Our complete terms and conditions are contained below, but some important points for you to know before you use our Platform are set out below:

• In consideration for providing the Platform, we charge Private Sellers a one-off service fee (Service Fee) upfront prior to each Seller Listing and Commercial Sellers a fee based on Membership type (Membership Fee).
• We may amend these Terms or our Fees at any time, by providing written notice to you;
• You read, use and act on our Site, our Platform and the Content at your own risk;
• Despite anything to the contrary, to the maximum extent permitted by law, we make no representations or warranties about our Services;
• Our Liability under these Terms is limited to us resupplying the Services to you or (in our discretion) to us repaying you the amount of the Fees paid by you to us in respect of the supply of the Services to which the Liability relates and if there are no Fees paid, $10. We will not be liable for Consequential Loss;
• We will have no Liability for any aspect of the Buyer and Seller interaction including the Goods offered by the Seller, the description of the Goods offered, any advice provided, supply and delivery of Goods, any event outside of our reasonable control and/or any failure of the Buyer to pay the Seller Fee;
• To the maximum extent permitted by law, you agree to indemnify us, and hold us harmless, against any Liability suffered or incurred by us arising from or in connection with your use of our Services or any breach of these Terms or any applicable laws by you including any Liability arising as a result of the Content you upload on the Platform;
• We may terminate these Terms at any time by giving notice to you;
• We will handle your personal information in accordance with our Privacy Policy;
• You agree that we may advertise or publicise the broad nature of our supply of the Services to you, including on our Site or in our promotional material; and
• We may receive a benefit (which may include a referral fee or a commission) should you visit certain third-party websites via a link on the Platform or for featuring certain products or services on the Platform.

Nothing in these terms limit your rights under the Australian Consumer Law.

1. Welcome

Welcome to The Driven Market!

These terms and conditions (Terms) are entered into between EV Media Pty Ltd ABN 82 627 566 723 (we, us or our) and you, together the Parties and each a Party.

We provide a website available at https://thedrivenmarket.com.au/ and via other channels or addresses including our mobile application and our application programme interfaces (the Site).

On the Site, we provide a platform (the Platform) where Buyers and Sellers can find each other, and advertise, buy and sell new, used, registered or unregistered electric car vehicles located in Australia (Goods) via an online marketplace.

We provide the Site and the Platform to users (including hosting and maintaining the Platform), provide an opportunity for Buyers and Sellers to form contracts for the supply of Goods and provide promotional opportunities for Sellers (together the Services).

In these Terms, you means (as applicable) (1) the person or entity registered with us as either a Buyer or Seller; or (2) the individual accessing or using the Site or the Platform.

2. The Terms of Use

How you consent to these terms of use

If you access and/or use our Services, you are taken to have agreed to these terms of use (Terms). Please read these Terms carefully – if you don’t agree to them, then you must cease using our Services immediately.

When we make changes to these terms of use

We may, at any time and at our discretion, vary these Terms by publishing the varied terms on our Site. We recommend you check our Site regularly to ensure you are aware of our current terms. If we amend any part of these Terms applicable to the Platform, we will provide advance written notice to you via the Platform. By clicking “I accept” or continuing to use the Platform after the notice (whichever date is earlier), you agree to the amended terms. If you do not agree to the amendment, you should immediately stop using our Services and may terminate these Terms in accordance with the Termination clause.

Privacy

We respect your privacy and understand protecting your personal information is important. Our Privacy Policy (available on our Site) sets out how we will collect and handle your personal information.

Terminating these terms

These Terms are effective until terminated by us, which we may do at any time and without notice to you.  In the event of termination, all restrictions imposed on you by these Terms and limitations of liability set out in these Terms will survive.

3. The Platform

Overview of the Platform

On the Site, we provide the Platform where Buyers and Sellers can find each other, and advertise, buy and sell Goods online. You understand and agree that we only make available the Platform and the Services and we.

