Terms and Conditions For Use of Website and Vehicle Purchase

IMPORTANT LEGAL NOTICE

ATTENTION: This legal notice applies to the entire contents of the Website under the domain name www.toyotalexusremarketing.co.uk ("Website") and to any correspondence by e-mail between Toyota, BCA, us and you.  Please read these terms carefully before using the Website.  Using the Website indicates that you accept these terms regardless of whether you choose to register with us.  If you do not accept these terms, do not use this Website.  This notice is issued by Toyota (GB) PLC, Great Burgh, Burgh Heath, Epsom, Surrey, KT18 5UX (‘Toyota’) and British Car Auctions Ltd, Headway House, Crosby Way, Farnham, Hampshire GU9 7XG (‘BCA’). Toyota and BCA together are referred to as ‘we’ or ‘us’ or ‘our’ (as appropriate).

1. These terms and conditions govern your use of this Website and the content, features and functionality comprised within it permitting you to purchase vehicles through this facility and as appropriate any sale(s) made by the Vendor.
2. These terms and conditions form a binding contract between you and us  regarding your use of the Website and facilities and  a binding contract between you and Toyota, when you purchase a vehicle through this Website by having an offer to buy a vehicle accepted in accordance with these terms and conditions.
3. Please ensure that you read these terms and conditions carefully. If there is anything that you do not understand, please contact us immediately.
4. By clicking the  "I Accept" button when  registering via the Website you will be confirming your acceptance of these terms and conditions. Acceptance of these terms and conditions is a precondition of your using the Website and the facilities and of you being able to make an offer to purchase a vehicle; if you do not accept, you will not be permitted to use the Website and/or facilities.
5. The Website provides the facility for you to offer to buy the vehicles listed online. We will provide you with every possible assistance required to access the Website, or any permitted part of it, however whether due to equipment malfunction, unavailability of communication facilities, mis-configuration, or any other reason whatsoever, we accept no responsibility if you are unable to do so. We are also unable to guarantee that continuing access to the Website will be uninterrupted, without delay, timely, error free or secure.
6. We reserve the right at any time to suspend or discontinue the Website, including any listing, without limitation, for maintenance purposes, without incurring any liability or obligation to our users.
7. In order to use this Website, you must be approved by us as an account holder. If your application is accepted you will be issued with an appropriate password and user identification.  You shall:
   
   (a) ensure that you do not disclose the user ID and/or password to any unauthorised person;
   (b) effect and maintain adequate security measures to safeguard the user ID and/or password from access or use by any unauthorised person; and
   (c) comply with any security and other procedures and reasonable instructions relating to the use of the user ID and/or password as we require.
8. We reserve the right to suspend or terminate your registration or access to this Website if we decide that you are in breach of any provisions of these terms and conditions.
9. We reserve the right to amend these terms and conditions at any time. If we do make any amendments we shall display a notice on the Website informing you of that fact. Your continued use of the Website after any amendment of these terms and conditions shall be deemed to be your binding acceptance of any such amendment.
10. We will respect the confidentiality of data supplied to us at your initial registration to use this Website. You agree to keep your data accurate and up to date and to promptly send to us any new or revised data (including personal data where applicable). You warrant that all of the details you supply on registration are true and accurate and that you will comply with the provisions of the Data Protection Act 1998 in providing any personal data to us.
11. You agree not to interfere with, disrupt or jeopardise the Website, without limitation, by introducing any viruses, trojan horses, worms or similar devices into the Website or intercepting, expropriating or reutilising any system, data or personal information comprised in or pursuant to any use of the Website.
12. You are solely responsible for actions taken using your password to access any part of the Website, and for keeping your password confidential. You will not disclose your user ID and/or password to or share it with anyone else. You cannot use your password for any unauthorised purpose (for example, permitting a third party to buy vehicles under it). We will not be liable for any actions of a third party who uses your user ID and password to access any part of the Website and/or purchases a Vehicle using your name and password. If you believe that someone else knows your user ID and/or password, you must contact us immediately to arrange for an alternative user ID and/or password to be issued.
13. You may not, without limitation, copy, reproduce, republish, download, post, broadcast, record, transmit, commercially exploit, edit, communicate to the public or distribute in any way the services, or materials on the Website other than for your own use. Subject to the above, you may download insubstantial excerpts of this content to your hard disk for the purpose of viewing it provided that no more than one copy of any information is made.
14. You acknowledge and agree that all copyright (including rights in software), trade marks, database rights, pictures, information and other intellectual property rights in and relating to the Website or any listing are owned by us and/or our licensors.
    
