The website www.chrometemple.com and its related services, products, websites, tools and applications (Website) is owned and operated by CHROME TEMPLE MOTORS PTY LTD ACN 649 917 091 (CHROME TEMPLE Motors).
If you are agreeing to these Terms and Conditions on behalf of someone or entity, you represent and warrant that that you have the irrevocable authority and agreement of that person or entity to be bound by these Terms and Conditions.
1. Definitions & Interpretation
In these Terms and Conditions, unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
(a) Account: a User’s online account to use our Services.
(b) ACL: means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(c) Additional Terms: any additional terms of a Seller as contained on the Listing, or otherwise made reference to on the Listing.
(d) Applicable Laws: any applicable laws (including orders, by-laws and regulations) in the jurisdiction in which you, and any User you are interacting with are located or which in any way govern or affect the use of the Services, including the laws of the State.
(e) Auction: an auction format sale of an Item on the Website.
(f) Bid: a bid placed on an Auction and a Bidder shall mean a User that has placed a Bid.
(g) Buyer: any User who uses the Website to search, bid and place an order for Items.
(h) Buyer’s Fee: those fees payable by the Buyer to us in accordance with clause 5.3.
(i) Content: includes any material, text, pictures, sound, graphics, video and other data whether in written form or otherwise published by you on the Platform or provided by you to us to be incorporated into a Listing.
(j) Fees: the fees payable by Users to CHROME TEMPLE Motors in accordance with these Terms and Conditions, including the Buyer’s Fee and any additional fees payable to CHROME TEMPLE Motors in accordance with these Terms and Conditions.
(k) GST: has the meaning provided in the GST Act.
(l) GST Act: A New Tax System (Items and Services Tax) Act 1999 (Cth).
(m) Intellectual Property: means without limitation our copyright, trademarks, know-how, processes and concepts, including any content that we develop or publish (including the Materials), the look and feel of the Website, the Website itself and any other website or platform developed by CHROME TEMPLE Motors and the source code for those systems and all intellectual property rights related to such, whether registered or unregistered and whether developed before or after the date of these Terms and Conditions.
(n) Item: any items made available for sale by a Seller on the Website from time to time.
(o) Listing: the listing of an Item on the Website (being the page or part of the Website which contains the details of the Item).
(p) Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(q) Materials: any materials written, created or conceived by us, including without limitation any text written by us for a Listing (to the extent that we own or have the right to such materials).
(r) our, us and we: CHROME TEMPLE Motors.
(s) PPSA: the Personal Property Securities Act 2009 (Cth).
(t) PPSA Security Interest: has the meaning given to the term ‘security interest’ in the PPSA.
(u) Related Parties: our related entities and related bodies corporate (as those terms are defined in the Corporations Act 2001 (Cth), our officers, directors, agents, and employees.
(v) Security Interest: any of the following:
(i) an interest or power reserved in or over an interest in any asset or created or otherwise arising over any interest in any asset under a security agreement, charge, mortgage, pledge, bill of sale, hypothecation, lien, arrangement concerning the deposit of documents evidencing title, trust, power, title retention arrangement or any other covenant or arrangement of any nature made by way of, or having similar commercial effect to, security for the payment of a debt, any other monetary obligation or the performance or observance of an obligation;
(ii) a PPSA Security Interest;
(iii) any agreement or arrangement (whether legally binding or not) to grant or create anything referred to in the above paragraphs.
(w) Seller: any User who markets and/or sells their Items on the Website.
(x) Services: any services that we provide to you, including the Website.
(y) State: New South Wales, Australia.
(z) User: any person who uses the Website, and includes a Seller and Buyer.
(aa) Website: means https://chrometemple.wpengine.com/
(bb) You and your: a User, Buyer or Seller (as the case may be).
In these Terms and Conditions the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
(a) Headings and subheadings are for convenience only and do not affect the interpretation of these Terms and Conditions.
(b) References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
(c) Words denoting the singular include the plural and words denoting the plural include the singular.
(d) The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any government agency.
(e) A reference to a body (other than a party to these Terms and Conditions), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
(f) A reference to any agreement or document (including these Terms and Conditions) includes any amendments to or replacements of that document.
(g) A reference to a law includes:
(i)legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
(ii)any constitutional provision, treaty or decree;
(iv)any rule or principle of common law or equity,and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
(h) No provision of these Terms and Conditions will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms and Conditions.
