Hanamaru Auto Auction Term and Condition ("Site Agreement")
Last Update: [29th March 2024]
Please read fully and carefully this Site Agreement as well as Hanamaru's Privacy Policy before using any of the Services as defined below. They set forth the legally binding terms that govern the access to and use of the Services. By using the Website and/or the Services, you agree to be bound by the terms of this Site Agreement. For any questions or concerns,
please contact email : auction@hanamaru.my / Phone : 03-6413-4692 / 012-734-0870.
PART I - GENERAL PROVISIONS
Article 1 (The Auction and the Services)
1.1 Hanamaru Auto Trading (Malaysia) Sdn. Bhd. (hereinafter referred to as
"Hanamaru") owns and operates the website www.hanamaruauction.my (hereinafter the
"Website") as well as any and all websites registered under Hanamaru.
1.2 The Website is used as a platform for the "Hanamaru Auction", and online service for the auction of used automobiles conducted through the Website, as well as all ancillary services in connection with the Hanamaru Auction (hereinafter the
"Services").
Article 2 (Registered Members)
2.1 Each Website user must be registered in order to use the Services and/or to participate in a Hanamaru Auction. Users must be qualified by Hanamaru and are subject to the user on-boarding and registration process accessible on the Website (hereinafter the
"User Signup"). Each User Signup must be truthfully and fulsomely completed for verification and processing by Hanamaru. Each user shall be on-boarded in accordance with the requirements in
Article 14.
2.2 For the avoidance of doubt, this Site Agreement binds each user who submits a User Signup. Each user warrants that it has read, understood and agreed to be bound by this Site Agreement. If a person signs this Site Agreement or submits a User Signup on behalf of a company or legal entity, this person warrants that he has the authority to bind the company or any other legal entity or affiliate he represents.
2.3 Each user submitting a User Signup agrees and consents to any Personal Data being processed by Hanamaru in accordance with Hanamaru's Personal Data Protection Policy accessible at https://www.hanamaruauction.my/privacy_policy.cgi
2.4 Companies and individuals who are qualified by Hanamaru are thereafter supplied with login and password credentials and are hereinafter referred to as each a
"Member" and collectively the
"Members". Members are allowed to participate in the Hanamaru Auction.
Article 3 (Operation and Management)
3.1 Hanamaru is solely entitled to and responsible for the operation and management of the Hanamaru Auction. Hanamaru does not employ the services of any third party to conduct the whole or any aspect of a Hanamaru Auction.
3.2 Subject to the above, Hanamaru may provide other aspects of the Services through its affiliates and related corporations.
Article 4 (Intellectual Property Rights and License to Use Services)
4.1 Hanamaru exclusively owns all intellectual property rights in and to the Website and the Services. Intellectual property rights in this Site Agreement means any and all intellectual and industrial property rights throughout the world, including, without limitation, Hanamaru's Confidential Information (as defined in
Article 5), patents, petty patents, design patents, utility innovations, supplementary protection certificates, trademarks, trade names, service marks, certification marks, domain names, copyrights, database rights, rights in semi-conductor topography and lay-outs of integrated circuits, industrial design rights, geographical indications, appellations of origin, protected plant varieties, rights in unfair competition, trade dress, know-how, trade secrets, inventions (whether patentable or not), personality rights, moral rights, and other similar intellectual property rights, whether or not now existing and whether or not registered or registrable by the owner of such intellectual property.
4.2 Members are granted a limited, time-bound, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Services in accordance with this Site Agreement.
4.3 Nothing in this Site Agreement otherwise grants to any user or Member any rights whatsoever in and to the intellectual property rights of Hanamaru, and for the avoidance of doubt, no title or other interest in and to the Hanamaru intellectual property rights shall be assigned or vested with any user or Member.
4.4 Members are responsible for ensuring that their use of the Services is in accordance with this Site Agreement, and shall indemnify Hanamaru and hold it harmless for any claims for loss or damages howsoever arising from a Member's use of the Services.
