TERMS AND CONDITIONS
These Terms and Conditions apply to the exclusion of any other terms or conditions (whether implied, oral or written). Please read the Terms and Conditions carefully before placing your Order. Any addition or variation of these Terms and Conditions will have no effect unless made in writing and signed by the parties to this Contract. By placing an Order for Goods from Holden you agree to these Terms and Conditions.
You are deemed to have signed the Contract for the Goods when all of the following has occurred: you have submitted an Order, you have paid the Deposit, Holden has provided you with the Contract and you have confirmed your acceptance of the Contract.
It is recommended that you seek independent legal advice regarding the Contract.
Holden is a Licensed Motor Dealer in Victoria (LMCT 1770).
Please take note of your Cooling Off Right as set out below. For the purposes of your Cooling Off Right, you are deemed to have "signed" and entered into the Contract upon your acceptance of Holden’s Offer to you to purchase the Goods in accordance with clause 6(d)(ii) of these Terms and Conditions.
YOUR RIGHT TO COOL OFF Motor Car Traders Act 1986—section 43
Under section 43 of the Motor Car Traders Act 1986, if none of the exceptions listed below applies to you, you may end this contract within 3 clear business days of the day that you sign the contract.
To end the contract within this time, you must give the motor car trader or the motor car trader's agent written notice that you are terminating the contract.
If you end the contract in this way, you are entitled to a refund of all the money you paid EXCEPT—
• 400 or 2 per cent of the purchase price (whichever is greater) where this is not an off-trade premises sale; or
• 100 or 1 per cent of the purchase price (whichever is greater) where this is an off-trade premises sale. An "off-trade- premises" sale is one in which you agree to purchase the car while you are at home or at your workplace and you did not ask for the agreement to be signed at your home or workplace.
EXCEPTIONS—the 3-day cooling-off period does not apply if—
• the vehicle being sold is a commercial vehicle; or
• you are a motor car trader; or
• you are a body corporate; or
• you accept delivery of the vehicle within the cooling-off period.
IF YOU CHOOSE TO ACCEPT DELIVERY OF THIS VEHICLE WITHIN THE COOLING-OFF PERIOD, YOU WILL AUTOMATICALLY LOSE YOUR RIGHT TO COOL OFF
Rights under the Australian Consumer Law
Holden’s Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
You acknowledge that you have read and understood the Terms and Conditions and agree to be bound by them.
In these Terms and Conditions:
(a) "Acceptance" means your acceptance of Holden’s Offer to you to purchase the Goods in accordance with clause 6(d)(ii);
(b) "Accessories" means the accessories Ordered by you from Holden;
(c) "Account" means a personal account created by you on the Website;
(d) "Actual Loan Amount Owing" means the amount that is payable to a financier to discharge all amounts owing with respect to the Trade-In Vehicle at the time of delivery of the Goods and hand-over of the Trade-In Vehicle, as confirmed in writing by the relevant financier;
(e) "Additional Home Delivery Charge" is an additional charge applicable should special circumstances apply to the delivery of the Goods as notified to you;
(f) "Australian Consumer Law" means the law set out in schedule 2 of the Competition and Consumer Act 2010 (Cth);
(g) "Click2Drive Pty Ltd" means Click2Drive Pty Ltd (ABN 75 620 447 510);
(h) "Contract" means a binding agreement between Holden and you, comprising of the Schedule and these Terms and Conditions;
(i) "Contract Date" is the date of your Acceptance;
(j) "Cooling Off Right" means your cooling off right under the Motor Car Traders Act as summarized on the front page of these Terms and Conditions;
(k) "Dealer" means a motor vehicle dealer;
(l) "Deposit" means the amount paid by you to secure your Order, as set out on the Website at the time that your Order is placed and confirmed in the Schedule;
(m) "Designated Delivery Area" means the geographical area designated by Holden where home delivery of Vehicles is offered. A complete list of Designated Delivery Areas is listed at http://www.click2drive.com.au/;
(n) "Fair Condition" has the meaning set out in clause 10(c)(ii);
(o) "Final Settlement Amount Owing" means the RDP and any Loan Amount Owing:
(i) less the Deposit; and
(ii) less any Online Trade-In Value.
