3. Platform registration
4. Platform Access and Use
5. Auctions and Offers
6. COTW Sales
7. Transport and delivery of vehicles and Vehicle Documents
8. Vehicle Information
9. Limited warranty
10. Conformity and complaints
12. Blocking and Cancellations
13. Invoicing and payment
1.1 Ecadis has developed a Platform for the re-marketing of vehicles whereby leasing companies, car manufacturers, other companies and natural persons acting for professional purposes or not can advertise Vehicles they wish to sell, and professional and recognised car dealers can submit an Offer for the purchase of Vehicles.
1.2 These Terms and Conditions govern the relation between COTW and Buyer in relation to Buyer's use of the Platform and in relation to the offering, sale and delivery of all Vehicles from or on behalf of COTW to Buyer.
1.3 Registration for the Platform and any access or use of the Platform, including making an Offer in relation to any Vehicle, shall qualify as unconditional acceptance by Buyer of these Terms and Conditions.
1.4 Buyer agrees to waive its own general and special terms and conditions, even where it is stated therein that only those conditions may apply, and even if such terms and conditions were not protested by COTW.
1.5 These Terms and Conditions constitute the entire understanding between COTW and Buyer with respect to the subject matter hereof, and supersede all prior representations, negotiations, understandings, agreements and undertakings, whether written or oral, with respect to the subject matter hereof.
1.6 Buyer expressly acknowledges having read, understood and agreed with all the present terms and conditions. Specifically, Buyer is in agreement with the principles regarding Vehicle Information, warranty, conformity and complaints and liability as set out in clauses 8 to 11 of these Terms and Conditions.
1.7 In relation to COTW Sales, these Terms and Conditions operate as a framework governing each COTW Sale. Each COTW Sale shall be deemed to constitute a separate agreement between COTW and Buyer and each such COTW Sale shall be subject to these Terms and Conditions.
In these Terms and Conditions, the following terms and expressions shall have the following meanings:
Affiliate: with respect to a Party, any other company or person that, directly or indirectly, Controls or is Controlled by or is under common Control with such company;
Auction: the process described in clause 5.1;
Auction Closing: the date and time as from which the Buyer Community can no longer submit Buyer Community Offers in relation to an Auction, as specified for each Auction on the Platform;
Auction Fees: the administrative fee payable by Buyer for each Vehicle purchased via the Platform;
Auction Rules: means the specific rules that may apply to an Auction, as specified on the Platform for each Auction. Such Auction Rules may relate to, by way of example and without limitation, the minimum amount below which no offers are admissible and/or the visibility of Buyer's Offer to the other members of the Buyer Community;
Business Day: any day that is not a Saturday, Sunday or public holiday in the country of establishment of COTW;
Buyer: the natural person or legal entity who is registered for use of the Platform, as identified in the Registration Form;
Buyer Community: the Buyer and any other buyers registered on the Platform;
Buyer Community Offers: has the meaning given to it in clause 5.1.2;
Control: has the meaning given to it in article 5 of the Belgian Companies Code;
COTW: Ecadis or its Affiliate, as specified in the Registration Form in accordance with clause 3.4;
COTW Group: Ecadis and/or any Ecadis Affiliate, as applicable;
COTW Sale Confirmation: has the meaning given to it in clause 6.1.2;
COTW Vehicle Description: means the description of the Vehicle provided by COTW Group during the Auction;
Country Fees: the administrative and logistics fee payable by Buyer for each Vehicle purchased via the Platform, depending on the country where the Seller offers the Vehicle for sale and the country in which Buyer is established;
Ecadis: European Car Auction and Distribution Solutions NV/SA, with registered office at Grijpenlaan 19A, 3300 Tienen, Belgium, with company number 0867.129.223; VAT BE0867129223;
Ecadis Affiliate: any of the CarsOnTheWeb entities as described in the company details on www.carsontheweb.com.
E-Invoice: an invoice which has been issued and sent in an electronic format as chosen by COTW. This is the legal form of invoice sent by COTW;
Export: a supply of goods that are delivered and carried outside of the European Union;
Export Documents: all duly and fully completed document as are legally required in relation to, and as are necessary to prove the transport of the Vehicle in case of Export;
Evidence: all documention necessary to prove something. (i.e. but not limited to: Transport Documents, Export Documents, transporteur stamped and signed documentation to prove the dispatch and/or transport of the Vehicle from one place to another);
Intra-Community Supply: a supply of goods that are transported by or on behalf of the supplier or the person to whom the supply is made from a European Union Member State to another European Union Member State;
Losses: any damage, loss, claim, demand, damage claimed by third parties, cost, tax or expense of whatever nature;
Means of Access: user ID, password and such other access means as may be required to access and use the Platform;
Offer: the offer submitted by Buyer via the Platform in relation to the purchase by Buyer from COTW of one of more Vehicles as detailed in clause 5.1.2;
Offered Price: has the meaning given to it in clause 5.2.1;
Party: COTW and/or Buyer, as applicable;
Platform: the online platform operated by Ecadis via which Buyer is able to submit Offers for the purchase of Vehicles, accessible via www.carsontheweb.com or such other URL as COTW Group may inform Buyer of from time to time;
Purchase Price: in relation to each COTW Sale, the Offered Price, the Auction Fees for all Vehicles, the Country Fees for all Vehicles and the Transport Fees, increased with all applicable Taxes;
Registration Form:the form (to be) duly completed by Buyer during the registration process for the Platform. It includes i.a. valid VAT number, proof of business registration and copy of ID of the owner/manager of the registered company, all scan of original documents with clear links;
Seller: any leasing company, car manufacturer, other company, and/or natural person acting for professional purposes or not advertising Vehicles on the Platform;
Taxes: all forms of taxation, value added taxes, withholdings, (import and/or export) duties, imposts, levies, and rates imposed by any local, municipal, governmental, state, federal, or other body and any interest, penalty, surcharge or fine in connection therewith;
Terms and Conditions: these Cars on the Web terms and conditions;
Transport Documents: all duly and fully completed transport document as required in relation to, and as are necessary to prove the transport of the Vehicle from one place to another, including without limitation CMR consignment note, export documents or certificates of delivery;
Transport Fees: the amount payable by Buyer for transport of the Vehicles;
Triangulation Scheme: a chain transaction between three parties located in three different EU Member States (A-B-C) where the goods/Vehicles are shipped directly from the first Member State (A) to the last (C). At COTW all transport is organised on behalf of ECADIS or ECADIS affiliates unless explicitely specified;
User: has the meaning given to it in clause 4.1.1;
Vehicle: any vehicle advertised via the Platform;
Vehicle Documents: any and all official documents relating to the Vehicle (including without limitation certificate of conformity and inspection documents);
Vehicle Information: any photos, description, information, documentation and/or other materials regarding the Vehicle advertised via the Platform during the Auction, including the COTW Vehicle Description.
