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Terms of Service

Aussie Boat Sales Terms and Conditions Version: 01.05.2019 1  

Aussie Boat Sales PTY LTD (ABS) provides access to proprietary software (ABS Direct) to individuals, dealerships and other businesses (Subscribers). ABS Direct is only available to Subscribers who have been directly authorised access by ABS. You must not access nor use this Software unless:  you have been issued with a unique user ID and password. As an ABS direct user (You), You agree to abide by the terms and conditions of this Master Agreement and any relevant Product and Services Schedule (PSS) signed by Your Subscriber in the case of a dealership or other business. Please contact your approved subscriber if you do not have access to the agreements for your dealership or business.

Dealer, Business and private individuals have free access to the ABS Direct listing site; but are limited to two listings at any one time.

ABS Direct reserves the right to deny any subscriber access to its network and may terminate an existing subscribers access without cause.

  1. The capitalised terms in these ABS Direct Terms and Conditions have the meanings set out in the Scedule (XXXX) and PSS.

You must not directly, or authorise or allow any third party to: a) use any automated process of any sort to query, access or copy any material accessed through ABS Direct  Or b) transfer, export or remove any data from ABS Direct without the prior written authorisation of ABS. A breach of these terms and conditions may result in ABS suspending or terminating the Subscriber’s access to ABS Direct

  1. Item Publication Requirements (including pricing)
  2. You must be a Subscriber in order to publish items to the ABS Direct network. 2. All item Listings must: a) Be physically in stock and genuinely be available for immediate sale and delivery b) Include the correct and accurate selling price c) Display photographs of the item (which fall in line with the ABS Direct digital Image Policy set out below) d) Include the minimum item’s: · Make, Model, Condition, Length, Boat type, Year first launched and Price (e) Price must be total value of the asking price of the goods, ABS Direct will not accept a price figure that is not within 20% of a realistic market price for that age, type and condition of vessel or item with just cause. Dealers or businesses with new boat listings may use a ‘from’ price which would reflect base boat pricing as BMT packages. (if applicable) the spirit of this clause is to ensure that the buying public has a genuine opportunity to determine the true value of any item they may have an interest in, and not to create a ‘bait style’ pricing culture.     (f) Use best endeavours to include all options and extras available from the available list (either non-genuine or factory fitted).
  3. Branding on ABS Direct network sites

To assist in providing all subscribers with fair, accountable advertising; no branding of any kind is permitted on the sites owned and/or operated by ABS (ABS Direct Network).  Subscribers are prohibited from including the dealership name(s), address, location, phone number(s), email(s) or web site(s) in photographs or comments which appear anywhere on the ABS Direct Network sites or any partner websites. In addition, the use of key words within the comments of an advertisement that makes reference to a vessel/item other than that being advertised is also considered branding (key word spamming). Key word spamming includes (but is not limited to) references to makes and/or models of vessels other than the make/model in the listing. To prevent unauthorised branding, the ABS Direct Network has in place systems which automatically detect and remove dealership name(s), phone number(s), website(s) or email(s) from dealer comments (but which for the avoidance of doubt do not remove such details included by ABS Direct as collected in the required fields when entering the listing.  ABS Direst reserves the right to modify any details included in the listing, including, but not limited to the description field, to make it more accurate. The only exception to this is the price.  ABS Direct undertake to contact the subscriber should they deem that changes be required.

Photographs and other advert contents are monitored regularly and may be removed if they are deemed to include unauthorised branding. You must not enhance photos through the use of distinguishing borders. If Subscribers ignore requests to remove branding, enhancements or keyword spamming from comments or Photos or repeatedly include such elements in adverts, they may be blocked from browser view until such time as those items have been removed. ABS Direct may also take action to terminate the Subscriber’s access.

For more information, please refer to our Digital Image Policy below.

  1. ABS Direct Digital Image Policy
  2. You must provide photographs that accurately represent the advertised item at the date of listing. 2. It is Your responsibility to ensure that photographs are free from branding and/or enhancements as outlined in Section 3 (Branding on ABS Direct Network sites), including material which, in the opinion of ABS Direct, identifies the location of the item or the dealership. 3. Photographs must not include advertising material (such as references to finance or trade in services available). 4. ABS Direct reserves the right not to publish photographs which may contain enhancements or content which ABS Direct deems, in its sole discretion, unacceptable for publication. 5. You must provide photographs in formats acceptable to ABS Direct specifically JPEG or jpg format, maximum size: XXXX450 pixels’ width and 300 pixels’ height (subject to change). 6. You acknowledge that ABS Direct may review and remove from display photographs that do not meet the above specifications at any time without prior notification. 7. You acknowledge that ABS Direct may in its absolute discretion publish the Subscriber’s photos as agreed in the Master Agreement.
  3. Lead Services
  4. a) What is the ABS Direct Lead Service?

