Sellers

1. Seller's Advertising Agreement

To advertise on BMC website You, (the person described in the on line Application form), agree to the terms and conditions and provide the warranties set out here. By submitting the on line Application form You are creating a legally enforceable Agreement between You (Your) as the Seller and BMC (We/Us) in the following terms.

Words defined in the BMC Terms and Conditions of Access have the same meaning in this Advertising Agreement.

2. Submitting an Advertisement

In order to submit an Advertisement You must:

a) be at least 18 years old and competent to enter into this Agreement;

b) complete and submit the online application form (Application);

c) pay the advertising fee; and

d) be a private or non commercial advertiser.

(NOTE: You may be deemed a commercial advertiser if You are selling or offering to sell a motor vehicle on behalf of the owner or are a motor vehicle trader or dealer which is defined differently in each state as follows:

  • SA: You have sold, or offered or exposed for sale, four or more second-hand vehicles during a period of twelve months; SECOND-HAND VEHICLE DEALERS ACT 1995
  • Victoria: You buy, sell or exchange, or offer to buy, sell or exchange, four or more motor cars in any period of twelve months (whether as a principle or agent); Motor Car Traders Act 1986
  • NSW: You have sold, or offered for sale, more than four motor vehicles within a twelve month period to any other person; MOTOR DEALERS ACT 1974
  • QLD: You sell used motor vehicles; sell used motor vehicles on consignment as an agent for others for reward; negotiate, under a consultancy arrangement, for a person who is not a motor dealer or an auctioneer for the purchase or sale of a used motor vehicle for the person; PROPERTY AGENTS AND MOTOR DEALERS ACT 2000
  • WA: You buy or sell vehicles; or act as an agent for other persons in relation to the buying or selling of vehicles; MOTOR VEHICLE DEALERS ACT 1973
  • ACT: You buy, sell or exchange motor vehicles as a business or You sell more than six vehicles in any period of twelve months; SALE OF MOTOR VEHICLES ACT 1977
  • Tasmania: You sell more than six cars in twelve months or conduct a business based on dealing in motor vehicles;
  • NT: You have sold four or more motor vehicles during any period of twelve months. MOTOR VEHICLES ACT and CONSUMER AFFAIRS AND FAIR TRADING ACT

NOTE: You are responsible for checking if these laws apply to You. They may change without notice. The information set out above may be incorrect or out of date and is provided as a guide only.

3. What You Must Do

a) You agree to provide all information (including photographs) for Your Advertisement in the form and manner required by BMC as set out in the Application.

b) Your Advertisement must be up to date and be kept up to date and must not:

  • be false, inaccurate or misleading or deceptive or likely to mislead or deceive;
  • be fraudulent or involve the offer for sale of counterfeit or stolen motor vehicle or items;
  • infringe any third party's copyright, patent, design, trademark, trade secret or other proprietary or intellectual property rights, confidentiality or privacy;
  • violate any applicable law, statute, or regulation (including, but not limited to, those governing export and import control, consumer protection, unfair competition, criminal law, anti-discrimination and trade practices/fair trading laws);
  • be defamatory, libellous, discriminatory, threatening or harassing;
  • be obscene or contain any material that, in BMC's sole and absolute discretion, is in any way inappropriate or unlawful, including, but not limited to obscene, inappropriate or unlawful images;
  • contain any content that is prohibited or that, in BMC's sole and absolute discretion, may be prohibited content for the purposes of the Broadcasting Services Act 1992 (Cth);
  • contain any malicious code, data or set of instructions that intentionally or unintentionally causes harm or subverts the intended function of BMC website, including, but not limited to viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that may damage, modify, delete, detrimentally interfere with, surreptitiously intercept, access without authority or expropriate any system, data or personal information;

c) You must maintain the confidentiality of all Your user ID and password which is required to access Your Advertisement and immediately change the password if it is lost, stolen or compromised in any way. You are responsible for all transactions entered into under Your user ID and password; and

d) You must remove Your Advertisement if the advertised motor vehicle or item is:

  • sold; or
  • withdrawn temporarily or permanently by You from sale.

4. What You Cannot Do

a) You must not offer for sale any motor vehicle or item:

  • not located in Australia;
  • offer a motor vehicle or item for sale that You are not the owner of.

b) You must not submit an Advertisement which:

  • includes references or links to other websites or to HTML enhancement text;
  • advertises multiple motor vehicle or items in a single Advertisement;

5. Publication of Advertisements

a) BMC is not bound to publish Your Advertisement until accepted by BMC. Your Advertisement is accepted when BMC publishes Your Advertisement on BMC website.

b) If accepted, BMC will publish Your Advertisement on BMC website as set out in the Application on the terms and conditions of this Agreement and subject to Terms and Conditions of Access .

c) BMC may republish Your Advertisement on such other websites, search engines, applications and print or other media as BMC determines in its absolute discretion from time to time.

d) You acknowledge and agree that whilst every endeavour will be made to publish Your Advertisement as submitted, BMC will not (other than as set below) be liable for any error, omission or failure to publish Your Advertisement including acts or omissions of BMC, its employees or agents.

e) BMC may refuse to publish, withdraw or terminate the publication Your Advertisement without notice if:

  • BMC determines, in its opinion that You are a motor vehicle dealer or trader or otherwise not entitled to place an Advertisement as a private or non commercial advertiser;
  • You breach this Agreement or the Terms and Conditions of Use of BMC website; or
  • You have not logged on to Your Advertiser administration page relevant to Your Advertisement for more than 30 days; or
  • BMC determines, in its absolute discretion, to refuse to publish, withdraws or terminate the publication of Your Advertisement.