(i) Specifying anything in these Terms and Conditions after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
(j) A reference to writing or written includes email.
(k) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
2. Using The CHROME TEMPLE Website
2.1 The Website provides an online auction platform that allows Users to offer their Items for sale on the Website. Other Users may bid on and buy those Items.
2.2 Users of the Website who make Items available for sale are referred to as Sellers and specific provisions contained in clause 4 apply to them.
2.3 Users who wish to browse, bid and place orders for Items are referred to as Buyers and specific provisions contained in clause 5 apply to them.
2.4 Although we provide the Website as an online auction platform, we are not the auctioneer or seller of the Items. The actual contract for sale is directly between the Seller and the Buyer and the Seller and the Buyer are solely responsible for fulfilment of their obligations under that contract. We merely provide a Service that facilitates the entrance of a contract between the Buyer and Seller, we are not a party to such contract.
2.5 Our Services are available only to, and may only be used by, persons who can form legally binding contracts under Applicable Laws. If you do not qualify, please do not use our Services.
2.6 Subject to you complying with these terms, we will provide our Services to you as set out in these Terms and Conditions.
3. Your Account
3.1 In order to use most of the functionality of the Website (including to offer, sell and buy Items) you will need to register with us and set up an Account with your email address, a password and other personal information. You are solely responsible for maintaining the confidentiality of your login details and you are liable for all activities (such as purchases) that happen under your Account, even if you do not authorise such activities.
4.1 General If you are Listing and selling Items on the Website then the terms of this clause will apply to you.
4.2 Listing & Selling Items on the Website
(a) Sellers will be required to register for and create an Account on the Website. On registration you will be required to provide us with a debit or credit card which is acceptable to us in our discretion. We will debit the amount payable by you to us under clause 4.6 from that card in the event you default on your obligations.
(b) To be able to list and sell Items on the Website, you must provide us with a short description about your proposed Listing so that our team is able to evaluate if the Listing would be a good fit for our audience. We may in our sole discretion accept or reject any proposed Listing, without any obligation to provide reasons.
(c) Upon our acceptance of the Listing, we will then work with you to gather the necessary information for your Listing. Our team will then compile the Listing based on information provided by you, which is then approved by you. All Listings will start in an auction format with a set price and reserve. If the Listing is unsuccessful, then we may give you the option to list your Item at an agreed price under the buy now format for a given period of time. Please note that we only want committed sellers, so we will only accept Listings where we can agree to a reasonable and realistic reserve (at our discretion). By approving the Listing, you acknowledge that you are solely responsible for the accuracy and content of information provided in a Listing, regardless of our teams input to the Listing.
(d) You agree to make the Items available exclusively for sale through the Website during the time that the Listing is scheduled or live on the Website. You must cancel, remove or take down any other sale listing that includes the Item whether such listing is physical, digital or other. Once a Listing is scheduled it is not able to be cancelled.
(e) Without limitation to the other terms contained here, if you register for an Account, provide us with any details for a proposed Listing and/or approve the Listing of an Item for sale on the Website, you represent and warrant at all times that:
(i) the Listing of the Item is not in breach of these Terms and Conditions;
(ii) the Item is real and authentic and not counterfeit;
(iii) you have provided us with all material information about the Items (including any faults or defects) and all information provided about the Item (including such information shown on the Listing) is true and correct in all respects, and you have not engaged in misleading or fraudulent conduct;
(iv) you have the legal right, title, licence or interest in the Item to enable you to sell the Item and publish the Listing on the Website and that the sale of the Item and publication of the Listing on the Website will not infringe any third party’s intellectual property rights or cause any liability for us or another User whatsoever; and
(f) You acknowledge and agree that by offering an Item for sale on the Website, you are offering to enter into a legally binding contract with the Buyer.
(g) For Auctions, all Listings will have a reserve price, unless the title specifically says ‘no reserve’. Once an Auction ends, and a Buyer has placed the winning Bid to buy the Item for a price that exceeds the reserve price (or where no reserve price is specified, then the highest placed Bid), you acknowledge and agree that you enter into a legally binding contract to sell the Item to the Buyer at the winning Bid price. If any reserve price is not met at the end of an Auction, and the Item remains unsold, you will have the opportunity to accept or reject the final highest Bid. If you decide not to take the highest final Bid, the Listing may stay for a further 7 days within the buy now section at a fixed price.
