TELEWHEELS (PTY) LTD t/a YOURWHEELS TERMS AND CONDITIONS, INCLUDING THE RULES OF OFFERING
“Buyer” means the purchaser of the Goods;
“Cleared Funds” means the approved offer or purchase price paid by the Buyer into the Seller’s nominated bank account, which funds are cleared by such nominated bank and to which the Seller has immediate access, the nominated bank account could be a trust account for later clearance at a cost to the seller for secure payment;
“the Company” means Telewheels (Pty) Ltd t/a Yourwheels as well as financing through the House of Cars;
“CPA” means the Consumer Protection Act, 68 of 2008 and can be accessed at http://www.info.gov.za/view/DownloadFileAction?id=99961 ;
“Contract” means any contract or agreement arising out of the acceptance of any offer, whether that contract arises out of an offer made by the Company and accepted by the Customer, or an offer made by the Customer and accepted by the Company;
“ECTA” means the Electronic Communications and Transactions Act, 2 of 2002 and can be accessed at http://www.info.gov.za/view/DownloadFileAction?id=68060;
“Effective Date” means the date of payment of the approved offer or purchase price;
“FICA” means the Financial Intelligence Centre Act, 38 of 2001 and can be accessed at https://www.fic.gov.za/DownloadContent/LEGISLATION/ACTS/01.a38-01b.pdf ;
“Goods” means the motor vehicles and/or any other item listed for sale on the Website;
“its” shall include “his” and “her”;
“party” shall mean the Buyer, the Seller and/or the Company and includes “parties”;
“Regulations” shall mean the regulations to the CPA and can be accessed at http://www.polity.org.za/article/consumer-protection-act-682008-regulations-gazette-no-34180-regulation-293-2011-04-01 ;
“Reserve Price” means the minimum VAT inclusive price at which the Seller is prepared to sell the Goods;
“Seller” mean the seller of the Goods and may include the Company;
“User” means the user, juristic or natural, of the Website and includes the Buyer and the Seller;
“Website” means www.yourwheels.co.za.
- This document contains the standard terms and conditions of sale on which the Seller or the Company sells the Goods to the User.
- These terms and conditions constitute the entire agreement between the Company and the User / Buyer relating to the subject matter hereof and shall be binding between the parties for all current and future online offer of Goods, unless modified and/or amended by the Company. The Seller shall in addition to being bound to these terms and conditions furthermore be bound to the Seller’s mandate entered into between the Company and the Seller.
- Nothing in these terms and conditions are intended to or must be understood to unlawfully restrict, limit or avoid any rights, obligations, as the case may be, created either of the User / Buyer or the Company in the event of the CPA applying.
- The User, by its application for registration and subscription to the Website and the submission of electronic offers, warrants that it has read and understood all the terms and conditions contained in this document and agrees to be bound hereby.
- The Seller, by listing the Goods on the Website, warrants that it has read and understood all the terms and conditions contained in this document and, where applicable, agrees to be bound thereby.
- The Company (Registration Number: …/……../07) is in the business of offering on behalf of the Seller, from time to time, used motor vehicles using an electronic internet-based system.
- Information about the particular Goods on the Website are as provided by the Seller to the Company and the Company makes no representations or warranties with respect to the accuracy or completeness of any description. Save where the Company is the Seller of the Goods, the Company confirms that they have not inspected the Goods. The responsibility for the information provided in the listing of the Goods lies with the Seller. The Seller is requested when listing the goods for sale to declare necessary information on the condition and history of the gooods.
- The offering on the website is through the Company, which takes place online, and whose registered address is situated at 10 Hunter street, Randburg, Johannesburg, Gauteng, 2125.
- A representative of the Company can be contacted at firstname.lastname@example.org or (011) 449 7143.
- The Website is run by the Company.
- These terms and conditions form the entire agreement between the parties. No other terms or conditions, whether express, tacit or implied shall apply to a Contract irrespective of the circumstances under which the Contract arose. No alteration or variation of these terms and conditions shall be of any force or effect unless and until recorded in writing and approved by the Company. All provisions and various clauses of these terms and conditions are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other.
- These standard terms and conditions may be periodically modified and/or amended by the Company at any time and in their sole discretion and it is the User’s and the Seller’s responsibility to ensure that they are familiar with the updated and/or amended terms. The User and the Seller’s continued use of the Website signifies their acceptance of these terms and conditions and any updates and/or amendments thereof.
