This Agreement, applies to the listing, display and publication on www.formalcars.com.au ("the Site") of the car listing(s) or advertisement(s) (the Advertisement) submitted by you, the person or entity named and described in the online application when creating an account pursuant to the sign up mechanisms found at the following links http://www.formalcars.com.au/car/create/ and http://www.formalcars.com.au/user/signup (You or Your).
By placing an order or orders for the Advertisement to be listed on the Site You agree:
You must complete and submit the online application (the Application), confirming this Agreement is binding between You and Anthony Bortolotto, trading as Formal Cars (Us or We); and
to pay Us the fee specified in the Application (for the standard listing, premium listing or showcase listing, as the case may be) at the time of entering into this Agreement.
That under no circumstances will We refund any fees paid to Us pursuant to this Agreement.
You have the legal capacity and authority to enter into this Agreement.
You acknowledge and agree that:
We do not provide any assurances or guarantees regarding the performance or effectiveness of the Advertisement.
We are not responsible for any errors or omissions in any Advertisement that You provide Us.
You will check the Advertisement for errors once placed on the Site and advise us immediately if there are any errors or if You require amendments to be made.
We are not liable for any malfunction or delays with the Internet including any fault that may prevent the full and proper display or operation of the Advertisement.
We are not liable for any loss or damage suffered by You as a result of any delay, error or omission with the publication of the Advertisement unless wilfully caused.
You agree that the Advertisement must not:
infringe another person’s intellectual property rights (for example contains an unauthorised reproduction of another person’s copyright work or uses another person’s trade mark without the owner’s permission);
contain any defamatory or inappropriate statement;
breach the Trade Practices Act or equivalent Fair Trading legislation or any industry codes (whether voluntary or compulsory);
contain any statement or content that is negligent or that is likely to mislead or deceive; or
breach any other law, contravene any injunction or amount to a contempt of court.
For any intellectual property You provide Us in any way associated with the Advertisement, You grant to Us a royalty-free, non-exclusive and perpetual licence to use, reproduce, sub-license, disclose, modify and adapt that intellectual property for the purpose of displaying the Advertisement and providing any associated services.
If you fail to pay Your accounts in accordance with our standard trading terms then We reserve the right to:
Disable Your account with Us without notice.
Refuse the supply of further services.
Charge You interest on late payment at the rate of 12.5% per annum.
Recoup any collection costs We incur.
We will not be liable to You for any actions, claims, damages, liabilities, costs, expenses, or losses in any way arising (including a breach of this agreement or any negligent act or omission) out of or relating to the advertising services for an aggregate amount in excess of the fees paid by You to Us under this Agreement.
In no event will We be liable for special, indirect, incidental, consequential or punitive damages, costs, expenses or losses of any nature, including, without limitation, lost profits and opportunity costs.
You continually indemnify Us and Our officers, employees and agents (those indemnified) from all liability for any claims, actions, suits, losses, actual or contingent costs, damages and expenses suffered or incurred by those indemnified in connection with:
any breach of this Agreement by You (or any of Your officers, employees, contractors or agents);
any negligent act or omission by You (or Your officers, employees, contractors or agents);
any warranty given by You being, or subsequently becoming, untrue;
the listing or proposed listing of the Advertisement on the Site; and
Your actual or alleged breach of any law or codes of conduct in any way associated with this Agreement. Where this clause refers to a person who is not a party to this agreement We hold the benefit of this clause on trust for that person.
We cannot and do not guarantee to You that files available for downloading through the Site or delivered via electronic mail will be free of infection, viruses or any other codes that may have contaminating or destructive properties.
We will perform the services in good faith, with due care and skill, but disclaim all other warranties, either express or implied, including without limitation warranties of merchantability and fitness for a particular purpose.
Where any legislation such as the Trade Practices Act (1974) (Cth) implies into this Agreement any condition or warranty and that legislation voids or prohibits conditions in a contract excluding the application of the conditional warranty, Our liability for any breach of the condition or warranty is limited to, at Our option either:
the resupply of the Services; or
the reasonable cost of having the Services resupplied.
You may include links to the Site from other websites containing more detailed listings subject to first obtaining Our approval. Such approval will be at Our sole and absolute discretion and we retain the discretion to revoke approval at any time.
If any of the following things happen, We may give You a written notice terminating this Agreement, with immediate effect:
You breach one or more of Your obligations under this Agreement, and then fail to rectify the breach within 14 days of receiving a notice of the breach;
You (being a company), become, threaten or resolve to become or are in jeopardy of becoming subject to any form of insolvency administration;
You (being a partnership), dissolve, threaten or resolve to dissolve or are in jeopardy of dissolving; or
You (being a natural person), die.
Either party (a non-defaulting party) may terminate this Agreement with immediate effect by notice to the other party (defaulting party) if the defaulting party breaches a material term of this Agreement that in the reasonable opinion of the non-defaulting party is incapable of being remedied.
If this Agreement is terminated by Us then We will stop performing the advertising services and in addition to terminating this Agreement:
We will retain any fees paid;
We will be regarded as discharged from any further obligations under this Agreement;
We may pursue any additional or alternative remedies provided by law;
You must pay Us the fees that are, on the date of termination, due and payable under this Agreement; and
You must indemnify Us in relation to Our unavoidable and unrecoverable costs directly arising from the termination.
It is understood and agreed that each of the parties to this Agreement is an independent contractor and that neither party is, nor will it be considered to be, an agent or representative of the other. Neither party will act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.
If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then such provision will be null and void and will be severed from this Agreement, but each other provision is not affected and will continue to be valid and enforceable.
The parties agree that the terms of this Agreement are confidential.
The parties acknowledge that by virtue of this Agreement, each may be afforded access to, and acquire knowledge of the other party’s confidential information. The party receiving that information agrees that that information will not be disclosed to others or independently used without proper authorisation from the disclosing party.
If GST is or will be payable by a party on a supply under this Agreement, then the supplying party may, subject to issuing a valid tax invoice, increase the amount otherwise payable for the supply by the amount of such GST.
You must not assign, sub-contract or sub-license any rights or obligations under this agreement without Our prior written consent.
This Agreement is governed by the laws of the Australian Capital Territory and each party unconditionally submits to the non-exclusive jurisdiction of the Courts of the Australian Capital Territory.