(h) For buy now Listings, once a Buyer places an order for an Item, you acknowledge and agree that you enter into a legally binding contract to sell the Item to the Buyer for the price stated on the Website.
(i) You may include Additional Terms to us that we will include on your Listing, such as terms of sale that apply to the Items (to the extent applicable). Any Additional Terms must be consistent with these Terms and Conditions and any other terms and conditions we publish on our Website except where expressly permitted by us.
(j) Sellers are strictly prohibited from Bidding on their own Listing or getting others to Bid for them. We monitor all our Auction Listings and users to ensure this doesn’t happen.
(k) We reserve the continuing right to reject, revise, or discontinue any Listing, at any time and for any reason in our sole discretion, and to terminate the Listing and to remove all references to the Listing from the Website, and redirect or delete any URL used in connection with the Item. We also reserve the right to maintain the Listing page indefinitely on the Website (even after the Item’s auction or buy now listing has ended).
(l) You must ensure that you sell the Item to the Buyer free from all Security Interests.
4.3 Payment Process
Our Website does not provide payment facilities. A Buyer must pay a Seller directly for an Item.
4.4 Fees when using the Website
(a) It is free for a Seller to create a Listing and display that Listing on the Website. We may, however, offer additional services, such as photography and detailing, which we reserve the right to charge a fee for. The fees payable for such additional services will be as specified on the Website or as separately agreed at the time you order the additional service.
(b) The applicable fees are those fees stated on the date of acceptance of these terms. We encourage Users to regularly review the Website to confirm the fees payable. Any additional fees will become due and payable in accordance with the payment terms stated on the Website or as separately agreed with you.
We have no liability or obligation to you if a Buyer cancels an order for an Item or if they fail to pay for an Item.
(a) In the event that:
(i) you withdraw your Listing before the agreed end date of the Listing;
(ii) you do not make the Item available for inspection or viewing during or immediately after the Listing;
(iii) do not complete the sale of the Item to the winning Bidder due to the Seller’s own fault and doing. This clause 4.6 does not apply when the winning Bidder fails to complete the purchase of the Item or when the winning Bidder otherwise defaults on the purchase of the Item for any reason;
(iv) any detail of the Listing provided by you to us is false or incorrect; or
(v) for whatever reason you the Seller defaults on the sale of the Item or the terms of these Terms and Conditions or otherwise hinder any transaction due to the Seller's default under these Terms and Conditions,
then the Seller will be liable to pay the greater of the following amounts:
(a) the amount that we would have received from the Buyer for the Buyer’s Fee;
(b) 5% (inc GST) the initially agreed reserve price; and
(c) $1,000 inc GST.
The fees detailed in (a) to (c) above are capped at a maximum $10,000 inc GST. You irrevocably grant us the right to deduct this amount from your verified credit or debit card. You acknowledge and agree that such amount is not a penalty, but a genuine estimate of Loss we will have suffered as a result of your default.
4.7 Arrangements and Communications with other Users
(a) After the Auction ends, if the reserve has been met, CHROME TEMPLE Motors will provide you with the Buyer’s contact information. The same will take place if a Buyer selects to buy using the buy it now Listing.
(b) You must work together with the Buyer to complete the transaction within 7 days, arranging any shipping (at the Buyer’s expense) if necessary. Sellers are strictly prohibited from increasing the purchase price for the Item post Auction.
(c) You acknowledge that any arrangement or communication entered into with another User is solely at your own risk and you are solely responsible for the supply of any Item. We are not a party to any arrangement entered into. We have no control, influence or involvement in such arrangements. Our responsibilities are limited to facilitating the availability of the Services and acting as your agent in posting a Listing.
(d) We do not guarantee the completeness, accuracy, currency or reliability of any information provided by Buyers. You must make your own investigation in the accuracy of the information.
4.8 Legal rights of Sellers
Your legal rights in connection with the supply of the Items are against the Buyer and not us.
Buyers can access the Website to view Listings and Bid and place orders to purchase Items from Sellers. If you are purchasing Items on the Website then the terms of this clause will apply to you.
5.2 Bidding or placing an order for Items on the Website
(a) In order to place a Bid for an Item or purchase an Item you must have an Account with a verified debit or credit card (as determined by CHROME TEMPLE Motors).
(b) Buyers should make their own enquiries as to the state of repair and registration status of any Items advertised by a Seller on the Website.
