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FINCORP AUCTIONS
('The Company')
FINCORP CAR AUCTION PLATFORM TERMS AND CONDITIONS
1. GENERAL
1.1. These Fincorp Auctions (Fincorp Car Auction Platform) Terms and Conditions (hereinafter referred to as 'Terms and Conditions') shall govern the sale of vehicles through the Company's website at https://auction.fincorpcredit.co.ke and/or any other internet based electronic platform or application used by the Company for the online sale of vehicles and which platform is accessible by the entire world (hereinafter referred to as the 'Fincorp Car Auction Platform').
1.2. Access to the Fincorp Car Auction Platform is on a registration basis.
1.3. All Sales on the Fincorp Car Auction Platform whether by auction or Private treaty shall be conducted in
accordance with these Terms and Conditions
1.4. These Terms and Conditions shall apply to all Users of the Fincorp Car Auction Platform including Sellers, Private Sellers, Buyers, potential Buyers, Bidders, and auctioneers.
1.5. All Users warrant that they have read and understood these Terms and Conditions.
1.6. Users shall be deemed to have accepted to be bound by these Terms and Conditions when they
click and/or sign against the section with 'I have read these Terms and Conditions' and when they click 'I accept'.
1.7. A User who disagrees with these Terms and Conditions or any part of these Terms and
Conditions, must not use the Fincorp Car Auction Platform.
1.8. A User who uses the Fincorp Car Auction Platform in the course of a business or other organizational project:
1.8.1. confirms that they have obtained the necessary authority to agree to these Terms and
Conditions; 1.8.2. confirm that they bind both themselves and the person, Company or other legal entity
that operates that business or organizational project, to these Terms and Conditions; and 1.8.3. agree that 'User' in these Terms and Conditions shall reference both the individual User
and the relevant person, Company or legal entity unless the context requires otherwise.
1.9. The Company reserves the right to make changes to these Terms and Conditions from time to time, without prior notice to the User. The most recent version of the Terms and Conditions shall be available for the User's acceptance or refusal at the time of logging into the Fincorp Car Auction Platform. The effective dates of amendments to these Terms and Conditions shall be indicated at the Appendix of the Terms and Conditions. It shall be the responsibility of the User to keep themselves updated on the Terms and Conditions and amendments thereto. Continued use of the Fincorp Car Auction Platform after any amendment of the Terms and Conditions shall be deemed to be express acceptance of or acceptance by conduct of any such amendment.
2. DEFINITIONS
2.1. In these Terms and Conditions unless the context indicates otherwise, the following words or expressions shall have the following meanings.
2.2. 'Asking Price' means the price indicated as the starting price for a vehicle that is on sale by way of Private treaty.
2.3. 'Auction' / 'online public auction' means the public sale of a vehicle by a licensed auctioneer through the Fincorp Car Auction Platform to the highest bidder.
2.4. 'Auctioneer' means a person licensed under the Auctioneers Act, 1996 (hereinafter referred
to as the 'Auctioneer's Act') to engage in auctioneering business.;
2.5. 'Auction Hours' refer to the hours between 10 am and 12 noon of the advertised date of auction, subject to a dynamic ending of the auction.
2.6. 'Bid' means an offer of money for a Vehicle. It also means virtually clicking the 'Bid Now' button on the Fincorp Car Auction Platform and entering a bidding amount;
2.7. 'Bidder' means an individual, entity or representative who submits a bid for purchase a Vehicle
listed on the Fincorp Car Auction Platform for sale;
2.8. 'Buyer' means the Bidder with the highest Bid at the end of the Auction or the purchaser of a vehicle sold by Private treaty;
2.9. 'Business Day' means the time between 8.00 a.m. to 5.00 p.m. from Monday to Friday and 9.00 a.m. to 1.00 p.m. on Saturday, with the exception of gazetted public holidays;
2.10. 'Contract of Sale' means the written contract for purchase of a vehicle formed between the Private Seller and the Buyer upon conclusion of a sale by Private treaty;
2.11. 'Deposit' means an amount of money, determined by the Company from time to time, payable by the bidders and potential Buyers, which enables them to place bids and make offers for purchase of vehicles on the Fincorp Car Auction Platform.