3. Platform registration
3.1 The Platform is exclusively available for and may only be used by professional and recognised car dealers duly registered.
3.2 To be authorized to access and use the Platform, Buyer must request confirmation of registration by duly completing the Registration Form and sending all required documents in accordance with the registration modalities described on the Platform, and by accepting these Terms and Conditions.
3.3 The person completing and submitting the Registration Form, and accepting these Terms and Conditions on behalf of Buyer represents and warrants having the necessary powers to legally commit the Buyer.
3.4 Depending on the registered office of the Buyer, and subject to the applicable VAT regulations, Buyer may be offered the possibility to choose from which member of the COTW Group it wishes to receive invoices under these Terms and Conditions. If Buyer is
3.4.1 offered this possibility, for the purposes of these Terms and Conditions, COTW shall be the member of the COTW Group chosen by Buyer and such entity shall be Buyer's sole contracting party for any dealings between the Parties governed by these Terms and Conditions and shall be the entity invoicing Buyer. If Buyer wishes to subsequently modify its choice, such modification shall be subject to COTW's prior approval; and
3.4.2 not offered this possibility, for the purposes of these Terms and Conditions COTW shall be Ecadis, and Ecadis shall be Buyer's sole contracting party for any dealings between the Parties governed by these Terms and Conditions and shall be the entity invoicing Buyer.
3.4.3 COTW might decide, without justification or advance notice, to invoice from ECADIS location or from the country where the Buyer is registered. Such change shall not open the right to any type of claim or cancellation;
3.5 Buyer guarantees that all information and/or documents provided are correct, complete and valid. Buyer shall promptly notify COTW of any changes in the information mentioned in the Registration Form and/or documents submitted under clause 3.2. Notwithstanding clause 3.6, Buyer acknowledges and accepts that COTW bears no liability regarding verification of the information and documentation provided by Buyer.
3.6 COTW has at any time (before or after confirmation of Buyer's registration) the right to verify the accuracy of the information contained in the Registration Form and/or the validity of the documents submitted by Buyer under clause 3.2. If such verification reveals any inaccuracy of information and/or any invalidity of documentation, without prejudice to its other rights and remedies under these Terms and Conditions or otherwise, COTW reserves the right to
3.6.1 reject Buyer's request for registration. COTW will inform Buyer of such rejection and may, in its sole discretion, determine to provide Buyer with the opportunity to rectify any such inaccuracies and/or invalidities; or
3.6.2 suspend or permanently block Buyer's and its Users' access to and use of the Platform in accordance with clause 4.6.
3.7 COTW reserves at all times the right to refuse confirmation of a registration request without motivation. COTW Group shall not be liable for any Losses suffered or incurred by Buyer arising out of or in connection with any such refusal.
3.8 If COTW decides to approve Buyer's request for registration, COTW will inform Buyer thereof and provide Buyer with one or more Means of Access for the Platform. Buyer shall not be able to submit any Offers until such approval by COTW and receipt of the Means of Access.
4. Platform Access and Use
4.1 Users and use in general
4.1.1 Buyer acknowledges and accepts that he is responsible for the actions and omissions performed by all users making use of the Platform on behalf of Buyer or otherwise via Buyer's Means of Access ("Users"). Buyer shall provide all Users with a copy of these Terms and Conditions, shall comply with these, and make sure each User complies with these Terms and Conditions.
4.1.2 Buyer warrants that the Platform is used in accordance with these Terms and Conditions, all applicable national and international legislation and, in general, in a responsible manner, exclusively for its own and admissible professional purposes and without breach of the rights of third parties. Neither Buyer nor the Users are permitted to make modifications to the Platform. Buyer is liable for and will hold harmless and indemnify COTW Group against any Losses suffered or incurred by COTW Group arising out of or in connection with any (i) modifications made to Platform; and/or (ii) use of the Platform in a manner that does not correspond with these Terms and Conditions.
4.1.3 Buyer undertakes not to use, and will ensure none of its Users uses the Platform to (i) download, send, or disseminate data containing viruses, worms, spyware, malware or any other similar malicious programs; (ii) carry out any calculations, operations or transactions that may interrupt, destroy or restrict the functionality of the operation of the Platform or any program, computer or means of telecommunications; (iii) submit any information or materials which infringe third party rights, are libellous, obscene, threatening or otherwise unlawful; and/or (iv) submit any non-binding Offers.