• are not party to any agreement entered into between a Buyer and a Seller;
• have no control over the conduct of Sellers, Buyers or any other users of the Platform;
• make no representations as to any Goods listed on the Platform;
• do not act as a Seller on the Platform;
• are not acting in capacity as an agent for any user of the Platform; and
• do not receive commission from any Seller for a sale facilitated through the Platform but may receive a Fee from a Seller using the Platform for use of the Platform and our Services.

Buyers and Sellers are encouraged to enter into written agreements to form contracts for the supply of Goods purchased through the Platform. To the extent there is inconsistency between any additional terms and conditions and these Terms, these Terms will prevail.

Participation rules for the Platform

General

You must be 18 years old to use our Platform.

If you are using the Platform on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.

Sellers

If you wish to sell Goods on the Platform:

• you must hold an account as a Seller;
• if you are required by law to hold a licence to sell the Goods, you must hold a valid licence;
• you are responsible for complying with all laws, rules and regulations which apply to offering the Goods on the Platform;
• you must own the Goods and/ or have legal title to make an offer for sale of the Goods on the Platform; and
• you must comply with any requirements applicable to Sellers in these Terms.

Buyers

If you wish to purchase Goods on the Platform:

• you are not required to hold an account as a Buyer;
• you are responsible for making all relevant searches, enquiries, investigations in relation to any Goods listed on the Platform including any written off vehicle register or register of security interests (including the Personal Properties Securities Register) and (without limitation) whether the Goods:
  • are fit for any particular purpose;
  • will achieve any specified result;
  • will provide any benefit;
  • are as advertised/ described by Seller;
  • are of merchantable quality;
  • are safe for purpose intended;
  • come with clear legal title;
• you must comply with any requirements applicable to Buyers in these Terms.

Seller licence

As a Seller, we may request that if you are required by law to hold a licence to sell Goods, you provide evidence of your licence. Where we do so, we are not confirming that the licence you have is sufficient or suitable for the Goods you choose to provide to Buyers. If we do not ask you to provide evidence of your licence, this does not indicate that we believe you do not require a licence to sell Goods on the Platform.

You acknowledge and agree it is your responsibility to make your own investigations and receive professional advice on the licence that you require to sell Goods on the Platform.

This clause will survive the termination or expiry of these Terms.

How the Platform works

Seller Listing

A Seller wanting to provide Goods for sale on the Platform creates an Account on the Platform and posts an accurate and complete description of the Goods they wish to sell including (Seller Listing):

• the chassis number or the vehicle identification number (VIN);
• vehicle details (such as make and model);
• registration status;
• the cost (including any GST payable); and
• any additional terms and conditions of the listing.

Buyer Booking Request

A Buyer wanting to buy Goods can use the Platform without an Account to view and browse Seller Listings.

A Buyer may request further information about Goods described in a Seller Listing by sending an information request through the Platform (Information Request).

A Buyer may request to buy Goods described in a Seller Listing by sending a request through the Platform. The request is an offer from the Buyer to the Seller to buy the Goods described in the Seller Listing (Booking Request).

Sale

If the Seller accepts the Booking Request through the Platform it becomes a Sale. After agreeing to the terms of a Sale, Buyers and Sellers are encouraged to enter into written agreements to form contracts for the supply of Goods purchased through the Platform.

By accepting a Booking Request, the Seller confirms that it is legally entitled to and capable of supplying the Goods described in the Booking Request and that the Goods meet the description in the Seller Listing and any Information Request.

Sellers must include all additional terms and conditions relating to their Goods in the relevant Seller Listing or must clearly state that there are additional terms and conditions. By sending a Booking Request, a Buyer is accepting the additional terms and conditions of the relevant Seller.

Promotional Opportunities

As a Seller you may also choose to purchase promotional opportunities, such as a feature in our email marketing or placement on our home page (Promotional Opportunity).