(p) "Final Trade-In Price" means the value of the Trade-In Vehicle, notified to you by Holden subsequent to Holden completing a physical inspection of the Trade-In Vehicle
(q) "Good Condition" has the meaning set out in clause 10(c)(i);
(r) "Goods" means the Vehicle, Accessories and Other Items;
(s) "Home Delivery Charge" is the charge for transport and delivery of the Goods from a Holden dealer to the delivery address within the Designated Delivery Area as set out in the Schedule.
"Loan Amount Owing" means the amount you warrant is payable to a financier to discharge all amounts owing with respect to your Trade-In Vehicle;
(t) "Major Defect" has the meaning set out in clause 10(d);
(u) "Minor Defect" has the meaning set out in clause 10(e);
(v) "Motor Car Traders Act" means the Motor Car Traders Act 1986 (Victoria);
(w) "Online Trade-In Value" means the value of your Trade-In Vehicle which is determined by you completing an online valuation form in accordance with clause 10
(x) "Order" means an order for Goods from Holden, placed on the Website;
(y) "Other Items" means the other items Ordered by you from Holden, excluding the Accessories and the Vehicles;
(z) "Password" means the password needed to access your Account;
(aa) "Poor Condition" has the meaning set out in clause 10(c)(iii);
(bb) "RDP" has the meaning given in clause 3(c);
(cc) "RDP Variation Notice" has the meaning given in clause 3(e);
(dd) "Schedule" means the schedule setting out the particulars of your Order and any variations made pursuant to these Terms and Conditions;
(ee) "Terms and Conditions" means these terms and conditions;
(ff) "Trade-In Vehicle" means your existing car or other vehicle of the kind listed on the Website which you offer to Holden or its nominee as partial payment of the RDP;
(gg) "Vehicle" means the motor vehicle Ordered by you from Holden and described in the Schedule;
(hh) "Website" means http://www.click2drive.com.au/; and
(ii) "you" and "your" means the person listed as the customer in the Schedule.
2. YOUR LEGAL RIGHTS
(a) Your purchase of the Goods is subject to certain laws including, without limitation, the Australian Consumer Law and the Motors Car Traders Act.
(b) The Australian Consumer Law provides you with certain rights that cannot be excluded, including that the Goods must be of acceptable quality, reasonably fit for any disclosed purpose or the purpose that Holden represents that they will be fit for and that the Goods will correspond with any relevant description.
(c) The Motor Car Traders Act provides you with certain rights including the Cooling Off Right, which apply to cars bought from licensed motor car traders.
(d) Nothing in these Terms and Conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy granted or implied by law which cannot by law be excluded, restricted or modified, including the Australian Consumer Law and the Motor Car Traders Act.
3. PRICING & TAXES
(a) Prices for Goods are as shown on the Website. All prices and charges are quoted in Australian dollars and are inclusive of any applicable GST unless clearly stated to the contrary.
(b) Holden reserves the right to change the prices of the Goods on the Website at any time without notice to you. However, if you place an Order for the Goods and Holden elects to deliver you an Offer with respect to those Goods, the price in the Offer will be the same as the price set out in your Order, subject to any adjustments permitted by these Terms and Conditions.
(c) The RDP of the Goods is the price of the Vehicle, the price of the Accessories, the price of the Other Items, 12 months Vehicle registration, stamp duty, luxury car tax (if applicable), compulsory third party insurance based on a private purchaser with a good driving record, the Home Delivery Charge based on the Designated Delivery Area and any Additional Home Delivery Charge. Final on road costs may vary according to individual circumstances. The RDP of the Goods is not applicable to business, commercial or government buyers.
(d) The RDP may be varied by Holden before the delivery of the Goods if there is:
(i) a change in any applicable statutory charges, applicable taxes and duties;
(ii) a change in the compulsory third party insurance cost; or
(iii) an Additional Home Delivery Charge applicable.
(e) Holden shall give you written notice of any variation of the RDP ("RDP Variation Notice"). You may cancel the Order and (if applicable, terminate the Contract) within three days of:
(i) the receipt of the RDP Variation Notice; or
(ii) the Contract Date, whichever is the later date, by giving written notification to Holden in writing. If you terminate the Contract in accordance with this clause, Holden will refund the Deposit in accordance with clause 15.
(f) In the event that the RDP is permanently or temporarily reduced by Holden between the date on which Holden receives payment of the RDP and the time of the delivery of your Goods, the amount of the price reduction will be refunded to you. For the avoidance of doubt, the effect of this clause does not change or extend the period of your Cooling Off Right as described in these Terms and Conditions.
