out that a Seller or Buyer will perform their respective sale and purchase obligations of goods or services sold or auctioned on this Site;
7.1.6. cannot and do not control, nor do we represent or hold out that a Buyer will pay for the goods and services that he/she has successfully bid for in an auction or otherwise bought or attempted to buy on this Site;
7.1.7. cannot and do not control, nor do we represent or hold out that any goods and services will be delivered to a respective Buyer by the respective Seller;
7.1.8. cannot and do not represent nor hold out that we can confirm that each Buyer and Seller is who they claim to be;
7.1.9. cannot and do not represent or hold out that we can exercise any practical control over what feedback, comments or rating scores will be provided about you pursuant to the Rating Rules/Community Guidelines;
7.1.10. cannot and do not, nor do we represent or hold out that we can or could, despite any credit checks we may have undertaken pursuant to Clause 17.4, confirm any matters relating to any credit card details supplied to us by a Buyer or Seller (as the case may be) under this Agreement, including without limitation, that the:
18.104.22.168. credit card details of any Buyer or Seller (as the case may be) are correct;
22.214.171.124. credit limit has not been exceeded;
126.96.36.199. credit card has not been reported stolen;
188.8.131.52. Buyer or Seller is entitled to authorised use of the credit card; or
184.108.40.206. credit card is otherwise being lawfully used;
7.1.11. besides as indicated in the incorporated Arbitration Policies, will not become involved in any dispute between any Buyer and Seller arising out of, or in connection with, the completion of any sale and purchase of any goods or services on this Site, or with this Agreement, we do however reserve the right at our sole discretion to mediate between two parties should the conduct of either party impact on the reputation and or image of our business, notwithstanding arrangements, as applicable, in Clause 31.
7.1.12. We do not act as agent for either the Seller or the Buyer in either the making of the offer, by the placement of the goods on the site for auction or sale, the acceptance of such offer nor the acceptance of the bid by the seller.
7.2. Should you as the Seller or Buyer obtain any personal data pertaining to a Buyer or Seller, as the case may be, for any or all purposes listed in Clause 23.4.1 of this Agreement, you hereby represent and warrant to us, the Seller or Buyer, as the case may be:
7.2.1. that you will respect the privacy of the Buyer or Seller and fulfil any other obligations in terms of Clause 23.4.2 of this Agreement; and
7.2.3. that you will comply with the provisions of the Data Protection and Privacy Laws, insofar as they apply, in processing any and all personal data pertaining to such persons whether obtained from Winfooz, the Seller or Buyer themselves or any other third party.
7.3. In trading on this site, you agree and acknowledge that we cannot and do not, nor do we represent or hold out that we can or could control:
7.3.1. how the Seller or Buyer processes your personal data;
7.3.2. whether the Seller or Buyer processes your personal data in accordance with the Data Protection and Privacy Laws, insofar as they apply; and/or
7.3.3. where or to whom your personal data is transferred by the Seller or Buyer during or after the sale or purchase of any goods on this Site by yourself.
7.4. In trading on this site and agreeing to and acknowledging the contents of Clause 7.3 above, you further agree to and acknowledge that during or upon completion of the sale and purchase of goods and services and/or an auction, Winfooz is no longer responsible for or liable in respect of:
7.4.1. any personal data that may be exchanged between the Buyer and the Seller for any or all the purposes stipulated in Clause 23.4.1 of this Agreement;
7.4.2. any personal data that may be provided to the Seller with the Buyer’s authorisation in terms of this Agreement or vice versa;
7.4.3. the way such personal data is processed subsequent to such an exchange between the Buyer and Seller;
7.4.4. a failure on the part of the Seller or Buyer as the case may be, to process such personal data in accordance with the Data Protection and Privacy Laws, insofar as they apply; and/or
7.4.5. the transfer of any information by the Seller or Buyer to a third party.
7.5. In trading on this Site, you further agree to and acknowledge that the incorporated Arbitration Policies and Consumer Auction Terms and Conditions apply to trading and use of the Site.
8. Vehicle Identification Number
8.1. All vehicles offered for sale on the Marketplace Platform must have a visible, intact and properly affixed public VIN plate or a replacement VIN plate in accordance with Provincial and Federal and other applicable regulatory requirements.
8.2. If a VIN has been replaced the Seller must provide a Disclosure to that effect.
8.3. Winfooz reserves the right to refuse the sale of any vehicle in which the VIN plate appears to be missing or altered in any way.
8.4. The Seller guarantees VIN plates and years on any vehicle up to twenty (20) model years old with the exception of trailers, RVs, and watercraft, on which the VIN plates and years are guaranteed up to ten (10) model years.
9.1. Activities that attract a fee are listed and described together with fees in the Fees and Payments Policy.
9.2. It is a condition of using the Services that you agree to these terms and the fee structure, billing and credit rules as described in the Fees and Payments Policy. If you do not agree to this condition, then please do not accept these terms and conditions.
9.3. We may choose at our sole discretion to change our fee structure, billing and credit rules from time to time and such changes shall be effective forthwith.
9.4. We may choose at our sole discretion to change our fee structure, billing and credit rules from time to time, for promotional events and such changes are effective for the dates specified when we post such a promotion on this Site.
9.5. We reserve the right in our sole discretion to alter or remove any Services or withdraw any Services offered. If we introduce a new Service, any fees for that Service will take effect from the launch of that Service, unless otherwise stated.