Promotional Opportunities are subject to the fees and the terms and conditions as set out in any Promotional Opportunity offer and displayed on the Platform or otherwise communicated to you. Payment for any Promotional Opportunity must be made in advance.

We do not make any representations, warranties or guarantees that any Promotional Opportunity will be fit for any particular purpose, will achieve any specified result, or will provide any benefit. In the event of any conflict between any Promotional Opportunity terms and conditions and these Terms, the Promotional Opportunity terms and conditions will prevail.

Accounts

Types of Sellers

There are two types of Sellers who are eligible to use the Platform.

A Private Seller is any person who wishes to use the Platform on an ad hoc basis and who does not fall within the meaning of a Commercial Seller.

A Commercial Seller means any Seller who (i) is required by law to hold a licence to sell the Goods; (ii) operates a dealership or second hand car market; or (iii) wishes to make multiple sales of multiple Goods in any twelve month period.

You must create an Account to use the Platform as a Seller

As a Seller, you must register on the Platform and create an account (Account) to access the Platform’s features.

You may only have 1 Account as a Seller on the Platform.

You must provide basic information when registering for an Account including your business name, contact name and email address and you must choose a username and password. The username you choose must not (1) be offensive or in other ways insulting or (2) contain characteristics which belong to a third party, including names of famous persons, or personal names to which you do not own the rights.

Once you have registered an Account, your Account information will be used to create a profile which you may then curate.

You agree to provide accurate, current and complete information during the registration process and regularly update such information to keep it accurate, current and complete.

Your Account is personal and you must not transfer it to others, except with our written permission. If a legal entity such as a company has created an account, you, the legal entity, are the Account owner, and regardless of any change in any contact details, you will remain responsible for your Account as set out in these Terms. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account.

You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details. You agree to immediately notify us of any unauthorised use of your Account.

We may make access to and use of certain parts of the Platform subject to conditions or requirements, including identity verification, cancellation history or quality of the services.

Membership type for Commercial Sellers

When you create an Account as a Seller, you must identify whether you are a Private Seller or Commercial Seller and if you are a Commercial Seller, you must also select a membership level (Membership) based on the number of Goods you (a Commercial Seller) wish to sell and different membership periods (monthly or annual) as set out on our Platform.

Communication via or through the Platform

If you use the Platform or create an Account, you agree to us communicating with you and to your listed details being used as set out below.

We may contact you via the Platform including using in-Account notifications, or via off-Platform communication channels, such as text message or email.

Buyers and Sellers can communicate privately using our private messaging service or offline using the listed contact details before and after a Sale is made.

Buyers and Sellers must not use contact details made available through the Platform to contact each other off Platform or to organise the provision of the sale of the Goods off the Platform except for written agreements to form contracts for the supply of Goods purchased through the Platform as contemplated by these Terms.

Payments via or through the Platform

Buyers

As a Buyer, you agree to pay the relevant fees directly to the Seller set out in the Seller Listing (Seller Fees) when a Booking Request is accepted.

We do not act as a payment agent for a Seller.

It is the responsibility of the Buyer and Seller to arrange and enforce payment of Seller Fees, to pay any relevant taxes relating to the Sale and to complete any paperwork required for the Sale as required by any law relevant to the Sale or the Goods.

Fees

In consideration for providing the Platform, we charge Private Sellers a one-off service fee (Service Fee) upfront prior to each Seller Listing and Commercial Sellers a fee based on Membership type (Membership Fee).

Our Service Fees and Membership Fees are set out on the Site and will be updated by us from time to time.

For Service Fees, we will provide advance written notice to you via the Platform. By clicking “I accept” or continuing to use the Platform after the notice (whichever date is earlier), you agree to the amended Service Fee. If you do not agree to the amendment, you should immediately stop using our Services and may terminate these Terms in accordance with the cancellation clause below.

For month to month Memberships, any price changes will apply to you (a Commercial Seller) no earlier than 30 days following notice to you. For annual Memberships, the price changes will apply to you (a Commercial Seller) no earlier than the start of your renewed annual Membership. The notice may be provided at any time via email or via notification to your Account. If you do not agree to the price change, you may cancel your Membership in accordance with the cancellation clause below.