(g) Subject to these Terms and Conditions, if you offer to provide a Trade-In Vehicle which Holden has agreed to purchase, it (or its nominee) will purchase that Trade-In Vehicle in accordance with these Terms and Conditions. Holden agrees that it will accept in part payment of the RDP, the Final Trade-In Price.
4. YOUR ACCOUNT
(a) If you do not already have an Account you must create one before placing an Order.
(b) You must not set up an Account for someone else. You must enter all information carefully when creating an Account. You warrant to Holden that all information provided by you in relation to your Account is complete, true and accurate. If your information changes, you must update it through your Account. You acknowledge that you must be at least 18 years old to create an Account and place an Order.
(c) You must notify Holden immediately if you become aware of any actual or potential unauthorised use of your Password or Account. You agree to cooperate fully with Holden to investigate any suspected unlawful, fraudulent or improper activity in connection with your Account.
(d) Provided that you do not have a Contract pending with Holden, Holden may at its sole discretion at any time for any reason, including a breach of these Terms and Conditions, suspend or close your Account, by providing notice to you.
(e) Except to the extent otherwise required by law (including, without limitation, the Australian Consumer Law), Holden will not be liable to you, or any other person, for any loss, damage, cost or expense suffered as a direct or indirect result of your Account information being incomplete or inaccurate or any unauthorised use of your Password or Account, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
(f) If Holden suffers any loss, damage, cost or expense as a result of any unauthorised use of your Password or Account then you must pay Holden the amount of that loss, damage, cost or expense if Holden asks you to.
5. PLACING AN ORDER
(a) Holden cannot guarantee availability of Goods at all times. You acknowledge and agree that, from time to time, certain Goods may be out of stock or unavailable. Holden reserves the right to withdraw or suspend from sale any Goods displayed on the Website, either temporarily or permanently, at any time without notice to you. Except to the extent otherwise required by law (including, without limitation, the Australian Consumer Law), Holden will not be liable to you, or any other person, for any loss, damage, cost or expense suffered as a direct or indirect result of the unavailability of any Goods at any time, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
(b) Prior to the Contract Date, Holden may cancel your Order in its absolute discretion. In particular, but without limitation, Holden may cancel an Order for more than one Vehicle.
(c) You warrant to Holden that:
(i) you are a natural person and are not acting on behalf of any other person or entity;
(ii) all information provided by you in relation to an Order is complete, true and accurate; and
(iii) all Goods that you Order are intended for personal, domestic, non-commercial use only.
(d) You must:
(i) read the Terms and Conditions before submitting the Order.
(ii) enter all information carefully when placing an Order;
(iii) check the Order carefully;
(iv) not place an Order for the purposes of any unlawful, fraudulent or improper activity; and
(v) not place an Order for someone else to receive the Goods.
(e) You must pay the Deposit by credit card (Visa or Mastercard). If the name on the credit card does not match the name on the Order, Holden may ask you to provide additional information (for example, proof of identity documents) in accordance with its fraud detection processes. By providing your credit card, you authorise Holden to deduct the Deposit from such card. Holden will process payment of the Deposit when or shortly after, you place your Order.
(f) Holden reserves the right to change the payment methods it will accept at any time in its absolute discretion.
(g) When you submit an Order you will receive an Order number to the email address associated with your Account. This Order number will also be included in the Schedule and represents the prescribed serial number of an agreement issued in accordance with section 42 of the Motor Car Traders Act.
(h) The internet can be an unstable, and sometimes insecure, marketplace. At times the facility to place orders may not be available, your Order might not be received, your Order may be lost or misdirected or your Order might be delayed. You must take your own precautions to ensure that the process which you employ for accessing the Website does not expose you to risk of viruses, malicious computer code or other forms of interference which may damage your computer system, and contains appropriate protection to prevent damage to your computer system caused by viruses, malicious computer code or other forms of interference.
(i) Except to the extent otherwise required by law (including, without limitation, the Australian Consumer Law), Holden will not be liable to you, or any other person, for any loss, damage, cost or expense arising out of or in connection with of any of the events set out in clause 5(h) or arising out of or in connection with you accessing the Website, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
6. WHEN YOU HAVE ENTERED INTO A CONTRACT WITH HOLDEN
(a) Holden's advertisement of the Goods on the Website is an invitation to treat only and is not an offer to form a legally binding agreement for the sale and purchase of the Goods that is capable of acceptance by you.