10. Users, Dealers and Verified Dealer Status
10.1. In order to become a User of the Site, you will be required to register an account.
10.2. A Dealer registered as a User of the Site will have very limited access to the marketplace.
10.3. All Dealers must undergo verification before they will be permitted to buy and sell as explained in the Dealer Account Guide.
10.4. Winfooz reserves the right, in future, supply a ‘Verified’ trust badge to a Dealer who has performed their contractual duties with exceptional good faith.
10.5. Dealer status requirements and how to achieve different statuses are further explained in the Dealer Account Guide.
10.6. Dealer loyalty benefits are further explained in the Dealer Account Guide.
10.7. Dealers using the Marketplace Platform as dealers must be a registered Dealer/Salesperson. In the event that a Customer’s license has expired or changed, it is the sole responsibility of the Customer to inform Winfooz USA Inc. of such changes.
11.1. Subject to Clause 10, this Clause 11 and Clause 16, you may post the goods and services that you wish to offer for sale on the Site.
11.2. You agree that we or our nominated agent may undertake any necessary credit checks on you and/or your credit card where applicable.
11.3. In addition to any other rights we may have under this Agreement, if you fail to comply with Clause 11.2, we may prevent you from participating in any auction or sale on this Site or using the Services.
11.4. If you post goods and services on the Site, you agree and warrant to the Buyer of those goods and services and separately to us that:
11.4.1. your information:
220.127.116.11. is accurate and not false, misleading, deceptive or fraudulent;
18.104.22.168. does not breach any Intellectual Property Rights of a third party;
22.214.171.124. is made in compliance with all applicable laws, government regulations or guidelines;
126.96.36.199. is not forged, threatening or offensive or otherwise constitutes harassment;
188.8.131.52. does not contain confidential information or trade secrets of a third party unless you have obtained the consent of the third party owner;
184.108.40.206. does not contain any viruses, worms, trojan horses or other invidious programs or data, whether attached to or embedded in other programs or data or not;
220.127.116.11. will not defame (libel or slander) another person or transmit misleading or inaccurate information of any kind, whether of a personal or commercial nature; and
18.104.22.168. does not contain child pornography, bestiality or any other obscene or offensive material;
11.4.2. you are the legal owner of the goods and services you are offering for sale on this Site and you have the legal capacity to conclude the sale and to pass the title in the goods and services to the successful Buyer;
11.4.3. you will not hyperlink to or include descriptions of goods and services that you are not offering for sale on this Site;
11.4.4. if a Buyer who is a dealer in terms of any applicable Second Hand Goods law makes a request for information necessary to complete requirements for registrations under such law, you agree that the said information will not be unnecessarily withheld;
11.4.5. you will adhere to the incorporated Arbitration Policies.
11.5. You represent and warrant to us and to the Buyer separately that your information will be kept up to date and that you will edit your account/profile and any other information accordingly. These changes may be done as described in our data protection policy and/or privacy notices.
11.6. In addition to Clause 11.4 and Clause 11.5, and in accordance with the incorporated Arbitration Policies, you represent and warrant to us and separately to the successful Buyer that:
11.6.1. the goods and services you offer for sale and sell, on this Site:
22.214.171.124. are reasonably fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to matters including, without limitation, the description of those goods and their price; and
126.96.36.199. correspond with the description that you have posted on this Site; and
188.8.131.52. if sold in bulk, will correspond with any samples; and
184.108.40.206. are not defective; and
220.127.116.11. are free of any charge or encumbrance such that the Buyer will be able to enjoy quiet possession of those goods;
11.6.2. the goods and/or services you offer for sale, and sell, on this Site:
18.104.22.168. will be rendered with due care and skill; and
22.214.171.124. and any materials supplied in connection with any services will be reasonably fit for the purpose for which they have been supplied; and
126.96.36.199. if the Buyer has made it known to you the particular purpose for which the services are required or the result the Buyer wishes any services to achieve, then those services and any materials supplied in connection with those services will be reasonably fit for that purpose or are of such a nature and quality that they might be reasonably expected to achieve that result;
188.8.131.52. the goods and/or services you offer for sale and sell on this Site are done so under laws applicable as indicated in the incorporated Arbitration Policies and are legally able to be offered for sale, and sold on this Site, and otherwise, that the offer and sale of those goods and services is not in contravention of any law.
11.7. The Seller may set a reserve price, or minimum price for the goods and services, but that reserve price or minimum price, as the case may be, must not be set out in the information provided about the goods or services to which that reserve price or minimum price, whichever is applicable, applies, or otherwise disclosed to any person at any time.
11.8. In accordance with the incorporated Policies and other documents, in the information provided about the goods or services the Seller offers for sale, or sells on this Site, the Seller must set out the terms and conditions for sale of those goods or services, including the following:
11.8.1. whether the auction is a Standard Auction or Buy Now Item, or a combination of any of the preceding auctions or sales types;
11.8.2. as applicable, the minimum bid increments;
11.8.3. in the case of a Buy Now Item, a Buy Now Price,
11.8.4. date and time of opening, and closing of the auction;
11.8.5. payment terms;
11.8.6. terms of delivery, if applicable;
11.8.7. returns policy;
11.8.8. taxes, duties and costs (including, without limitation, VAT, or other consumption taxes, customs and other import duties and tariffs) payable by the Buyer; and
11.8.9. unless stated to the contrary, any value will be construed to refer to US Dollars;
11.9. The Seller agrees that such terms and conditions will include any matters prescribed by us under this Agreement including the matters set out in Clauses 17.3.2, 17.3.4, and 17.5, as well as any matter specified in any other part of the Agreement.