Service Fee

Service Fees payable by Private Sellers (if advertised on our Site) are payable upfront prior to each Seller Listing (Payment Date) as set out on the Site.

To the extent permitted by law, our Service Fee is non-refundable, non-cancellable once paid and includes the payment processing fee.

Membership Fee

Unless we offer a free trial, once you (a Commercial Seller) have created a Seller Account and chosen a Membership type, you agree to pay the Membership Fee set out on the Platform to use certain features on the Platform and benefit from your Membership as a Commercial Seller.

To the extent permitted by law, our Membership Fee is non-refundable, non-cancellable once paid and includes the payment processing fee.

Free trial for Commercial Sellers

We may offer you (a Commercial Seller) a free trial during which time the Membership Service Fee is not be payable for your Membership type. If we offer a free trial, the free trial terms will be advertised on our Platform and the free trial period will last for the period specified on the Platform.

We determine free trial eligibility in our sole discretion and we may limit eligibility to prevent free trial abuse. We reserve the right to revoke the free trial and suspend a Seller’s Account at any time in the event that we determine that a Seller is not eligible for a free trial or that the Seller is abusing the Membership type or the free trial offer.

If we offer a free trial and you (a Commercial Seller) do not cancel during the free trial period, we will charge your chosen payment method for the Membership type you (a Commercial Seller) have chosen and its corresponding Membership Fee on the day your free trial ends. If you do not pay the Membership Fee for the Membership you (a Commercial Seller) have chosen at the end of the free trial period, your access as a Seller on the Platform will finish at the end of the free trial.

Payment Date

The Membership Fee payable by Commercial Seller’s will be charged:

• upfront on a monthly basis for month to month Memberships; and
• upfront on a yearly basis for annual Memberships.

For monthly and yearly Memberships, the payment date will be the calendar day corresponding to when you (a Commercial Seller) created your Account or if we offer a free trial, the day your free trial ends (Payment Date).

In some cases, your Payment Date may change, for example, if payment is unable to be processed or if your Membership began on a day not contained in a given month.

Month to month Memberships automatically continue until cancelled in accordance with the cancellation clause below.

If you do not cancel your annual Membership in accordance with the cancellation clause below, it will be renewed for the same Membership period at the end of your current Membership term. For annual accounts, we will notify you 30 days prior to the end of the current Membership term but we do not provide notice for month to month accounts.

Upgrading or downgrading your Membership type

You may upgrade or downgrade your Membership type to another tier at any time in the Account page / manage Memberships (or similar) or by sending us an email. The payment method linked to your Account will automatically be charged the Membership Fee for your new Membership tier on the Payment Date on which the upgrade or downgrade becomes effective.

The upgrade or downgrade will apply to the next month if you upgrade or downgrade your Membership at least 10 business days before the next Payment Date.

If you upgrade or downgrade less than 10 business days before the next Payment Date, the upgrade or downgrade will become effective for the following month.

If your need to upgrade is urgent, please send us an email and we may upgrade your Membership prior to the Payment Date on which the upgrade was due to become effective. We may organise for the payment method linked to your Account to be charged the pro-rata Membership Fee for your new Membership tier.

Cancelling Memberships

You may cancel your Membership at any time in the Account page / manage Memberships (or similar) section of your Account settings.

The cancellation will apply to the next month for month to month Memberships or the next year for annual Memberships if you cancel your Membership at least 10 business days before the next Payment Date.

If you cancel your Membership less than 10 business days before the next Payment Date, you will be charged the Membership Fee on the next Payment Date and the cancellation will become effective for the following month for month to month Memberships or the next year for annual Memberships.

General

For Membership Fees, we may pre-authorise or charge your payment method for a nominal amount to verify the payment method.