2.12. 'Dynamic Ending' means the automatic extension of bidding time that occurs on the Fincorp Car Auction Platform every time a bid is placed within the last 5 minutes of the indicated time of close of the auction. The time extensions may continue until there are no more bids.
2.13. 'Listing' means the placement of a Vehicle on the Fincorp Car Auction Platform for purposes of sale or marketing.
2.14. 'Offer' means an offer of money for the purchase of a Vehicle on the Fincorp Car Auction Platform;
2.15. 'Pre-bidding' means the process of placing bids before the Auction Hours;
2.16. 'Purchase Price' means the value in money payable in consideration for a vehicle bought by auction or Private treaty.;
2.17. 'Private Sale'/ 'Private treaty' means the process of selling a vehicle which is listed on the
Fincorp Car Auction Platform, by way of a deal negotiated between a Seller and a Buyer, without recourse to an auction process;
2.18. 'Private Seller' means a person who has delivered his vehicle to the Company for the Company to sell the vehicle by way of Private treaty and who pays a commission agreed upon with the Company for a successful sale together with any other charges as may be agreed upon between him and the Company;
2.19. 'Reserve Price' means the price indicated on the Fincorp Car Auction Platform as the lowest acceptable price for a vehicle;
2.20. 'Seller' means a lender, creditor or Private Seller who is entitled in law to sell a Vehicle on
auction,
2.21. 'User' means any person who uses the Fincorp Car Auction Platform and includes a Bidder, Buyer, Seller, Private Seller and auctioneer;
2.22. 'Vehicle(s)' means any kind of motor car, supercar, motor cycle or motorised caravan, every
kind of commercial, agricultural and other self-propelled vehicle, together with mechanical and electrical plant and equipment;
2.23. Any reference in these Terms and Conditions to:
2.23.1. a clause is, subject to any contrary indication, a reference to a clause of these Terms
and Conditions;
2.23.2. where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
2.23.3. if any provision in a definition confers rights, or imposes obligations on any party, effect is to be given to it as a substantive provision of these Terms and Conditions;
2.23.4. unless the context indicates otherwise an expression which denotes any gender includes
both the others;
2.23.5. reference to a natural person includes a juristic person;
2.23.6. the singular includes the plural, and the plural includes the singular;
2.23.7. any number of days prescribed in this Agreement refers to business days and excludes the first day and includes the last day;
2.23.8. unless the context indicates otherwise, if the day for payment of any amount or
performance of any obligation falls on a day which is not a Business Day, that day will be the next Business Day;
3. USE OF THE FINCORP CAR AUCTION PLATFORM
3.1. The use of the Fincorp Car Auction Platform shall be governed by these Terms and Conditions and as far as the circumstances of each sale transaction permit, the Laws of Kenya, including the Auctioneers Act, 1996, The Auctioneers Rules, The Data Protection Act, 2019, the Law of Contracts Act, the Sale of Goods Act, and, the Company's Website Terms of Use Policy and Company's Data Privacy Policy.
3.2. The Company makes no promises or guarantees as to the availability of the Fincorp Car Auction Platform,
or that a User will have uninterrupted, secure or error free access to the Fincorp Car Platform. The Company excludes all liability in relation to any inability of a User to access the Fincorp Car Auction Platform, place Bids, make Offers or availability of real time notifications.
3.3. A User agrees that the use of the Fincorp Car Auction Platform which includes making Offers, placing Bids and purchasing vehicles, is at the User's own risk and that Offers and Bids might not be received, accepted or utilised.
3.4. By using and accessing the Fincorp Car Auction Platform, the User warrants and promises that the User: a. is at least 18 years old. b. has the right, authority and capacity to enter into a legally binding contract. c. has supplied the Company with accurate and true details about the User. d. shall be solely liable for actions taken using the User's Username and password to
access the Fincorp Car Auction Platform, whether taken by the User or third parties and/or with or without the User's consent or knowledge.
e. will act lawfully, diligently and honestly at all times when accessing and using the Fincorp Car Auction Platform and will comply with all laws and regulations.
f. will not interfere with, jeopardise, disrupt or harm the Fincorp Car Auction Platform and will not intercept, expropriate, re-use, steal or re-utilise any system, data, photographs or information comprised in or provided via the Fincorp Car Auction Platform.