11.10. When a Vehicle is listed for Sale on the Marketplace Platform, it is the Seller’s responsibility to ensure the Vehicle is available for sale and has not been sold elsewhere. If a double sale has occurred, the Seller may be responsible to pay all Fees that would have been due and payable had such Vehicle been sold on the Marketplace Platform.
12.1. You agree and warrant to each Seller and separately to us that:
12.1.1. your information:
184.108.40.206. is accurate and not false, misleading, deceptive or fraudulent;
220.127.116.11. does not breach any Intellectual Property Rights of a third party;
18.104.22.168. is made in compliance with all applicable laws, government regulations or guidelines;
22.214.171.124. is not forged, threatening or offensive or otherwise constitutes harassment;
126.96.36.199. does not contain confidential information or trade secrets of a third party unless you have obtained the consent of the third party owner;
188.8.131.52. does not contain any viruses, worms, trojan horses or other invidious programs or data, whether attached to or embedded in other programs or data or not;
184.108.40.206. will not defame (libel or slander) another person or transmit misleading or inaccurate information of any kind, whether of a personal or commercial nature;
220.127.116.11. your information will be kept up to date and that you will edit your account/profile and any other information accordingly. These changes may be done as described in our data protection policy and/or privacy notices.
12.1.2. you have the legal capacity to purchase any goods or services that you bid for, and will not otherwise be breaching any law in purchasing those goods or services;
12.1.3. you will not bid for any goods or services on this Site unless you are able, and have sufficient available capacity to pay for those goods or services;
12.1.4. the purchase of any goods and/or services on this Site is absolutely at your own risk;
12.1.5. to the extent permitted by law, the Seller may exclude all terms, conditions and warranties whether express, implied, statutory, common law, or otherwise, relating to those goods and services, in all the Seller’s dealings in connection with the goods and services that you may purchase from the Seller on this Site; and
12.1.6. you have obtained the necessary information required to comply with any applicable Second Hand Goods law from the Seller; (if applicable);
12.1.7. if you are bidding for restricted age goods and services, that you have the legal right to purchase those goods and services.
13. Payment Details – Buyer
13.1. In addition to the requirements laid out in the Fees and Payments Policy and the Conduct of Auction Policy, we may request you to provide your valid and current credit card or bank account details to us at any time, whether before or after the bidding commences in respect of any goods or services, or at any time whatsoever.
13.2. In addition to any other rights we may have under this Agreement, if you fail to comply with Clause 13.1, we may prevent you from participating in any auction or sale in respect of any goods or services or using the Services unless and until you provide those credit card details to us.
13.3. By initiating and sending payment through Winfooz you acknowledge that Winfooz may obtain the funds by any one or combination of the means as listed in the Fees and Payments Policy.
13.4. In providing us with the information specified in Clause 13.1 or Clause 13.3 above, you consent to the processing and/or further processing of such personal data by Winfooz in accordance with the Data Protection and Privacy Laws, insofar as they apply.
13.5. In making use of the Winfooz service you also acknowledge that
13.5.1. Winfooz is not a bank and the Service is a payment processing service rather than a banking service, and
13.5.2. Winfooz is not acting as a trustee, fiduciary or escrow with respect to your funds.
14. Ratings, Comments and Feedback
14.1. It is a condition of using the Services that you agree that feedback, comments and ratings scores may be provided about you as described in the Rating Rules/Community Guidelines. If you do not agree to this condition, then please do not accept these terms and conditions.
14.2. Ratings that are given to each other by users should be done as is set out in the Rating Rules/Community Guidelines.
14.3. If you believe a statement made about you pursuant to Clause 14.1 is untrue, misleading or deceptive or defamatory (“Questionable Statement”), please contact our customer service department and we will conduct an investigation.
14.4. As a result of an investigation, we may (although we are not obliged to) remove the Questionable Statement.
14.5. Whether or not we conduct an investigation, and irrespective of whether we remove the Questionable Statement, and even if we do not conduct an investigation, because you do not contact us or for any other reason, you hereby release us and forego any rights you may have had against us in relation to the Questionable Statement or any statement made about you pursuant to the Rating Rules/Community Guidelines and agree that you will not make any claims or demands, or take any action, issue or maintain any proceedings or suits against us in relation to the Questionable Statement or any statement made about you pursuant to the Rating Rules/Community Guidelines or otherwise, in connection with this Site, or your use of this Site.
14.6. The decision to hold an inquiry or not is entirely within our discretion and we will not be obliged in any way to entertain any representations in this regard.
15. Vulnerability Reporting
15.1. We would like to provide you with a best-in-class service.
15.2. We appreciate the community’s efforts in creating a more secure ecosystem for all.
15.3. If you think you have discovered a security vulnerability, we appreciate your help in disclosing it to us in a responsible manner.
15.4. We ask that you do not share or publicise any vulnerabilities submitted via this form or directly through the bug reporting platform.
16. Winfooz Discretion
16.1. We reserve the right in our sole discretion to alter or remove any information or withdraw any goods or services offered for sale by you, or a bid placed by you, if:
16.1.1. that information and/or those goods or services, as applicable;
18.104.22.168. infringe or is suspected of infringing the Intellectual Property Rights of any person (other than the Seller in question); or
22.214.171.124. may create any liability for us whatsoever;
16.1.2. in relation to the goods and services set out in Clause 11.6, if we are not entirely satisfied that you are legally permitted to offer for sale or sell those goods and/or services;
16.1.3. you have not complied with Clause 9.2 or Clause 11.2;
16.1.4. in relation to a bid, we reasonably believe that bid is not a legitimate, or commercially realistic bid for the goods and/or services;
16.1.5. it is otherwise in our commercial interests to do so;
16.1.6. we are required by law to do so;
16.1.7. you breach any provision of this Agreement; or
16.1.8. for any other reason whatsoever,
16.2. You irrevocably and unconditionally agree that any rights that you may have had against us in respect of any action we may have taken under this Clause 16, are hereby waived.
