End User License Agreement

FLIPACAR & DealMyCar

  1. Acknowledgment

By clicking the “Get Started” button, downloading or using any of the Applications, You are acknowledging You are over the age of 18 years, have read, understood and agree to be bound by the terms and conditions of this Agreement and to ensure that Your Affiliates are bound by the terms and conditions of this Agreement. If You do not agree to the terms of this Agreement, do not click on the “Get Started” button, do not download and do not use any of the Applications.

This Agreement is:

a legal document between You and the Company and it governs use of the Applications by You and Your Affiliates;

between You and the Company only and not with the Application Store. Although the Application Store is not a party to this Agreement, it may have the right to enforce it against You as a third party beneficiary relating to Your use of the Applications.

The Applications are licensed, not sold, to You by the Company for use strictly in accordance with the terms of this Agreement.

  1. Interpretation and Definition

Interpretation

The words of which the initial letter is capitalized have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.

Definitions

For the purposes of this Agreement:

Affiliate means Your Family Group; Your employees, personnel, directors, officers, contractors, agents, customers, clients; and any other party who may access the Applications downloaded to Your Device.

Agreement means this End-User License Agreement that forms the entire agreement between You and the Company regarding the use of the Applications by You or Your Affiliates.

Applications means the software programs provided by the Company and downloaded by You   through an Application Store’s account to a Device, named Flipacar (or any subsequent name adopted by the Company) and DealMyCar (or any subsequent name adopted by the Company).

Application Store means the digital distribution service operated and developed by Apple Inc. (Apple App Store) or Google Inc. (Google Play Store) by which the Applications can  be downloaded to Your Device.

Buyer means a User who uses the Applications to purchase a Vehicle and where the context permits, includes You.

Buyer Fee means the fee payable to the Company by You when You or Your Affiliate use an Application as a Buyer.

Claims includes any claim, proceeding, suit or demand of any nature howsoever arising including in relation to or in connection with this Agreement or Your use of an Application whether present or future, fixed or unascertained, actual or contingent, whether at law, in equity, under statute or otherwise.

Company (referred to as either “the Company”, “We”, “Us” or “Our” in this Agreement) refers to Flipacar Trading Pty Ltd, ACN 644 317 377 of Level 5, 15 Claremont St, South Yarra VIC 3141 trading as Flipacar and DealMyCar.

Content refers to all content posted, uploaded, linked or otherwise made available by a Seller to an Application, regardless of the form of that content and includes text, images and any other information included by the Seller.

Device means any device that can access an Application including for the avoidance of  doubt, a computer, a cellphone, a smart watch, a television or a digital tablet.

Family Sharing / Family Group permits You to share Applications downloaded through the Application Store with other family members by allowing them to view and download  each others’ eligible Applications to their associated Devices.

Jurisdiction means Victoria, Australia.

Loss includes direct and indirect losses, damages, liabilities, costs, expenses, Claims, remedies, matters or actions inclusive of all legal fees and disbursements (on a full indemnity basis) however arising, directly or indirectly.

Penalty Interest Rate means the interest rate fixed pursuant to section 2 of the Penalty Interest Rate Act 1983 (Vic) from time to time.

Seller means a User who uses an Application to sell a Vehicle and where the context permits, includes You.

Third-Party Services means any services or content (including but not limited to any data, valuations, information, applications and other products services) provided by a third-party that may be displayed, included or made available through an Application.

Users means all persons who download an Application to a Device and includes You  and Your Affiliates.

Vehicle means any car, truck, motorbike, or other motorized vehicle which is listed on an  Application for sale.

You (referred to as either “You” or “Your” in this Agreement) means the individual, company, association, partnership or any other legal entity accessing or using the Applications .

  1. License

Scope of License

The Company grants You a revocable, non-exclusive, non-transferable, limited license to download, install and use the Applications strictly in accordance with the terms of this Agreement (the Licence).

You may only use the Applications on a Device that You own or control and as permitted by the Application Store’s terms and conditions.

The License is solely for Your purposes strictly in accordance with the terms of this Agreement.

