Terms & Conditions

Background

1. These terms of service ('Terms') are an agreement between you and Tooti Pty Ltd ('Tooti', "we", "us" and "our").
2. These Terms apply to Tooti's service, which facilitates users of our website ('Site') to search, list and communicate with each other about vehicles listed for sale ('Tooti's Service').
3. You must accept the Terms if you wish to access and use Tooti's Service.
4. By entering your email and clicking 'Continue' below, you are taken to have accepted the Terms and entered a binding agreement with Tooti.

Tooti’s Service

5. You may list details of a vehicle for sale on our Site (but subject to the provisions regarding User Content below). When listing a vehicle for sale on our Site, you acknowledge and understand that you must list it at the price Tooti determines on the vehicle using online real-time market-wide data ('Tooti Price') or the Tooti Price plus or minus an amount not exceeding $3,000, which is published on our Site as an offer to sell to other users of our Site. You acknowledge that Tooti is not responsible for any loss or damage suffered by you as a result of selling or purchasing a vehicle for the Tooti Price or the Tooti Price plus or minus an amount not exceeding $3,000.
6. If a vehicle is listed for sale on our Site, you may purchase that vehicle. You acknowledge that clicking 'BUY NOW' constitutes an irrevocable offer to purchase the vehicle from the user who listed that vehicle for sale ('Seller') at the price specified.
7. The process to buy and sell vehicles on the Site is as follows:
   1. A prospective user will register their details and apply for a login to the Site.
   2. If Tooti accepts a prospective user's application, that user will be issued a login and be granted access to Tooti's Service as a permitted user ('User').
   3. A User can upload a vehicle for sale free of charge. By uploading the vehicle for sale, the User is guaranteeing that if purchased on the Site, the vehicle will be available for purchase.
   4. A User can purchase a vehicle by clicking 'BUY NOW' on the specific vehicle ('Buyer').'
   5. The Buyer will subsequently be asked for their credit card details and charged $99 including GST.
   6. The Buyer and Seller will receive the contact details of the other party via their email address that was used to register.

Separate Transaction

8. Each sale and purchase on the Site shall constitute a separate and independent transaction.

No Involvement of Tooti

9. Tooti will not arrange any contract between the Seller and Buyer (or any other party) and will not be a party to any such transaction or agreement.
10. All prices are exclusive of transport fees. Transport may be organised independently between the Buyer and the Seller and Tooti will not be a party to any such arrangement.
11. Tooti is not an auction site and does not act as the broker or agent of any User of Tooti's Service. Tooti is a passive conduit for Users of our Site to communicate with each other about vehicles listed for sale. We are not responsible for transactions that occur between you and any other User of Tooti's Service.
12. We have no control over and take no responsibility for the content on our Site including, but not limited to, the quality or legality of the vehicles displayed on our Site or the truth or accuracy of the description of such vehicles, upcoming sale events or sale results displayed on our Site ('User Content').

No Warranty

13. To the maximum extent permitted by law, Tooti makes no warranty or representation regarding the standard of any goods or services to be supplied by a Seller or the actions, omissions, or conduct of a Seller or Buyer.
14. Subject to your consumer rights and except as required by law, Tooti does not in any way represent, warrant or guarantee:
    1. continuous, uninterrupted, or secure access to our Tooti Service;
    2. that any User of our Tooti Service will complete a sale transaction in relation to a vehicle listed on our Site;
    3. the actions, omissions or conduct of a User of our Site;
    4. that our Tooti Service is free of malware or other harmful components;
    5. that any vehicle valuation provided by Tooti (or any third party on behalf of Tooti) is accurate for any particular vehicle;
    6. the accuracy of vehicle listings or User communications; or
    7. the quality, safety, or legality of what is offered by any User of our Tooti Service.

User Responsibilities

15. You agree that it is your responsibility to independently verify information that is important to your selling or purchasing decision, prior to making any sale or purchasing decision, and that you accept the risk of not doing so.
16. You acknowledge that Tooti does not carry out any inspection on any vehicle listed on the Site and Tooti does not give any warranty as to the completeness or accuracy of any information provided to you about any vehicle, including without limitation, information in relation to prior servicing, the distance travelled by a vehicle, or its machine or engine house and Tooti will not be liable for any loss, damage, cost, or expense suffered or incurred by you arising out of incorrect or incomplete information.
17. In addition, you acknowledge that Tooti will not carry out any inquiry regarding any Seller's compliance with relevant qualifications and certifications required of the Seller in connection with selling vehicles under Australian law. Tooti takes no responsibility for any loss or damage suffered by you because of a Seller failing to comply with any such laws or regulations.