16.3. Users are given the right to sell items on this Site by registering an account on the Site. This does not involve purchasing the rights to the actual web pages, which remain the property of Winfooz.
16.4. We reserve the right in our sole discretion to place third party advertisements on the pages without your consent or payment to you.
16.5. Where the Data Protection and Privacy Laws require your consent, your consent will be obtained.
17. Completion of Sale and Purchase of Goods or Services
17.1. Completion of Sale and Purchase of Goods or Services is done in accordance with incorporated Arbitration Policies.
17.2. We will notify the Seller and the successful Buyer of the successful sale (if any) of any goods or services by automated email when an auction or sale closes.
17.3. Following receipt of the Confirmation Notice the Seller and the successful Buyer will be solely responsible for the following matters, including, but not limited to:
17.3.1. implementation of the sale and purchase of the goods or services, including reaching agreement on when risk in relation to the goods or services is passed onto the Buyer, and when title in the goods or services will be delivered to the Buyer;
17.3.2. ensuring they comply with the laws applicable in the jurisdiction in which the Buyer and Seller are located, with respect to completion of the sale and purchase of the goods and services (including without limitation, any formalities required to be undertaken in relation to that sale and purchase as well as the formalities required in terms of any applicable Second Hand Goods law) and, if the Buyer and Seller are from different jurisdictions, then the governing law of any resultant contract or agreement between the Buyer and Seller will be that as indicated in the applicable incorporated Arbitration Policies;
17.3.3. arranging for payment of the goods or services;
17.3.4. arranging any insurance (if any) in respect of the goods or services;
17.3.5. as applicable, agreeing a date for delivery of the goods or services; and
17.3.6. payment of all applicable taxes, duties and costs (including, without limitation, VAT or other consumption taxes and customs and other import duties and tariffs) incurred in connection with the sale and purchase of the goods and services.
17.4. Each Buyer agrees that we, or our nominated agent, may undertake any necessary credit checks on that Buyer’s credit card and authorise us to provide those credit card details to the Seller in the relevant Confirmation Notice where such information was required and specified by the Seller under Clause 11.8.
17.5. Unless otherwise indicated in the incorporated Arbitration Policies, we have no involvement in the sale and purchase of any goods and services other than providing a venue for an auction or sale and as described in Clauses 17.1 and 17.4 so we will never accept returns of any goods and services purchased on this Site as we are not the Seller.
17.6. Unless otherwise indicated in the incorporated Arbitration Policies, you must therefore direct all enquiries, of whatever nature, including, but not limited to, goods and services being of a defective nature, not fit for a particular purpose, or non-delivery of any goods and services, to the Seller, at whose sole discretion, the goods or services may be replaced, or the price refunded.
18. Risk of Loss
18.1. Vehicle remains at the Seller’s risk until released to the Buyer or the transportation company picks up the Vehicle from the grounding location, at which point the risk of loss for the Vehicle is transferred to the Buyer.
18.2. If the Vehicle is damaged in transit, Winfooz or Winfooz Partners will, as a convenience to the Buyer, use commercially reasonable efforts to assist Buyer in making a claim against transportation company or its insurer, but Winfooz is not liable for any damage that occurs to the Vehicle in transit or any other liability or claims that may arise and relates in any way to the transport of the Vehicle.
18.3. Winfooz is not responsible for prosecuting a claim against the carrier or its insurer on Buyer’s behalf.
18.4. This assistance does not involve initiating or prosecuting legal action against the transportation company or its insurer on your behalf.
18.5. You agree that Winfooz and the Winfooz Partners are not liable for any theft, conversion, loss, injury, death, damage, claim, expense, suit or demand in any way arising out of or relating to the transportation of Vehicles (“Transportation Losses”).
19. Sales Taxes
19.1. All Vehicles sold on the Marketplace Platform are subject to provincial, federal and/or harmonized taxes as governed by the Province or State from which a vehicle is being sold.
19.2. These taxes are based on the location of supply and not on the location of the Buyer.
19.3. The Buyer is solely responsible for these taxes as documented on the bill of sale from the Seller.
20. Security Interest/Hypothec
20.1. Customer hereby grants to Winfooz a continuing security interest and hypothec in all Vehicles purchased by Customer through Winfooz and in all Customer Vehicles that are in the possession, custody or control of Winfooz or Winfooz Partners, wherever located, and all proceeds from the sale thereof to secure payment of all fees, debts, liabilities and obligations of Customer to Winfooz.
20.2. If Customer fails to pay Winfooz any amount when due, Winfooz will be entitled to exercise the rights and remedies of a secured creditor as such rights and remedies may be provided by statute, common law, equity or otherwise.
21. Winfooz May Change These Terms and Conditions
21.1. We have an absolute discretion to change the terms of this Agreement at any time. If we do so, we will post details of any changes on this Site that will be effective forthwith.
21.2. By accepting this Agreement and any notifications of changes to this Agreement, you also agree to accept and be bound by any changes made by us under this Clause 20. In any event, your continued use of the Services after any changes to the terms of this Agreement have taken effect in accordance with Clause 21.1, will be deemed to be your acceptance of those changes to the terms of this Agreement.