License Restrictions

You agree not to, and You will not permit others to:

License, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Applications or make the Applications available to  any third party other than Your Affiliates;

Copy or use the Applications for any purpose other than as permitted under the  above section titled ‘License’;

Modify, make derivative works of, disassemble, decrypt, reverse compile or reverse engineer any part of the Application;

Remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of the Company or its affiliates, partners, suppliers or the licensors of the Application.

  1. Account

When You register an account with Us (Your Account), We may issue You with a username and password to access the information and services contained on the Application(s). You must not divulge Your user name and password to any other person.

You also acknowledge that when you register an account with us, We may validate your mobile number via text message. You agree to provide your current mobile phone number, and to receive text messages and phone calls (from us or our third-party providers) so that we can register your Account, if required by Us.

You must not:

  1. a) use any other person’s name, user identification or password when accessing or using the Application;
  2. b) use the Application in any way which is in breach of or inconsistent with this Agreement;
  3. c) provide any information to Us which is the confidential information or proprietary information of any other person;
  4. d) use the Application in any way which may be in breach of any laws, rules or regulations or may infringe any third party rights; or
  5. e) knowingly transmit any virus or take any action which may interfere with the operation of the Application.
  6. Content

General

The Company is not responsible for the Content. You expressly understand and agree that each Seller (including You) is solely responsible for the Content which they input into the Application and for all activity that occurs in connection with their account, whether done so by You or any Affiliate.

Your Obligations You must not (and You must not allow Your Affiliates to) post, upload, transmit or in any way use in connection with the Application any Content that is unlawful, inaccurate, misleading, deceptive, offensive, upsetting, intended to disgust, threatening, libelous, defamatory, obscene or otherwise objectionable. Examples of such objectionable Content include, but are not limited to, the following:

Content that is unlawful or promoting unlawful activity;

Defamatory, discriminatory, or mean-spirited content, including references or commentary about religion, race, sexual orientation, gender, national/ethnic origin, or other targeted groups;

Spam, machine or randomly generated content, content constituting unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation, or  any form of lottery or gambling;

Content containing or installing any viruses, worms, malware, trojan horses, or other content  that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of a third person;

Infringing on any proprietary rights of any party, including patent, trademark, trade secret, copyright, right of publicity or other rights;

Impersonating any person or entity including the Company and its employees or representatives;

Violating the privacy of any third person; and

False information and features.

As a Seller You are responsible for all Content which You or Your Affiliates provide in connection with the Application. You are required to take all reasonable steps to ensure that:

the Content accurately and fully describes the Vehicle;

the Vehicle is not stolen, rebirthed or the proceeds of a crime;

You have undertaken all searches on the VIN of the Vehicle in the ordinary course; The Vehicle is not subject to a Personal Properties Security registration or other form of security, unless so specified;

The Vehicle matches the description in the Content;

Any images contained in the Content are of the actual Vehicle;

You undertake any steps You or Your Affiliates require in respect of the Buyer; The sale and purchase of the Vehicle is conducted in accordance with all laws; You secure payment from the Buyer;

You execute all documents required for the Buyer to transfer ownership of the Vehicle to themselves.

Sellers may also be required to pay a fee to the Company in connection with the sale of their Vehicle. In the event that the Seller is required to pay a fee, we will modify this Agreement in accordance with section 21 below.

As a Buyer You are responsible to ensure that You or Your Affiliates:

Are satisfied with the Vehicle as described;

The Vehicle matches the description in the Content upon purchase;

You have undertaken all searches on the VIN of the Vehicle in the ordinary course; Any warranties and representations made by the Seller satisfy Your requirements and are accurate;

You are satisfied with the price payable for the Vehicle, that it is consistent with market prices or You have determined to purchase the Vehicle notwithstanding that it is not consistent with market prices;

You pay to Us the Buyer Fee on its due date;

You pay to the Seller the purchase price on its due date;

You transfer ownership of the Vehicle to You, Your Affiliate or Your nominee as soon as possible and in any event in accordance with the laws of the state into which the Vehicle has been sold.