4.2 Required hardware, software and services
Buyer acknowledges and agrees that it is responsible for the choice, purchase and operation of the hardware, software and/or telecommunication services required to connect with and to use the Platform. Such hardware, software and/or telecommunication services need to meet the minimum requirements as may be specified from time to time on the Platform. Buyer is responsible for the installation and related costs of purchasing and/or licensing such hardware, software and/or telecommunication services. COTW Group is not liable for hardware, software, products and services of third parties, such as telecommunication equipment, internet connections, operating systems and internet browsers.
4.3 Security and Means of Access
4.3.1 Use of the Platform requires Means of Access. Means of Access are strictly personal and Buyer is responsible for the safeguarding, confidentiality, security and appropriate use of the Means of Access by him and its Users and undertakes to take all steps to prevent any unauthorized third party from gaining knowledge and making use thereof. Buyer shall not transfer or sell any Means of Access to any third party, except Users who are duly authorised to act on its behalf.
4.3.2 Buyer will notify COTW immediately by email or fax of the loss, theft, breach of confidentiality or any risk of misuse of the Means of Access. Buyer is fully and unconditionally responsible for any use of the Platform and any Offers made, as well as for any detrimental consequences that may arise directly or indirectly therefrom, until one (1) Business Day after such notification has been made.
4.3.3 If COTW has any reason to suspect that the confidentiality and/or security of the Means of Access has been breached or that the Platform is being misused, COTW may, without prior notice, suspend access to the Platform, at its sole discretion and without opening the right for any type of compensation.
4.3.4 Buyer acknowledges having been warned that COTW reserves the right to refuse access to a User using Means of Access when a session is already open on another computer where another User is using the same Means of Access.
4.3.5 COTW Group has the righ to suspend for a definite or indefinite period any account for any reason. This includes, without limitation, the delay in car payment, suspiscious behavior, suspiscion of fraud or VAT carousel or any other type of reason that COTW does not need to communicate to the Buyer.
4.3.6 COTW Group shall not be liable for any Losses suffered or incurred by Buyer arising out of or in connection with any such suspended or refused access as described in clauses 4.3.3 4.3.4 and 4.3.5.
4.4 Platform services fees
COTW may, from time to time, offer certain services via the Platform which are subject to payment of the applicable fees by Buyer, and/or require payment of a fee by Buyer for existing services. The applicable fees shall be indicated via the Platform and may vary from time to time. Buyer shall be solely responsible to verify the applicable fees each time Buyer (or its Users) access and use the Platform and/or services offered via the Platform.
4.5 Intellectual property rights
4.5.1 The intellectual and industrial property rights and know-how associated with the Platform belong exclusively to COTW Group. COTW grants Buyer and its Users a non-transferable, limited, non-exclusive license to use the Platform for Buyer's own business purposes only, until COTW blocks Buyer's and/or its Users' access to the Platform.
4.5.2 Buyer shall take all necessary measures to protect and ensure that its Users protect COTW Group's intellectual and industrial property rights.
4.5.3 Without prejudice to the rights of Buyer and Users under the legislation relating to the protection of computer programs of which cannot be contractually deviated, Buyer and its Users may not: (i) modify, translate or adapt the Platform in any way; (ii) decompile or disassemble the Platform in any way; (iii) copy the Platform in any way; (iv) pass on, dispose of, grant as a sub-license, lease, lend or distribute the Platform or documentation in any way to third parties; (v) create any product or service substantially similar to the Platform; and/or (vi) copy any ideas, characteristics and/or functions of the Platform. COTW reserves the sole right to correct any errors.
4.6 Suspension and blocking
4.6.1 Buyer acknowledges and agrees that COTW Group reserves the right to suspend Buyer's and its Users' access to the Platform for any reason, including without limitation (i) in case of actual or reasonably suspected breach by Buyer and/or its Users of these Terms and Conditions; (ii) in case of an attack on COTW Group's IT systems; (iii) if legally required; (iv) so as to avoid or mitigate any detrimental impact on COTW Group, Buyer and/or the Buyer Community; and (v) for purposes of Platform maintenance. COTW will use reasonable efforts to inform Buyer of such suspension as soon as practically possible.
4.6.2 Buyer acknowledges and agrees that COTW Group reserves the right to permanently block Buyer's and its Users' access to the Platform (i) in case of breach by Buyer and/or its Users of these Terms and Conditions; (ii) in the circumstances described in clause 12; and (iii) in case of fraudulent practices of Buyer and/or its Users; (iv) for any other reason at the descretion of COTW Group.
5. Auctions and Offers
5.1.1 The Platform provides Sellers with the possibility to advertise Vehicles which they intend to sell. Such Vehicles may, at COTW Group's sole discretion, be advertised separately or combined into one or more sets of Vehicles.
5.1.2 Each member of the Buyer Community has the possibility to submit a binding offer for the purchase of such set of Vehicles from COTW Group, by submitting an Offer (Purchase price out of Taxes and costs) at which such member of the Buyer Community offers to purchase such Vehicles from COTW Group ("Buyer Community Offers").
5.1.3 Buyer Community Offers will be assessed by COTW until after Auction Closing and COTW will determine, in its sole discretion, if it is willing to sell such set of Vehicles to the member of the Buyer Community which submitted the best offer. Buyer expressly acknowledges and agrees that its Offer may be excluded from this assessment if COTW reasonably considers that its Offer is incorrect (for example and without limitation in case of an abnormally high price). COTW Group shall not be liable for any Losses suffered or incurred by Buyer arising out of or in connection with any such exclusion.