    
    CONTRACT OF SALE
15. The listing of a vehicle on the Website is not binding on Toyota and merely constitutes an invitation to you to make an offer to purchase the particular vehicle. Toyota has complete discretion whether to accept your offer or not.
16. You may make an offer in respect of a particular vehicle listing by following the on screen instructions.  A contract will be created once Toyota issues you with an invoice in respect of the relevant listing (‘the Contract of Sale’).
17. Under the Contract of Sale, Toyota represents and warrants to you that:
    
    (a) unless expressly disclosed to the contrary in the relevant listing, Toyota has legal title to and ownership of that vehicle and is entitled to sell the legal and beneficial interest in that vehicle to you without encumbrance;
    (b) the vehicle's registration document or other documents of title are correct in each and every particular;
    (c) the vehicle is fitted with a registration number and this, together with the chassis number, corresponds to the entries in the vehicle registration document or other documents of title;
    (d) the year registered or year of manufacture, whichever is earlier, is stated correctly in the relevant listing (provided that when the expression "Unknown" or a similar expression is used, no warranty in respect of the same is provided);
    (e) where the relevant listing details ‘warranted’ alongside the declared total mileage, the declared total mileage stated in that listing corresponds to the total mileage on the vehicle’s odometer (in other cases no express warranty regarding mileage is given);
    (f) unless expressly disclosed to the contrary in the relevant listing, the vehicle has not been the subject of an "Insurance Total Loss" claim;
    (g) unless expressly disclosed to the contrary in the relevant listing, the vehicle is in a condition to be lawfully used on the road;
    (h) unless expressly disclosed to the contrary in the relevant listing, the vehicle or other item is sold with no major defects and with no significant damage.
18. If a Contract of Sale relates to a vehicle which is described in the relevant listing as "sold without warranty", you will have no right to claim damages from us or any other remedy of any nature with respect to the condition of the vehicle.
19. Any offer to buy a vehicle made by you in respect of a listing on the Website is irrevocable and may only be withdrawn with Toyota’s consent (to be given in Toyota’s absolute discretion). This means that you will not be able to withdraw an offer once you have confirmed it via the Website.
20. On behalf of Toyota BCA will email you an invoice in respect of any offer to purchase a vehicle that has been accepted and will apply for payment to Toyota from you.  You will be liable to pay Toyota the purchase price of the vehicle as stated in your offer, plus VAT where applicable ("the Purchase Price") together with the delivery agent’s charges which may be due from you to us in accordance with the delivery agent’s delivery pricing terms set out in the relevant listing (full details are available on request). The delivery charges and the Purchase Price together are referred to as ‘the Invoice Price’.
21. If you fail to make payment in accordance with clause 20, without prejudice to any other right or remedy available to us:
    
    (a) the vehicle may be stored until actual delivery and you will be charged for the reasonable costs (including insurance) of storage; and/or
    (b)  the vehicle may be sold at the best price readily obtainable and (after deducting all reasonable storage charges and selling expenses) you may be charged for any shortfall below the Invoice Price.
22. You will not receive title to a vehicle until the Vendor has received cleared funds in full payment of the Invoice Price. For the avoidance of doubt, you will be legally committed to purchase any vehicle in respect of which you have been sent an invoice.
23. If confirmation has been communicated to you in respect of an offer in relation to a vehicle which has been or becomes the subject of an undeclared Insurance Total Loss or which is the subject of a major defect not disclosed on the Website or a material misrepresentation has been made on the Website, Toyota (in its absolute discretion) shall have the right to rescind the Contract of Sale but no other remedy shall be available to you.
24. The following delivery provisions shall apply:
    
    (a) we will use our reasonable efforts to deliver the vehicle to you within 5 – 10 working days of the Contract of Sale date, depending upon your specific geographic location.
    (b)  we shall not be liable if we fail to deliver any vehicle within that time period.
    (c) the vehicle will be delivered to your registered address (being the address in mainland UK which you notified to us when you registered on this Website) or to such other address in mainland UK as you may reasonably request.
    (d) we reserve the right to deliver any vehicle to you by road, and you acknowledge that if the vehicle is to be delivered to you by road (i.e. with us driving the vehicle to you), its odometer reading may be higher than that disclosed on this Website.
    For the avoidance of doubt, no vehicle will be delivered to you, until Toyota has received the Invoice Price in cleared funds.
25. Each and every vehicle should be carefully inspected by you or your authorised representative (at your cost) at the time of delivery. A full description of any damage not disclosed in the relevant listing must be itemised in writing and a copy provided to the delivery agent when you sign for receipt of the vehicle. In the event that you are unable to undertake a delivery inspection, any subsequent claim made in respect of damage not disclosed in the relevant listing may be rejected. It is not acceptable to cite poor weather conditions as a reason for non-inspection.
26. You must notify Toyota by email or phone within one clear working day of delivery of the vehicle of any major defects not disclosed or of any misrepresentations alleged in respect of the relevant listing. Toyota reserves the right to request a representative to re-inspect the vehicle and to examine your claim. If Toyota elects to do so, the vehicle must be made available for inspection. No pre-sale preparation must be undertaken until any such inspection has taken place or until you have been notified by Toyota that no inspection is required.
27. You agree to indemnify and hold us harmless in respect of:
    