ABS Direct connects Subscribers with sale prospects based on a variety of enquiry types (provided or modified at ABS Directs discretion): 1. Enquiries about used, demo and brand new in stock inventory submitted by an Enquirer using the online enquiry form provided on the item detail page of Your ABS Direct Network Listing and 2. Enquiries about new Vessel /Items which may originate from a ‘generic’ or ‘virtual’ listing on the ABS Direct Network which displays a brand new Vessel/item which may or may not be in stock from a dealership, but is available to order and 3. Enquiries made by an Enquirer contacting ABS Direct, via the telephone number published on the used, demo and brand new in stock vessel/item details pages throughout the ABS Direct site and 4. Enquiries made via a social media platform such as Face Book messenger, Instagram or some other future platform and 5. Enquiries made via walk-ins to an authorised ABS Direct dealer location

ABS Direct provides Subscribers with the ability to reach buyers anywhere in Australia. Prospects have the ability to search by state and to refine their search by “post code search” and “region” in order to understand that Your item may be located some distance from where they live. An interstate Lead has specifically chosen Your item from thousands listed and their enquiries should always be treated as genuine and will be followed up by an ABS Direct staff member with a view towards negotiating a successful sale.

  1. Commission payable

A commission fee is chargeable upon the sale of the vessel/item under a standard ABS PTY LTD listing agreement as follows:-

Item – 1  Agent’s services

ABS Direct and ABS PTY LTD shall act as an agent for the Vendor/subscriber under an agency agreement and in doing so the Owner authorises the Agent, and any of its representatives, to do all and any legal acts required to obtain and deal in the sale of the listed vessel/item.  This may include, but not be limited to, acting on the Owners behalf, signing binding documents on the Owners behalf, conducting sea-trials of the Vessel, accepting trade-in assets approved by the Owner as part of the purchase monies.

The Agent shall use its best endeavours to locate a Purchaser of the Vessel at a price acceptable to the Owner.  This may include various forms of marketing and advertising in both online and hard copy formats.  The Agents commission will be inclusive of any costs for this service unless otherwise agreed to in writing.

The Vessel is considered sold when a Sales Contract exists between Agent and Purchaser, at a price and on terms agreed to by the Owner, and consideration under the contract has been received in full.

Item – 2  Agent’s entitlement to commission

The Vendor agrees to pay the Agent the sales commission due under the terms of this authority if the vessel is sold:

2.1  during the exclusive authority period by the Agent or any other person, including the Vendor or another agent; or

2.2  to a Purchaser introduced to the Vessel by the Agent during the continuity period; or

2.3  to a Purchaser introduced to the Vessel by the Agent before the Vendor signed this Authority; or

2.4  to a Purchaser introduced to the Vessel by the Agent during the authority period and that introduction results in the sale of the Vessel within 120 days after the expiration of the authority period.

 

 

Item – 3  Exclusive Authority Period

the Vendor grants the Agent an exclusive authority to sell the Vessel then this period shall last for a period of 90 days from the date of acknowledgement hereof.

Item – 4  Continuing Authority Period

At the expiration of any exclusive authority period, unless otherwise agreed to in writing, the exclusive authority reverts to a continuing authority to sell.

4.1 The vendor may cancel the continuing authority at any time by written notice to the Agent

4.2 If the continuing authority is cancelled 2.4 remains in force for 120 days thereafter

Item – 5 Calculation of Sales Commission

Sales Commission payable will be based on the final value achieved in the sale of the Vessel.

5.1 Commission Scale

Minimum commission payable on any sale – $2000

Vessel/item sales value between $25,000 and $40,000 – $3000

Vessel/item sales value between $40,000 and $100,000 – 8% of sales value

Vessels/item sales value between $100,001 – $300,000 – 8% of the first $100,000 and 5% thereafter

Vessels/item sales value of $300,000plus – 8% of the first $100,000 and 4% thereafter

 

10% GST is required to be added to all commissions due.

Item – 6  Owner Acknowledgements

6.1        The Owner represents and warrants that it has the power and authority to offer the Vessel for sale and can provide good title to the Vessel which can be transferred to a Purchaser at settlement.

6.2        The Owner agrees to sign a Statutory Declaration acknowledging;

–  that it holds the legal interest in the Vessel or has legal capacity to sell the Vessel;

–  states the capacity it holds to sell the Vessel if not the legal owner;

–  discloses any third party that may hold an equitable interest in the Vessel;

–  admits any current registered or non-registered chattel mortgages, liens, charges or other encumbrances over the Vessel;

–  admits that any equitable interests will be discharged and defects in title will be removed at the time of settlement such that good title to the Vessel will pass to the Purchaser;

 

6.3       The Owner authorises the Agent to carry out a PPSR search to verify that there are no mortgages, liens or encumbrances attached to the vessel/item and if so transfer the proceeds of sale, or any part thereof, to any entitled third party holding an interest, as listed within the above Statutory Declaration and PPSR search, so as to extinguish any mortgages, liens or encumbrances in the Vessel.