5.1.4 Buyer expressly acknowledges and agrees that any sale of any Vehicle by COTW to any member of the Buyer Community is dependent on Seller agreeing to sell the Vehicle to COTW, and that submission of the best Buyer Community Offer does not guarantee that Buyer will be able to purchase the Vehicle.
5.1.5 Neither COTW Group nor the Seller shall be liable for any Losses suffered or incurred by Buyer arising out of or in connection with any decision from Seller or COTW to cancel or otherwise not proceed with an Auction at any time.
5.1.6 Buyer shall be informed of the applicable Auction Fees and Country Fees for each Vehicle that is part of the Auction, via the Platform. Buyer expressly acknowledges and agrees that the Auction Fees and Country Fees may vary per Vehicle and per Auction.
5.2.1 In case Buyer wishes to purchases a (set of) Vehicle(s), Buyer has the option to submit an Offer for the purchase of such Vehicle(s). An Offer shall always consist of the Purchase price excluding taxes and costs Buyer is offering to pay for such Vehicles to COTW ("Offered Price").
5.2.2 Buyer expressly acknowledges and agrees that any Offer submitted via the Platform shall constitute a binding offer, which cannot be withdrawn by Buyer until expiry of a period of forty-eight (48) hours (calculated over Business Days only) as from Auction Closing.
5.2.3 In case Buyer submits more than one (1) Offer for the same Vehicle, only the highest Offer of Buyer will be taken into account by COTW.
5.2.4 Buyer acknowledges and agrees that submission and acceptance of Offers shall always be subject to the applicable Auction Rules.
5.2.5 Buyer and its Users shall not manipulate the price of any Vehicle advertised during an Auction and shall not in any way interfere with offers made by other members of the Buyer Community.
6. COTW Sales
6.1 COTW Sale Confirmation
6.1.1 If (i) Buyer's Offer is deemed to be the best Buyer Community Offer in accordance with clause 6.1.3, (ii) COTW is able to purchase the Vehicle(s) concerned from Seller and (iii) COTW decides to accept such Offer in accordance with clause 5.1.3, COTW sells the Vehicle(s) concerned to Buyer ("COTW Sale"). The Vehicle(s) shall be sold at the Offered Price, to be increased with the Auction Fees, Country Fees, Transport Fees and all applicable Taxes .
6.1.2 In such case, COTW will inform Buyer of the COTW Sale, and Buyer is required to confirm via the Platform the administrative delivery details of the COTW Sale within twenty-four (24) hours (one business day) as from receipt of such information from COTW ("COTW Sale Confirmation"). Buyer expressly acknowledges and agrees that the COTW Sale Confirmation is an administrative formality to organise delivery and shall not be construed as a possibility for Buyer to cancel its Offer and/or otherwise cancel the COTW Sale.
6.1.3 In the COTW Sale Confirmation, Buyer shall confirm in any case the country of destination of the purchased Vehicle(s). Buyer shall be solely responsible for any costs, expenses, Taxes and any other consequences related to its choice of country of destination. COTW Group shall not be liable for any Losses suffered or incurred by Buyer arising out of or in connection with the chosen country of destination.
6.2 Payment and invoicing of COTW Sales
6.2.1 For each COTW Sale, the Offered Price will be increased with all Taxes which shall be payable by Buyer. The Taxes will include the VAT due, if any, in the country of residence of the member of the COTW Group invoicing the COTW Sale. In case of an Intra-Community Supply or Export, and as far as there is sufficient Evidence of the transport of the Vehicle, no VAT will be due on the COTW Sale and Buyer will be liable to account for the VAT due in the country of destination.
Unless the Vehicle is at the time of the sale located in Belgium, the Intra-Community Supplies are treated for VAT purposes as a “Triangulation Scheme” (cf. so-called ABC transactions). This implies that the Buyer shall take care, in the EU Member State of arrival, of the required VAT formalities as the last link in the chain (cf. party C).
6.2.2 At the time COTW informs Buyer of the COTW Sale under clause 6.1.2, COTW will provide Buyer with an order form, which sets out (i) the Purchase Price, consisting of the Offered Price, the Auction Fees, the Country Fees, the Transport Fees and any applicable Taxes; and (ii) any guarantee payable by Buyer pursuant to clause 7.4.2. Buyer shall ensure that the Purchase Price is credited to the bank account of COTW as specified on the order form at the latest forty-eight (48) hours (calculated over Business Days only) after submission of the COTW Sale Confirmation.
6.2.3 COTW will issue the invoice for each COTW Sale after receipt of the Purchase Price on COTW bank account.
7. Transport and delivery of vehicles and Vehicle Documents
7.1.1 Transport of the Vehicle will be performed by or on behalf of COTW. At Buyer's option, Buyer is entitled to take care of the transport of the Vehicle on behalf of COTW.
7.1.2 Any Vehicle shall, and may only be, transported to the country of destination as indicated on the COTW Sale Confirmation. Buyer is liable for and will hold harmless and indemnify COTW Group against any Losses suffered or incurred by COTW Group arising out of or in connection with transport of a Vehicle to any country other than the country of destination as indicated on the COTW Sale Confirmation.
