Terms of Use - Supplier

Last updated: 28 September 2015

Overview

These terms govern the use of services provided by Optimal Fleet Solutions Limited ("OptiFleet") at the BestCar website (www.bestcar.co.nz). The services and website together are referred to as the “Service”.

The Service connects individuals or organisations that want to purchase or lease vehicles ("Buyers"), with motor vehicle dealers, distributors or lease companies wanting to supply those vehicles ("Suppliers") as follows:

• Buyers list requirements for new motor vehicles on the Service (each an “Opportunity”).
• Suppliers bid to supply those motor vehicles (each a “Bid”).
• Buyers select bidding Suppliers by notifying the selected Suppliers through the Service or via OptiFleet (each a “Bid Selection”).
• Buyers and Suppliers may then enter into contracts for the vehicles (each a “Contract”).

Together, Buyers and Suppliers are referred to as “Customers”. Customers access the Service via accounts for specific Customer personnel (each as “User”). Users are assigned user identifications (each a “User ID”) that are personal to the Users to whom they were issued.

The Agreement

On registering for the Service, as described in the following section, each Customer enters into a separate agreement with OptiFleet made up of these Terms of Use and Privacy Policy and Fee Schedule (together “the Agreement”). Each Agreement is between OptiFleet and the relevant Customer only, and is not enforceable by any other Customer or any User. Under the Agreement, each Customer is responsible for the acts and omissions of its Users as if they were the acts and omissions of that Customer.

The Agreement is subject to change at any time as specified in “Changes to the Agreement” below. Customers should review the Agreement frequently at procure.bestcar.co.nz/site/terms_of_use.aspx to see if it has changed.

Registration

In order to use the Service, each potential customer must

• be an individual resident in New Zealand or a limited liability company registered in New Zealand; and
• register as a Customer by agreeing, on the Service or otherwise, to these Terms of Use.

Customers must register using their full legal name (e.g. not their trading name). A Customer may only register as a Supplier if it is currently registered as a motor vehicle trader (as defined by the Motor Vehicle Sales Act 2003). A Supplier may not use the Service if it no longer has that registration. Suppliers must inform OptiFleet immediately if that occurs.

Upon registration, OptiFleet requires details of a key contact person to whom all notices under the Agreement will be sent. Customers must provide OptiFleet with complete, accurate and current information when registering, and ensure the information is kept up to date. OptiFleet may contact the relevant Customer to verify this.

Users must not share their User IDs or passwords with others. Customer may not use as a User ID or registration name, any name or term that (i) is the name of another person or company, with the intent to impersonate that person or company; (ii) is subject to any rights of another person or company, without appropriate authorisation; or (iii) is otherwise offensive, vulgar, or obscene.

OptiFleet reserves the right in its sole discretion to refuse registration or prohibit a User from accessing the Service.

The Service

Opportunities are posted and won on the Service as follows:

• Fee setting. Before a Buyer can post an Opportunity, the fee payable to OptiFleet for the Opportunity (the “Service Fee”) and the party responsible for paying the Service Fee will be set by OptiFleet in consultation with the Buyer. The Service Fee will be payable by the Buyer. Indicative Service Fees are included in the Fee Schedule, but OptiFleet may set the fee at its discretion. If OptiFleet does not set a Service Fee for a particular Opportunity, then the indicative Service Fees specified in the Fee Schedule will apply. Buyers may opt to include their agreed Service Fee on the Supplier’s invoice if they choose. In this instance, OptiFleet will then invoice the supplier for the agreed fee.

• Posting. Opportunities and their associated Service Fees are posted on the Service from time to time on behalf of Buyers. OptiFleet may assist a Buyer to specify an Opportunity. Each Buyer:
  • will provide all relevant information on its Opportunities, and ensure the information is accurate;
  • will treat all pricing in a Supplier's Bid as confidential;
  • will, before selection of a Supplier for an Opportunity, promptly answer questions from Suppliers in relation to the Opportunity;
  • may withdraw the Opportunity from the Service at any time before the Deadline, but if that happens OptiFleet may choose to charge the Buyer a portion of the Service Fee to cover OptiFleet's reasonable costs;
  • agrees that:
    • all Suppliers may be provided with information on the Buyer’s profile; and
    • the selected Supplier for the Opportunity may be provided with User contact details (e.g. phone number and email).