Article 5 (Confidentiality)
5.1 In respect of any Confidential Information disclosed, furnished or made accessible by either party (the
"Disclosing Party") to the other party (the
"Receiving Party") under this Site Agreement, the Receiving Party undertakes to the Disclosing Party:
(a) to keep confidential the Confidential Information;
(b) to keep the Confidential Information in a safe and secure place using such reasonable technical and organizational security measures to prevent unauthorized access, destruction or loss and to treat the Confidential Information with at least the same degree of care that is used for its Confidential Information;
(c) not to disclose without the prior written consent of the Disclosing Party the Confidential Information in whole or in part to any other person save those of its employees, agents and sub-contractors involved in performing its obligations under this Site Agreement, and only in so far as necessary for the performance of this Site Agreement; and
(d) to use the Confidential Information solely in connection with exercising its rights or performing its rights and obligations under this Site Agreement.
5.2 Confidential Information as used in the
Article 5 means all information whether of a technical, financial or commercial nature or otherwise relating in any manner to the business or affairs of the Disclosing Party which information is not publicly available and which becomes known solely through the exercise of rights and obligations under this Site Agreement;
Article 6 (Member's Personal Data)
6.1 Unless an exception under applicable law provides for the contrary, Hanamaru shall use and process each Member's personal data in accordance with the Personal Data Protection Policy and personal data protection legislation.
6.2 Each Member expressly acknowledges that, notwithstanding the generality of
Article 6.1, Members shall authorize Hanamaru to disclose to third parties including Hanamaru's subcontractors and/or business partners, such information (which may contain Personal Data as defined under the Personal Data Protection Policy) such as; name, trade name, company number, address/company address, phone number, email address, mobile phone number, mobile phone email address, transaction history, involvement in odometer tampering, late payment records, history of expulsion, bankruptcy or insolvency status, and any other information that Hanamaru obtains from a user or a Member, or which otherwise it lawfully obtains.
Article 7 (Exemption of Liability)
7.1 It is expressly agreed that the Services are provided on an "as-is", "where is" and "as-available" basis, and Hanamaru makes no warranty or guarantee whatsoever, of continuous availability of the Services and the Website, nor any level of performance of the same.
7.2 Each Member understands that Hanamaru cannot and does not guarantee or warrant that files available for downloading from the internet or the Website or using the Services, will be free of viruses or other destructive code. Each Member is responsible for implementing sufficient procedures and checkpoints to satisfy the Member's particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Website for any reconstruction of any lost data.
7.3 To the fullest extent provided by law, Hanamaru will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses, or other technologically harmful material that may affect the Member's computer equipment, computer programs, data, or other proprietary material due to the Member's use of the Website, the Services, or any services or items obtained through the Website or to the client's downloading of any material posted on it, or on any website linked to it.
7.4 Each Member's use of the Website, the Services and underlying applications, any of their content, and any services or items obtained through the Website or the Services are at the Member's own risk.
7.5 Except as otherwise expressly set forth herein, neither Hanamaru nor any person associated with Hanamaru makes any warranty or representation with respect to the completeness, security, reliability, quality, accuracy, or availability of the Website. Without limiting the foregoing, neither Hanamaru nor anyone associated with Hanamaru represents or warrants that the Website, the Services and underlying applications, any of their content, or any services or items obtained through the Website will be accurate, reliable, error-free, or uninterrupted, that defects will be corrected, that the Website or the server that makes it available are free of viruses or other harmful components, or that the Website, the Services or any services or items obtained through the Website will otherwise meet your needs or expectations.
7.6 Without limiting the generality of the foregoing in the
Article 7, Hanamaru further explicitly and specifically disclaims any and all liability arising from:
(a) Damage resulting from the failure of Hanamaru's or its business partner's host computer, or any hardware or software attached to the host computer;
(b) Damage caused by the Member's computer, its software or peripheral equipment;
(c) Damage resulting from a problem with the Internet link or Internet service provider;
(d) Damage resulting from discontinuation or suspension of the auction service which Hanamaru judges on its sole discretion to be inevitable for repair, maintenance or management of the system;
(e) Damage resulting from Member's faulty operation or management;
(f) Damage resulting from leakage or divulgence of Member's ID, password, or user ID;
(g) Damage caused by viruses, spyware, etc. infected through the use of the Internet or email;
(h) Damage caused by natural disasters including lightning, man-made disasters, or any other force majeure events; and
(i) Damage resulting from any other causes which Hanamaru is not responsible for.