(b) Your placement of an Order for Goods on the Website is a response to Holden’s invitation to treat only and is not an offer to form a legally binding agreement for the sale and purchase of the Goods that is capable of acceptance by Holden.
(c) Holden may in its absolute discretion:
(i) cancel your Order and refund any Deposit paid by you; or
(ii) make an offer to you to purchase the Goods, on the terms set out in the Schedule and these Terms and Conditions, by delivering the Schedule and these Terms and Conditions to you, via your Account or to the email address associated with your Account ("Offer"); or
(iii) withdraw the Offer before it is accepted by you in accordance with clause 6(d)(ii).
(d) You may, in your absolute discretion:
(i) reject the Offer; or
(ii) provided that you have paid, and Holden has received, the Deposit, accept the Offer by confirming your acceptance of the Offer via the method made available by Holden ("Acceptance"); or
(iii) cancel your Order for Goods before that those Goods become the subject of an Acceptance by you.
(e) Upon Acceptance by you, the Schedule and these Terms and Conditions form a binding agreement between Holden and you for the sale and purchase of the Goods ("Contract").
(f) For the purposes of your Cooling Off Right pursuant to section 43 of the Motor Car Traders Act, you are deemed to have "signed" the Contract upon your Acceptance of the Offer in accordance with clause 6(d)(ii).
(g) Where you place separate Orders, the Goods will be the subject of separate Contracts, delivered separately and a separate Home Delivery Charge (and Additional Home Delivery Charge if applicable) will apply. Holden cannot consolidate separate Orders into one Contract.
(h) You acknowledge that at the time of entering into this Contract, various information relating to the Vehicle including registration number and engine number may not be available and as a consequence you authorise Holden to fill in the appropriate information into this Contract.
7. ASSURANCE CHECKS
You authorise Holden to make, directly or through third parties, any enquiries Holden considers necessary to verify your identity and to complete our fiduciary assurance and fraud detection processes. This may include ordering a credit report, performing other credit checks and verifying information you provide against third party databases. When requested by Holden, you must promptly provide any information reasonably required by Holden to verify your identity and to complete our fiduciary assurance and fraud detection processes.
(a) Holden (or Click2Drive Pty Ltd acting for and on behalf of Holden) will provide you with a final invoice setting out the Final Settlement Amount Owing upon the following conditions being met:
(i) Holden completing certain fiduciary assurance and fraud detection processes pertaining to you, your Account and the Order and being satisfied of the results in its absolute discretion;
(ii) Holden confirming the Loan Amount Owing with your financier (if applicable); and
(iii) Holden securing the Goods and confirming the vehicle identification number of the Vehicle.
(b) Where you have advised Holden in the Order that you require finance to be provided for the payment of the Goods :
(i) you must promptly provide the financier with information necessary to allow a determination of your finance application;
(ii) you must terminate the Contract within seven days of the Contract Date if have been unable to obtain finance and Holden will refund any Deposit paid by you. For the avoidance of doubt, if you enter into a finance contract with a financier or credit provider to purchase the Goods within seven business days of accepting the Contract in accordance with clause 6(d)(ii), you waive your right to terminate the Contract after your Cooling Off Right has expired;
(iii) surety, satisfactory to Holden, must be provided no later than seven days prior to scheduled delivery of the Goods; and
(iv) where requested by you, Holden shall transfer title to the Goods to your finance provider upon full payment being received by Holden.
(c) You may nominate in your Order that you request finance to be obtained by Holden through its customer finance solution, in which case you give Holden (or Click2Drive Pty Ltd acting for and on behalf of Holden) the authority to correspond with the credit provider or financer and complete any documentation, on your behalf, required by the credit provider or financier to give effect to the financial arrangements.
(d) You must pay the Final Settlement Amount Owing to Holden as specified in the final invoice which may be payable to Click2Drive Pty Ltd acting for and on behalf of Holden by bank transfer at least seven days before the scheduled delivery of the Goods. The Goods will not be dispatched to you until your final payment for the Goods has cleared. For the avoidance of doubt, if you elect to obtain finance from Holden through its customer finance solution or a separate finance provider, the Final Settlement Amount will be paid by or on behalf of your finance provider to Holden on or before delivery of the Goods.
(e) If your payment cannot be processed or is otherwise not made to Holden (or Click2Drive Pty Ltd acting for and on behalf of Holden) in accordance with clause 8(d), Holden may terminate the Contract and the Deposit will be forfeited to Holden.