7.1.3 Property of the Vehicle shall transfer at the sending of the car documents to the Buyer. The Properlty is not transferred at pickup, but only after approval of the FCMR (delivery evidence) by COTW. Risk related to the vehicle shall transfer at the earliest of (i) pick-up of the Vehicle by Buyer; (ii) delivery of the vehicle at the destination indicated by the Buyer and (iii) expiry of a two (2) weeks period (or such shorter period as set out on the pick-up authorisation document) as from receipt of the pick-up authorisation document.
7.2 Transport of Vehicles arranged by COTW
This clause 7.2 shall apply in case COTW arranges for transport of Vehicles, in addition to the Cars on the Web terms and conditions relating to transport available via the Platform.
7.2.1 Prices for transport mentioned on the Platform are indicative and non-binding, and the actual Transport Fees for transport will depend on several criteria, including without limitation physical location of the Vehicle and type of Vehicle. Any prices mentioned on the Platform are exclusive of applicable Taxes.
7.2.2 Transport shall not be organised by COTW until the later of (i) the moment the Purchase Price is credited to COTW's bank account mentioned on the order form; and (ii) release of the Vehicle by the Seller.
7.2.3 Any times or dates for delivery by or on behalf of COTW are estimates and shall not be of the essence. Save in case of its own fraud or willful intent, COTW Group shall not be liable for any delay in delivery. Delay in delivery of any Vehicles shall not relieve Buyer of its obligation to accept delivery.
7.3 Transport of Vehicles arranged by Buyer on behalf of COTW
This clause 7.3 shall apply in case Buyer organises transport of Vehicles on behalf of COTW.
7.3.1 The Vehicle shall not be available for pick-up and transportation until the later of (i) the moment the Purchase Price is credited to COTW's bank account mentioned on the order form; (ii) release of the Vehicle by the Seller; and (iii) issuance of the pick-up authorisation document(s) to Buyer.
7.3.2 Buyer shall pick up and transport the Vehicle at the latest within two (2) weeks (or such shorter time frame as set out on the pick-up authorisation document) of receipt of the pick-up authorisation document. Buyer acknowledges and agrees that COTW, Seller or the third party storing the Vehicle on their behalf, has at all times the right to refuse delivery of a Vehicle to Buyer (or Buyer's transporter, as applicable) in case Buyer (or Buyer's transporter, as applicable) does not present a valid pick-up authorisation document. Buyer shall be fully responsible for any Losses incurred by Buyer, COTW, Seller or the third party arising out of or in connection with such lack of valid pick-up authorisation document.
7.3.3 In case Buyer fails to pick up the Vehicle within
(a) two (2) weeks (or such shorter time frame as set out on the pick-up authorisation document) of receipt of the pick-up authorisation document, COTW reserves the right to charge Buyer an amount of up to five euros (EUR 5.00) per day until pick-up of the Vehicle;
(b) one (1) month of the COTW Sale Confirmation, the COTW Sale shall be deemed wrongfully cancelled by Buyer in accordance with clause 12.4.
7.4 Proof of transport and Vehicle Documents
7.4.1 Intra-Community Supply
(a) In case of Intra-Community Supply, Buyer shall submit to COTW all required Evidence and Transport Documents regarding the Vehicle and the country of destination duly completed.
(b) Buyer acknowledges and agrees that:
(i) regardless of whether transport was arranged for by or on behalf of COTW, in case COTW reasonably doubts the validity or completeness of the Transport Documents submitted by Buyer, COTW reserves the right to retain the Vehicle Documents until such time as Buyer submits valid Evidence; and
(ii) COTW shall not deliver the Vehicle Documents until receipt of the correctly filled out Transport Documents and Evidence.
(a) In case of Export, Buyer shall submit to COTW all required Evidence and Export Documents regarding the Vehicle and the country of destination duly completed.
(b) In case of Export, pending transfer and receipt of the necessary Export Document, COTW requires, per Vehicle that is exported to a non-EU country, a guarantee equal to the sum of the VAT amount that would be due in the country of residence of the member of the COTW Group invoicing the COTW Sale, in the event the COTW Sale should not constitute an export for VAT purposes. The guarantee amount will be mentioned separately on the order form.
(c) Upon receipt of the necessary Evidence and Export Documents by COTW from Buyer, proving that the COTW Sale constitutes an export for VAT purposes, the amount of the guarantee will be reimbursed on the Buyers bank account and the COTW Sale will be invoiced to Buyer without VAT.
7.4.3 Save in case of its own fraud or wilful intent, COTW Group shall not be liable for any Losses suffered or incurred by Buyer (including without limitation unability to register the Vehicle) arising out of or in connection with any missing or incomplete Vehicle Documents.
7.5 COTW will send the car documents to the VAT registration country of the Buyer after reception and validation of the delivery Evidence. In case the Buyer wants to recieve the car documents in another country, detailed justification will be provided to COTW to support such request. Even if the documents are sent in a country where the Buyer is not registered to the VAT, the Buyer keeps the whole responsibility for appropriate declaration of the purchase to the authorities. COTW responsibility will in no case be engaged for any error made by the Buyer in relation with applicable taxes (VAT or any other tax)
8. Vehicle Information
8.1 Buyer acknowledges and agrees that it acts as a professional car dealer with thorough knowledge of the sector of used cars and the issues typically associated with used cars and the used cars business.
8.2 Buyer acknowledges and accepts that COTW Group's commercially advantageous offerings regarding the Platform and the related services render it impossible for COTW Group to carry out a detailed technical inspection of every Vehicle advertised by a Seller on the Platform, and to assume responsibility in that respect. Buyer acknowledges and accepts that all Vehicle Information is based on the information obtained from the Seller.