We provide a number of payment methods on the Platform, including our third party payment processor, currently PayPal. The payment method you choose may be subject to additional terms and conditions imposed by the applicable third party payment processor. By making payment through a third party payment processor, you accept the applicable terms and conditions.

In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the debit card or credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the payment.

If any payment has not been made in accordance with this clause, we may (at our absolute discretion) (1) immediately cease providing the Platform, and recover, as a debt due and immediately payable from you, our additional costs of doing so; and/or (2) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with this clause.

Refunds and cancellation policy

The cancellation or refund of any Goods ordered on this Platform is strictly a matter between the relevant Buyer and Seller. The terms and conditions agreed to between the Seller and the Buyer must be set out clearly in the relevant Listing.

Disputes relating to Platform sales

For disputes between Buyers and Sellers, we encourage Parties to attempt to resolve disputes (including claims for returns or refunds) with the other Party directly and in good faith, either on the Platform or through external communication methods. In the event that a dispute cannot be resolved through these means, the Parties may choose to resolve the dispute in any manner agreed between the Parties or otherwise in accordance with applicable laws.

Identify verification relating to Platform sales

We do not conduct any verification of Sellers on the Platform. You should do your own due diligence before buying Goods from a Seller.

3. The Site

Your licence to use our Site

We grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to download and use our Site and our Platform and access and view any Content in accordance with these Terms.  All other uses are prohibited without our prior written consent.

Conduct we don’t accept

When you use our Services, we expect you to abide by a certain standard of behaviour. You must not do or attempt to do anything that is unlawful, which is prohibited by any laws applicable to our Site, which we would consider inappropriate or which might bring us or our Site into disrepute. This includes:

• anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual’s consent) or any other legal rights;
• using our Site to defame, harass, threaten, menace or offend any person;
• interfering with any user of our Site;
• tampering with or modifying our Site, knowingly transmitting viruses or other disabling features, or damaging or interfering with our Site, including (without limitation) using trojan horses, viruses or piracy or programming routines that may damage or interfere with our Site;
• using our Site to send unsolicited electronic messages; or
• facilitating or assisting a third party to do any of the above acts.

We may, but have no obligation to, review the use of the Site by you and in our absolute discretion may delete, edit, refuse to post or remove in whole or part any information or material uploaded or posted using the Site or the Platform.

We may also suspend or terminate the Account or Membership of or block use of the Site or Platform by any Party determined by us to be in breach of this provision.

Competitors are excluded from using our Services

You are prohibited from using our Site, including our Content, in any way that competes with our business.

Apple and Google

If you access or download our mobile application from (1) the Apple App Store, you agree to any Usage Rules set forth in the App Store Terms of Service or (2) the Google Play Store, you agree to the Android, Google Inc. Terms and Conditions including the Google Apps Terms of Service.

We may use Google Maps/Earth mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.

Affiliate and third party sites

Our Site contains links to our affiliate sites including The Driven, RenewEconomy and One Step off the Grid. We are solely responsible for these affiliate sites and we may receive a benefit (which may include a referral fee or a commission) should you visit these affiliate websites via a link on the Site (Affiliate Link) or for featuring certain products or services on the Site. We will make it clear by notice to you which (if any) products or services we receive a benefit to feature on the Site, or which (if any) third party links are Affiliate Links.

Our Site may also contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites.

What happens if we discontinue our Site

We may, at any time and without notice to you, discontinue our Site, in whole or in part. We may also exclude any person from using our Site, at any time and at our sole discretion. We are not responsible for any Liability you may suffer arising from or in connection with any such discontinuance or exclusion.

4. Content

Content we upload

Our Site and the Platform contains materials and information we make available in relation to Goods and our Services (Our  Content).

You agree that Our Content is factual information only, is not comprehensive and is for general information purposes only. Our Content does not take into account your specific needs, objectives or circumstances, and is not advice. You cannot rely on it as such.