Our Obligations

We are not responsible for:

any Content;

ensuring any Content complies with the terms of this Agreement; the obligations of the Seller or Buyer;

any representations made by the Seller or Buyer; ensuring the Vehicle matches the Content;

ensuring the Vehicle is being lawfully sold and/or purchased; or

the transaction(s) (or anything arising out of the transaction(s)) which arise out of the use of the Application.

The Company will make accessible for You the Content related to any Vehicle which You have brought or sold for a period of 100 days from the date the transactions is recorded in the Application as having occurred (i.e.. the date that the Buyer and Seller connect with respect to a Vehicle).

The Company reserves the right, but not the obligation, to, in its sole discretion, determine whether or not any Content is appropriate and complies with this Agreement and refuse You access to the Application or remove any Content. The Company further reserves the right to make formatting and edits and to change the manner of any Content.

  1. Payment

The Buyer Fee is payable by You immediately upon the Seller accepting Your offer to purchase a Vehicle which is or has been listed on the Application.

Unless otherwise agreed by Us in writing, payments are to be made by direct debit, direct credit or by credit card (Visa or Mastercard only), the  details of which must be provided by You at the time of creation of Your Account.

It is Your responsibility to ensure that the finance facility linked to Your Account has enough credit to pay the Buyer Fee on its due date.

In the event that You do not pay any amount which is due by the due date We may:

suspend Your Account until the default is remedied;

charge interest on the amount outstanding from the date the amount was due until full payment is made at the Penalty Interest Rate; and

seek costs (on a solicitor client own basis) arising from any enforcement action taken to recover any amount outstanding.

  1. Modifications to the Application

The Company reserves the right to modify, suspend or discontinue, temporarily or permanently, the Applications, Your Account or any services to which they connect, with    or without notice and without liability to You.

Updates to the Applications

The Company may from time to time provide enhancements or improvements to the features/functionality of the Applications, which may include patches, bug fixes, updates, upgrades and other modifications.

Updates may modify or delete certain features and/or functionalities of the Applications. You acknowledge and agree that the Company has no obligation to:

  1. provide any updates; or
  2. continue to provide or enable any particular features and/or functionalities  of the Application to You.
  3. You further agree that all updates or any other modifications will be:
  4. deemed to constitute an integral part of the Application; and
  5. subject to the terms and conditions of this Agreement.

Maintenance and Support

The Company does not provide any maintenance or support for the download and use of the Applications. To the extent that any maintenance or support is required by applicable law, the Company, not the Application Store, shall be obligated to furnish any such maintenance or support.

  1. Third-Party Services

The Applications may display, include or make available Third-Party Services.

You acknowledge and agree that the Company is not responsible for any Third-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or service or product or any other aspect thereof. The Company does not assume and shall not have any liability or responsibility to You or any other person or entity in connection with any Third-Party Services.

You must comply with applicable terms of any Third-Party Services agreement when using the Application. Third-Party Services and links thereto are provided solely as a convenience to You and You access and use them entirely at Your own risk and subject to such terms and conditions as the Third-Party Service provider may impose. The Company may receive a fee in connection with any Third-Party Services which You use.

  1. Vehicles

The Applications will connect You as a Seller or Buyer to other Buyers and Sellers of Vehicles respectively.

Listings of Vehicles offered for sale or advertised in connection with the Applications, contain Content   which is not reviewed, approved or in any way connected with Us. We are not party to any Content or any Vehicle sale.

If You sell or purchase a Vehicle, your legal relationship will be with the Buyer or Seller, as applicable, not Us.

We may receive a Buyer Fee in connection with Your use of an Application.

We make no representations about the Content or accuracy or suitability of the information provided about a Vehicle. The information is provided ‘as is’ without express or implied warranty. You use the information at Your own risk.