(f) Holden (or Click2Drive Pty Ltd acting for and on behalf of Holden) may decline to accept payment from you at any time for any reason including, without limitation:
(i) where our fraud detection systems detect possible irregularities;
(ii) because your financial institution has declined payment; or
(iii) because your payment card has expired.
Where this is the case, in addition to Holden’s right of termination set out at clause 8(e), Holden reserves the right to place the dispatch of the Goods on hold and request that you provide additional information (for example, proof of identity documents) or arrange payment by another method.
9. TITLE IN THE GOODS
(a) Until Holden has received payment in full, title in the Goods shall not pass to you and you shall hold possession of it as bailee only. While you hold possession of the Goods as bailee only, you:
(i) are responsible for the proper care and maintenance;
(ii) are liable for any loss or damage occasioned to them; and
(iii) will indemnify Holden against any claim arising from their use.
(b) If you fail to make payment for the Goods in accordance with these Terms and Conditions then Holden shall have the right to effect recovery of any Goods for which title has not passed and use any reasonable means of force effect recovery of the applicable Goods and to resell or otherwise dispose of the Goods so recovered.
(c) You grant Holden, its officers, employees and agents an irrevocable licence to enter your premises to recover the Goods without incurring liability to you or any person claiming through you, for the tort of trespass, negligence or payment of any compensation whatsoever.
10. ONLINE TRADE-IN VALUE
(a) You may apply to receive an Online Trade-In Value for your Trade-In Vehicle by completing the online valuation form on the Website.
(b) By completing the online valuation form and submitting it, you warrant that the Trade-In Vehicle:
(i) is in the condition warranted by you at the time of submitting the online valuation form and confirmed in the Schedule (which for the avoidance of doubt, must be either Fair Condition or Good Condition and must not be Poor Condition);
(ii) does not have any of the following major mechanical defects:
(A) grooved brake discs caused by metal to metal contact;
(B) seized engine due to running of the Trade-In Vehicle with insufficient coolant, lubricating oil;
(C) premature failure of a mechanical component such as broken internal components within the engine;
(D) slipping, erratic gear changing, clutch slipping, noisy transmission or ineffective synchromesh;
(iii) will have two months vehicle registration at the time of hand-over of the Vehicle and the Trade-In Vehicle;
(iv) does not have personalised registration plates;
(v) is not privately and/or personally imported (in other words, the Trade-In Vehicle has been imported by the manufacturer or the manufacture's distributor);
(vi) has an accurate odometer reading and/or record of distance or hours travelled;
(vii) has a working odometer which has not been replaced;
(viii) is less than sixteen years old and has travelled less than 25,000km per year;
(ix) is not on the Written Off Vehicle Register (as maintained by the various Australian roads and licensing authorities, e.g. VIC ROADS);
(x) has not been partially or fully immersed in water;
(xi) has not ever been used for public or private hire, rental, driving tuition or as an emergency vehicle;
(xii) has two sets of keys; and
(xiii) has a full service history where services have been carried out by service agents approved by the manufacturer and service books.
(c) For the purposes of clause 10(b)(i), a Trade in Vehicle is deemed to be:
(i) in Good Condition if it only has Minor Defects (if any) and has no Major Defects;
(ii) in Fair Condition if it has at least one, but no more than three, Major Defects; and
(iii) in Poor Condition if it has more than three Major Defects. Holden does not accept Trade-In Vehicles which are in Poor Condition.