22. Compliance with These Terms and Conditions
22.1. You agree to promptly inform us of any breach by you of the terms of this Agreement and of any conduct of another user that you think may be a breach of this Agreement, whether the conduct has ceased, is continuing, or may occur in the future.
22.2. You agree that we may and will monitor your conduct if we believe that you are not complying with the terms of this Agreement. If we do, then we will respect your confidentiality, unless:
22.2.1. doing so would or could implicate us in criminal behaviour, a civil wrong, or any other claim by a person for which we may have to pay compensation;
22.2.2. the law compels, requires, or makes it prudent and desirable for us to divulge or disclose the information we hold or know or any documents we possess; or
22.2.3. we consider it necessary or desirable to make disclosures to preserve or enforce our interests or rights.
22.3. If we believe, whether we have conducted any monitoring, that you are not, or may be in danger of not complying with any of the provisions of this Agreement, then we may send you a warning asking you to rectify your conduct (although we will not be obliged to do so).
22.4. If you:
22.4.1. infringe or are suspected of infringing the Intellectual Property Rights of any other person;
22.4.2. are suspected of having, or are found by conviction, settlement insurance or escrow investigation or otherwise, to have engaged in any fraudulent or other criminal activity in connection with this Site or any other website; or
22.4.3. have an overdue payment on your Winfooz Account; or
22.4.4. otherwise breach this Agreement, we may, in our absolute discretion:
126.96.36.199. withhold from you, your use of any or all of the Services;
188.8.131.52. delete or remove, without incurring any liability to you, any or all of your information and block in-coming and out-going data or message transfers;
184.108.40.206. restore the Services if and when you can demonstrate clear and complete adherence to the terms of this Agreement on a permanent and consistent basis; and
220.127.116.11. terminate the Agreement that we have entered into with you, and cancel our obligations to provide the Services, if we are not satisfied that you will clearly and completely adhere to the terms of this Agreement, on a permanent and consistent basis, if the Services are restored to you.
23. Use of Site
23.1. In using this Site, you must not:
23.1.1. illegally copy, store, use, alter, modify, impair, interfere with or attempt to interfere with, or distribute software or other data;
23.1.2. alter, damage, destroy, erase, interfere with or attempt to interfere with, or infect our files, data and other computer systems and network resources or those of other users or any other person, or access, copy, modify, remove or impair the reliability, security or operation of, any data or files or other information stored in these systems or network resources;
23.1.3. impair the electronic communications to or from, or interfere with or obstruct the lawful use of, or otherwise cause any unauthorised computer functions to our computer systems or those of other users or any other person;
23.1.4. offer, sell, export, bid for, or import any Prohibited Goods and Services;
23.1.5. offer, sell, export, bid for, or import any goods and services if this breaches any law applicable to you;
23.1.6. engage in any practice or conduct that is unlawful under any laws applicable to you;
23.1.7. copy, modify, or distribute rights or content from our sites, services or tools or Winfooz’s copyrights and trademarks; and
23.1.8. harvest or otherwise collect information about users (including email addresses), trades listed, or sales activities conducted on Winfooz without the express permission of Winfooz which, if given, will be given in alignment with the Data Protection and Privacy Laws.
23.2. Any links or references (direct or indirect) to other web sites on this Site are provided for your convenience only and do not and are not an express or implied endorsement by us, of those web sites, or the products and services contained on those web sites.
23.3. Unless otherwise indicated herein or in incorporated documents, the information and material contained on this Site has been prepared in accordance with the laws of the Republic of Ireland for use in the Republic of Ireland only.
23.3.1. The Site may not comply with the laws of any other country.
23.3.2. We make no representation that the information and material contained on this Site complies with the laws (including any intellectual property laws) of any country other than those indicated herein and in incorporated documents.
23.3.3. If you choose to access this Site from outside of the indicated jurisdictions, you do so at your own risk and will be responsible for ensuring compliance with the laws of the country in which you are located.
23.4 Using information about other Winfooz users –
23.4.1. You agree to use user personal data and information only in accordance with applicable laws and regulations (including, without limitation, the Data Protection and Privacy Laws) and only for:
18.104.22.168. Winfooz-transaction-related purposes that are not unsolicited commercial communications;
22.214.171.124. using services offered through Winfooz; and
126.96.36.199. other purposes a user expressly agrees to.
23.4.2. You agree to respect other users’ privacy and disclose your privacy and security policies to them. By law, you must get the consent of users to use their personal data and give other users a chance to remove themselves from your database and a chance to review the information you have collected about them.
23.5. Notwithstanding, and in addition to any other provision of this Agreement, you agree to comply with any laws applicable to you when using this Site and the sale or purchases of goods or services that you undertake as a result of using this Site.
23.6. You agree not to harass, intimidate or threaten any of the Winfooz staff or any users of the Winfooz website in any way or form and failure to do so may, in Winfooz’s sole discretion, result in the cancellation or restriction of your Winfooz account.
24. Entering into this Agreement
24.1. You represent and warrant to us:
24.1.1. if you are an individual that you are eighteen (18) years of age or over and of full legal capacity and thus capable of entering into this Agreement and performing your obligations under this Agreement; or
24.1.2. if you are a juristic entity:
188.8.131.52. that you are duly incorporated and have been issued with a certificate of commencement of business and have the power to own/sell property; and
184.108.40.206. entering into this Agreement does not violate your Constitution or other founding documents; and
220.127.116.11. you have the power and have taken all corporate and other action required to enter into this Agreement and to authorise entering into this Agreement and performing your obligations under this Agreement.