  1. Valuations

We may offer Vehicle valuations (including third-party valuations) via the Applications. Any valuations provided by Us are based on a number of factors including (but not necessarily limited to) vehicle make and model, vehicle condition and service history. You acknowledge and agree that:

  • Vehicle valuations are intended as a guide only and do not constitute professional advice. You are responsible for assessing the accuracy of Vehicle valuations and we encourage you to make your own investigations in that regard;
  • We do not have the capacity nor the ability to take into account the vast array of options and aftermarket accessories that may be fitted to a vehicle during its lifetime and which may have an impact of the value of a Vehicle;
  • Vehicle valuations may not take into account all Vehicle details and We, in Our sole and absolute discretion, will determine which Vehicle details are relevant to a Vehicle valuation;
  • We may engage third-parties to provide Vehicle valuations (or data that We determine may be relevant to Vehicle valuations) and those third-parties may use a range of methods for collecting data in order to provide those valuations, including (but not necessarily limited to) crowdsourcing. Those methods and that data may not have been validated;
  • the data that third-parties rely upon to provide Us with Vehicle valuations is not necessarily current and may not necessarily reflect a Vehicle’s value at the point of sale; and
  • Where We engage a third-party to provide vehicle valuations, We reserve the right to moderate or amend those valuations in Our sole and absolute discretion.

Whilst all care is taken in producing valuations, no warranty or guarantee is given as to the accuracy or currency of them, and You should not rely upon them in any way. To the extent permitted by law, We will not have any liability to You or any third party for any loss or damage of any nature arising from or in connection with any reliance on any Vehicle valuation.

  • Privacy Policy

The Company collects, stores, maintains, and shares information about You in accordance with Our Privacy Policy: www.flipacar.com/privacy. Our Privacy Policy forms part of this Agreement.

By accepting this Agreement, You acknowledge that You hereby agree and consent to the terms and conditions of Our Privacy Policy.

  • Term and Termination

This Agreement shall remain in effect until terminated by You or the Company. The Company may, in its sole discretion, at any time and for any or no reason, suspend or terminate this Agreement with or without prior notice.

This Agreement will terminate immediately, without prior notice from the Company, in the event that You fail to comply with any provision of this Agreement. You may also terminate this Agreement by deleting the Application and all copies thereof from Your Devices.

Upon termination of this Agreement, You shall cease all use of the Application and delete all copies of the Application from Your Devices.

Termination of this Agreement will not limit any of the Company’s rights or remedies at law or in equity in case of breach by You or Your Affiliates (during the term of this Agreement) of any of Your obligations under the Agreement.

  • Acknowledgements

You acknowledge and agree for the benefit of the Company that:

the Company cannot and does not control Content; You use the Application at Your own risk;

by using the Application, You may be exposed to Content that You may find offensive, indecent, incorrect or objectionable or which is misleading, untrue or inaccurate;

under no circumstances will the Company be liable in any way for any Content, including any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of Your use of any Content.

  • Indemnification

You agree to indemnify and hold the Company and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (if any) harmless from any and all Losses suffered by the Company in connection with Your use of the Application, including any violation of this Agreement or any law or regulation or violation of any right of a third   party.

  • Release

You agree that:

  • You release and forever discharge the Company and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (if any), in respect of any and all present and future Claims, actions or liability (including any claim for costs) arising out of or in connection with Your use of the Application; and
  • the Company may rely on this Agreement as a bar to any Claims made by You, arising from or in connection with Your use of the Application.
  • No Warranties

The Application is provided to You “AS IS” and “AS AVAILABLE” and with all faults and defects and without warranty of any kind. To the maximum extent permitted under applicable law, the Company, on its own behalf and on behalf of its affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Application, including all implied warranties of merchantability, fitness for a particular purpose, title and non- infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice; and liability (including for negligence) to You or anyone else in respect of any loss or damage (including special, incidental, indirect or consequential loss or damage whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption, for personal injury, loss of privacy arising out of or in any way related to the use of or inability to use the Application, third-party software and/or third-party hardware used with the Application, or otherwise in connection with any provision of this Agreement), even if the Company or any supplier has been advised of the possibility of such damages and even if the remedy fails of its essential purpose), costs and expenses suffered by You or claims made against You arising from or in connection with any use of the Application for any reason whatsoever.