Fair Play Policy

18. Our Fair Play policy endeavours to provide all our customers with fair access to our services ('Fair Play Policy'). Our Fair Play Policy is intended to ensure that our customers do not use our services in an excessive, unreasonable, or fraudulent manner. Such usage may impact the reliable operation of our service and/or the quality or reliability of our services. Generally, legitimate use of our services for their intended purposes will not breach our Fair Play Policy.
19.  You must follow our Fair Play Policy when you use our VIN/Registration search. This search function gives you access to a Tooti Price. All estimates are tested and accurately adjusted taking into account kilometres travelled.

Buyer’s Premium

20. Upon a Buyer clicking 'BUY NOW' and confirming the Tooti Price, the buyer will be liable to pay Tooti a $99 (including GST) buyer's premium (or such other amount disclosed by Tooti to you from time to time) ('Buyer's Premium'), which is an additional fee above the sale price for any vehicle you have agreed to purchase.
21. The Buyer's Premium is payable by the Buyer to Tooti regardless of whether or not they ultimately purchase the vehicle from the Seller.
22. Tooti will debit your credit card immediately after you click 'BUY NOW' for the Buyer's Premium.
23. You acknowledge that surcharges may be payable for any part of the Buyer's Premium that is paid by credit card or any other online payment method.

User Content

24. When you use Tooti's Service, you may provide us with your User Content which may be in the form of video files, electronic documents, data, or images that you upload and import onto the Site in connection with or through your use of Tooti's Service.
25. You agree that any User Content shared on the Site must:
    1. accurately and fully describe the vehicle for sale (including the price);
    2. accurately describe the sale status of the vehicle;
    3. depict the actual vehicle for sale; and
    4. comply with all applicable Australian laws, including all necessary vehicle and terms-of-sale-related disclosures.
26. By sharing User Content on the Site, you represent and warrant that such User Content complies with all requirements listed at clause 25 above and is otherwise fully correct, complete, and not misleading.

Licences That You Grant To Us

27. You retain ownership of your User Content.
28. To enable us to make your User Content available on the Site we require a limited licence from you to enable us to use your User Content. Accordingly, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, fully paid, irrevocable, worldwide licence to reproduce, make available, perform and display, translate, modify, create derivative works from, distribute, and otherwise use any such User Content through any medium, whether alone or in combination with other content or materials, in any manner and by any means, method or technology, in connection with Tooti's Service. You also agree to waive, and not to enforce, any "moral rights" or equivalent rights, such as your right to be identified as the author of any User Content.
29. In addition, if, at our request, you send feedback or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by post, or otherwise (collectively, 'Feedback'), you agree that the Feedback is not confidential and we may, at any time, without restriction, copy, edit, publish, distribute, translate, and otherwise use in any medium any Feedback that you forward to us without any obligation to you.
30. In addition, to provide Tooti's Service, Tooti must share your personal contact details (including your email address, phone number, and name (collectively, 'Contact Details')) with a Buyer or Seller in accordance with clause 7(f) of these Terms. Therefore, by selling or purchasing a vehicle in accordance with clause 7(c)-(e) of these Terms, you consent to Tooti sharing your Contact Details with other Users and acknowledge that Tooti is not responsible for any loss or damage to you as a result of sharing your Contact Details with Buyers and/or Sellers.
31. You permit Tooti (and our related bodies corporate) to use all data (including, without limitation, sales data) which may be uploaded, generated, compiled, arranged or developed on the Site for any purpose.

Prohibition

32. You must not use Tooti's Service:
    1. to sell a vehicle that is stolen;
    2. for any unlawful purpose or for any purpose prohibited by these terms;
    3. to infringe any intellectual property or proprietary rights of any third party;
    4. to solicit others to perform or participate in any unlawful acts;
    5. to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate;
    6. to submit false or misleading information;
    7. to upload viruses or other malicious code;
    8. to collect or track the personal information of others;
    9. to spam, phish, pharm, pretext or crawl;
    10. for any obscene or immoral purpose; or
    11. to interfere with or circumvent the security features of our Site or website.

Age and Eligibility Requirements

33. To use Tooti's Service, you must:
    1. be at least 18 years of age;
    2. have the power to enter a binding contract with us and not be prohibited from doing so under any applicable laws; and
    3. hold all relevant qualifications, certifications and licenses required under Australian law to sell vehicles in the manner facilitated by the Tooti Service (collectively, 'Eligibility Requirements').
34. You represent and warrant that any registration information that you submit to Tooti in relation to your access to and use of Tooti's Service is true, accurate, and complete.
35. You represent and warrant that at the time you apply to be a User pursuant to clause 7(a) and 7(b) above, and that at all times that you are a User of the Site, you meet the Eligibility Requirements stated at clause 33 above. Tooti takes no responsibility for any loss or damage suffered by you as a result of you or any other User failing to meet the Eligibility Requirements or you or another User making false or misleading representations about meeting the Eligibility Requirements.'
36. You must maintain the confidentiality of your account details, and associated passwords. You must not give others access to your account. If you believe that your account and/or password has been misused or compromised in any way, you must contact us immediately.
37. You accept full responsibility for all actions taken by any person using your login and password (whether authorised or not) and indemnify Tooti for any expenses, loss, damage, costs, demands, or liabilities incurred by Tooti directly or indirectly out of or in connection with the use, including (without limitation) any improper or unauthorised use, of the login and password.
38. Where you sign up for and/or use the Tooti Service on behalf of an organisation or entity, you represent and warrant that you have the right to bind such organisation or entity and to act on behalf of that organisation or entity, and that these terms apply to the organisation or entity (and all references to 'you' and similar terms refer to that organisation or entity).