While we use reasonable attempts to ensure the accuracy and completeness of Our Content and provide it in good faith, to the extent permitted by law, we make no representation or warranty regarding Our Content. We do not undertake to keep our Site or the Platform up-to-date and we are not liable if any of Our Content is inaccurate or out-of-date. Our Content is subject to change without notice. We are not liable for any loss arising from reliance on Our Content.

Content you upload

We encourage you to interact with our Site! We may allow you to (1) post, upload, publish, send or receive relevant content and information (User Content) on or through our Platform; and/or (2) access and view User Content and the content and information we make available on the Platform (Our Content and together with User Content, Content). We may, at any time (at our sole discretion), remove any User Content.

You agree that you are solely responsible for all User Content that you make available on or through our Platform.  You represent and warrant that (1) you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content as contemplated by these Terms; and (2) neither the User Content nor the posting, uploading, publication, sending or receiving  of the User Content or our use of the User Content on, through or by means of our Platform will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You grant us a non-exclusive, perpetual, irrevocable, worldwide, royalty free, sublicensable and transferable right and licence to use, view, distribute, communicate, copy, store, modify and exploit in any manner the User Content to provide the Platform and promote the Platform in any media or promotional material.

We do not endorse or approve, and are not responsible for, any User Content.

Despite anything to the contrary, to the maximum extent permitted by law, you agree to indemnify us and hold us harmless in respect of any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with the User Content you make available on or through the Platform, including as a result of an Intellectual Property Breach.

Intellectual Property Rights

Our Intellectual Property

Unless otherwise indicated, we own or licence all rights, title and interest (including Intellectual Property Rights) in our Site, our Platform and all of Our Content and any copyright, registered or unregistered designs, patents or trade mark rights and domain names (Our Intellectual Property).

Your use of our Services and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to Our Intellectual Property.

Your use of the Site and Platform

You must not, without the prior written consent of ourselves or the owner of the Content (as applicable) or except as expressly permitted by these Terms, (1) copy or use, in whole or in part, any Content; (2) reproduce, reverse engineer, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content to any third party; or (3) breach any Intellectual Property Rights connected with our Site, our Platform or Our Intellectual Property, including by altering or modifying any of the Content, causing any of the Content to be framed or embedded in another website, or creating derivative works from the Content.

5. Your warranties and indemnity

Your warranties

You represent, warrant and agree that:

• there are no legal restrictions preventing you from entering into these Terms;
• all information and documentation that you provide to us in connection with these Terms is true, correct and complete;
• you have not relied on any representations or warranties made by us in relation to our Services (including as to whether our Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms or unless we cannot exclude the warranty or representation under the Australian Consumer Law;
• we do not act as agent or broker, arrange any contract between Buyers and Sellers or provide any warranty in relation to Goods advertised in a Listing Offer;
• we are not responsible for the terms of any transaction between Buyer and Seller;
• we do not act as a payment agent for the Seller and are not responsible for enforcing payment by the Buyer of the Seller Fee;
• we are not responsible for resolving any disputes between Buyer and Seller;
• you comply with the participation rules in these Terms;
• you will not use our Site or our Platform, including the Content, in any way that competes with our business;
• you will be responsible for the use of any part of the Platform, and you must ensure that no person uses any part of the Platform: (1) to break any law or infringe any person’s rights (including Intellectual Property Rights) (2) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or (3) in any way that damages, interferes with or interrupts the supply of the Platform;
• if you are a Buyer, you are solely responsible for making all relevant searches, enquiries, and investigations in relation to any Goods listed on the Platform including any written off vehicle register or register of security interests (including the Personal Properties Securities Register) and determining (without limitation) whether the specific motor vehicle is fit for any particular purpose, will achieve any specified result, will provide any benefit, is as advertised or described by the Seller, is of merchantable quality, is safe for the purpose intended, and comes with clear legal title;
• if you are a Seller all information made available by you relating to the Goods either via the Platform or an Information Request is true and accurate in all respects;
• if you are a Seller, if required by law to hold a licence to sell the Goods, you hold the relevant licence; and
• if you are a Seller, you are responsible for complying with all laws, rules and regulations which apply to offering the Goods on the Platform.

