Terms and Conditionse

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1.INTRODUCTION

 

1.1Thank you for registering your interest in buying and/or selling vehicles with Auto Cash-up.  You are receiving these Terms because you have requested to register as a Member of Auto Cash-up. Auto Cash-up a service owned and powered by Auction Online Limited.

 

1.2We offer you Services on the Terms set out below.  It is important that you read and understand these Terms before you complete your registration as a Member because your use of the Services is governed by and subject to these Terms and, by using the Services, you confirm that you have read, understood and agree to these Terms.  If you do not accept these Terms, please do not complete your registration and do not use the App and Website.

 

1.3These Terms are ‘live’ and will be updated by us as and when necessary.  We will email you to advise of any changes to these Terms and those changes will be effective 72 hours after that email is sent. Please ensure you understand any updated Terms as your continued use of the Services and the App or Website constitutes an acceptance of the current Terms.

 

2.INTERPRETATION

 

2.1In these Terms, the following terms have the meanings set out:

 

(a)“App” means the Auto Cash-up application installed to a mobile device or the website, through which the Services are offered.

 

(b)“Auto Cash-up” means Auto Cash-up service owned by Auction Online Limited(company number [9429046385024]) and its officers, employees, contractors, representatives, agents and related bodies corporate.

 

(c)“Buyer” means the Offeror whose offer is accepted by the Seller.

 

(d)“Expired Listing” means a Listing where the advertisement for the Vehicle has been removed from the App or Website for any reason including but not limited to the removal for:

(i)Breach of these Terms; and

(ii)Expiry of the Listing period and no offer has been accepted by the Seller within the time allocated after the end of the Offer Period.

 

(e)“Intellectual Property” means all proprietary and intellectual property rights in the App and Website (including text, images, logos and sound recordings) as well as the software and other materials and systems comprising the App, the Website, and the Services.

 

(f)“Listing” means a listing of a Vehicle for sale on the App and/or Website.

 

(g)“Member” means any user who is registered to use the App and/or the Website and “Membership” means your membership with us allowing you to use the App and Website.

 

(h)“Success Fee” means the charged fee to be paid, when a seller accepts an offer made by any offeror.

 

(i)“Offeror” means a Member who makes an offer on a listed Vehicle within the Offer Period.

 

(j)“Offer Period” means the period after a Listing is live on the App or Website.

 

(k)“Purchase Price” means the price of the Vehicle as offered by the Offeror and accepted by the Seller.

 

(l)“Seller” means a person creating and placing a Vehicle Listing.

 

(m)“Services” means the provision of the App and Website as a platform for advertising Vehicles for sale and the facilitation of the sale of a Seller's Vehicle on the App and Website, and any other service that Auto Cash-up may offer.

 

(n)“Terms” means these terms and conditions and any amendments thereto.

 

(o)“Vehicle” means a motor vehicle as defined in the Motor Vehicle Sales Act 2003.

 

(p)“We”, “Us” and “Our” means Auto Cash-up.

 

(q)“Website” means our website which a Member can access for the purposes of utilising our Services.

 

(r)“You” and “Your” means you.

 

3.BUYER ACKNOWLEDGEMENTS

 

3.1You acknowledge and agree the following:

 

Buyer Requirements

 

(a)All Offerors, Buyers must be registered on our website.

 

(b)You must be at least 18 years old at the time of registration.

 

(c)You must be a resident in New Zealand. 

 

(d)You must hold and maintain a Motor Vehicle Trader Licence in New Zealand and shall inform us immediately if such licence lapses or is terminated.  You authorise us to search the Motor Vehicle Traders Register to confirm this status.  If you cease to hold such licences, you must cease from selling or attempting to purchase a Vehicle on our App and Website.

 

(e)You may only register as a Buyer once and must not register under multiple personas or identities.

 

(f)You warrant that all information you provide to us when registering as a buyer and in any subsequent exchanges is complete, accurate and current and you will immediately email us at info@auctiononline.co.nz to advise of any changes to that information.

 

(g)We may, in our sole discretion, refuse to register any Member for any reason without entering into further discussion with you.

 

(h)If any buyer ceases to fulfil any buyer requirement at any time, we reserve the right to terminate Membership effective immediately.

 

(i)Membership may not be transferred, borrowed, leased, sold or otherwise traded without our prior written consent.

