Fenda Terms and Conditions
1. Terms and conditions
1.1 Terms and conditions
Welcome to Fenda, a private sale vehicle facilitation platform. These terms and conditions are intended to help keep Fenda a safe place to buy or sell a vehicle privately. These terms and conditions were last updated on 1 June 2019.
1.2 Acceptance of terms and conditions
The terms and conditions are the terms on which Fenda offers you access to the Services and the Website. By using Fenda’s Services and Website, you agree to accept and be bound by these terms and conditions (including any additional terms and conditions and policies referenced herein or available by hyperlink).
1.3 Amendment of terms and conditions
Fenda may amend these terms and conditions from time to time. Fenda will communicate all changes through an announcement on the Website. Amendments will be effective immediately upon posting of the amended terms and conditions on the Website unless otherwise stated. You are responsible for ensuring you are familiar with and understand the latest terms and conditions. Your continued use of the Services represents your agreement to be bound by the terms and conditions as amended. For the avoidance of doubt, any new features or tools which are provided by Fenda shall also be subject to these terms and conditions.
In these terms and conditions, the following expressions have the meanings set out:
- ‘buyer’ includes any person using the Website and Services to purchase a vehicle.
- 'listing' means a listing on the Website through which you offer, negotiate, buy, sell or advertise any vehicle.
- 'seller' includes any person placing a listing.
- 'Services' means any one or more of the services offered by Fenda from time to time, including facilitating the online sale of vehicles, assisting users to access finance and insurance providers and any other service that Fenda may offer from time to time.
- 'user' means a registered user of Fenda, including buyers and sellers.
- 'we', 'us', our' and 'Fenda' are a reference to Fenda LP (registration number 2706071).
- 'vehicle' means any motor vehicle that may be bought or sold through Fenda.
- ‘Vehicle Sale Agreement’ means a vehicle sale agreement relating to the sale of a vehicle between a buyer and a seller in the form published on this Website from time to time.
- 'Website' means any Fenda website, application or other platform through which the Services are offered.
- 'you' and 'your' are a reference to you.
2. Specific warnings
2.1 The Services
Fenda provides a platform to help buyers and sellers of vehicles strike a deal on their own. It then assists buyers to access finance and insurance providers. Fenda does not take any part in the sale of privately owned vehicles other than by providing our Website as a platform for buyers and sellers of vehicles to strike a deal.
2.2 Vehicle Sale Agreements
Any agreement between a seller and a buyer will be formed directly between the buyer and seller and on the terms of the relevant Vehicle Sale Agreement. We do not act as agent for either party and do not participate in any sale or transaction between the buyer and the seller of the vehicle.
2.3 Consumer Law
To the maximum extent permitted by applicable law, you agree not to make, and waive and release any right you may have, to make any claim against Fenda and all liability under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986. If and to the extent that these terms and conditions conflict with any of the provisions of the Consumer Guarantees Act 1993 and Fair Trading Act 1986, these terms and conditions shall be modified to the extent necessary to give effect to those provisions. Without limiting this clause 2.3, Fenda’s related parties may market their own line of vehicles for sale and will expressly state if the vehicle listed on the Website is a Fenda vehicle. Sales of Fenda vehicles will be governed by the Motor Vehicle Sales Act 2003, the Consumer Guarantees Act 1993 and the Fair Trading Act 1986, to the extent applicable.
2.4 At your own risk
Transactions and all other contact between you and any other party are conducted entirely at your own risk. You agree that Fenda takes no responsibility or liability for any misconduct of any of its users or third parties including, without limitation, users that have registered under false pretences or who attempt to defraud you. Fenda gives no undertakings, representations, or warranties in relation to vehicles sold or listed on the Website.
You expressly understand and agree that:
- your use of the Services is at your sole risk. The Website and Services are provided on an "as is" and "as available" basis. To the maximum extent permitted by law and without limiting clause 2, Fenda disclaims and excludes all implied conditions or warranties, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, and non-infringement;
Fenda does not warrant that:
- the Services provided will be uninterrupted, timely, secure, or error free;
- that any information provided on the Website is error-free or reliable; or
- that any such problems which are discovered will be corrected;
- no advice or information that is obtained by you from Fenda or anyone else shall create any warranty or guarantee by Fenda;
- responsibility for the content of advertisements or third parties appearing on this Website (including hyperlinks to advertisers' or third parties’ own websites) rests solely with the advertisers or third parties. The placement of any advertisements on the Website does not constitute Fenda’s recommendation or endorsement of the advertised product or service. Each advertiser or third party is solely responsible for any representation made in connection with its advertisement or content;
- you will be bound by the terms and conditions of any Vehicle Sale Agreement entered into by you and agree to settle any transaction on the terms of that Vehicle Sale Agreement (including, but not limited to, the transfer of property, title and ownership, payment, transfer of keys and satisfaction of conditions);
- you will not provide information that is false or misleading and are solely responsible for the correctness of any information (including, but not limited to, bank account details, licence details and vehicle details);
- with any insurance or finance product or service that you have purchased, that you have read all documentation relating to the product or service (including the policy and disclosure documents) and understand how the documentation applies or does not apply to you;
- with any insurance or finance product or service, that you have purchased the product or service of your own accord from the relevant provider and that it is fit for purpose;
- Fenda does not warrant as to the suitability of any insurance or finance product or service which you access through the Website;
Fenda is not a financial adviser for the purposes of the Financial Advisers Act 2008 (FAA). Fenda will not, and you acknowledge that Fenda has not:
- advised or recommended you purchase any insurance or financial product or service;
- given an opinion in relation to any purchase by you of any insurance or financial product or service; or
- otherwise given financial advice to you (as defined in the FFA).