6.4       The Owner acknowledges that all monies payable under the sales contract will be paid to the Agent and that the Agent is entitled to deduct all monies due to the Agent as disbursements prior to any consideration being passed to the Owner.

6.5       The Owner agrees to maintain the Vessel’s registration throughout the selling period, agrees to provide the Agent with a copy of that registration, agrees to transfer that registration to the Purchaser at settlement, and agrees to sign all documents necessary in order to transfer good title to the Purchaser at settlement.

6.6       The Owner agrees to comprehensively insure the Vessel and maintain suitable insurance cover throughout the selling period such that the Agent is fully indemnified to the same extent as the Owner would be indemnified whist operating the Vessel.

6.7       The Owner agrees to indemnify the Agent from all losses incurred by the Agent or claims made against the Agent in relation to the Vessel or the Agents use of the Vessel in any way arising from or connected to this agreement.

6.8       The Owner releases and indemnifies the Agent from all costs for defending or settling an action, claims or demands that arise against the Agent out of breach of this agreement by the Owner and/or as result of defects, as defined under the Australian Consumer Laws, or other deficiencies in the Vessel or its title.

6.9       The Owner agrees to supply the requisite recreational boating safety equipment for a vessel of that size to an approved standard at the time of settlement.  In the event that any safety equipment is deficient or non-compliant, the Owner authorises the Agent to supply the necessary equipment at the Owners cost.

6.10     The Owner acknowledges that in the event of any dispute the jurisdiction for this agreement shall be construed according to and covered exclusively by the laws of Victoria and the parties submit to the jurisdiction of the Courts of Victoria, the Federal Court of Australia and of courts entitled to hear appeals from those courts.

6.11     The Owner authorises the Agent to sign, on his/her behalf, all relevant paperwork regarding Registration transfers, purchase agreements and any relevant documentation with regards to the sale of this vessel.

  1. Pre purchase inspections

7.1       All vessels will be subject to a pre-purchase inspection by an independent third party inspector.  The details and results of this inspection will be made available to the purchasers and vendor/owner alike.

7.2       The owner is encouraged to have the vessel pre-tested and to rectify any items that may affect the successful sale of the vessel prior to advertising. Whilst this is not compulsory, ABS Direct advises herein that all used boats will be subject to an appropriate inspection as a part of any sale and are not responsible for the outcome of such inspection or the outcome of the negotiations arising from the sale or inspection of the vessel.

7.3       ABS Direct will provide a list of authorised inspectors with whom and whose organisations only will be accepted as suitably qualified to judge the standard and condition of the vessel for sale.

 

  1. General
  2. ABS Direct may alter these terms and conditions on 7 days’ notice (such notice being effected by publishing the amended terms and conditions on ABS Direct website. Subject to the terms of any applicable PSS, ABS Direct may cease to offer any of its services at any time without notice to the Subscriber. 2. The Subscriber agrees to indemnify ABS Direct (and its subsidiaries, employees and officers) and hold those parties harmless against all loss, actions, proceedings, costs and expenses (including legal fees) claims and damages incurred by them directly or indirectly as a result of the Subscriber’s breach of any of these terms or any representation or warranty. 3. To the full extent permitted by law, all guarantees and implied and express warranties in respect of the services provided by ABS Direct are hereby excluded. 4. Subject to Section9 (5) below, and except to the extent that liability cannot be excluded, ABS Direct will not be liable for loss or damage (whether arising in contract, tort (including negligence), indemnity, strict liability, reach if warranty or statute) arising out Your access or use of ABS Direct services, any inaccuracies in information displayed via the services or any interruption, delay, transmission failure or malfunction of any service. 5. To the full extent permitted by law, ABS Direct will only be liable to You or a Subscriber: pursuant to any guarantee, right or contractual term that arises, is created or is implied by operation of law and that cannot be excluded provided that any such liability of ABS Direct limited at ABS Direct option to · supplying the relevant services again or · paying the cost of such replacement, repairs or supply; or · Subject always to subclause 9(6) below, if Your claim arises from or in connection with any deliberate breach of these terms and conditions or fraud by ABS Direct 6. To the full extent permitted by law, ABS PTY LTD Or ABS Direct will not be liable to You or a Subscriber for loss of use, production, profit, revenue, business, data, contractor anticipated savings or for delay or for any financing costs or increase in operating costs or any economic loss for any indirect or consequential loss or damage. 7. For the purposes of this section, the term ABS Direct will mean ABS Direct, its officers, employees, contractors and agents, whether individually or collectively. 8. Section 9 (General) of these terms and conditions will survive the expiration or termination of this agreement.

By agreeing to the terms and conditions on the listing page, I acknowledge that I have read and understood this agreement and agree to be bound by the terms and conditions contained herein.