3.5. The Fincorp Car Auction Platform and all information, content, materials, products (including
software) and services included on or otherwise made available to the User are provided on an 'as is' and 'as available' basis, unless otherwise specified in writing.
3.6. The Company disclaims all warranties, expressed or implied, including, but not limited to,
implied warranties of merchantability and fitness for a particular purpose.
3.7. The User acknowledges that the Company:
a. is not a party to the sale of any Vehicle; b. does not warrant that the Seller is willing and/or able to perform its obligations to the
Buyer as contained herein; and c. will not be a party to any dispute between the Seller and the Buyer in relation to the
Vehicle.
3.8. The Company reserves the right in its sole discretion and without giving reasons to exclude any User from using the Fincorp Car Auction Platform where the User has breached or threatens to breach these Terms and Conditions and/or engages in any behaviour which the Company in its sole discretion regards as likely to have an adverse effect on the conduct of the sales on the Platform or the reputation of the Company.
3.9. The Company reserves the right in its sole discretion and without giving reasons to exclude
and remove any vehicle listed for sale on the Fincorp Car Auction Platform.
4. USER AND VEHICLE REGISTRATION
4.1. User Registration
4.1.1. All the Users shall: a. complete, in full, the registration or subscription documents provided on the Fincorp Car Auction Platform; b. certify that the information provided by the User in all respects is true and correct; c. furnish the Company with such supporting documentation as may be required by
the Company for any reason whatsoever; d. acknowledge that the bidding for any Vehicle on the Fincorp Car Auction Platform and any
sale concluded as a result thereof will give rise to a contractual relationship between the Seller and the Buyer.
4.1.2. All Sellers other than Private Sellers may be required to register and pay a non-refundable,
non- transferable annual subscription fee as may be determined by the Company from time to time.
4.1.3. All Sellers including lenders, creditors, financial institutions, commercial Sellers, and, auctioneers who sell more than one (1) Vehicle in a year on the Fincorp Car Auction Platform must be registered Users and may be required to pay an annual subscription fee as may be determined by the Company from time to time.
4.1.4. Any Private Seller who wishes to gain access to the Fincorp Car Auction Platform must register as
required for all other Users and pay any fees as may be determined by the Company.
4.1.5. It shall be the sole responsibility of the User to keep and maintain the safety of their
account name or number and password.
4.1.6. The Company reserves the right to deny access to Users without any explanation or to make approval of a User subject to special conditions.
4.1.7. The User's registration is deemed to be consent by the User that the Company may
conduct various checks on the User including checks with any third parties as circumstances may require.
4.1.8. The Company may from time to time request updated information from the User to verify
the User's information or for any other purpose the Company may deem fit.
4.2. Vehicle Registration
4.2.1. Unless otherwise agreed with the Company in writing, a Vehicle shall not be deemed
accepted for listing unless and until the Seller, Private Seller or auctioneer has complied with clause 4.1 above and has produced:
a. the Vehicle and stored it at any authorized storage facility; b. a copy of the Vehicle's logbook; c. the keys of the Vehicle; d. any required entry fee as shall be communicated by the Company from time to
time.
4.2.2. It is the duty of the Seller or Private Seller to ensure the Vehicle is insured against third
party damage and/or theft whilst at the storage facility or otherwise in the Company's control and shall remain insured until risk passes to a Buyer
4.3. The Deposit
4.3.1. Any User who wishes to place a bid or bids, offer or offers on any vehicle or vehicles on
sale on the Fincorp Car Auction Platform must pay a refundable Deposit of Kshs. 5,000/= as shall be directed by the Company via the Fincorp Car Auction Platform.
4.3.2. Any bidder whose bid is not successful shall be entitled to a refund of the Deposit less any applicable transaction fees but may in writing request the Company to retain the Deposit for use in future sales.