Without limitation to the foregoing, the Company provides no warranty or undertaking, and makes no representation of any kind that the Application will meet Your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.

Without limiting the foregoing, neither the Company nor any of the Company’s providers makes any representation or warranty of any kind, express or implied:

  1. as to the operation or availability of the Applications, or the information, content, and materials or products included thereon;
  2. that the Application will be uninterrupted or error-free;
  3. as to the accuracy, reliability, or currency of any information or content provided through the Application; or
  4. that the Application, its servers, the content, or e-mails sent from or on behalf of the Company are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.

Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to You. But in such a case the exclusions and limitations set forth in this section 14 shall be applied to the greatest extent enforceable under applicable law. To the extent any warranty exists under law that cannot be disclaimed, the Company, not the Application Store, shall be solely responsible for such warranty.

  • Limitation of Liability

In the event that terms, conditions or warranties are implied by law and cannot be excluded, then those terms, conditions or warranties are included, however Our liability is limited at Our option to the amount actually paid by You for the Application, notwithstanding any damages that You might incur.

You expressly understand and agree that the Application Store, its subsidiaries and affiliates, and its licensors shall not be liable to You under any theory of liability for any direct, indirect, incidental, special consequential or exemplary damages that may be incurred by You, including any loss of data, whether or not the Application Store or its representatives have been advised of or should have been aware of the possibility of any such losses arising.

  • Copyright

All components of this Applications, including the software, design, text and graphics are owned by or licensed to Us and are protected by copyright under the laws of Australia and other countries.

We expressly retain all right, title and interest in any source or HTML code, make-up files, proprietary software, other software, programs, tools, templates, and systems used by Us or Our contractors and agents in providing the Application. You acknowledge and agree that You must not, and must not attempt to, copy, reproduce, republish, transmit, reverse engineer or otherwise access or use such source or HTML code, make-up files and proprietary software.

Apart from fair dealing for the purpose of personal use, private study, research, criticism or review as permitted under copyright legislation, You may not reproduce, transmit, adapt, distribute, sell, modify or publish or otherwise use any of the material on this website without our prior written consent.

Content once provided by You to the Applications, is irrevocably licensed to Us.

  • Trademarks

The Applications may include trademarks which are registered, are the subject of pending applications or which are otherwise protected by law. You may not use these trademarks  without our consent.

  • Severability and Waiver

Severability

If any provision of this Agreement is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

Waiver

Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Agreement shall not effect a party’s ability to exercise such right or require such performance at any time thereafter nor shall be the waiver of a breach constitute a waiver of any subsequent breach.

  • Product Claims

The Company does not make any warranties concerning the Applications. To the extent You have any claim arising from or relating to Your use of the Applications, you must contact the Company in the first instance, not the Application Store., For the avoidance of doubt, this includes (but is not limited to) any claims relating to:

  1. any product liability claims;
  2. any claim that the Applications fail to conform to any applicable legal or regulatory requirement; and
  3. any claim arising under consumer protection, or similar legislation.
  • General

Changes to this Agreement

The Company reserves the right, at its sole discretion, to modify or replace this Agreement at any time. If a revision is material, We will provide at least 30 days’ notice  prior to any new terms taking effect. What constitutes a material change will be determined at the sole discretion of the Company.

By continuing to access or use an Application after any revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, You are no  longer authorized to use the Application.

Governing Law

The laws of the Jurisdiction, excluding its conflicts of law rules, shall govern this Agreement and Your use of the Application. Your use of the Application may also be subject to other local, state, national, or international laws.

Entire Agreement

The Agreement constitutes the entire agreement between You and the Company regarding Your use of the Applications and supersedes all prior and contemporaneous written or oral agreements between You and the Company, to the extent of any inconsistency.

You may be subject to additional terms and conditions that apply when You use or purchase other Company services, which the Company will provide to You at the time of such use or purchase.

Contact Us

If You have any questions about this Agreement, You can contact Us: By email: support@flipacar.com