(c) Once a Bid for an Item on has been placed by you on the Website it is not able to be cancelled, so please ensure that you complete all due diligence on an Item before placing a Bid.
(d) When you place a Bid on an Auction Listing, that Bid placed is binding, and if you win the Auction, you are agreeing to enter into a legally binding contract to purchase the relevant Item from the Seller. Similarly, when you place an order from a buy it now Listing, you acknowledge and agree that you are agreeing to enter into a legally binding contract with the Seller to purchase the relevant Item from the Seller.
(e) Any order placed by a Buyer may be subject to Additional Terms and any other terms stated on our Website. By placing an order, you agree to those Additional Terms and any other terms stated on our Website. In the event of inconsistency between any terms stated on our Website and any Additional Terms, the Additional Terms will prevail to the extent of the inconsistency. You should familiarise yourself with any Additional Terms prior to placing a Bid for an Item.
5.3 Buyer Fees
When the Auction ends and you are the highest Bidder or a buy it now Listing is purchased by you, the Buyer’s Fee is automatically deducted from your credit or debit card (and you irrevocably authorise such deduction). The Buyer’s Fee is 5% (inc GST) of the final bid or the sale amount for a sale of the Item that completes outside of the Auction, following the end of the Auction for that Item. The Buyer’s fee will be not less than the minimum $1,000 inc GST and is capped to a maximum amount of $10,000 inc GST.
5.4 Payment Process
(a) The purchase price for an Item is as displayed on the Website either at the time of the end of the Auction (if a reserve has been met if applicable) or at the time you order from a buy it now Listing. Prices and other details are subject to change without notice.
(b) Our Website does not provide payment facilities. A Buyer must pay a Seller directly for an Item. You authorise us, directly or through third parties, to make any inquiries we consider necessary to help verify or check your identity or prevent fraud.
(a) Subject to the other terms of this clause and to the extent permitted by law, all Fees paid by you to us, including the Buyer’s Fee, are non-refundable. We may at our discretion provide a refund in certain circumstances, however, this will be at our sole discretion (and we are not obliged to).
(b) We have no liability or obligation to you if a Seller cancels an Item any time after you have placed an order for it or if an Item you purchase is faulty or non-compliant with a Listing, these Terms and Conditions or any other terms (including the Additional Terms) or any Applicable Laws. If you have rights to a refund or other remedy in respect of an Item under Applicable Laws, then your rights are against the Seller and not us.
5.6 Arrangements and Communications with other Users
(a) After the Auction ends, if the reserve has been met, CHROME TEMPLE Motors will provide you with the Seller’s contact information. The same will take place if you buy using the buy it now Listing.
(b) You must work together with the Seller to complete the transaction within 7 days, arranging any shipping (which is at the Buyer’s expense) if necessary.
(c) A Seller is a third party that is unrelated to us. When you place an order for an Item, you are entering into a contract directly with the Seller. We are not a party to any contract between you and a Seller and are not responsible for ensuring that a Seller fulfills any order for an Item or complies with these Terms and Conditions or any other terms published by us, any Applicable Laws or Additional Terms.
(d) We do not supply, provide, manage or control the Sellers on the Website or their Items and are not responsible for their marketing, preparation, delivery, supply, packaging or otherwise. The Seller is solely responsible for supplying the Items to you. We take no responsibility for the quality of Items published on the Website. You purchase an Item at your own risk,
(e) The information about Sellers and their Items contained on the Website is provided to us by Sellers and other third parties and we cannot, and do not, guarantee the completeness, accuracy, currency or reliability of such information. You must make your own investigation in the accuracy of the information. You acknowledge and agree that you have made your own investigations and enquiries in respect of the Item prior to placing a Bid at the Auction and have not relied on any representations, warranties or other information that we may have made or provided.
(f) Please ensure that you undertake a search of the Item you purchase on the Personal Property Securities Register and otherwise ensure that it is free from Security Interests.
6.1 Prices are shown in the currency noted on the Website, or if no currency is stated, in AUD.
6.2 We make no representations or warranties as to the currency conversion rates that will apply to any payments deducted by us for Fees payable in accordance with these Terms and Conditions and we are not responsible for any Loss suffered by a party in the event of unfavourable currency conversion rate, including where our delay in processing a payment results in an unfavourable currency conversion rate applying to the payment.