- The User:
will complete, in full, the registration and documents provided on the Website;
certifies that the information provided by the User in all respects is true and correct;
will furnish the Company with such supporting documentation as may be required by the Company for any reason whatsoever including, without limitation, documentation required for FICA purposes;
certifies that the User and/or Buyer is a person whom may enter into an agreement in terms of the laws of the Republic of South Africa; and
acknowledges that the offer for any Goods for sale on the Website and any sale concluded as a result thereof will give rise to a contractual relationship between the Seller and the Buyer.
- The Company reserves the right to decline or at any time cancel a User’s registration for any reason whatsoever and for which the User will have no recourse.
- The User’s registration to the Website is deemed to be consent by the User that the Company may conduct various checks on the User including, without limitation, credit reference checks with a registered credit bureau.
- The User shall furthermore make available to the Company and/or the Seller such information as may be required by the aforementioned parties including, without limitation, the User’s information for FICA purposes; proof of the existence of a current bank account in the name of the User; the User’s ID and/or any other documentation verifying the identity of the User; proof of the User’s VAT registration number (if applicable) and proof of address.
- The User furthermore agrees and consents to the Company having access to and/or conducting credit reference checks in relation to the User.
- The User acknowledges that the Company:
is not a party to the sale of any Goods;
does not warrant that the Seller is willing and/or able to perform its obligations to the Buyer as contained herein; and
will not be a party to any dispute between the Seller and the Buyer in relation to the Goods.
Will provide for a sales commission of 4% as well as an administration fee of R5700 which is included in the selling price.
Can provide a warranty for the vehicle at an additional cost.
- The Company is the facilitator of the offer and the offer is a transaction between the buyer and seller as defined in the Regulations.
- All offers placed through the Company will be submitted electronically through the Website and no alternative form of an offer will be accepted or considered valid for any reason whatsoever.
- Where the offer is subject to finance approval, the Seller reserves the right to reject any offer.
- By placing an offer the User warrants that they have the ability and the intention to proceed with the purchase of the Goods. All offers placed by the User constitute an irrevocable offer by the User to the Seller and may not be withdrawn by the User, unless otherwise agreed in writing by the Seller or the User falls within the ambit of the CPA (insofar as the CPA is applicable). Or if the User’s finance application is unsuccessful.
- The Company and/or the Seller reserves the right, in its sole and absolute discretion and without reason to withdraw from an offer at any time before acceptance of an offer and/or to reject any offer received. If any particular Goods carry a Reserve Price then the Seller reserves the right to reject any offer submitted below that minimum Reserve Price.
- In the event of equal and/or similar competing offers being received simultaneously the Company may, in their sole and absolute discretion, elect to accept one competitive offer over the other, elect to reject both the offers or withdraw the Goods for sale on the Website.
- Save for the situation provided for in clause 44 below, notice of acceptance of a successful offer will be forwarded, by electronic mail, to the Buyer notifying him of his successful purchase of the Goods. The receipt of such notice by the Buyer shall bind him to purchase the Goods from the Seller at the amount offered by the Buyer on the Website.
- Receipt of the electronic mail notice referred to in clause 43 above sent as a result of, among other things, a Website error or a defect in the Website or server will not be binding on the Company and/or the Seller and the Company reserves the right to retract the notice in such circumstances. The User shall have no recourse against the Company and/or the Seller in such circumstances whatsoever.
- Insofar as the CPA, including the Regulations, apply to the website offer, if any:
the rules of sales are in accordance with section 45 of the CPA and the Regulations;
when Goods are put up for sale on the website, unless there is evidence to the contrary, regarded to be the subject of a separate transaction;
a person who place an offer at the website on behalf of another person must produce a letter of authority meeting the requirements of Regulation 26(3) in order to do the sale on behalf of that person;
all moneys will be paid directly by the Buyer to the Seller, except if the vehicle is financed or the money to be put in an escrow account at the cost of the seller;
a person who intends to place an offer must register on the Website prior to the offer being accepted together with a description of the requirements for registration and in accordance with the provisions of these terms and conditions;
the advertisement / vehicle details will contain a statement indicating whether additional costs are payable and how such additional costs will be computed but these costs could differ depending on service provider.
- The Buyer will, within 48 (forty eight) hours of receipt of the notice referred to in clause 45, attend to payment of the offer, whether by cash or finance from a bank and any additional sums due, by way of cash or via electronic funds transfer or bank guaranteed cheque. Bank details will be supplied to the Buyer in the aforementioned notice. The Goods will not be released to the Buyer until such time as all sums due and owing reflect in the Seller’s bank account or the escrow account as Cleared Funds.
- All payments made by the Buyer shall be made without deduction, bank charges or set-off.