7.3 If for any reason Hanamaru is unable to exclude liability for any of the damages listed in the preceding Articles, then regardless of the underlying causes for such damage, Hanamaru's total cumulative liability to any Member shall be limited to an amount not exceeding the handling fees for the specific transaction which having the closest connection with the damage claim.
7.4 Hanamaru may, without prior notification to the Members, change one or more aspects of the Website or the Services (including but not limited to the programs offered through the Internet and the services provided at auction sites). Hanamaru is not liable for any consequential damages or losses which any Member may suffer due to such change.
Article 8 (Disputes)
8.1 In the event that a dispute arises in conjunction with a Member's use of the Website or the Services howsoever arising, the parties shall use their best effort to settle such dispute amicably and in good faith. If such good faith discussion does not settle the dispute, then Hanamaru is entitled to refer such dispute to any forum for resolution, and the Member or Members in question acknowledges that such forum shall be competent to render a final and binding decision on such dispute.
Article 9 (Revision of Rules)
9.1 Hanamaru may revise, amend or vary any of the provisions set forth herein whenever it judges that the revision is necessary. In such a case, the content of the revision shall be published on the Website. The revised Site Agreement shall be applicable to all transactions made on the Website, and all aspects of the Services, from the date of such revision.
9.2 Members are encouraged to periodically refer to this Site Agreement and to note the Last Update date.
Article 10 (Computation of Days)
10.1 The computation of days where used in the Site Agreement herein excludes Saturday, Sundays, bank holidays and Hanamaru's regular and extraordinary holidays.
Article 11 (Governing Law)
11.1 This Site Agreement shall be governed by and construed in accordance with the laws of Malaysia without reference to conflict-of-laws principles.
PART II - MEMBERS
Article 12 (Participation in Hanamaru Auctions)
12.1 The Members are entitled to participate in the Hanamaru Auction to sell and buy by bidding in accordance with this Site Agreement in general and this Part II in particular.
12.2 The Members are entitled to the following Services of the Hanamaru Auction which are provided by Hanamaru:
(a) Images and data on the vehicles available for auction, including year of manufacture, model number, stock number, and salvage type;
(b) Participation in the Hanamaru Auction as bidder; and
(c) Freight arrangements for forwarding and shipping in Malaysia.
12.3 Hanamaru may offer other Services from time to time, or may limit or restrict the provision of the whole or any part of the Services due to circumstances beyond its control.
Article 13 (Member's Obligations)
13.1 The Members shall comply with this Site Agreement at all times.
13.2 No Member may use any aspect of the Website, the Services or its participation any Hanamaru Auction to cause annoyance or inconvenience to other Members.
13.3 A Member's user credentials are proprietary and unique to that Member. No Member may participate in any Hanamaru Auction on behalf of any third party. Hanamaru is not obligated to honour any bids that, in its view, is suspicious, or would otherwise be a contravention of this Site Agreement.
Article 14 (Membership Requirements)
14.1 Any company or individual who wishes to be a Member to participate in the Hanamaru Auction shall satisfy all of the following requirements (in addition to any further requirements that Hanamaru may impose from time to time, or on a Member-by-Member basis):
(a) Applicants for membership must satisfy Hanamaru that they are in good standing under law, not previously convicted of any crime of public order, nor having any known prior history in organised crime. In the case of corporate applicants, the foregoing shall apply to any one of its board members, individual shareholders and employees;
(b) All Members must ensure that any licenses, consents, permits and notifications required for sale are filed in accordance with the relevant laws, and all approvals and licenses required for sale are obtained or the criteria to obtain them are satisfied by the Member;
(c) All applicants are required company registration / identification (for Malaysia), or a copy of a valid passport or national registration card, as the case may be;
(d) Applicants shall not be listed on any list of official or governmental sanctioned entities, including but not limited to the Economic Sanctions and Target List, OFAC Specially Designated Nationals (SDN) List, OFAC Sanctioned Country List, OFAC Non-SDN Target List and United Nations Consolidated List, as well as the List of Specified Individuals and Entities made under Section 66(B)(i) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Act 613);
(e) Applicants must demonstrate to Hanamaru's satisfaction that they are in good credit and financial standing, capable of making good on any successful bids on the Hanamaru Auction. In this regard they shall furnish bank statements and other proof of solvency as may be specifically required from time to time; otherwise, Hanamaru may subject these applicants to credit checks by relevant agencies authorized under the Credit Reporting Agencies Act 2010 (Act 710);
(f) All applicants shall be capable of providing Hanamaru with documents which certify fulfilment of the aforementioned requirements or a letter of commitment to ensure the fulfilment and any other documents which Hanamaru considers necessary; and
(g) All applicants shall maintain such environments that allow for the Internet connection and email reception. Hanamaru shall not be responsible for any failed bids on the Hanamaru Auction as a result of unstable internet connection or other connectivity issues or errors.