6.4 You are solely responsible for any payment details (such as bank account and account identification information) that you provide to us. We will not be liable for any Loss that you suffer in connection with the incorrect payment details being provided to us.
6.5 All amounts paid to us under these Terms and Conditions are non-refundable to the extent permitted by law.
7. Prohibited use
7.1 You must not access or use the Service or Website:
(a) in a way that violates these terms;
(b) for unlawful or dangerous activities or purposes;
(c) in a way that is fraudulent, inaccurate, false, misleading or deceptive;
(d) in a way that would infringe any third party’s rights (including intellectual or other proprietary rights);
(e) in a way that is defamatory, trade libellous, unlawfully discriminatory, threatening or harassing;
(f) in a way that damages the credibility of the Website or us or that creates liability for us;
(g) to distribute any virus, trojan horse, worms or other computer programming routines that may or are intended to damage, modify, delete, interfere with, surreptitious intercept, access without authority or expropriate any system, data or personal information or otherwise affect the integrity, operation or security of the Website;
(h) to distribute or post spam;
(i) in a way that uses any robot, spider, scraper, data mining tools, data gathering an extraction tools or other automated means to access our Services;
(j) to collect a User’s information and harass them; or
(k) in a way that violates any Applicable Law (including those governing consumer protection, unfair competition, criminal law, antidiscrimination or trade practices law).
8.1 Users are strictly prohibited from directly or indirectly attempting to circumvent payment of our Fees in any way.
8.2 This includes, for example, the following practices which are strictly prohibited:
(a)contacting another User with an intention to market, sell or buy any Items outside of the Website before a Buyer has purchased an Item from a Seller;
(b) exchanging contact information prior to completion of a sale in order to complete the sale outside of the Website.
9. Access and Termination
9.1 We reserve the right, at any time and without prior notice to remove or disable:
(a) access to this Website or any part of it for any reason; and
(b) any Account or User that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms and Conditions or otherwise harmful to the Website or the interests of other Users,
and we will not be liable to you for any Loss that you incur in the event that we do this.
9.2 The termination of your access to the Website is without prejudice to the rights, liabilities and obligations of the parties that arose prior to the termination unless otherwise agreed by us.
10. Intellectual Property Rights and data
10.1 Intellectual property rights
You acknowledge and agree that:
(a) we own all right, title and interest in and to the Intellectual Property and no right, title or interest in any of the Intellectual Property is transferred or granted to you, except so far as expressly stated in these Terms and Conditions;
(b) you will not copy, reproduce, alter, modify, create derivative works, or publicly display our Intellectual Property except with our prior written permission or the appropriate third party authorised to grant such permission and when doing so you must adequately acknowledge us and, in the case of websites, include a link from your website to our Website;
(c) you grant to us a worldwide, perpetual, irrevocable, full paid-up, transferable, non-exclusive licence to use, reproduce, commercialise, modify, adapt and communicate any Content in order to provide our Services;
(d) you warrant that any Content you provide us with will not infringe any intellectual property rights of any third party nor give rise to any liability to make royalty or other payments to any third party;
(e) we are not liable or responsible for any loss that you may experience in submitting Content to us or for our use of your Content in accordance with the licence granted; and
(f) you must not falsely express or imply a relationship between you and us.
10.2 Seller intellectual property rights
If you are a Seller you acknowledge and agree that:
(a)you will retain all right, title and interest in your Content and no right, title or interest is transferred to us except so far as expressly stated in these Terms and Conditions;
(b)you grant to us a worldwide, perpetual, irrevocable, full paid-up, transferable, non-exclusive licence to use, reproduce, commercialise, modify, adapt and communicate such Content in connection with the Services and to otherwise advertise and market our business (including to use such Content in our Materials or the Listings);
(c)we retain all right, title and interest in any Materials, including such Materials posted in your Listing, and we grant you a limited, revocable licence to use such Materials solely in connection with the use of the Website, however, you may not repurpose or use such Materials for any other purpose. We make no representations or warranties in respect of our Materials or any other content we publish;
(d)you warrant that you have obtained any moral right consents for the Content necessary for Listing.
11.1 You acknowledge and agree that your use of this Website and the Services is at your own risk. We provide our Services on an “as-is” basis and make no representations about the suitability, reliability, availability, timeliness, and accuracy of anything contained in this Website (including Items and anything relating to Sellers or Buyers). Subject to the other terms of this clause and to the maximum extent permitted by Applicable Laws, anything contained in this Website is without warranty of any kind and we expressly exclude such warranties.