4.4. Fees due to the Company
4.4.1. Without prejudice to any other rights of the Company under these Terms and Conditions
in respect of the charging of commission, entry fees, and any other relevant fees, the Company is entitled to charge commission in all cases including but not limited to:
a. when a Vehicle is sold via auction irrespective of whether the sale is later rescinded (save further to an act or omission of the Company);
b. if the Vehicle is sold (or re-sold) by way of Private Sale; c. if the Vehicle is re-sold further to the default of the Buyer or the Seller; d. if the Seller becomes the Buyer.
5. ONLINE PUBLIC AUCTION
5.1. All Online Public Auctions shall be conducted by a licensed and duly instructed auctioneer.
5.2. All online Public Auctions shall be conducted in accordance with these Terms and Conditions, and, in as far as they are applicable to the conduct of public auctions, the Auctioneers' Act and the Auctioneers' Rules.
5.3. All Users understand that the Fincorp Car Auction Platform facilitates the conduct of simultaneous auctions.
5.4. All vehicles for sale by way of online public auction shall be registered on the Fincorp Car Auction Platform
by an auctioneer.
5.5. An online public auction shall be overseen by the auctioneer who registered the vehicle on the Fincorp Car Auction Platform.
5.6. A vehicle registered on the Fincorp Car Auction Platform for auction can only be withdrawn by the auctioneer who registered it subject to payment of all charges incurred by the Company.
5.7. Where a sale of a vehicle is subject to a reserve price, and subject to contrary instructions by a Seller, the vehicle cannot be sold below the reserve price.
5.8. The reserve price of a vehicle shall be indicated on the Fincorp Car Auction Platform as the starting price of the vehicle.
5.9. Where a sale is subject to a reserve price, the successful bid may equal the reserve price.
5.10. Every bid shall constitute a firm offer to purchase the Vehicle on offer for the bid amount.
5.11. Bids can only be submitted electronically through the Fincorp Car Auction Platform. No alternative form of bidding shall be accepted or considered valid for any reason whatsoever.
5.12. The Fincorp Car Auction Platform may bear a standard rate of increment of bids.
5.13. The Fincorp Car Auction Platform permits Users to place pre-bids.
5.14. Pre-bids escalate the price of the vehicle.
5.15. Pre-bids are visible to all registered Users of the Fincorp Car Auction Platform.
5.16. Pre-bids mature into bids at the commencement of the auction.
5.17. An online public auction shall be conducted during the Auction Hours.
5.18. When the live auction commences, the highest pre-bid shall be the starting bid.
5.19. Bids may continue to be made during the auction hours.
5.20. A Bidder may retract a bid at any time before the sale is complete.
5.21. A bid may be retracted by way of an email to info@fincorpcredit.co.ke during the Auctions Hours.
5.22. A sale is complete when the highest bid is accepted by the auctioneer and highest Bidder notified of his successful bid by way of an email from the auctioneer following the end of the Auction Hours.
5.23. An auction on the Fincorp Car Auction Platform shall close at the end of the Auction Hours subject to a dynamic ending.
5.24. The highest bidder at the end of the Auction Hours, is the Buyer of the vehicle on auction.
5.25. In the event of equal bids being received during an auction, and the said equal bids being the highest bids received, the Auctioneer shall declare the bidder who placed the first highest bid, as Buyer of the vehicle.
5.26. The Highest bidder may receive an email notification of his successful bid from the Fincorp Car Auction Platform.
5.27. The highest Bidder shall within a reasonable time after the lapse of the Auction Hours receive by way of an email from the auctioneer, a confirmation of purchase and payment details in respect of the monies due for the Vehicle purchased.
5.28. In the event that the highest bidder withdraws their bid after the sale, the Deposit paid by the bidder with the Fincorp Car Auction Platform shall be forfeited and the next highest bid shall be declared the winning bid, subject to meeting the reserve price.
5.29. The Vehicles will be sold not earlier than seven days after the first newspaper advertisement and not later than fourteen days thereafter.