 

(j)You must be “in trade” and all Vehicles bought or sold by you via the App and Website are bought and sold solely for a business purpose.  The guarantees and implied terms and conditions contained within the Consumer Guarantees Act 1993 are therefore excluded to the greatest extent permissible by law.

 

(k)You are responsible for maintaining and promptly updating your account on our App and Website for accuracy and completeness.

 

(l)If any licence or consent of any government or other authority is required for the acquisition, carriage, use, purchase or sale of the Vehicles, it is your obligation to and shall obtain such licence or consent at your own expense and if necessary produce evidence to us on demand.

 

Provision of Services

 

(m)We facilitate the introduction of buyers and sellers and provide the platform to Members looking to buy and sell Vehicles for the purposes of the Member’s business through our App and Website.

 

(n)We do not facilitate sale and purchase transactions between Buyers and Sellers.  These must be conducted independently in accordance with the rules set out at clause 4.

 

(o)We provide a system by which Buyer and Seller’s details are exchanged through our App and/or Website but we are not a party to any sale and purchase transaction between a Buyer and a Seller. 

 

(p)Responsibility for any refund rests solely with the Seller.

 

(q)Members use the App and Website at their own risk.  We assume no responsibility and shall not be liable for any acts or omissions of our Members, including attempts by Members to defraud other Members.

 

(r)We do not provide any warranties or representations in relation to any Vehicles or Members.  You are solely responsible for carrying out your own due diligence on any Vehicle.

 

(s)You may use the App and Website for legitimate, legal purposes only.

 

Security of Information

 

(t)We take reasonable steps to ensure the safety and privacy of information transmitted via the App and Website, we do not warrant that information transmitted via the App and Website, including payment information, will be secure, uninterrupted or error free.  The transfer of information is therefore at Members’ risk.

 

(u)Your use of the Services, the App and Website, are at your sole risk.  The App and Website are provided on an “as is” basis and, to the maximum extent permissible by law, we exclude any and all implied warranties including warranties as to fitness of purpose, merchantability and non-infringement.  You acknowledge that we do not guarantee or warrant that the Services, or any information contained in the App and Website, will be reliable or provided without error or interruption, nor that the App and Website or any of the systems underling the App and Website are free from errors, viruses, worms, Trojan horses or any other destructive features.

 

(v)You agree to keep your login information secret and secure.  You must not to disclose your username, password, contact details, birth date or any other information that may enable any other person to access your Membership.

 

(w)You may not allow any other person to use your Membership.  You are responsible for any actions taken through your Membership account.

 

(x)You must not damage or interfere with the App, Website and Services or any system enabling such Services.

 

(y)You agree that you will take all reasonable steps to ensure viruses or other destructive features are removed prior to submitting any information to us, any Member, or to the App and the Website.

 

4.OBLIGATIONS AND ACKNOWLEDGMENTS

 

Seller’s obligations and acknowledgments

 

4.1Where you are a Seller, you understand and agree to the following :

 

(a)You must ensure that any representation made, or information contained, in a Listing is accurate, current, complete, and does not create the potential to mislead or deceive Members.

 

(b)You must not change or revise any descriptions made or referred to in a Listing after the commencement of the Offer Period, unless that description is inaccurate or has the potential to mislead or deceive Offerors.

 

(c)All Listings must comply with New Zealand law and shall not contain any information that is offensive.

 

(d)You must hold the copyright or a license to use any reproduced text or images included in any Listing.  You indemnify us in respect of any claim, damages, suit or demand and all associated costs (including legal costs and expenses) incurred by us in relation to a breach by you of any third party’s intellectual property rights via the App, Website, and other Services.

 

(e)All Offers made by Offerors are “less” than price which means that the actual purchase price payable by the Offeror is subject to a final inspection of the Vehicle.

 

(f)The Purchase Price for a vehicle shall exclude GST, unless it has been agreed independently between yourself and the Buyer that the Purchase Price is GST inclusive. Tax obligations are your responsibility and we have no liability in this respect.

 

(g)All Listings must specify the terms of sale, payment terms and general location of the Vehicle.

 

(h)You may only place a Listing for a Vehicle that you are legally entitled to sell. 

 

(i)You may only list Vehicles that are either in your possession or, if a Vehicle is in transit to New Zealand, you must hold clear authority to sell such Vehicle and you shall specify in the Listing that the Vehicle is in transit and advise the expected date of landing.