(d) The following defects are deemed to be Major Defects in connection with a Trade-In Vehicle:
Missing or damaged cigarette lighter, knobs, trims or aerials
Missing or damaged tools or jack
Major chips, bullseyes or stars
Minor chips in field of vision
Non-operational or cracked or broken headlights or lenses
Missing spare tyre
Tyres do not match
Less than 75% tread remaining on tyres
Split or badly disfigured wheels
Heavy scuffing on wheels
Screw holes from car phone removal
Seats or trim which are burnt, cut, holed, ripped or require visible repairs
Permanent soiling to seats and carpets, for example, caused by abuse, spills or grease
Rips, cuts, marks or splits to trim and controls
Missing or inferior quality replacement controls
Torn or split luggage area, trim, panels or floor coverings
Scratching or abrasion more than 25mm in length and deep
More than 2 scratches per panel
Prominent touchups required
Spoils from bird/bat/tree droppings or major flaking
Evidence of poor repairs such as colour mismatch or mis-alignment between panels
Signs of constant use of automatic car wash
Dents greater than 20mm in diameter or which penetrate the paint surface
Hail damage, buckling or distortion
Prominent areas of major stone chipping
Un-repaired or poorly repaired aerial holes (or aerial must be left in place)
Damage caused to the vehicle due to the attachment or removal of decals/stickers
The presence of any rust
Divots, gouging, minor dents or cracks
Rips, major dents, distortions or holes
Missing moulds, grilles, bumpers or mudflaps originally fitted to the vehicle
Major impact damage
Exhaust leaks which are the result of visible damage to the exhaust system
The engine or drivetrain has leaks
(e) The following defects are deemed to be Minor Defects in connection with a Trade-In Vehicle:
1 or 2 minor chips, bullseyes or stars which are not in the field of vision
Minor scuffing to wheels only
Soiling to seats and carpets - caused by normal use
Normal odours such as tobacco smells
Scratching or abrasion which is less than 25mm in length and shallow
No more than 2 scratches per panel
Minor touch ups made or minor flaking
Dents of less than 20mm in diameter, which do not penetrate the paint surface
No more than 2 dents per panel
Minor stone chipping on bonnet, lower doors or wheel guards
Minor damage only such as light scuffing and scratches
Minor dents and deformations only
(f) By submitting an online valuation form with respect to the Trade-In Vehicle, you further represent and warrant that:
(i) the warranties given in clause 10(b) are true and correct in respect of the Trade-In Vehicle being valued except for any amendments declared by you when submitting the online valuation form;
(ii) you have full legal authority to sell the Trade-In Vehicle;
(iii) you are the sole owner of the Trade-In Vehicle;
(iv) you have clear title to and the unfettered right to sell the Trade-In Vehicle and the Trade-In Vehicle is not subject to a security interest of any kind including without limitation under the Personal Property Security Act 2009 (Cth) (PPSA) which will not be released at or before the time of any sale or you have clear title to and the unfettered right to sell the Trade-In Vehicle subject to the release of a security interest under the PPSA no greater than the amount owing declared by you when requesting the Online Trade-In Value via the online valuation form;
(v) you have made enquiries with your relevant financier before submitting the Loan Amount Owing for the Trade-In Vehicle and the Loan Amount Owing is true and correct and; and
(vi) if the Loan Amount Owing disclosed by you is different to the Actual Loan Amount Owing, you agree that the difference will be added to the Final Settlement Amount Owing.
11. FINAL TRADE-IN PRICE
(a) The Online Trade-In Value is based upon the information you provide to Holden about the Trade-In Vehicle including the representations and warranties given by you pursuant to clauses 10(b) and 10(f). Within seven days of receiving the Online Trade-In Value, you may choose to submit the Trade-In Vehicle for the Online Trade-In Value as part of the Order for the Goods, provided that the information provided by you remains true and correct.
(b) Holden (or its nominee) will carry out a final physical inspection of the Trade-In Vehicle before it releases the Goods during the hand-over process. If Holden (or its nominee) determine at the final physical inspection that the Trade-In Vehicle does not accord with the information provided by you in the online valuation form or does not satisfy all of the representations and warranties given by you pursuant to clauses 10(b) and 10(f), Holden will:
(i) advise you of the Final Trade-In Price and the difference between the Online Trade-In Value and the Final Trade-In Price; or
(ii) terminate the Contract and retain the Deposit.
(c) If you accept the Final Trade-In Price, you must pay the difference (if any) between the Online Trade-In Value and the Final Trade-In Price by credit card via a credit card pre-authorisation given at the time of the hand-over of the Goods.
(d) If you reject the Final Trade-In Price or require additional time to consider the Final Trade-In Price, the Goods will not be delivered to you. The Final Trade-In Price is valid for three days from the time it is communicated to you. During this time, you may accept the Final Trade-In Price and complete the hand-over of the Goods, however you must pay any Additional Home Delivery Charges notified to you.
(e) Holden reserves the right to terminate the Contract and retain the Deposit if:
(i) at the time of hand-over of the Trade-In Vehicle, the Trade-In Vehicle does not match the description recorded by Holden during Holden’s (or its nominee’s) final physical inspection of the Trade-In Vehicle;
(ii) you reject the Final Trade-In Price; or
(iii) you do not accept the Final Trade-In Price in accordance with clause 11(d).