11.2 You acknowledge and agree that:
(a) CHROME TEMPLE Motors does not take any steps to confirm the identity of Users. CHROME TEMPLE Motors cannot and does not confirm nor warrant or guarantee each User’s purported identity, licences or location. We encourage you to use the Website to conduct your own enquiries to vet other Users to your satisfaction;
(b) Users are a third party unrelated to us. We are not a party to any agreement arising or entered into between Users and Users are solely responsible for the supply of Items on the terms and conditions as may be agreed between the Users. Your legal rights in connection with the supply of the Items are against the other Users and not us;
(c) we do not supply, provide, manage or control the Users on the Website or their Items and are not responsible for their advertising (including the contents of a Listing), supply or otherwise. If you have any enquiries about Items you must contact the relevant User. We have no control over, and do not ensure, guarantee or provide any insurance, warranty or indemnity in respect of the quality, fitness for purpose, legality, accuracy, completeness or otherwise of:
(i) any Items (including without limitation that such Items will be suitable to your specific requirements or the standards of such Items);
(ii) any representations made or information provided by Users to each other (including without limitation with respect to the quality, age or state of repair of any Items or its registration status); or
(iii) the ability of Users to undertake their respective obligations (including the ability of the Seller to supply the Item or the ability of the Buyer to pay for the items).
Because of the foregoing, in the event that you have a dispute with one or more Users, you release and hold us (and our Related Parties) harmless from actions, claims, demands and Losses of every kind arising out of or in any way connected with such disputes. For the avoidance of doubt, we will not be responsible for Users’ obligations under a contract of sale and we exclude all liability arising out of such sale contract;
(d) sellers and purchasers of the Items offered for sale on the Website will ultimately be liable for any and all motor vehicle registrations, transfer documentation, motor vehicle dealer licenses (as appropriate) and/or payment of any stamp duties and/or official fees to relevant road and traffic authorities;
(e) no information provided by us constitutes legal or financial advice, particularly in respect of your obligations to comply with any Applicable Laws;
(f) we do not guarantee that the Website will be error-free or uninterrupted, or that your use of the Website will provide any specific results; and
(g) we do not represent or warrant that your use of the Services will meet your particular requirements, whether those requirements are disclosed to us or not.
12. Exclusion and Limitation of Liability
12.1 Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms and Conditions to the maximum extent permitted by law.
12.2 Without limitation to clause 12.1, we will not be liable for any Loss to you or any other person, due to or arising directly or indirectly from:
(a) your use or inability to use this Website in any way;
(b) your reliance on the Website;
(c) any Items or Listings;
(d) any act, omission or default, whether negligent or otherwise of any User or third party;
(e) any Loss occasioned by any User or third party;
(f) any Content; or
(g) any action taken on your Account.
12.3 Subject to the other terms of this clause, our maximum aggregate liability to you for any Loss or damage or injury arising out of or in connection with these Terms and Conditions, including any breach by us of these Terms and Conditions, however arising, in contract, in tort (including negligence), under any statute, custom, law or on any other basis is limited to the actual Fees paid by you under these Terms and Conditions to us in the 3-month period preceding the matter or event giving rise to the claim (if any).
12.4 We exclude any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with the Services. This includes without limitation loss of profit; loss or corruption of data; loss of use; loss of production; loss of contract; loss of opportunity; loss of savings, discount or rebate (whether actual or anticipated); harm to reputation or loss of goodwill.
12.5 Nothing in these Terms and Conditions is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
12.6 If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option, the resupply of the services or the payment of the cost of resupply.
12.7 Where you are or may be entitled to recover from a third party (such as an insurer) any sum in respect of any matter or event that could give rise to a claim under these Terms and Conditions, you must:
(a) use your best endeavours to recover that sum before making the claim;
(b) keep us informed of the conduct of such recovery; and
(c) reduce the amount of the claim to the extent that sums are recovered.
12.8 This limitation of liability applies to the fullest extent permitted by law and shall survive any termination or expiration of these Terms and Conditions or your use of our Services.