 

(j)All Vehicles listed on the App and/or Website must be free of any security interest.  If there is a security interest over the Vehicle the Seller must clearly disclose this in the Listing.

 

(k)All Listings, bids and communications made on the App and/or Website must be made in good faith.

 

(l)You may not list your contact details in your Membership profile, in any Listing or in any other place other Members may have access to.  You may not include in a Listing a link to your own website, which contains your contact information.

 

(m)You must upload to the App and Website your usual terms of trade on your listing so that other Members are aware and have the opportunity to agree the terms of getting into business with you.

 

(n)You must ensure that the Vehicle in your Listing is located in a safe location and you must comply with all health and safety standards as required under the Health and Safety at Work Act 2015 so that the viewing and transaction can take place in a safe manner.

 

Offeror’s Obligations and acknowledgments

 

4.2Where you are an Offeror, you understand and agree to the following:

 

(a)You shall only make an offer if you intend to purchase the Vehicle for the price you have offered.

 

(b)Offers may not be removed or varied once made unless agreed otherwise by the Seller so you must ensure that you are completely satisfied your offer made and is able to complete the purchase if your offer is accepted

 

(c)Offers are valid for 48 hours after the Offer Period has ended or until such time that an offer is accepted by the Seller for the listed Vehicle.

 

(d)By making an offer, you warrant that you have the legal right and authority to enter into and complete the transaction.

 

(e)Sellers do not need to provide an expected purchase price for the Vehicle on their Listing.  It is up to you to provide your best offer.  You agree that your offer will be valid and available to the Seller to accept for a period of 48 hours from the end of the Offer Period.  Once accepted, you have an obligation to purchase the Vehicle.  You must not make an offer on more than one Listing unless you are able to purchase both on the due date of purchase.

 

(f)You are solely responsible for conducting your own research and due diligence on the Vehicles and Seller, including a search of the Personal Property Security Register and Written Off and Damaged Vehicles Register, and checking all necessary certificates, permits and other authorisations have been obtained.

 

(g)You accept that Vehicles may be second hand, imported, write-offs, or damaged, and are sold as seen, including with any faults, imperfections and errors in descriptions.  Offerors shall satisfy themselves as to the condition of a Vehicle and should exercise their own judgment as to whether a Vehicle is consistent with the Listing information.  No photos or other images should be relied on as providing an accurate or complete representation of the condition of any Vehicle.

 

(h)You must pay the Purchase Price to the Seller directly within 24 hours of being notified that your offer has been accepted or at a time that has been agreed between yourself and the Seller.  We do not have control of this part of the transaction and you agree to indemnify us for any claims arising from late payment of the Purchase Price.

 

(i)You will arrange to collect the Vehicle, at your cost, from the Seller.

 

(j)Risk passes to the you upon collection of the Vehicle. Collection shall be deemed complete when the Seller gives possession of the Vehicle to you.

 

(k)If you do not pay for the Vehicle when you are the accepted Offeror, and the Seller complains to us, you will receive a warning.  If we receive two complaints of this nature, we may suspend or terminate your Membership in accordance with clause 7.

 

(l)If you are not satisfied that any Vehicle you have purchased via the App or Website is consistent with the information contained in the Listing please immediately advise the Seller and attempt to achieve a settlement between yourselves.  We are not a party to the transaction so we do not assume any liability, but we can assist by providing the necessary information about our involvement leading up to the purchase, if required.  You indemnify us of any claims arising out of this clause.

 

(m)You are responsible for checking Vehicles upon delivery and verifying that they are in satisfactory condition, in accordance with their description and complete.

 

(n)Each Seller may have their own terms of trade. You agree to read the terms of trade of a Seller before you enter into a business transaction with the Seller. Our Website and App relies on Sellers being honest about their terms of trade but we are not and cannot be responsible for ensuring that their terms of trade are based on commercially acceptable terms and practices.  You indemnify us for any claims arising out of this clause.

 

COMPLETION OF TRANSACTION

 

4.3Members agree to the following rules in respect of completion of transactions:

 

(a)The Seller has the sole discretion to accept any offer that is made to them for a Vehicle by an Offeror during the Offer Period.