This clause will survive the termination or expiry of these Terms.

Your indemnity

To the maximum extent permitted by law, you must indemnify us, and hold us harmless, against any Liability suffered or incurred by us arising from or in connection with your use of our Services or any breach of these Terms or any applicable laws by you. This indemnity is a continuing obligation, independent from the other obligations under these Terms, and continues after these Terms end.  It is not necessary for us to suffer or incur any Liability before enforcing a right of indemnity under these Terms.

This clause will survive the termination or expiry of these Terms.

6. Our liability

Australian Consumer Law

Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Platform by us to you which cannot be excluded, restricted or modified (Statutory Rights).

For major failures with the Services, you are entitled:

• to cancel these Terms; and
• to a refund for the unused portion of the Services, or to compensation for its reduced value.

You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure, you are entitled to have problems with the Services rectified in a reasonable time and, if this is not done, to cancel your Membership and obtain a refund for the unused portion of the Membership.

If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.

Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.

As a Buyer, the Goods and services provided by a Seller on the Platform may also confer on you certain rights under the ACL.

This clause will survive the termination or expiry of these Terms.

Exclusions to liability

You read, use and act on our Site, our Platform and the Content at your own risk.

Despite anything to the contrary, to the maximum extent permitted by law, we make no representations or warranties about our Services and we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:

• your or your personnel’s acts or omissions;
• any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by these Terms;
• any aspect of the Buyer and Seller interaction including the Goods and/or services offered by the Seller, the description of the Goods and/or services offered, any advice provided or supply and delivery of Goods by the Seller, any event outside of our reasonable control and/or any failure of the Buyer to pay the Seller Fee;
• any works, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;
• any third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Site or the Platform may be contingent on, or impacted by;
• the Services being unavailable, or any delay in us providing the Services to you, for whatever reason;
• any inaccessibility of, interruption to or outage of our Site and Platform and/or any loss or corruption of data or any viruses;
• the fact that the Content is incorrect, incomplete or out-of-date; and/or
• any event outside of our reasonable control.

This clause will survive the termination or expiry of these Terms.

Limitations on liability

Despite anything to the contrary, to the maximum extent permitted by law:

• we will not be liable for Consequential Loss;
• our liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of you (or any of your personnel; and
• our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in respect of the supply of the Services to which the Liability relates, there are no Fees paid by you, $10.

This clause will survive the termination or expiry of these Terms.

7. Termination

We may terminate your Account for Convenience

We may terminate your account at any time by giving written notice to you (Termination for Convenience) and in which case we will prior to termination, give you a refund of any Service Fees or Membership Fees paid in advance of the termination date.

We may terminate your Account for Cause

We may suspend your Account or terminate these Terms immediately upon written notice to you, if (Termination for Cause):

• you (or any of your personnel) breach any provision of these Terms;
• there is any reason outside our control which has the effect of compromising our ability to provide the Services; or
• you are unable to pay your debts as they fall due.

If we Terminate for Cause arising from your breach of these Terms or your inability to pay your debts, we will not give you a refund of any Service Fees or Membership Fees paid in advance of the termination date.

You may terminate

Your Account and these Terms may be terminated by you at any time, using the ‘cancel Account’ functionality (or similar) in your in the Account page section of your Account settings.

These Terms will terminate immediately upon written notice by you, if we:

• are in breach of a material term of these Terms, and that breach has not been remedied within 10 business days of being notified by you; or
• are unable to pay our debts as they fall due.