13.1 You agree to indemnify and hold us and our Related Parties, harmless from and against any actions, claims, demands, proceedings, Losses of every kind and claims made by third parties, due to or arising out of:
(a) your use or inability to use this Website in any way;
(b) any Items purchased or sold by you;
(c) any User’s breach or negligent performance or failure or delay to provide any Items;
(d) any Loss, damage or claim made against us by a third party:
(i) for actual or alleged infringement of a third party's intellectual property rights arising out of the supply or use of the Website by you;
(ii) for death, personal injury, illness or damage to property resulting from Items sold or purchased by you; or
(iii) to the extent that the claim results from the breach, negligent performance or failure or delay in performance of these Terms and Conditions by you;
(e) any fine or penalty imposed for a breach of any Applicable Law in connection with the supply of the Items by you;
(f) any breach of any of these Terms and Conditions or any act or omission by you; or
(g) any action taken on your Account.
13.2 Any amounts payable under this indemnity must be paid to us immediately on demand without set-off or counter-claim.
13.3 If a payment due under this clause is subject to tax (whether by way of direct assessment or withholding at its source), we will be entitled to receive from you such amounts as will ensure that the net receipt, after tax, to us in respect of the payment is the same as it would have been were the payment not subject to tax.
13.4 Except where expressly stated to the contrary in these Terms and Conditions, the rights of a party under this clause are in addition to any other rights available to that party whether those rights are provided for under these Terms and Conditions or by law.
13.5 It is not necessary for us to incur expense or make payment before enforcing a right of indemnity under this clause.
13.6 The indemnities in this clause:
(a) are continuing obligations on you, independent from your other obligations under these Terms and Conditions and survive termination or expiry of these Terms and Conditions; and
(b) are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting your liability.
14. Reviews & Comments
14.1 Users may be given an opportunity to:
(a) review other Users whom they have purchased or sold Items from/to on the Website; and
(b) write comments on Listings.
14.2 Reviews and comments must be honest and accurate, and not contain unlawful or objectionable content, including but not limited to, content that is defamatory, libellous, abusive, offensive or contain obscene language.
14.3 We reserve the right not to publish reviews or comments, to amend content of reviews or comments at any time and to remove reviews or comments from the Website without notice in our discretion.
14.4 We are in no way responsible or liable for the information that is contained in any reviews or comments published and do not make any representation or warranty as to the accuracy or reliability of any information or content that is published in the review or comment. We are under no obligation to remove any review or comment published by or about you, and you agree that we are not liable under any laws (including defamation and misleading and deceptive conduct) simply through the publication of reviews or comments on the Website.
15. General provisions
15.1 No Waiver
No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms and Conditions unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
15.2 Assignment, Novation and Other Dealings
(a) Any rights of CHROME TEMPLE Motors that arise out of or under these Terms and Conditions are assignable and capable of novation by that party in its discretion and without notice or your prior written consent.
(b) Any rights of any User that arise out of or under these Terms and Conditions are not assignable or capable of novation by the User without the prior written consent of CHROME TEMPLE Motors.
(a) If the whole or any part of a provision of these Terms and Conditions is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
(b) Clause 15.3(a) does not apply if the severance of a provision of these Terms and Conditions in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms and Conditions as determined by CHROME TEMPLE Motors.
15.4 No Merger
On completion or termination of these Terms and Conditions, the rights and obligations of the parties set out in these Terms and Conditions will not merge and any provision that has not been fulfilled remains in force.
Any clause which by its nature is intended to survive termination or expiry of these Terms and Conditions will survive such termination or expiry.
15.6 Further Action
Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to these Terms and Conditions and the transactions contemplated by these Terms and Conditions.
15.7 Time of the Essence
Time is of the essence in these Terms and Conditions in respect of any date or time period and any obligation to pay money.
15.8 Relationship of the Parties
(a) Nothing in these Terms and Conditions gives a party authority to bind any other party in any way.
(b) Nothing in these Terms and Conditions imposes any fiduciary duties on a party in relation to any other party.
15.9 Remedies Cumulative
Except as provided in these Terms and Conditions and permitted by law, the rights, powers and remedies provided in these Terms and Conditions are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms and Conditions.
15.10 Entire Agreement
These Terms and Conditions states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
15.11 No Reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms and Conditions.
15.12 Governing Law and Jurisdiction
(a) These Terms and Conditions are governed by the law in force in the State.
(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercisingjurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms and Conditions.
(c) Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 15.2(a) on the basis that:
(i) any proceeding arising out of or in connection with these Terms and Conditions has been brought in an inconvenient forum; or
(ii) the courts described in clause 15.2(a) do not have jurisdiction.