 

(b)If the Seller has not accepted an offer within 48 hours from the end of the Offer Period, the Listing will become an Expired Listing and will be archived under the Sellers profile as an inactive Listing..

 

(c)If an offer is accepted by a Seller, a contract will form between the Buyer and Seller directly.  we are not an agent for or a party to such contract.

 

(d)After an offer is accepted by the Seller, both the Seller and the Buyer will receive an email notification from us which will include the required contact details. Both the Seller and the Buyer shall make contact with each other as soon as possible after receiving this email and shall determine payment and delivery arrangements together, independently of Auto Cash-up.

 

(e)If the Buyer has not paid the Purchase Price within [24] hours of the receiving an invoice, the Seller may deem the offer lapsed and offer the Vehicle to other parties.  The Seller may not sell the Vehicle to another party within [24] hours of the Listing ending except with the Buyer’s written consent.

 

(f)We are not obliged to take any action against any Buyer or to pursue any Buyer for the non-payment of any Vehicles.

 

(g)Feedback provided in respect of any Member must be factually accurate and must not contain any defamatory, offensive or inappropriate language or content.

 

(h)You may not provide feedback on a Listing which does not relate to that Listing.

 

5.FEES

 

5.1Fees are listed in the fee schedule on the Website.

 

5.2A seller will be charge immediately after the seller has accepted an offer by an offeror. This Success Fee will be debited directly from the sellers credit/debit card which the seller must load into their profile when accepting an offer.

 

5.3A buyer will be charge immediately after the seller has accepted an offer by an offeror. This Success Fee will be debited directly from the buyers credit/debit card which the buyer must load into their profile when making an offer.

 

 

5.4If your membership is terminated for reasons recorded in clause 7, you are not entitled to any refund and there is no obligation on us to refund any fees to you.

 

5.5You must settle any debts owed to us immediately.  We may take any reasonable action against you in order to recover overdue amounts.

 

5.6Late payment of all fees, expenses or amounts payable by a Member shall constitute a default.

The Member will be liable for default interest on overdue amounts from the date payment falls due until the date of payment at the overdraft rate of our then usual trading bank plus 5%. The Member will also be liable for any costs and expenses (including legal and debt collection costs) resulting from any actions we take to recover the debt.

 

5.7It is unlikely that we will owe you any funds but if we do, no counterclaim or set-off may be deducted from any payment due to us without our written consent. 

 

5.8All payments by credit card will incur a surcharge of 2.5% of the value of the invoice; or the value of the surcharge fees imposed by the relevant credit card payment service provided, whichever is higher.  We reserve the right to verify credit or debit card payment.

 

5.9You are responsible for payment if a third party that you expect to pay you or us fails to pay.

 

6.DISPUTE RESOLUTION

 

6.1We are not a party to any transaction between Members. You therefore agree that we will not be involved in, or be responsible for, any dispute resolution between Members, and you will not attempt to involve us in any such dispute.

 

6.2If we are included in any action or proceedings between Members, the parties involved in such dispute shall jointly and severally indemnify us for any liability and/or costs (including legal costs and expenses) incurred by us in relation to such action or proceedings.

 

7.SUSPENSION OR TERMINATION OF MEMBERSHIP

 

7.1Without limiting any other rights and remedies available to us, we may remove your bids and/or Listings, limit your access to the App and Website, warn other Members of your conduct and/or suspend or terminate your Membership if:

 

(a)You breach these Terms;

 

(b)We receive a serious complaint, or two or more complaints, about you;

 

(c)You impersonate another Member;

 

(d)Your owe us the Membership Fee or Sale Fees or subscription fees if such fees are more than 7 days overdue; or

 

(e)We consider, in our sole reasonable discretion, that your behaviour is unacceptable. 

 

7.2Any such action may be exercised by us as we think appropriate in our sole discretion and without prior warning or discussion with you.

 

7.3In the event of termination of your Membership, you agree to pay us all fees, amounts payable and expenses owing an incurred as at the date of termination.

 

7.4If your Membership is suspended or terminated, you agree that you will not attempt to register as a new Member or use another Member’s account.

 

7.5If you wish to terminate your Membership, please contact us at [info@auctiononline.co.za] and your termination will be processed within [3] working days.