• Bidding. After the Opportunity has been posted, OptiFleet will select the Suppliers who will be invited to bid for an Opportunity. Those Suppliers may bid for the Opportunities up until the deadline set by OptiFleet (“Deadline”). OptiFleet reserves the right to limit the Suppliers who may bid for a particular Opportunity, including the number and range of Suppliers (as may be determined by OptiFleet at its discretion). Each Bid is confidential and Suppliers may change or resubmit Bids at any time before the Deadline. Each bidding Supplier:
  • warrants that it is capable of offering the motor vehicles on the terms submitted with the Bid;
  • agrees that information on their profile may be supplied to the Buyer;
  • agrees that its bid will remain valid for at least 30 days after the Deadline;
  • if the Supplier is selected by a Buyer, the Supplier agrees:
    • that their contact details (e.g. User phone number and email) may be supplied to the Buyer; and
    • to fulfil the offer as specified in its bid;
  • must not place a Bid on behalf of any third party, including its related companies;
  • must not make direct contact with the Buyer, or attempt to solicit the Buyer’s Opportunity outside of the Service.

• Selecting. All Bids for an Opportunity will be presented to the Buyer. The Buyer may select a Supplier for the Opportunity from those presented by way of a Bid Selection. The Buyer will not be obliged to select any Supplier if none of the Bids received for the Opportunity meet the Buyer's requirements. OptiFleet may assist the Buyer to prepare a Bid Selection, including by confirming the Supplier's best and final pricing. The Buyer must not make direct contact with the Supplier in relation to any Bid, other than the Supplier with whom the Buyer has submitted a Bid Selection for the Opportunity.

• Contracting. Submission of a Bid Selection by a Buyer does not in itself create a contract between the Buyer and Supplier. A Contract is only established by the Buyer and Supplier agreeing the terms of the Contract. OptiFleet is not a party to any Contract and does not act as an agent for either the Supplier or Buyer.

Even though the Service refers to “bidding” for Opportunities, OptiFleet is not an auctioneer under the Auctioneers Act 1928 or otherwise.

OptiFleet may change, modify, suspend, or discontinue, temporarily or permanently, any aspect of the Service at any time. OptiFleet may also impose limits on certain features or restrict Customer access to parts or all of the Service without notice or liability.

Fulfilling Contracts

The Supplier must at all times operate in accordance with its obligations under the Motor Vehicles Sales Act 2003. Both must comply with all other relevant laws while fulfilling the Contract.

The Service and OptiFleet take no part in the completion of the Contract or the subsequent performance of either party’s obligations in relation to that Contract. To clarify, OptiFleet has no control over, and accordingly has no responsibility for:

• the completion, execution or delivery of any Contract, including the suitability, quality, timing, accuracy, legality, or any other aspect whatsoever of Contracts arranged following use of the Service;
• the Buyer’s solvency or its ability to pay the Supplier in accordance with any Contract;
• the Supplier's solvency or its ability to provide vehicles to the Buyer in accordance with any Contract; or
• any Users, including the suitability, integrity, responsibility, any acts or omissions, or any other aspect whatsoever of Users.

If the Buyer is unable to meet its payment obligations under a Contract agreed with the Supplier, and the Supplier complains to OptiFleet, the Buyer will receive a warning from OptiFleet. After two such complaints, OptiFleet may suspend or terminate the Buyer’s access to the Service.

Right to Edit Information

OptiFleet reserves the right to reject, cancel, interrupt, remove, or suspend the bidding process or any other entry on the Service, at any time and for any reason, if it considers is appropriate and necessary to do so. OptiFleet is not liable for any damages as a result of any of those actions. OptiFleet will endeavour to advise affected Customers of OptiFleet's reasons for taking those actions, where the information is not confidential.

Permitted Use

Customers may not:

• use the Service for any unlawful purpose;
• hack or interfere with OptiFleet, its servers or any connected networks, or attempt to do so;
• use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index OptiFleet in any manner;
• remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by OptiFleet;
• adapt, alter, license, sublicense or translate the Service for its own personal or commercial use; or
• upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another's computer.

Account, Password and Security

Customers are responsible for maintaining the confidentiality of account names, User IDs and passwords provided by OptiFleet for accessing the Service. Customers are solely and fully responsible for all activities that occur via the use of any User ID assigned to their account. OptiFleet will have no liability to Customers for actions of any unauthorised user of the Service using its User IDs. Should a Customer suspect that any unauthorised party may be accessing the Service using any of the Customer’s User IDs, or suspect any other breach of security, the Customer must contact OptiFleet immediately.

Links to Other Web Sites

Links from the Service to other websites (such as hyperlinks, website framing or third party advertisements) do not constitute the endorsement by OptiFleet of those websites or their content. Such links are provided as an information service, for reference and convenience only. OptiFleet does not control any such sites, and is not responsible for their content. It is each Customer’s responsibility to evaluate the content and usefulness of the information obtained from other websites. The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites, and not by OptiFleet's terms or Privacy Policy.