    (a) all liabilities, losses, claims and expenses that may arise from: (i) any breach of these terms and conditions by you or through parties using your registration access; (ii) any breach by you of the Contract of Sale; and (iii) any transmission or receipt of any content or message from you and/or persons using your registration access details;
    (b) any liability to taxation, duty, contribution, charge or levy in the nature of taxation (including all penalties, charges, costs and interest relating to any of them), past, present or future, whether imposed by any authority in the United Kingdom or in any other country, state or territory in the world, which we suffer as a direct or indirect consequence of your use of the Website.
28. Nothing in these terms and conditions or any Contract of Sale shall exclude or limit liability for:
    
    (a) death or personal injury caused by negligence (as defined in the Unfair Contract Terms Act 1977;
    (b) fraud;
    (c) misrepresentation of a fundamental matter; or
    (d) any liability which cannot be excluded or limited under applicable law.
29. If your use of material on the Website results in the need for servicing, repair or correction of equipment, software or data, you assume all costs thereof.
30. This Website and the Contract of Sale will be governed and construed in accordance with English law and subject to the jurisdiction of the courts of England and Wales.
31. All representations, warranties and undertakings implied by statute or common law (including those relating to suitability, fitness for purpose, satisfactory quality, condition and, where relevant, mileage) with respect to any vehicle purchased by you are excluded to the fullest extent permitted by law.
32. We only accept responsibility for any damage caused to a vehicle or other item by us, our employees and / or our agents.
33. Our aggregate liability in respect of any loss or damage suffered by you and arising out of or in connection with these terms and conditions or any vehicle purchased by you via the Website, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way, shall not exceed the Invoice Price in respect of that vehicle, as set out in the invoice issued to and paid by you, and we shall not be obliged to make any payment to you or any other person to the extent that the loss or difference in value is caused by or attributable to your breach or negligence or would not have been sustained or incurred had you mitigated your loss.
34. We, or our agents, shall not be liable, in contract, tort (including negligence) or for breach of statutory duty or in any other way for any loss arising from or in connection with loss of revenues, profits, contracts or business or failure to realise anticipated savings; any loss of goodwill or reputation; or any indirect or consequential losses, suffered or incurred by you arising out of or in connection with your use of the Website or facilities, or any other matter under these terms and conditions.
35. We agree to indemnify you:

36. (a) if you are unable to acquire the legal and beneficial interest in the vehicle, provided that any defect in the nature of your title to the vehicle is notified to us in writing within six months of the date of the invoice relating to that vehicle;
    (b) in the case of any claim that the chassis number of a vehicle differs from that shown in the vehicle registration document or has been altered, you have given us written notice of that fact within three working days of the date of delivery to you or collection by you of the vehicle (or, if later, of the date on which vehicle registration documents were supplied to you)
    .

37. If the vehicle's declared total mileage as stated in the relevant listing was incorrect we accept liability to you for that inaccuracy provided that the following provisions shall apply:
    
    (a) the discrepancy is at least 1,000 miles or 10% more than the actual mileage (whichever is greater);
    (b) you notify us in writing of any discrepancy within one (1) working day of the date of delivery to you or collection by you of the vehicle;
    (c) we shall only be liable to you in respect of any negative difference between the market value of the vehicle and the price paid for it by you arising from a discrepancy between any mileage warranted in relation to the vehicle at the time of purchase and the actual mileage.
38. No partnership, joint venture, or other relationship arises between us and you by reason of these terms and conditions.
39. Any notice to you shall be made by any of e-mail, facsimile, telephone or regular mail, at our election. Any notice which you communicate to us must be in writing by a method that provides proof of receipt.
40. We shall have any liability to you for any delay in performance (and the time for performance shall be extended accordingly) if and to the extent that the delay is due to circumstances beyond our reasonable control.
41. In the event of any conflict between these terms and conditions and the invoice in relation to your use of this Website these terms and conditions will prevail. In the event of any conflict between these terms and conditions and the invoice in relation to your purchase of the vehicle, the invoice terms shall prevail.
42. Each instruction, display and receipt in relation to a vehicle purchase shall be deemed to have been carried out in the United Kingdom.
43. No waiver by us of any breach by you of  these terms and conditions shall be considered as a waiver of any subsequent breach of the same or any other provision.  A failure or delay in enforcing compliance with any condition shall not be a waiver of that or any other term of these terms and conditions.
44. If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and conditions and the remainder of the provision in question shall not be affected thereby.
45. A person or other legal entity who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

December 2012