To the maximum extent permitted by law, without prejudice to clause 9, and save in case of its own fraud or wilful intent, COTW Group shall not be responsible for, and not be liable for any Losses suffered or incurred by Buyer arising out of or in connection with any inaccuracy in or incompleteness of the Vehicle Information (including without limitation in relation to mileage, damage, technical faults, optional extras, colour, year of manufacture, date of first registration, etc.).
To the maximum extent permitted by law, COTW Group expressly excludes any liability for Losses arising out of or in connection with third party fraud (including without limitation mileage, margin status and/or chassis number fraud).
8.3 Vehicle Information may, depending on the Vehicle, consist of one or more types of information, each of which shall be clearly identified as such on the Platform, including the following:
8.3.1 the COTW Vehicle Description; and
8.3.2 reports from external third parties and photos.
8.4 Buyer expressly acknowledges that
8.4.1 each of these types of information are made or created at different points in time, and may as such not always correctly reflect the status of the Vehicle at the moment of the sale of the Vehicle occurs;
8.4.2 Buyer has no access over any Vehicle Information other than the COTW Vehicle Description and as a result, any such other Vehicle Information is provided for Buyer's convenience only;
8.4.3 to determine if the Vehicle as delivered to Buyer is in conformity, only the COTW Vehicle Description shall be taken into account; and
8.4.4 in case of any conflict or ambiguity between the COTW Vehicle Description and any other Vehicle Information, the COTW Vehicle Description shall always prevail.
9. Limited warranty
9.1 For Vehicles which are not designated as "wrecked cars" during the Auction, and always subject to clause 10.5,
9.1.1 COTW solely warrants that on the date of delivery the Vehicle conforms to the COTW Vehicle Description. If and to the extent a Vehicle fails to meet such warranty, as shall be determined in accordance with clause 10, COTW has the right to issue a credit note for any such Vehicle in the amount of the reasonably estimated decrease in value of the Vehicle resulting from the damage to the Vehicle which was not indicated in the COTW Vehicle Description. In the event COTW makes such credit, such credit amount shall be Buyer's sole remedy; and
9.1.2 the validity of any warranty claim by Buyer shall be contingent upon receipt by COTW of timely notice of any alleged non-conformance of the Vehicle in accordance with clause 10.
9.2 For Vehicles which are designated as "wrecked cars" during the Auction, Buyer expressly acknowledges and agrees that, to the maximum extent permitted by applicable law, COTW provides no warranty of any kind, including without limitation any warranty of conformity or merchantability.
9.3 The warranty set out in this clause 9 is exclusive and in lieu of all other warranties, representations, conditions or other terms, express, implied, statutory, contractually or otherwise, including, without limitation, any warranty of merchantability or suitability or fitness for any purpose.
9.4 The warranty set out in this clause 9 shall not apply if and to the extent the non-conformity results from (i) modifications made to and any other works performed on the Vehicle by or on behalf of Buyer; and/or (ii) use of the Vehicle by or on behalf of Buyer other than with reasonable care and skill.
10. Conformity and complaints
10.1 On delivery of the Vehicle, Buyer shall examine (or have examined on its behalf) the Vehicle and satisfy itself that the Vehicle complies with the COTW Vehicle Description. During such examination, Buyer shall at all times take into account (i) the fact that Buyer purchased a used vehicle; (ii) the Vehicle's mileage; and (iii) the Vehicle's first registration date. Defects in or damage to parts of the Vehicle do not entitle Buyer to reject the entire Vehicle.
10.2 Complaints about the Vehicle shall be made using the COTW complaints form and:
10.2.1 in respect of any defect or damage which would be apparent from a reasonable inspection on delivery, shall be mentioned on CMR and/or consignment note;
10.2.2 in respect of any hidden defect or damage, shall be made at the latest before the earlier of (i) expiry of a three (3) days period after delivery; and (ii) Buyer (or any other third party under Buyer's control) having driven at least one hundred kilometres (100 km) after delivery of the Vehicle.
10.3 Any complaint must be thoroughly substantiated with all evidence necessary for COTW or any third party to be able to determine the non-conformity of the Vehicle. For any external damage, Buyer shall provide clear pictures, together with an estimate of the value of the damage. For technical problems, Buyer shall notify the defect in accordance with clause 10.2 and as soon as possible thereafter (and in no case more than one (1) week after submission of the complaint) submit to COTW a document from an official workshop or dealer which describes the technical damage and lists the ID numbers of the required spare parts.
10.4 Pursuant to clause 9.2, to the maximum extent permitted by applicable law, no complaints can be made for Vehicles designated as "wrecked cars" during the Auction.
10.5 Please consult our claim policy document in your MyCOTW account for more detailed information.
11.1 To the maximum extent permitted by applicable law, and subject to clause 11.3, COTW Group shall not be liable for any direct or indirect or consequential damage of any kind, including without limitation disruption of business, third party claims and loss of profits, anticipated savings, or goodwill.
11.2 To the maximum extent permitted by applicable law, subject to clause 11.3, and to the extent clause 11.1, and/or any other limitations and exclusions of liability set out in these Terms and Conditions do not apply, COTW Group's total aggregate liability
11.2.1 for any Losses of any nature incurred or suffered by Buyer arising out of or in connection with a COTW Sale, shall not exceed the Offered Price for such COTW Sale; and
11.2.2 for any other Losses incurred or suffered by Buyer shall, in each calendar year, in the exceptionnal event COTW responsibility is undiscutably proven, be limited to the higher of (i) the Auction Fees and Country Fees paid by Buyer in such calendar year; and (ii) one thousand euros (EUR 1,000.00).