 

8.LIABILITY AND INDEMNITY

 

8.1We are not liable for loss of data or system failure, hacking or corruption caused by factors outside our reasonable control. We are not liable for delay or failure to perform our Services if the cause is beyond our reasonable control.

 

8.2We do not represent or warrant that the services or information accessed from or through our Website and App will be uninterrupted or free of errors, defects, viruses or other harmful components, or that any such problems which are discovered will be remedied by us.

 

8.3We do not represent or warrant that the information on our Website and App is up-to-date, accurate or complete.

 

8.4To the maximum extent permissible by law, any and all of our responsibility to any person in connection with these Terms, the Services, the App, the Website, or the act or omission of any Member, is excluded irrespective of whether any liability would otherwise arise in contract, tort, equity, breach of statutory duty or otherwise. 

 

8.5Our liability is excluded in respect of any direct or indirect loss, or damage including, without limitation, loss of profit, loss of business, general and special damages, incidental loss and consequential loss including, without limitation, loss or deferment of actual or anticipated profits or revenue, loss of goodwill or reputation, loss or deferment of anticipated benefits or savings, loss or deferment of any prospect or business opportunity, loss of data, loss of value, loss of production or other business interruption loss you may suffer in relation to performance of the Services, use of the App and/or Website, or any interaction you may have with any other Member.

 

8.6To the maximum extent legally permitted, our aggregate liability (whether for negligence, breach of contract, misrepresentation (except, if fraudulent) or otherwise) shall in no circumstances exceed the cost of one month’s Membership Fee.

 

8.7To the maximum extent legally permitted, we exclude all other warranties, guarantees and other assurances implied by custom or law on our behalf.

 

8.8You agree to indemnify and keep us indemnified from and against all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities (including vicarious liability), judgments or demands incurred by us arising out of your failure to comply with these Terms, your use of the App, Website or other Services, the sale of any Vehicle and/or the provision of any information.

 

8.9You indemnify us, and shall pay us on demand, against all expenses incurred as a result of enforcing any of our rights contained in this agreement including debt collection and legal fees.

 

8.10The terms contained within this clause 8 survive termination of any Membership and/or discontinued use of the App, Website or other Services.

 

9.PRIVACY

 

9.1We may hold information relating to you that you have provided to us (including information provided when registering as a Member) or that we may have obtained from another source.

 

9.2This information may include, amongst other information, your name, address (including email address), telephone number, Registered Motor Vehicle Trader number, images you provide to us and information on the type of Vehicles you are interested in.

 

9.3You irrevocably authorise us to hold and use your information for a number of purposes connected with our Services, business operations and functions, which include:

(a)Providing you and other Members with the Services;

 

(b)Processing your request for registration as a Member including, at our discretion, conducting a credit check;

 

(c)Dealing with requests, enquiries or complaints and other customer care related activities and all other general administrative and business purposes;

 

(d)Carrying out market analysis and marketing any of our Services generally;

 

(e)Enforcing our rights pursuant to these Terms, including engaging debt collection agencies to enforce payment of fees due to Auction Online under these Terms;

 

(f)Carrying out any activity in connection with a legal, governmental or regulatory requirement on us or in connection with legal proceedings, crime or fraud prevention, detection or prosecution;

 

(g)Carrying out activities connected with the running of our business such as personnel training, quality control, network monitoring, testing and maintenance of computer, App, Website, and other systems and in connection with the transfer of any part of our business in respect of which you are a customer or a potential customer;

 

(h)Providing you with updates and upgrades, special offers, pricing information, newsletters, and other information, either on our own behalf or in some cases on behalf of a partner or client acting as their agent, where you have consented to receive it;

 

(i)to undertake any other promotional activities where you have consented to such promotional activities;

 

(j)to be provided to our key partners, suppliers, and corporate affiliates so that you have access to the full extent of our products and services; and

 

(k)Any other purpose as consented to by you in writing from time to time,  (collectively referred to as the “Purposes”).

 

9.4We may also pass your personal information to certain third parties for any particular purpose, including:

(a)Third parties who provide products or services related to the Services;

 

(b)Third parties involved in the prevention or detection of fraud or crime or the apprehension or prosecution of offenders, including the operators and participants of crime prevention schemes in which we participate who may compare your personal information with information collected from other sources and who may keep a record of the searches we make against your name;

 

(c)Persons to whom we may be required to pass your information by reason of legal, governmental or regulatory requirements;

 

(d)Anyone we transfer our business to in respect of which you are a customer or a potential customer; and

 

(e)Any other third party where you have given us express consent to do so.