- Without limiting the Seller’s rights in terms hereof and in the event of the Buyer failing to make payment on due date, the outstanding purchase price shall attract interest calculated from the date that the payment became due and payable, at the prime rate of overdraft charged on unsecured overdrawn accounts held at Standard Bank Limited, as amended from time to time, plus 5% (five percent), which interest shall be calculated daily and compounded monthly in advance.
- The Seller shall, within 48 (forty eight) hours of payment reflecting as Cleared Funds, provide the Buyer with a receipt of payment received and the original vehicle registration papers, save that the Buyer accepts that from time to time delays may occur in relation to obtaining vehicle registration papers and that the Seller will not always be in a position to give the Buyer the original registration papers against delivery of the goods.
- All Reserve Prices quoted on the listing shall be VAT inclusive. (if applicable)
- All offers submitted by Users shall be deemed to be VAT inclusive. (if applicable)
- Notwithstanding delivery of the Goods and/or registration papers, transfer of ownership in and to the Goods shall remain vested in the Seller until such time as the successful offer purchase price has been paid in full by way of payment of Cleared Funds into the Seller’s nominated bank account.
- Ownership in and to the Goods shall be deemed to pass from the Seller to the Buyer once the Company has confirmed receipt of all Cleared Funds owing to the Seller.
- The Seller shall give and the Buyer shall take possession of the Goods within 48 (forty eight) hours after all sums owing to the Company and the Seller have reflected as Cleared Funds in the Seller’s nominated bank account. The Buyer shall collect the Goods directly from the Seller or a mutually agreed place i.e Dekra.
- Should the Buyer fail to collect the Goods from the Seller within a reasonable time as aforementioned then the Seller shall be entitled to store the Goods which storage and associated costs shall be for the Buyer’s sole account and will not be less than R250.00 per day (VAT inclusive). The Seller shall be entitled to not release the Goods to the Seller until such time as the storage and associated costs have been paid by the Buyer and the Seller will hold a lien over such Goods.
- Unless otherwise provided for in the CPA (where applicable), all risk in and to the Goods shall pass from the Seller to the Buyer upon receipt by the Buyer of the notice of acceptance of its successful offer in terms of clause 43.
- The User warrants that:
- the information provided by it during the Website registration process is true and correct in all respects;
- upon the submission of an offer, the User is willing and able to effect payment of that sum plus any additional costs specified on the Website;
- it has not, directly or indirectly, engaged in or been involved in offer manipulation and/or unfairly induced any other person to make offers and/or alter and/or affect the price and/or in any way colluded with any person whomsoever, juristic or natural, to alter or attempt to alter a fair process;
- it has viewed and/or inspected the Goods and/or hereby waives its right to view and/or inspect the Goods and has satisfied itself as to the condition thereof;
- The User furthermore warrants that he/she is over the age of 18 (eighteen) years.
The Seller warrants that:
- it is the owner or authorised agent of the Goods;
- it has used its best endeavours to accurately describe the Goods on the Company’s Website and the listing description is accurate (it however being understood that it is the obligation of the Buyer to conduct the necessary investigation to satisfy itself as to the correctness of the information therein contained);
- the Goods will be made available for inspection by the User on reasonable notice;
- the Goods will, as at the Effective Date, be in substantially the same condition as at the listing date; and
- the Goods will be available for collection immediately after confirmation of receipt of Cleared Funds into the Seller’s nominated bank account.
- Other than the representations stated in these terms and conditions or the warranties as provided for in the CPA and ECTA, where applicable, the User acknowledges that the Company has made no representations or warranties, implied or otherwise, to the User and/or the Seller in connection with the Goods, prior to the Contract having been made or the terms and conditions.
- The company further do not warrant the goods describe and pictures on the website as true and correct as it has only placed what were provided by the seller and can differ.
- In the event of the Buyer breaching any of the terms and conditions of this Agreement, the Seller and/or the Company shall be entitled (but not obliged) by written notice to the Buyer to:
- claim specific performance; or
- cancel the Contract (and any sale concluded in terms thereof); and
- In either of the above instances the Seller and/or the Company may claim such damages as it may have suffered as a consequence of the Buyer’s breach.
- The aforegoing remedies shall be in addition to such remedies which the Seller and/or the Company may have under the common law.
- In addition to any other specific exclusions of liability contained herein and unless otherwise expressly stated herein, the Parties agree that the Buyer shall have no claim against the Company for any loss or damage, of any nature whatsoever, occasioned by any defect, whether patent or latent, or product liability in the Goods supplied by the Seller or any failure to provide adequate instructions in respect of any hazards that might arise from the use or incorrect use of the Goods or the User’s use or inability to use any Goods sold on the Website, save to the extent that the User is a consumer for the purposes of the CPA and such loss or damage is contemplated in section 61 of the CPA and provided that nothing in these terms and conditions must be construed as in any way limiting the rights of the Company to raise such defences as may be available to it at common law or in terms of any statute.