NOTE: BMC retains absolute editorial control in relation to the publication of Your Advertisement, including, but not limited to the format, position and placement of Your Advertisement which it may change at any time without notice.

6. Cancellation and Withdrawal of Advertisements

Your Advertisement may be withdrawn by You at any time after its publication. All advertising fees remain payable, and if already paid, You will not be entitled to a refund.

7. Intellectual Property Rights

You license BMC to use any intellectual property in the Advertisement and warrant that in so doing that We are not violating any rights any other party might have in that intellectual property. You grant Us a non-exclusive, worldwide, perpetual, irrevocable, and royalty-free, right to do and authorise the doing of all acts comprised in the copyright in the Advertisement and to exercise the publicity, and database rights (but no other rights) You have in the Advertisement, in any media now known or not currently known.

8. Payment of Advertising Fee

a) You must pay Our advertising fee at the rate and in the manner set out in the Application.

b) The advertising fee is payable despite the termination of this Agreement or failure to publish an Advertisement which is caused by You.

c) You will not be entitled to a refund or credit if BMC withdraws or declines the publication of Your Advertisement if You were not entitled to place an Advertisement or You are otherwise in breach of this Agreement or Our Terms and Conditions of use of BMC website.

9. Limit of liability

a) We provide Our BMC website and services without any warranty or condition, express or implied to the extent permitted by law. We disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement unless We are required to provide such warranties under applicable law.

b) We do not guarantee continuous, uninterrupted or secure access to Our services, and operation of BMC website as it may be interfered with by factors outside Our control. To the extent that such factors are outside of Our control, BMC shall not be liable.

c) To the extent that BMC and all affiliates and related entities of BMC are able to limit the remedies available under this Agreement, BMC and all affiliates and related entities of BMC expressly limit their liability for breach of a non-excludable condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at BMC's sole discretion):

  • the supply of the services again; or
  • the payment of the cost of having the services supplied again.

However, if You are considered a consumer under Australian consumer protection law that applies to BMC, and You use Our services for personal, domestic or household use, this will not apply to You.

d) To the extent permitted by law in no event shall We, Our affiliates and related entities be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with BMC website, Our services or this Agreement (however arising, including negligence). You agree to accept sole responsibility for the legality of Your actions under the laws which apply to You. You agree that BMC and all affiliates and related entities of BMC have no responsibility for the legality of Our users actions.

e) To the extent permitted by law, and subject to any contrary requirements arising under any applicable law, Our liability, and the liability of Our related bodies corporate, affiliates or suppliers, to You or any third parties in any circumstance is LIMITED TO $100.

f) Notwithstanding the above provisions, nothing in this Agreement is intended to limit or exclude any liability on the part of BMC and its affiliates and related entities where and to the extent that applicable law prohibits such exclusion or limitation including those within the Trade Practices Act 1974 (Cth) and any relevant state consumer and fair trading legislation.

10. Indemnity

You agree to indemnify and hold Us and (as applicable) Our related entities, affiliates, and Our and their respective officers, directors, agents, and employees, harmless from and against any and all claims, demands, proceedings, losses and damages (actual, special and consequential) of every kind and nature, known and unknown, including reasonable legal fees, made by any third party due to or arising out of Your breach of this Agreement or Your violation of any law or the rights of a third party.

11. Breach of Terms - Fraud and Termination of Access

Without limiting any other remedies available to BMC at law, in equity or under this Agreement, BMC may, in its sole discretion, suspend or terminate Your access to BMC website and terminate this Agreement if We reasonably suspect or believe, or are informed by a government authority, that You (arising from a charge, conviction, settlement, insurance or escrow investigation, or otherwise in Our sole discretion) have engaged or may engage in fraudulent activity using, or otherwise in connection with Your use of BMC website, and You will have no claim whatsoever against BMC in respect of any such suspension or termination.

12. Jurisdiction, Severability and Assignment

This Agreement will be governed in all respects by the laws of the State of South Australia. You and BMC irrevocably submit to the non-exclusive jurisdiction of the courts of South Australia. The provisions of this Agreement are severable, and if any provision of this Agreement is held to be invalid or unenforceable, such provision may be removed and the remaining provisions will be enforced. This Agreement may be assigned by BMC to a third party without Your consent in the event of a sale or other transfer of some or all of the assets of BMC. In the event of any sale or transfer You will remain bound by the Agreement.

13. Headings

Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to an anticipated or actual breach by You or others does not waive Our right to act with respect to subsequent or similar breaches. This Agreement may not be construed adversely against Us solely because We prepared it.

14. Whole of Agreement

This Agreement sets out the entire understanding and Agreement between Us with respect to its subject matter.

Clauses 7 (Intellectual Property Rights), clause 8 (Payment of Advertising fees), clause 9 (Limit of liability), clause 10 (Indemnity) survive any termination or expiration of this Agreement.