5.30. If a vehicle is not sold on any of the days it is put up for auction, the auctioneer shall take instructions from the Seller on the re-advertisement of the motor vehicle and a subsequent auction or auctions may be conducted at the date and time prescribed in the subsequent advertisement or advertisements.
5.31. A vehicle that is subject to taking of further instruction by the auctioneer may continue to appear on the Fincorp Car Auction Platform for marketing purposes only.
5.32. If after a re-advertisement a vehicle does not receive any bids, the auctioneer may elect to withdraw the motor vehicle from the Fincorp Car Auction Platform and explore an alternative mode of auction or sale.
5.33. Once a vehicle is auctioned, the vehicle shall be removed from the Fincorp Car Auction Platform.
5.34. Title, ownership and risk in the vehicle sold on auction vests in the Buyer upon completion of sale.
5.35. The auctioneer will exercise a possessory lien over the vehicle together with documents of title until full payment of the purchase price and compliance with any other conditions of sale.
5.36. Neither the auctioneer nor the Company, their employees or agents, shall be responsible for any loss or damage of any kind whether caused by negligence or otherwise while any vehicle is in their custody, possession or under their control following the completion of sale.
5.37. The Company reserves the right to cancel an auction at any time without giving reasons.
5.38. Any price indicated or conveyed at an Auction, is stated inclusive of Value Added Tax ('VAT'), other applicable sales tax and/or Company commission, if applicable.
5.39. Bidders are expressly forbidden from any form of bid manipulation, including collusion or bidding on any Vehicle that they themselves or a party affiliated with them are selling in an Auction.
5.40. Bidders are strictly forbidden from bidding under a false name or as an agent for a person who would be prohibited by these Terms and Conditions, the Auctioneers' Act, The Auctioneers' Rules and any other applicable laws, rules and regulations.
6. SELLER'S WARRANTIES, LIABILITY AND INDEMNIFICATIONS
6.1. The Seller warrants and guarantees that:
6.1.1. the Seller is the true owner of the Vehicle and/or is properly authorised to sell the Vehicle by the true owner or by law;
6.1.2. the Seller is able to transfer a good title to the Vehicle free from any third-party claims;
6.1.3. the odometer (or the total mileage of a Vehicle if stated to be different from the odometer)
if noted as 'warranted' will be true and accurate;
6.1.4. the Vehicle has its true and proper registration mark and chassis number and/or vehicle
identification number that corresponds to the Vehicle registration documents;
6.1.5. the year registered and the year of manufacture which has been provided by the Seller is
correct (save that when the expression 'unknown' or 'year as seen' is used – no warranties or representations are given regarding the age of a Vehicle); and
6.1.6. all representations made and documents and/or information provided by the Seller in any
form concerning the Vehicle are accurate and informed, and the Seller acknowledges that such representations will be relied upon by the Company, the auctioneer and the Buyer.
6.1.7. the Vehicle is free from any encumbrance in favour of any third party not declared or
known to the Seller at the time of sale.
6.2. The Seller shall not interfere with an auction process unless called upon by the Auctioneer effecting the auction. -
6.3. The Seller shall indemnify the Company, its servants and agents, the Auctioneer and the Buyer
against any loss or damage suffered by them in consequence of any breach of the warranties set out herein above on the part of the Seller.
6.4. So far as permitted by law, the Seller agrees to indemnify, defend, and hold the Company harmless from any and all damages, losses, liabilities, costs, expenses including legal fees, disbursements, and VAT, or claims (whether direct or indirect, known or unknown, foreseen or unforeseen) that may arise from or be related to the damage of the Vehicle or any other event affecting the Vehicle, unless such event or damage is a result of the Company's negligence.
6.5. So far as permitted by law, the Seller agrees to indemnify and keep indemnified, defend, and
hold the Company harmless in respect of any liability to taxation, duty, charge or levy in the nature of taxation (including all penalties, charges, costs and interest relating to any of them), past, present or future, wherever imposed, that the Company may suffer as a direct or indirect consequence of the use of the Fincorp Car Auction Platform and/or Services.
Terms and Conditions Effective Date