 

9.5You are entitled to request access to and correct of any such information that we hold about you.

 

9.6We will maintain reasonable security safeguards to protect your information and will take reasonable steps to ensure your information is not disclosed to an unauthorised person or entity.

 

9.7We will retain your information for so long as is reasonably necessary to fulfil the Purposes for which it was collected, including for the purposes of satisfying any legal, regulatory, tax or accounting requirements.

 

9.8The above clauses do not affect your rights under the Privacy Act 2020 and are not intended to limit or exclude your rights under the same.

 

9.9If you are acting on behalf of another person, it is your responsibility to ensure that that person is aware of and agrees to these Terms.

 

9.10Any information about a Member that we collect is be held by us at info@auctiononline.co.nz.  Our privacy officer [TN1] [BC2] will attend to your personal information requests or queries.

 

9.11If you have provided us your email address then you agree to receive unsolicited information regarding our Services in electronic form to the email address you have provided.

 

9.12You may unsubscribe by using the unsubscribe feature on an email you have previously received from us.

 

10.INTELLECTUAL PROPERTY

 

10.1The App, Website and its contents are our property and protected by law, including laws governing copyright and other intellectual property rights.

 

10.2You grant us a licence to deal with the information you provide to it in any way we reasonably considers appropriate (and in accordance with clause 9).

 

10.3We own the Intellectual Property and some parts of the Intellectual Property are owned by our licensors or suppliers (as relevant) and you shall not acquire any moral or legal rights or licences in or to the Intellectual Property in any circumstances.

 

10.4The provision of Services will not operate so as to transfer or vest in you any trade mark, patent, copyright or other intellectual property.  All Intellectual Property rights in respect of the Website, App and Services remain ours and you may not, without our prior written consent, use, reverse engineer, interfere with or alter the Intellectual Property in any way.

 

10.5No part of the Intellectual Property may be copied, distributed, stored, reproduced, displayed, published, printed, commercialised, or on-sold, nor incorporated in any other work or publication in any form for any purpose, subject to clause 10.6.

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10.6You may download content strictly on the conditions that:

(a)No more than one hard copy is made of that downloaded information; and

(b)You retain the copyright notices on all such downloaded and printed information.

 

11.GENERAL TERMS

 

11.1Entire Agreement: These Terms set out the entire agreement and understanding between the parties and merges all prior discussions between them. No party will be bound by any conditions, warranties or representations except as provided in these Terms.

 

11.2Force Majeure: If the performance of our obligations under these terms and conditions is prevented by reason of "force majeure" (which shall include fire, casualty, accident, act of God, natural disaster, any law, order, proclamation, regulation, demand or requirement of any government or government agency, strikes, labour disputes, shortage of labour or lack of skilled labour, electricity or communications failures or other causes whatsoever (whether similar to the foregoing or not) beyond our reasonable control) we will be excused from such performance to the extent of such prevention.

 

11.3No Waiver: Any waiver, delay or failure to execute any rights by Auto Cash-up shall not be deemed a waiver of that right or any further or other right of Auto Cash-up. No waiver is effective unless it is in writing.

 

11.4Partial Invalidity: If any provision of these Terms is declared or adjudged to be invalid, void or unenforceable, such provision shall be severable and deemed deleted from these Terms and shall not affect the validity, existence, legality or enforceability of the remaining provisions.

 

11.5No Assignment: No Member may assign its rights or obligations under Terms without Auto Cash-up’s prior written consent.

 

11.6No Relationship: Nothing in these Terms will be construed or deemed to constitute a partnership, joint venture arrangement, employment relationship or representation relationship between any of the parties.  You may not bind Auto Cash-up in any way.  Auto Cash-up provides the Services only and shall not be party to any other arrangements between Members.

 

11.7Survival of Indemnities:  Each indemnity contained in these Terms is a continuing obligation and is separate and independent from the other obligations of the parties.  Each indemnity shall survive termination of these Terms.  No party shall be required to incur expense or make any payment before acquiring the right to enforce an indemnity contained in these Terms.

 

11.8Contra proferentem:  The contra proferentem rule of construction shall not apply in the interpretation of these Terms.

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