(f) Prior to the Trade-In Vehicle being accepted by Holden or its nominee, you must provide Holden:
(i) all of the Trade-In Vehicle's keys (master/s and copies);
(ii) the Trade-In Vehicle's current registration certificate and proof of ownership documentation;
(iii) the Trade-In Vehicle's service history, owners' manual & service books;
(iv) any accessories; and
(v) 100 points of your identification including at least one form of photo identification.
You give Holden or Holden’s nominee the right to issue a recipient created tax invoice in respect of the Trade-In Vehicle. Where you are making a taxable supply of the Trade-In Vehicle to Holden, you acknowledge that you are solely responsible for the payment of GST to the Australian Taxation Office in relation to the Trade-In Vehicle
(g) You acknowledge and agree that Holden may nominate a third party purchaser to complete the purchase of the Trade-In Vehicle instead of Holden, in which case Holden may act as your agent to facilitate the Trade-In Vehicle sale. Where this occurs, any obligation of yours and any promise, warranty or indemnity provided by you under the Contract with respect to the Trade-In Vehicle is held by Holden on its own behalf and upon trust for the relevant third party purchaser of the Trade-In Vehicle. The existence of the trust established by this clause does not prevent Holden exercising any right under the Contract on Holden’s own behalf.
(h) Title in the Trade-In Vehicle transfers to Holden or to Holden’s nominee when:
(i) the Final Settlement Amount Owing and any difference between the Online Trade-In Value and Final Trade-In Price is paid by you; and
(ii) title in the Goods transfer to you.
12. TERMINATION OF CONTRACT
(a) Holden reserves the right to terminate the Contract any time before delivery of the Goods, in the following circumstances:
(i) you are in breach of these Terms and Conditions (including the warranties given by you under these Terms and Conditions);
(ii) you refuse or fail to take delivery of the Goods, other than where you have validly terminated the Contract;
(iii) if the conditions set out at clause 8(a) are not met within seven business days of the Contract Date;
(iv) an event beyond Holden’s control, such as storm, fire, flood, earthquake, terrorism, power failure, war, strike or failure of computer systems, means that Holden is unable to supply the Goods to you within a reasonable time;
(v) Goods Ordered were subject to an error on the Website, for example, in relation to a description, price or image, which was not discovered prior to the Contract Date;
(vi) pursuant to clauses 8(e) or 11(e).
(b) If Holden terminates the Contract in accordance with clauses 8(e), 11(b)(ii) or 11(e), the Deposit shall be forfeited to Holden but Holden must refund to you any amounts paid towards the Final Settlement Amount Owing and return any Trade-In Vehicle (if handed over) to you.
(c) You may terminate the Contract by giving written notice to Holden:
(i) pursuant to your Cooling Off Right;
(ii) where Holden has breached a material term of these Terms and Conditions;
(iii) where Holden is not able to deliver the Goods within 30 days of the estimated delivery time advertised on the Website or as set out in the Contract, other than a result of any delay for which you are wholly or partly responsible such as a failure to provide the correct delivery address, correctly represent the condition of Trade-In Vehicle or to pay for the Goods; or
(iv) pursuant to clauses 3(e) or 8(b)(ii).
(d) If you terminate the Contract pursuant to clause 12(c), Holden shall refund the Deposit.
(e) Except to the extent otherwise required by law (including, without limitation, the Australian Consumer Law) or as expressly set out in these terms and conditions, Holden will not be liable to you, or any other person, for any loss, damage, cost or expense suffered as a direct or indirect result of termination of the Contract, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
(a) Goods will generally only be delivered to addresses within the Designated Delivery Area. Holden is unable to deliver to certain parts of Australia and to certain types of dwellings and where this is the case Holden will cancel your Order. Holden may, in its absolute discretion, agree to deliver outside the Designated Delivery Area but is under no obligation to do so.
(b) The Goods may be picked up in store at the dealership premises nominated by Holden, rather than being delivered to you. If this service is available, you will be required to nominate this option when you place your Order.
(c) Holden will only deliver the Goods to addresses that match the address of both your current driver’s license details and the registered address of your credit card used when placing your Order.
(d) Prior to the Goods being delivered, Holden will confirm with you the scheduled delivery date and time (being a two hour window). You are required to promptly provide confirmation to Holden of this scheduled delivery date and time.