Fenda is not a broker and does not provide a broking service for the purposes of the FAA. Fenda does not hold, transfer or otherwise deal with any client money or client property and does not take any responsibility for:
- payments to be made by users or any third parties;
- payments to be made by insurance or finance providers;
- any other payments relating to the use of the Website and the Services (including the settlement of any transactions and Vehicle Sale Agreements); or
- failure to pay by any party in respect of the payments referred to above, including where Fenda has communicated, for the purpose of facilitating settlement of any Vehicle Sale Agreement, evidence that such a payment has been made by that party.
- Fenda is an insurance intermediary and you acknowledge that any money paid to Fenda for insurance products and services are received by Fenda on behalf of the relevant insurer. Pursuant to section 4 of the Insurance Intermediaries Act 1994, any money paid by you or on behalf of you to Fenda in respect of insurance products and services (whether a premium or otherwise), under or in relation to any contract of insurance that has been arranged or effected, or that is to be arranged or effected by Fenda, shall be a discharge as between you and the insurer of your liability to pay that money to the insurer.
- Fenda is not responsible for the transfer of any property, title or ownership in any vehicle (other than any administrative tasks that may be expressly provided for in any Vehicle Sale Agreement);
- Fenda does not warrant as to the transfer of property, title or ownership in respect of any vehicle. Any references to “transfer of ownership” or “change or ownership” (or similar) by Fenda are a reference to notification of a transfer of the “registered person” in respect of the relevant vehicle via the New Zealand Transport Agency website (www.nzta.govt.nz/vehicles (as updated from time to time)); and
- Fenda does not provide any warranty, guarantee or representations in relation to any vehicle reports, VTNZ reports or any other reports or representations of third parties in relation to vehicles sold through Fenda. The provision of any vehicle report or VTNZ report is complimentary and for informational purposes only, and is relied on by you solely at your own risk and Fenda takes no responsibility for the accuracy or completeness of any such reports.
You agree that, to the maximum extent permitted by law, any and all liability and responsibility of Fenda to you or any other person under or in connection with these terms and conditions, or in connection with the Services, this Website, another user's acts or omissions, or your use of or inability to use, the Services or this Website, is excluded regardless of how that liability arises. Fenda’s liability and responsibility is excluded in respect of any and all loss or damage, whether direct or indirect, including, without limitation, loss of profits, loss of data, loss of a sale or anticipated savings, general and special damages and consequential and incidental loss.
You agree to release, indemnify and keep Fenda indemnified from and against all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities, or demands suffered or incurred by Fenda to any person arising out of or in connection with your failure to comply with these terms and conditions and your failure to settle, or otherwise comply with the terms of, any Vehicle Sale Agreement.
Without limiting any other rights and remedies available to Fenda, Fenda may limit your activities on the Website and your use of the Services if you breach these terms and conditions or where Fenda considers it appropriate, in Fenda’s absolute discretion.
3. Becoming a user
You may only register as a user if you:
- are resident in New Zealand and can form a legally binding contract that is enforceable against you;
- are at least 18 years old; and
- have a valid New Zealand driver’s licence.
By registering as a user, you warrant that the above is true.
3.2 Accurate Information
You warrant that you have provided complete, accurate and current personal information (including personal information about third parties) when registering as a user. You must maintain and update your personal information held by Fenda to ensure it is kept current at all times. Fenda may contact you to verify these details.
Fenda reserves the right to decline to register or to terminate your use of the Website and Services (in its absolute discretion) without entering into further discussions with you and without limitation. In the event of termination, you agree that you will not attempt to use Fenda in the future without Fenda’s express permission.
Fenda may send users emails and other forms of marketing or communication as part of the provision of its Services. It is our policy to promptly remove any user from any ongoing communications upon the user’s request. Any correspondence will contain clear and obvious instructions for how the user can unsubscribe and there is no penalty for opting out.
- All vehicle listings, bids or communications made through Fenda shall be made in good faith.
- You must not attempt to gain unauthorised access to any portion or feature of the Website, or attempt to obtain any materials, information or documents through any means not purposely made available by Fenda, including without limitation, hacking, password mining or otherwise accessing data without authorisation.
- You must not upload or use any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or the Website.
- You must not impersonate any person or entity, or falsely state or otherwise misrepresent yourself.