11.3 Neither Party shall exclude or limit its liability for (i) its own fraud or wilful intent; and /or (ii) any liability which cannot be excluded or limited under applicable law (in which case the relevant Party does not exclude or limit its liability only to the extent such exclusion or limitation is not permitted by applicable law).
12. Blocking and Cancellations
12.1 Buyer does not have the right to cancel a COTW Sale for its convenience.
12.2 If Buyer fails to comply with these Terms and Conditions, Buyer acknowledges and agrees that, without prejudice to COTW Group's other rights and remedies under these Terms and Conditions, at law or otherwise COTW reserves the right to temporarily or definitively block Buyer and its Users from accessing and using the Platform in any way. In such case,
12.2.1 COTW will undertake reasonable efforts to inform Buyer of such blocking; and
12.2.2 COTW may, in its sole discretion, decide to unblock Buyer and its Users subject to completion of a verification and validation process. This could be subject to payment of a reinstatement fee by Buyer.
12.3 If, notwithstanding clause 12.1, Buyer wishes to cancel a COTW Sale, Buyer may request such cancellation in writing or via e-mail. Buyer acknowledges and agrees that COTW may, in its sole discretion, decide to refuse or allow such cancellation. If COTW agrees to allow Buyer to cancel the COTW Sale, Buyer shall pay to COTW (i) all Auction Fees and Country Fees increased with applicable Taxes relating to such COTW Sale; and (ii) ten per cent (10%) of the Offered Price relating to such COTW Sale.
12.4 In case Buyer wrongfully cancels a COTW Sale and/or fails to perform its obligations in relation to a COTW Sale, Buyer shall be liable to compensate COTW for all Losses incurred by COTW Group in relation thereto.
13. Invoicing and payment
13.1 This clause 13 shall apply to all fees and charges due by Buyer pursuant to a COTW Sale or otherwise under these Terms and Conditions and any invoicing and payment thereof.
13.2 Unless expressly stated otherwise, any fees, charges and amounts mentioned on the Platform and in these Terms and Conditions shall be in euros and exclusive of any applicable Taxes.
13.3 Buyer acknowledges and agrees that any invoicing shall occur via E-Invoices and that Buyer shall not receive paper invoices. Buyer acknowledges and agrees that it is responsible for the fulfilment of all applicable legal requirements with respect to receipt and storage of E-Invoices.
As an exception to the foregoing, Buyer can in the COTW Sale Confirmation related to its first COTW Sale, opt to choose for paper invoices in which case all invoices issued by COTW to Buyer as from that moment shall be paper invoices.
Buyer expressly acknowledges and accepts that COTW shall charge an administrative fee of fifteen euros (EUR 15.00) for each paper invoice requested by Buyer, and such amount shall be added to each invoice.
In case Buyer wishes to change its invoicing preferences after its first COTW Sale, Buyer shall contact COTW in accordance with clause 16.3 .
13.4 Without prejudice to COTW Group's rights and remedies under these Terms and Conditions, at law or otherwise, if payment has not been credited to the bank account of COTW
13.4.1 within the applicable payment term, COTW is entitled to charge Buyer interest on overdue amounts, without prior notice, at a rate equal to the interest rate applicable under the Belgian Law of 2 August 2002 regarding late payment in commercial transactions; and
13.4.2 within two (2) weeks of confirmation of the COTW Sale by COTW, the COTW Sale shall be deemed wrongfully cancelled by Buyer in accordance with clause 12.4.
13.4.3 In case there are unpaid amounts emitted to the buyer, COTW will have the right to block any other amount or vehicle in his possession, without advance notice, to compensate the unpaid amount. The blocked amount or vehicle shall not be limited to the same transactions but will be extended to all the open transactions between COTW group and the Buyer.
14.1 With regard to any personal data submitted by Buyer or otherwise collected by COTW Group which is processed by COTW Group, COTW undertakes to comply with the applicable data protection related legislation with regard to the processing of personal data. In relation to any such processing activities, Ecadis shall be the data controller, and any processing carried out by the other members of the COTW Group shall be done on behalf of Ecadis.
14.2 COTW shall collect and process the following types of personal data, which shall be processed for the following purposes:
14.2.1 Information regarding Buyer's access to and use of the Platform (including for example date and time of visit, bidding behaviour, browser type, navigation to the platform, etc.) shall be processed by COTW to gain a better understanding of the Buyer Community and website visitors, and to be able to improve the Platform and the services offered via the platform;
14.2.2 Customer information (including without limitation contact details, financial information, Offers, COTW Sales, communication and correspondence, etc.) shall be processed by COTW for customer management purposes. This includes without limitation (i) management of and follow-up on Auctions, Offers and COTW Sales; (ii) invoicing; (iii) complaints and dispute management; (iv) correspondence with Buyer; (v) sending direct marketing and commercial information regarding COTW Group's products and services; (vi) prevention and investigation of abuse, breaches and fraud; (vii) management of legal proceedings; and (viii) management of Platform access and use.
14.3 COTW may share Buyer's personal data with the COTW Group for these purposes. Buyer also acknowledges that in the framework of its Platform offerings and service delivery, COTW Group may work with third party service providers (such as for example IT and hosting providers, and legal advisors). Buyer's personal data may be shared with such third party service providers, which shall only process such personal data on COTW's instructions.
14.4 Failure to provide such information may result in Buyer being unable to register for, access or otherwise use the Platform and being unable to make any Offers.