Further Action

39. A User must (at its own cost and expense) do everything that is required by law or that is otherwise reasonably necessary or reasonably requested by Tooti to give full effect to these Terms and the transactions contemplated by them.

Review

40. We reserve the right to review your use of Tooti's Service and take any actions that we deem necessary or advisable in our discretion to protect us or other Users.
41. In connection with our review of your use of Tooti's Service, we may request information from you. You agree to promptly comply with our requests for information.

Termination

42. In addition to our right to cancel these Terms, if, in our sole discretion you fail, or we suspect that you have failed to comply with any of these Terms, we may terminate, disable, block, or suspend your access to Tooti's Service at any time without notice to you.

Release & Indemnification

43. As Tooti is not a party to any transaction between you and any other User of our Tooti Service, in the event you have a dispute with any party arising out of your use of the Tooti Service, you release Tooti from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
44. You agree to indemnify and hold us harmless (including our directors, partners, representatives, officers, agents, contractors and employees) from and against any claims (including, without limitation, claims for property damage, bodily injury or death, and to the extent permitted by law, claims based on our negligence), damages (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss), losses and expenses of any kind (including reasonable legal fees and costs) suffered or incurred by you arising from or related to your sale or purchase of products using Tooti's Service, the products that you sell or purchase using Tooti's Service, your acts or omissions with respect to using Tooti's Service, or any breach or alleged breach of these Terms.
45. Additionally, you agree to indemnify and hold us (including our directors, partners, representatives, officers, agents, contractors, and employees) harmless from and against all claims (including, without limitation, claims for property damage, bodily injury or death, and to the extent permitted by law, claims based on our negligence), losses, costs, damages (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss), and expenses (including reasonable legal fees and costs) suffered or incurred by us arising out of or related to your breach of any of these Terms or your use of or the provision of Tooti's Service or the Site.
46. You agree to indemnify and hold us harmless from all claims related to taxation including any penalties or interest that may result from your use of Tooti's Service. You agree that:
    1. We have no liability to you or any taxing jurisdiction for any tax liabilities;
    2. You are solely responsible and liable for payment of tax liabilities; and
    3. You shall not seek reimbursement from us for any tax liabilities.
47. Clauses 43 to 46 above will survive the termination or expiry of these terms.

Limitation of Liability

48. To the maximum extent permitted by law, Tooti shall not be liable for any direct, indirect, special, incidental or consequential loss or damage whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) however caused and on any legal or equitable theory of liability, and whether or not for breach of contract, negligence, or otherwise, even if Tooti has been advised of the possibility of such damages. These limitations will apply not withstanding any breach of conditions or fundamental terms or for a fundamental breach. In any case, Tooti's entire liability under any provision of these Terms shall be limited to the Buyer's Premium received by Tooti from any User pursuant to the relevant separate transaction under these Terms.

Changes

49. Tooti reserves the right to vary or update these Terms at its sole discretion at any time by publishing revised terms.
50. All amended terms will become effective immediately on the date posted unless we state otherwise and will apply prospectively after such changes and updates become effective.

Severability

1. If any provision of this agreement is found to be void, illegal, invalid or unenforceable in any jurisdiction for any reason, then
   1. it must be read down to the extent possible to ensure its legality, validity and enforceability in that jurisdiction; and
   2. if that is not possible, it must be severed from this agreement, and that reading down or severance will not affect the continued operation of the remaining provisions of this agreement in that jurisdiction or of any provision of this agreement in any other jurisdiction.

Governing Law & Jurisdiction

52. The law of Queensland governs these Terms and their formation, construction, and interpretation.
53. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Queensland (and the courts competent to determine appeals from those courts).

Interpretation

54. Unless context requires otherwise, in these Terms:
    1. a reference to a person includes a corporation;
    2. a reference to a person includes the permitted assigns of that person;
    3. words importing the singular include the plural and vice versa;
    4. 'includes', 'including', or similar expressions, are not words of limitation;
    5. reference to '$' will be a reference to Australian dollars;
    6. no provision of these Terms will be construed to the disadvantage of a party merely because that party was responsible for the preparation of these Terms or the inclusion of the provision in these Terms; and
    7. if a word or phrase is defined, cognate words and plurals have a corresponding meaning.