(e) Prior to the Goods being released by Holden, you must:
(i) present the email that Holden has sent to you confirming that the Goods are available for delivery; and
(ii) provide original photo identification (current drivers licence, passport or Keypass) to Holden’s representative to verify that you are the purchaser of the Goods;
(iii) if you have obtained finance through Holden's customer finance solution, provide at least 100 points of original identification including at least one form of photo identification;
(iv) if requested, allow Holden’s representative to take a copy of your photo identification for fraud prevention purposes. The copy will not be used by Holden for any other purpose or disclosed to any person outside of Holden;
(v) ensure that you have the credit card used to pay the Deposit available for checking by Holden's representative;
(f) Holden's representatives have the right to refuse delivery of the Goods if you cannot or will not satisfy the requirements set out in clause 13(e). If you cannot provide the identification documents required under clauses 13(e)(ii) and 13(e)(iii) (as applicable), Holden will refuse delivery of the Goods and reschedule delivery to a date when you can satisfy those identification requirements.
(g) On delivery of the Goods you will be required to sign a proof of delivery document. Risk in the Goods passes to you on the date and time of delivery of the Goods to the delivery address in the Schedule.
(h) If you are not available to take delivery, your Goods will be taken to a local Holden representative where they will be held until Holden is able to complete delivery and hand-over or until Holden exercises it rights under clause 12(a)(ii). If you require Goods to be re-delivered to your address, Holden may charge you a reasonable fee for doing this.
14. DELAY IN DELIVERY OF GOODS
(a) You agree and acknowledge that:
(i) Holden does not guarantee the delivery or availability of the Goods within the timeframes set out on the Website;
(ii) events outside Holden’s control may cause delays, or in some circumstances, prevent your Goods from being delivered or available for pick-up;
(iii) delays are particularly likely to occur around Christmas, Easter and public holidays; and
(iv) except to the extent expressly set out in these Terms and Conditions or otherwise required by law (including, without limitation, the Australian Consumer Law), neither Holden nor any of its agents will be liable to you, or any other person, for any loss, damage, cost or expense suffered as a direct or indirect result of any delay in delivery of the Goods to you or delay in the availability of the Goods for pick up in store, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
15. REFUNDS AND RETURNS
(a) Where Holden is obliged to refund any amount to you pursuant to these Terms and Conditions, Holden aims to initiate your refund via direct bank deposit within seven business days. For deposit refunds only, your deposit will be refunded via the Credit Card used to make your deposit.The additional time that it takes for you to actually receive your refund will depend upon how quickly your financial institution processes the refund.
(b) Except to the extent otherwise required by law (including, without limitation, the Australian Consumer Law), Holden will not be liable to you, or any other person, for any loss, damage, cost or expense suffered as a direct or indirect result of any delay in you receiving any refund due to you, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
(c) You must check your Goods as soon as they are delivered to you to ensure that they match to the Contract and they are not damaged or faulty. If this is not the case, you must contact Holden on email@example.com within three business days.
(d) If you have a problem with any Goods or otherwise wish to return them please refer to Holden’s Returns Policy which forms part of these Terms and Conditions.
(e) When returning the Goods you must provide Holden with your proof of purchase.
16. HOLDEN’S LIABILITY TO YOU
(a) To the full extent permitted at law, Holden is not liable for any loss of profit, loss of revenue, loss of business, loss of bargain, loss of savings, loss of data, loss or goodwill, loss of reputation, the cost of obtaining replacement or alternative Goods or the cost of other remedial measures, or for any indirect, special, economic or consequential loss, arising from or in connection with your Account, Order or the Contract.
(b) To the full extent permitted at law, any advice, recommendation, information, assistance or service provided by Holden in relation to the Goods is given in good faith and is believed by Holden to be appropriate and reliable but is otherwise provided without any warranty as to its accuracy and without any liability on the part of Holden.
(c) No warranties apply to this Contract which the exception of any which have been implied pursuant to any Commonwealth or State law and which may not by law be excluded, together with any express warranties, the terms of which are set out herein.
(a) You acknowledge and agree that Holden may subcontract the performance of any of its obligations under the Contract.
(d) Holden reserves the right to amend these Terms and Conditions at any time. Any amendment will take effect from the time that it appears on the Website. However, the Terms and Conditions which form part of the Contract may only be varied in writing between the parties.
(e) Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable, and otherwise shall be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
(f) Holden may assign or novate all or any part of its rights and obligations under the Contract including any rights and obligations under any Order. Unless otherwise provided in these Terms and Conditions, you must not assign, create an interest in or otherwise deal with its rights or obligations under the Contract without our prior written consent.
(g) These Terms and Conditions are governed by the laws of Victoria, Australia.