Termination and Suspension

OptiFleet may terminate or suspend a Customer’s registration on the Service, or a User’s access to the Service, for any or no reason, without entering into further discussions with the Customer. OptiFleet will endeavour to notify the Customer by email of such termination or suspension. Without limitation, OptiFleet may terminate or suspend the Customer’s right to use the Service if the Customer breach any term of the Agreement or any policy of OptiFleet posted on the Service from time to time. In addition, OptiFleet reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.

Each Customer may terminate its Agreement at any time by giving us at least 30 days’ written notice. A Customer may terminate a User’s access to the Service at any time via the Service or by providing at least 5 days’ notice to OptiFleet. Even after use of the Service is terminated or suspended, prior breach of the Agreement will remain enforceable against the Customer. Termination or suspension will not affect the continuing operation of any sections which, by their nature, are reasonably intended to survive termination or suspension.

Intellectual Property Rights

All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, trade names, trade marks and other content that users see or read on the Service and the software and other material underlying and forming part of the Service (collectively "Proprietary Material") are owned by OptiFleet or are used by permission of the owner. The Proprietary Material, in all its forms, is protected by domestic and international laws. Users may not copy, download, use, redesign, reconfigure, or retransmit any Proprietary Material without the prior permission of OptiFleet and/or the relevant right holder.

Disclaimer

Participation in the Service is undertaken entirely at each Customer’s own risk and the Service is provided on an "as is" and "as available" basis. To the maximum extent permitted by law, OptiFleet disclaims and excludes all implied conditions or warranties, including but not limited to any warranties of merchantability, and fitness for a particular purpose. OptiFleet gives no representations or warranties in relation to:

• the timeliness, accuracy, reliability, completeness or content of the Service;
• the accuracy completeness or content of any Opportunities submitted;
• the capability, experience or credentials of any Customer;
• the quality of vehicles offered by Suppliers; or
• any payment by Buyers.

No Liability

Each Customer agrees that, to the greatest extent permitted by law, OptiFleet, its related companies as defined in the Companies Act 1993, its licensors, or any of such parties’ agents, employees, officers, directors, or corporate partners (each an “OptiFleet Party”) have no liability to the Customer or its Users for damages under any theory of law (including contract, tort, equity or restitution) under or in connection with the Agreement including, without limitation, any:

• direct, indirect, incidental, consequential, special or exemplary damages, even if advised of the possibility of the same; or
• liability in connection with any act or omission of OptiFleet or any User, any dispute with any User, or any loss of information (including personal information and credit card information).

If, regardless of the above, it is determined that any OptiFleet Party is liable to a Customer or any of its Users under or in connection with the Agreement, the Customer will ensure that in no event will the aggregate amount of such liability exceed the total fees paid by the Customer to OptiFleet during the six months prior to the time the last event giving rise to such liability occurred.

The limitation of liability in this section is intended to be for the benefit of and enforceable by each OptiFleet Party, but the Agreement may be amended without their consent.

Dispute Resolution

OptiFleet is not a party to any contract between Customers, each Customer agrees:

• not to involve, or attempt to involve, any OptiFleet Party in any dispute or in the resolution of disputes that arise between Customers in relation to the Service; and
• to release each OptiFleet Party from any and all claims or demands arising out of or in any way connected with such disputes.

Changes to the Agreement

OptiFleet reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of the Agreement (including the Privacy Policy) at any time, effective with or without prior notice. OptiFleet will use reasonable endeavours to notify Customers of any significant changes to the Agreement, however it will not be possible to notify Customers in every case. Accordingly, Customers should check the terms and conditions of the Agreement regularly for changes. If any changes to the Agreement are unacceptable to a Customer, or cause the Customer to no longer be in compliance with the Agreement, it must immediately stop using the Service. Each Customer’s continued use of the Service following any revision to the Agreement constitutes its complete and irrevocable acceptance of any and all such changes.

General

OptiFleet has no liability for any failure to comply with the Agreement that is caused by reasons beyond OptiFleet’s reasonable control. No agency, partnership or joint venture relationship is intended or created by the Agreement. Failure by OptiFleet to enforce any provision(s) of the Agreement will not be construed as a waiver of any provision or right. All waivers by OptiFleet must be in writing and signed by OptiFleet to be effective. The Agreement constitutes the entire agreement between each Customer and OptiFleet with respect to its subject matter. If any provision of the Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. Except as expressly provided in the Agreement, only the relevant Customer and OptiFleet have any benefit under the Agreement and any right to enforce the Agreement. The Agreement will endure to the benefit of OptiFleet, its successors and assignees.