24.2. Transactions in case of a minor are subject to the following conditions:
24.2.1. If you are under 18 years of age or if you are not legally permitted to enter into a binding and enforceable agreement, then you may not register as a user or make use of the services of Winfooz, unless you are duly supervised by and you have obtained the consent of your parent or legal guardian or spouse.
24.2.2. If your parent or legal guardian supervises you and gives his/her consent, then such person hereby agrees to be bound and to be liable and responsible for you and for all your obligations or duties in terms of the agreement entered into between yourself and Winfooz.
24.2.3. We strictly reserve our rights to refuse our service, terminate/suspend your account or cancel orders, should Winfooz, in our sole discretion find that you have failed for whatsoever reason to comply with the aforementioned provisions or the remaining provisions of these terms and conditions, without prejudice to any other rights that we may have at law.
24.2.4. To the extent that you utilise our services, we shall deem it that you were / are supervised by and that you have obtained the consent of your parent or legal guardian or curator or trustee. The onus to prove that you were not supervised or did obtain the requisite consent shall rest with you.
25. Licence of, and Use of, your Information
25.1. You hereby grant to us a non-exclusive, irrevocable, worldwide, perpetual, royalty-free right to exercise the Intellectual Property Rights you have in your information, in whatever medium.
25.2. Subject to Clause 25.1, we agree to use your information only in accordance with our Data Protection and Privacy related Policies, where applicable. If you do not agree with the terms of our related Policies, please do not accept these terms and conditions.
25.3. We further agree and/or undertake to process your personal data in accordance with the provisions of the Data Protection and Privacy Laws, insofar as they apply.
26. User Traffic and its Content
26.1. While we will always endeavour to maintain ongoing access, and, prevent and correct disruptions and failures on this Site, we cannot and do not exercise control over the data, files and other information passing through our computer systems and network resources. Therefore, you agree that you:
26.1.1. are responsible for the flow and storage of your information through our computer systems and network resources;
26.1.2. take full responsibility for data, files and other information you own, send, or receive and ensure that at all times you maintain adequate backup copies as appropriate;
26.1.3. must not engage in mass postings of messages, either through e-mail or onto newsgroups, or engage in any harassment, ‘electronic stalking’ or ‘spam’;
26.1.4. must respect and abide by the conventions and rules governing the use of newsgroups, lists, discussion forums (such as WhatsApp and internet relay chat or similar channels), and networks, and must not post messages or otherwise communicate inappropriately, or send unsolicited messages (commercial or otherwise); and
26.1.5. accept that certain content on this Site, despite any steps we may take may contain material that you may find inappropriate, offensive, inflammatory, or adult in nature and further accept that we do not endorse such materials and disclaim any and all liability for their contents.
26.2. We cannot and do not know whether you have given access to your Winfooz account to other people. You are therefore totally responsible for:
26.2.1. when and how your account with us is used; and
26.2.2. the actions of the people (if any) you allow to access, or transmit information through this Site, our computer systems and network resources or otherwise utilise the Services (whether or not you have given them your login and password details or not).
27. Commercial Uses of Winfooz Services
27.1. We cannot and do not take any responsibility for any commercial enterprises you may conduct as the proprietor of any goods or services that you have chosen to sell or buy in reliance on this Site, our computer systems, network resources or the Services as part of a business or profit-making activity. Specifically:
27.1.1. if you, or those whom you permit to use your account, choose to rely upon this Site, our computer systems, network resources or the Services in any manner to support a business or other profit-making activity, you do so at your own risk absolutely; and
27.1.2. advertising, credit card payment channels, direct-debit facilities, and electronic registration forms are all examples of commercial uses of the Services where you must bear the risk absolutely.
27.2. The Services on this Site are provided to you personally and you must never resell, trade, or barter your rights to use the Services to another person or persons nor permit any third party to use the Services.
28. Relying Upon Winfooz’s Services
28.1. Whether you are using the Services for private or commercial purposes, or both, the quality and continuity of our Services depends on many factors over which we have no control and cannot seek to control. While we will always endeavour to maintain ongoing access, disruptions and failures of this Site, any or all computer systems, network resources and the Services, are probable in such an operating environment. Recognising this, you agree that:
28.1.1. we cannot and do not guarantee, warrant or otherwise imply that:
18.104.22.168. you will receive constant and uninterrupted access to this Site or the Services; or
22.214.171.124. you will receive unlimited access to all the content available on the Site at any given time;
28.1.2. we cannot always ensure that this Site, its computer systems and network resources will be fully or continually protected from unlawful access by others, including the infection of data or other information by viruses, or the alteration, misuse, or stealing of data or other information or that any of these activities will be detected.
29. Disclaimer and Limitation of Liability
29.1. Under no circumstances shall Winfooz, the Winfooz partners or their respective affiliates, employees, officers, directors, agents, licensors, independent contractors, or suppliers (the “Winfooz parties”) have any liability to the customer or authorized users for any direct, consequential (including lost profits), exemplary, incidental, indirect or special damages or costs resulting from any claim (whether in contract, tort, equity, negligence, or strict liability) related to or arising out of the Winfooz system, any related services, these terms and conditions, including the performance or breach thereof or the use or inability to use, or performance or non-performance of the Winfooz system or any component thereof, even if they have been advised of the possibility of such damages.