14.5 COTW may disclose and transfer the personal data to
14.5.1 competent authorities in connection with threatening or actual legal proceedings, criminal investigations, official requests for information and so as to comply with other legal obligations;
14.5.2 third parties in connection with any (contemplated) corporate restructuring of any member of COTW Group, including via merger or acquisition.
In case Buyer requires further details regarding any such processing by such third parties, Buyer is recommended to consult the applicable privacy policies of such third parties.
14.6 Buyer acknowledges and accepts that such personal data may be transferred outside the European Economic Area to a country which, in accordance with applicable data protection law, is not deemed to offer adequate protection with regard to the processing of personal data and on the free movement of such data.
14.7 Buyer hereby gives specific permission to COTW Group to process its personal data for marketing purposes. Buyer may at any time ask COTW to be excluded free of charge from the list(s) created for that purpose in case it do not wish to receive messages in the context of direct marketing campaigns. Buyer may be informed free of charge about any personal data that relates to it, by sending COTW a signed and dated written request and, where appropriate, may request that incorrect, incomplete or irrelevant details be amended. Any such requests should be addressed to Ecadis at the address mentioned in clause 16.3, via firstname.lastname@example.org or via MyCOTW on the Platform.
14.8 In this clause, references to "Buyer" shall include (without limitation) the Buyer's Users, officers, employees, contractors and agents in relation to which COTW Group receives personal data. Buyer is responsible for making sure it has received all prior, individual and necessary approvals and authorisations from such persons to allow COTW Group such processing of personal data in accordance with this clause 14. Buyer will defend, hold harmless and indemnify COTW Group against any Losses arising out of or in connection with Buyer's failure to obtain all individual and necessary consents and approvals.
15.1 COTW may, at any time, amend, modify, add or delete any provision of these Terms and Conditions.
15.2 COTW will issue any such amended or new terms and conditions subject to a notice period of at least seven (7) calendar days. Buyer expressly acknowledges and agrees that such varied or new terms and conditions can be notified by COTW to Buyer via electronic means, including via e-mail and/or notice on the Platform.
15.3 The amended or new terms and conditions shall apply and be deemed accepted by Buyer as from the date set out by COTW, unless Buyer notifies COTW in writing within the given notice period of its refusal to accept such varied or new terms and conditions. In such case, COTW reserves the right to terminate these Terms and Conditions immediately without any compensation being due by COTW Group in such respect, and to block Buyer and its Users' access and use of the Platform.
16.1 COTW registers access to and use of the Platform. This access and use log provides evidence that access has been gained to and use has been made of the Platform, unless Buyer can prove the contrary. Electronic messages, connections, operations on the network and transactions between COTW and Buyer shall be proven using the logs and transaction files kept electronically by COTW. Buyer accepts the evidential value of this data. This capability of proof does not prevent the Parties from each providing their own proof using permitted legal methods.
16.2 Neither Party shall be responsible for any damage caused by the non-compliance or delay in compliance of obligations resulting from a case of force majeure, external cause or any other events which are not under the reasonable control of COTW.
16.3 Unless explicitly stated otherwise, any notices, demands and correspondence shall be sent by Buyer to COTW by post to ECADIS nv, Grijpenlaan 19A, 3300 Tienen, Belgium or by e-mail to the e-mail address given to Buyer during the Platform registration process.
16.4 Buyer and COTW are independent contractors, and the relationship created hereby shall not be deemed to be that of principal or agent. No sale or obligation of either Party towards a third party shall in any way bind the other party.
16.5 Buyer is not entitled to assign these Terms and Conditions or any rights and obligations arising from these Terms and Conditions to any other party without the prior written consent of COTW. COTW has the right to assign these Terms and Conditions, wholly or partly, or any rights and obligations arising from these Terms and Conditions to any member of COTW Group and/or to any third party in connection with a corporate restructuring of any member of COTW Group, including but not limited to merger and/or acquisition.
16.6 Those clauses that by their nature are expressly or implicitly intended to survive the termination or expiry of these Terms and Conditions, shall so survive, including but not limited to clauses 2, 9, 10, 11, 12, 14 and 16.
16.7 If a provision of these Terms and Conditions is finally determined to be, or becomes, invalid, illegal or unenforceable, then such provision shall, if possible, and insofar as such clause is invalid, illegal or unenforceable, be replaced by the Parties by a valid, legal and enforceable clause reflecting as close as possible the initial intentions. If the invalid, illegal or unenforceable provision cannot be validly replaced, then no effect shall be given to said clause and it shall be deemed not to be included in these Terms and Conditions, such without affecting or invalidating the remaining provisions of these Terms and Conditions.
16.8 These Terms and Conditions have been drawn up in English and its provisions will be interpreted and construed in accordance with applicable law as set out in clause 16.10 and their generally accepted meanings in the English language. Any translation of these Terms and Conditions is for the convenience of the Parties only, and shall not be binding towards any Party. In the event of any inconsistency between the English original and its translation, the provisions of the English version shall prevail.
16.9 The rights and remedies of each Party under, or in connection with, these Terms and Conditions may be waived only by express written notice to the other Party. Any waiver shall apply only in the instance, and for the purpose for which it is given.
16.10 These Terms and Conditions and any COTW Sale are governed by, and construed in accordance with Belgian law, without reference to the conflict of law rules.
The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and its protocols is excluded.
The courts of Leuven, Belgium shall have exclusive jurisdiction to settle any and all disputes which may arise out of or in connection with these Terms and Conditions and/or any COTW Sale.
16.11 These Terms and conditions have been reviewed on 05/04/2016