- You must not use or transmit the private information of any third party, including, without limitation, names, addresses, phone numbers and email addresses unless you have the express consent of that third party to do so.
- You must list your vehicle in New Zealand dollars and, if applicable, include GST in the price.
- You must not use the Services or the Website to promote vehicles for sale outside the Services.
- You agree you comply with all applicable laws.
- You are responsible for any actions taken through your use of Fenda.
4.2 Your obligations as a seller
- Vehicles advertised for sale must be located in New Zealand.
- You will only enter vehicle listings that are accurate, current, complete, and include all relevant information about the terms of sale.
- You will only place listings for vehicles that exist, are to be sold, and that you are legally entitled to sell.
- You must not manipulate prices (in whatever form).
- If you are a motor vehicle trader selling a car online through Fenda, you must attach to the motor vehicle a Consumer Information Notice (CIN), in a prominent position on your listing and provide the CIN to the buyer and comply with all applicable laws.
- You authorise us to search the Motor Vehicle Traders Register on your behalf to check your registered motor vehicle trader status (RMVT).
- Regardless of whether you are a RMVT or not, if you are selling a car on Fenda, you are required to ensure that the buyer of the vehicle takes the vehicle free of any security interest.
- You must not register a vehicle for sale if that vehicle is more than 15 years old, as at the date of the proposed listing.
4.3 Your obligations as a buyer
- You must be located in New Zealand to buy on Fenda.
- If you are notified that your bid has been successful, you must complete the transaction in the manner specified and in accordance with the relevant Vehicle Sale Agreement.
- By making a bid, you warrant and represent that you have the legal right to enter into and complete the transaction.
5. Fees and commissions
5.1 Fees and commissions
- Fenda is a free service for sellers to list their vehicles and negotiate with buyers.
- Fenda is a free service for buyers to use to negotiate the purchase of a vehicle. However, it is designed for buyers that wish to use Fenda as a platform to access finance and insurance products and services for the acquisition of a vehicle privately.
- Fenda primarily earns fees from the insurance and finance providers that have access via the Website. Third parties (such as finance or insurance providers) may pay referral fees and/or a commission to Fenda as a result of your use of their services via the Website. By using Fenda’s Website and Services, you accept and acknowledge that such commissions may be received by Fenda.
- Any fees (such as monthly administration fees) paid directly to insurance and finance providers in relation to the purchase of vehicles through the Website are not the responsibility of Fenda.
- Fenda reserves the right to change the fees charged for any of our Services at any time. In the event that we introduce a new Service, the fees for that Service are effective at the launch of the Service, unless otherwise stated.
- All fees are inclusive of GST and in New Zealand dollars unless otherwise stated.
6.1 System Integrity
Fenda will use its reasonable endeavours to ensure the availability of the Website and Services, subject to any downtime required for maintenance. However, Fenda takes no responsibility for any system unavailability, or for any loss that is incurred as a result of the Website or the Services being unavailable. Further, Fenda assumes no responsibility for the corruption of any data or information held by Fenda.
6.2 Resolution of disputes
As Fenda is not a party to any sale or transaction between you and another user, you agree not to involve, or attempt to involve (in whatever capacity), Fenda in any dispute or in the resolution of disputes that arise between you and another user or third party as a result of your use of the Website or the Services.
6.3 Force Majeure
Fenda has no liability for any lack of performance, unavailability or failure of the Services or the Website, or for any failure of Fenda to comply with these terms and conditions, where the same arises from any cause reasonably beyond the control of Fenda.
6.4 No Waiver
If we do not exercise or enforce any right available to us under these terms and conditions, it does not constitute a waiver of those rights.
6.5 Partial Invalidity
If any provision of these terms and conditions becomes or is held to be invalid, unenforceable or illegal for any reason, and in any respect, that provision shall be severed from the remaining terms and conditions, which shall continue in full force and effect.
6.6 Governing Law
These terms and conditions are governed by the laws of New Zealand. You submit to the non-exclusive jurisdiction of the Courts of New Zealand.
6.7 Intellectual Property Rights
Fenda (and its licensors or suppliers, as the case may be) owns all proprietary and intellectual property rights in the Website (including text, graphics, logos, icons and sound recordings) and the software and other material underlying and forming part of the Services and the Website. You may not without our prior written permission, in any form or by any means:
- adapt, reproduce, copy, store, distribute, print, display, perform, publish or create derivative works from any part of this Website; or
- commercialise, copy, or on-sell any information, or items obtained from any part of this Website.
6.8 Entire agreement
These terms and conditions supersede all previous conditions, understandings, commitments, agreements and representations whatsoever whether oral or written, and constitutes the entire agreement, between the parties, relating to the subject matter of these terms and conditions.
6.10 Credit Card Cash Sale Service Policy
The cost of the inspection, vehicle check, and administration service is itemised and built into the credit card transaction. If you end up not purchasing the vehicle, the cost of the warranty and any service not used will be rebated back to your credit card. The administration service will only be charged if the purchase of the vehicle completes.