29.2. The liability of Winfooz USA inc. and Winfooz ltd arising out of or related to these terms and conditions, the platform or any transaction or services shall be limited to actual direct damages incurred by a customer and the aggregate liability of Winfooz for such actual damages shall not exceed, under any circumstances, the fees paid by such customer to Winfooz in respect of the transaction or service or $500, whichever is less. Multiple claims shall not expand these limitations.
29.3. Notwithstanding, and in addition to any other provision in this Agreement, you agree that we will not be liable to you or any other person for any loss, damage, expense, or other amounts incurred, savings foregone, or hardship suffered, by any person however arising (including where the cause cannot be determined), or whether it arose directly or indirectly from any authorised or unauthorised use of, access to, reliance on, or any inability to use or access this Site, the Services, or as a consequence of such use, access, reliance, or inability to access, including, but not limited to any loss relating to one or more, or a combination, of the following:
29.3.1. a failure, or error in the operation, of all or any part of this Site, our computer systems, network resources, the Services, or any other computer systems or network resources to which they may be connected or upon which they may rely, or the taking offline of any of those computer systems or network resources for any reason;
29.3.2. any circumstances which produce or have the consequence of producing a degradation, fall-off, or complete severance of access to this Site or network resources or any other computer systems or network resources to which they may be connected by any person;
29.3.3. in relation to an auction or sale on this Site, that bids were not processed or accepted due to technical difficulties or for any reason whatsoever;
29.3.4. 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, any equipment, property, data, or other information possessed by you or any other person, any loss of profits, and any losses relating to contracts, business, revenue, goodwill, or any anticipated savings;
29.3.5. any personal losses or hardship, stress and anxiety, nervous shock, or other personal suffering or condition;
29.3.6. any errors or omissions in any documentation or other literature provided by us, 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;
29.3.7. any reliance on, the information and material contained on this Site about any goods and services or any other information or material whatsoever, or any information and material contained on, and the privacy of, web sites linked to this Site;
29.3.8. any one or more of the circumstances described in Clauses 7.3 and 7.4, 14.2, 23.3, 23.4, 26.2, 27.1 or 28.1;
29.3.9. any feedback, comments or rating scores made by you, or about you, pursuant to the Rating Rules/Community Guidelines;
29.3.10. any action taken by us under this Agreement, including, but not limited to, action taken under Clauses 22.1 to 22.4 (inclusive); or
29.3.11. any conduct, act or omission, whether negligent, reckless, or otherwise, whether within any actual, ostensible, or apparent authority or not at all on the part of our employees, agents, or authorised representatives.
29.3.12. Any decision to hold an inquiry or not hold an inquiry into an alleged breach on the part of one of the users.
29.4. 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.
29.5. If any legislation or law implies in this Agreement any term or warranty and prohibits provisions in a contract excluding the application of or exercise of that term or warranty then, to the maximum extent permitted by law, our liability for a breach of such a term or warranty will be limited, at our option to any one or more of the following:
29.5.1. if the breach relates to goods:
126.96.36.199. the replacement of the goods or the supply of equivalent goods;
188.8.131.52. the repair of such goods;
184.108.40.206. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
220.127.116.11. the payment of the cost of replacing the goods repaired; and
29.5.2. if the breach relates to services:
18.104.22.168. the supplying of the services again; or
22.214.171.124. the payment of the cost of having the services supplied again.
29.6. Notwithstanding anything else in this Agreement or incorporated Arbitration Policies if an Indemnified 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 the performance of its obligations under this Agreement, the maximum aggregate liability of an Indemnified 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 $500.
30. Release and Indemnity
30.1. Notwithstanding, and in addition to any other provision in this Agreement, to the maximum extent permitted by law, you agree to release from, and indemnify, each Indemnified Party, against, any claims, losses, liabilities, suits, demands, proceedings, costs or expenses (including legal costs on a full indemnity basis) directly or indirectly related to, or arising out of:
30.1.1. your use of the Services;
30.1.2. your offering for sale and the sale of, and/or, your bidding for and the purchase of, any goods and services as a result of using the Services;
30.1.3. the reproduction, broadcast, transmission communication or making available of any information or material (including credit card details) by us or any users (other than you) made available by use of the Services;
30.1.4. any one or more of the circumstances described in Clause 29.1;
30.1.5. any alleged breach of a person’s rights (including, but not limited to, defamation or misleading or deceptive conduct) by a communication, broadcast or transmission made available by means of the Services; or
30.1.6. any claim by any person arising out of, or in connection with any cessation (temporary or permanent) of the supply of the Services in accordance with this Agreement.
30.2. The indemnity under Clause 30.1 does not extend to:
30.2.1. expenses incurred by us that are unreasonable; or
30.2.2. losses occasioned by us as a result of this Agreement proving not to be profitable to us.
31.1. The incorporated Arbitration Policies shall take precedence over this Clause 31 should there be any discrepancy in substance or procedure.
31.2. Generally, dispute resolution is governed by the incorporated Arbitration Policies.
31.3. You and Winfooz must follow the procedure for resolving any dispute in connection with or arising out of this Agreement, in accordance with this Clause 31 before starting any proceedings (except proceedings seeking urgent interlocutory relief).
31.4. The procedure for resolving a dispute is as follows:
31.4.1. first, either you or Winfooz may give notice to the other about the nature of the dispute (“Notice”) and you and Winfooz will seek to negotiate a settlement within 30 working days of receipt of the Notice;
31.4.2. second, to the extent those negotiations fail, you and Winfooz will seek, within a further 5 working days, to reach agreement on the appointment of a mediator for resolving the dispute, and failing any such agreement, the mediator shall be appointed Winfooz USA Inc and the mediation shall be conducted in accordance with the Winfooz USA Inc; and
31.4.3. failing such a resolution, the dispute, if arbitrable in law, shall be finally resolved in accordance with the Rules of the Winfooz USA Inc by an arbitrator(s) appointed by the body.