- In the event of the breach of these terms and conditions by the Company, the User’s remedies shall be limited to damages which shall under no circumstances exceed the purchase price of the Goods.
- The User hereby indemnifies and holds the Company and/or the Seller harmless against any losses, expenses, costs or damages of whatsoever nature incurred by the User and/or the Seller howsoever arising, including from any wilful misconduct or gross negligence of the Company. The Company shall under no circumstances whatsoever be liable for damages, directly or indirectly caused, or consequential loss of any nature whatsoever. Where applicable, this clause 70 will not apply to a User insofar as it is in conflict with the CPA.
- The User hereby indemnifies and holds harmless the Seller and/or the Company and waives any right that it may have to claim against the Seller and/or the Company in relation to any loss which it may suffer occasioned by the unauthorised use of the User’s Website secret password and user name.
- The User may not actually or purportedly cede, assign or otherwise alienate any rights or obligations which it may have in terms hereof or in terms of any Contract with the Seller, without the prior written consent of the Company and/or Seller, which consent will not be unreasonably withheld.
- These terms and conditions and the Contract, where applicable, shall be binding on the Buyers heirs, trustees, liquidators, curators and/or successors in title.
- The User elects as his domiciliumcitandietexecutandi the physical address as stipulated in the registration documents completed by the User on the Website for service of all notices or legal processes.
- The Company elects as its domiciliumcitandietexecutandi its registered address specified at clause 24.
- The Website, these online terms and conditions, the Contract and any contract entered into between the Company and the Buyer and/or Seller shall be subject to the laws of the Republic of South Africa.
- In terms of section 45 of the Magistrates Court Act 32 of 1944, as amended, the User hereby consents to the jurisdiction of the Magistrates Court having jurisdiction in terms of section 28 of the said Act in respect of any action to be instituted against the User and/or the Seller by the Company. It shall nevertheless be entirely within the discretion of the Company as to whether to proceed against the User and/or the Seller in such Magistrates Court or any other court having jurisdiction.
- In the event of the User and/or the Seller committing any breach or in the event of the Company being required to take any legal action, the User and/or Seller agrees and undertakes to pay the Company’s legal costs on the scale as between attorney and client, including collection commission, tracing fees, valuation charges, transport costs and other expenses in connection therewith.
- The Company shall take reasonable steps to protect the personal information of the User collected by the Company through its Website. For the purposes of this clause “personal information” shall be defined as detailed in the Promotion of Access to Information Act, 2 of 2000 (“PAIA”). The PAIA can be accessed at http://www.info.gov.za/view/DownloadFileAction?id=68186 .
- The personal information will not be made available to any third party without the User’s consent or unless required in legal process or proceedings or to protect the rights, property or safety of the Company or other parties. The User acknowledges that the Company will supply the Seller and all other necessary third parties with the User’s personal information for the purpose of concluding a sale of Goods.
- The User recognises that it is the User’s sole responsibility to protect its Website username and password.
- The User agrees that the Company may use its confidential information to communicate with the User from time to time, unless otherwise specified by the User in writing.
- It is recorded that the Website may collection cookies and/or make use of tracking. All Users of the Website accept that the Company may collect the User’s computer IP address in order to, among other things, measure the number of visitors to the Website for marketing purposes. The Company is under no obligation to protect this information and may make use of this information without limitation.
- Save for the provisions of section 43(5) and 43(6) of ECTA, neither the Company nor its duly authorised agents or representatives shall be liable for damages, loss or inability to use the Website, the services or content provided therein. The Company furthermore makes no representation or warranties whatsoever that the content and/or the technology available on the Website is free of errors, omissions, and viruses of any nature or free of interruption.
- Any and all information on the Website should not be regarded as professional advice or the official opinion of the Company and it is the User’s responsibility to ensure the correctness of any of the content displayed on the Website.
- No right or license is hereby granted to any User, whether juristic or natural, to any trademark, mark, branding, design or any other intellectual property of the Company whatsoever.
- All material located on the Website including, without limitation, text, logos and images may not be copied, reproduced, republished, downloaded, posted, broadcast or transmitted in any way whatsoever except for the User’s personal non-commercial use.
- The User agrees not to adapt, alter or create any derivative work from any of the Company’s material contained on the Website nor to use any of the Company’s content for commercial use in any way whatsoever, without the Company’s prior written approval.