Effect of termination

Upon expiry or termination of these Terms:

• we will remove your access to the Platform;
• we will immediately cease providing the Services;
• you agree that other than where termination is due to our Termination for Convenience, breach of a material term of these Terms by us or our inability to pay our debts as they fall due or perform the Services, any payments made by you to us are not refundable to you;
• where we terminate the Terms for any reason other than a Termination for Convenience or our inability to provide the Services, you also agree to pay us our additional costs arising from, or in connection with, such termination; and
• where you are a Buyer, we will cancel any Booking Requests or Sales. Where you are a Seller, we will cancel any existing Listings.

Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.

This clause will survive the termination or expiry of these Terms.

8. Notice regarding Apple

To the extent that you are using or accessing our Platform on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for the Platform and any content available on the Platform.

Apple has no obligation to furnish you with any maintenance and support services with respect to our Platform.

If our mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of the mobile application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility.

Apple is not responsible for addressing any claims by you or any third party relating to our mobile application or your use of our mobile application, including but not limited to (1) product liability claims; (2) any claim that our mobile application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.

Apple is not responsible for the investigation, defence, settlement and discharge of any third-party claim that our mobile application infringes that third party’s Intellectual Property Rights.

You agree to comply with any applicable third-party terms when using our mobile application, including any Usage Rules set forth in the Apple App Store Agreement of Service.

Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.

You hereby represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

9. General

Access overseas: Our Site may be accessed throughout Australia and overseas.  We make no representation that our Site complies with the laws (including intellectual property laws) of any country outside Australia.  If you access our Site from outside Australia, you do so at your own risk and are responsible for complying with the laws of the jurisdiction where you access our Site.

Assignment: You must not assign or deal with the whole or any part of your rights or obligations under these Terms without our prior written consent.

Disputes:  In relation to a dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) between a Buyer and us, or a Seller and us, a Party may not commence court proceedings relating to a Dispute without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction. This clause will survive termination or expiry of this Agreement.

Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.

Governing law: These Terms governed by the laws of New South Wales.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

Notices: Any notice given under these Terms must be in writing addressed to us at the address at the end of these Terms or to you at the address in your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

10. Definitions

Buyer means a person wishing to purchase a Good via the Platform and meeting the participation rules in these Terms.

Commercial Seller means any Seller who (i) is required by law to hold a licence to sell the Goods; (ii) operates a dealership or second hand car market; or (iii) wishes to make multiple sales of multiple Goods in any twelve month period.

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

Fee means a fee paid to us under these terms and includes Service Fees or Membership Fees as applicable in the circumstances.

Goods means goods offered for sale on the Platform being new, used, registered or unregistered electric car vehicles located in Australia.

Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Intellectual Property Breach means any breach by you (or any of your personnel) of any of Our Intellectual Property Rights (or any breaches of third party rights including any Intellectual Property Rights of third parties).

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.

Membership means the type of account you (a Commercial Seller) wish to have on the Platform as outlined on our Site.

Our Intellectual Property means or all rights, title and interest (including Intellectual Property Rights) in our Site, our Platform, Our Content and any copyright, registered or unregistered designs, patents or trade mark rights and domain names.

Platform means a platform provided by us where Sellers and Buyers can connect and transact in an online marketplace with the purpose of facilitating electric vehicle sales in Australia. The Platform is available at https://thedrivenmarket.com.au and via other channels or addresses.

Private Seller is any person who wishes to use the Platform on an ad hoc basis and who does not fall within the meaning of a Commercial Seller

Seller means a person owning a Good or having the legal right to sell a Good on behalf of a third party and meeting the Participation Rules in these Terms being either a Private Seller or Commercial Seller.

Services means:

·         the Site;

·         the provision of the Platform (including hosting and maintaining the Platform);

·         the provision of the opportunity for Buyers and Sellers to form contracts for the supply of Goods; and

·         the provision of promotional opportunities for Sellers.

Site means the website known as The Driven Market available at https://thedrivenmarket.com.au

 

For any questions or notices, please contact us at:

EV Media Pty Ltd ABN 82 627 566 723

Email: [email protected]

Last update: 8 August 2022

© LegalVision ILP Pty Ltd