31.5. You shall be liable for all costs incurred by us in the enforcement of any rights which we have in terms of this Agreement or in the recovery of any monies due to us, including collection charges and costs on an attorney and own client scale and costs of counsel as on brief whether incurred prior to or during the institution of legal proceedings or if judgment has been granted in connection with the satisfaction or enforcement of such judgment against you.
32. Entire Agreement
32.1. Subject to you making use of this Website, this Agreement constitutes the entire Agreement between you and Winfooz.
32.2. If there is any conflict between this Agreement and other listed Annexures, unless otherwise indicated, the provisions of this Agreement shall prevail.
32.3. Unless the context indicates otherwise, this Agreement incorporates all other Agreements and Annexures between the parties.
32.4. Should there be any conflict between any other Agreement or Annexure and this Agreement, unless otherwise indicated, the provisions of this Agreement shall prevail.
33. Remedies Cumulative
33.1. All rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.
33.2. A notice dealing with amendments or variations or updates of this Agreement will be posted on our website.
33.3. It is your duty and responsibility to familiarise and understand the amendments or variations or updates.
33.4. By continuing to use our services, you are deemed to have accepted the amendment, variation or update as binding on you.
34. Relationship of Parties
Nothing in this Agreement shall be deemed to constitute any party as the agent, partner, joint venturer or other business type relationship of another party.
35. Further Assurances
A party shall take all such steps, execute all such documents and do all such acts and things as may be reasonably required by another party to give effect to any of the transactions contemplated by this Agreement.
Other than as otherwise specified in this Agreement, neither the failure of a party to enforce at any time any of the provisions of this Agreement nor the granting of any time or other indulgence shall be construed as a waiver of that provision or of the right of that party thereafter to enforce that or any other provision.
37. Term and Termination
37.1. This Agreement will continue to apply to you until terminated by either you or Winfooz. However, you acknowledge and agree that the perpetual licence granted by you under Clause 25 is irrevocable and will therefore continue after expiry or termination of any of the Agreement for any reason.
37.2. All sections herein, as well as any other sections of the Agreement that, either explicitly or by their nature, must remain in effect even after termination of the Agreement, shall survive termination.
Fees and Payments Policy:
Might include –
Registering, bidding on, and creating items on this Site do not attract a fee.
Buying items either through the Buy Now or through a successful bid on this Site does attract a fee.
[Will the advertised price include the commission, or will that be added after successful purchase or bid?]
“Final order value” means the higher of the “Item sales value” together with any shipping charges, OR the “Total order payment”;
“Final order value fee” means a fee adjustment that is charged to a seller account, calculated on the difference between the “Final order value” and the “Item sales value”, multiplied by the lowest category success fee percentage, which is currently 5.75% excluding VAT;
“Item sales value” means the total value of all items included in an order together with any other additional options selected on such items during checkout, excluding shipping charges or duties;
“Total order payment” means the cumulative total of all payments made and allocated to an order excluding any payments that have been reversed from such orders;
Conduct of Auction Policy
1. The rules for conducting auctions on this Site are as follows:
1.1. you must not engage in bid manipulation to unfairly induce any other person to make bids and/or manipulate the bid price;
1.2. no bids below the stated minimum price (if there is one) will be accepted;
1.3. if the highest bid does not reach the reserve price (if there is one), then no bid will be regarded as having been successful;
1.4. a Buyer must, if so requested, provide credit card details to us immediately before your first bid, if the Buyer has not already done so pursuant to the Terms and Conditions;
1.5. after the close of an auction all bids are final and not retractable by the Buyer and the Buyer shall be deemed to be the successful bidder in the following order:
1.5.1. in the case where the seller closes the auction early if satisfied with the current winning bid;
1.5.2. in the case of a Buy Now Item, the first bidder who placed a bid at the Buy Now Price;
1.5.3. the Buyer who placed the highest bid;
1.5.4. the Buyer who placed the bid for the greatest quantity of goods or services at the highest price;
1.5.5. the first Buyer who placed the bid for the greatest quantity of goods or services at the highest price;
1.6. if the Buyer is a successful bidder as determined by Clause 1.5, and that bid is accepted, or deemed to be accepted by the Seller, the Buyer must complete the purchase of the goods or services, save in exceptional circumstances such as the following:
1.6.1. the description of the goods or services is materially altered following the commencement of bidding; or
1.6.2. the Buyer is unable to authenticate the identity of the Seller; or
1.6.3. the Seller fails to deliver the goods or services (or fails to procure delivery thereof, as required) to the Buyer, by the date agreed by the Seller and Buyer;
1.7. Bid deletion by a seller is not permitted without a valid reason or without the permission of Winfooz, unless the bidder requests this in accordance with relevant Consumer Protection law, then bids must be removed before the close of the auction.
1.8. if a Seller receives a bid equal to or above the stated minimum price, or if it is a reserve auction, the reserve price, they must accept that bid or highest bid (if there is more than one bid) and complete the sale of the goods or services to that Buyer save in exceptional circumstances such as the following:
1.8.1. the Buyer fails to complete the purchase of the goods or services (for example, the Buyer fails to pay for the goods or services); or
1.8.2. the Seller is unable to authenticate the identity of the Buyer or the creditworthiness of the Buyer and the Buyer’s ability to pay for the goods or services.