14.2 The preceding requirements are the minimum requirements for registration and onboarding as Member. Hanamaru may impose such reasonable conditions in order for the Member to maintain his membership status.
14.3 Each Member, notwithstanding their successful registration and onboarding as Member, must immediately notify Hanamaru in the event of any material change in circumstance that would materially alter the truth or veracity of any fact or matter previously submitted to Hanamaru in the application for Membership.
14.4 The continuing obligation under
Article 14.3 includes, but is not limited to, the financial and credit standing of a Member, the Member's inclusion in any governmental list of sanctioned individuals or entities, a Member's bankruptcy or winding up, any change in circumstance that would render a Member unable to meet its financial obligations as they fall due, or a Member's (or its employee's, director's or shareholder's) conviction of any offense.
Article 15 (Membership Registration)
15.1 Both individual and corporate applicants who:
(a) satisfy all Membership Requirements set forth in
Article 14;
(b) click accept to the terms of use
(c) submitted all necessary information and documents to Hanamaru as stipulated on the Website; and
(d) receives a confirmation from Hanamaru,
are thereafter considered registered Members by virtue of this Site Agreement.
Article 16 (Binding Contract)
16.1 A binding contract, enforceable on its terms, is deemed to be executed between a Member and Hanamaru when the Member completes the User Signup and receives Member status.
Article 17 (Deposits)
17.1 A deposit is required to be made in order to participate in any Hanamaru Auction (
"Deposit"). The amount of Deposit varies with respect to the type of auction.
(a) Salvage and Damaged Vehicles Bidding Deposit
Deposit is Ringgit Malaysia Five Hundred to Ten Thousand (RM 500-10,000) which shall be payable to Hanamaru before start bid on the Hanamaru Auction.
(b) Used, Repossessed and Restored Vehicles Deposit
Deposit is Ringgit Malaysia Five Hundred to Ten Thousand (RM 500-10,000) which shall be payable to Hanamaru before start bid on the Hanamaru Auction.
17.2 Hanamaru shall be entitled to forfeit and set-off from any Deposit any Penalties (as defined in
Article 22) that it may impose on the Member pursuant to this Site Agreement. Forfeiture of the Deposit does not affect the obligation to pay the balance of any Penalty (as defined below) which shall be recoverable by Hanamaru notwithstanding the payment and forfeiture of such Deposit.
17.3 No Member shall be entitled to apply any Deposit toward to settlement of any winning bid on the Hanamaru Auction, nor is Hanamaru under any obligation to apply the whole or any amount of the Deposit to offset the amount payable under any winning bid on the Hanamaru Auction.
17.4 Provided that a Member is not in arrears of any Penalty or bid amount under this Site Agreement or is not otherwise in breach thereof, a Member's Deposit(s) shall be returned upon the termination of his membership, and at the request of a Member.
17.4 All returns of Deposits shall be less any bank charges and administration fees levied by Hanamaru, as applicable, and as the case may be. Deposits shall be returned by Hanamaru in accordance with this
Article 17.4 within 14 days of termination.
Article 18 (ID and Password Management)
18.1 Each Member is solely responsible for the proper management and security of his or her ID and Password issued by Hanamaru.
18.2 In the event that a Member's ID and Password are used by any third party for any reason whatsoever, the Member shall be deemed responsible and liable for such use or misuse by the third party. Hanamaru shall be entitled to deem that bids made using a Member's compromised ID and Password as issuing from the Member, and is under no obligation to make any further enquiries as to the veracity or legitimacy of any bidder.
18.3 Members are encouraged to exercise vigilance with respect to their IDs and Passwords. In the event that a Member becomes aware of the fact or likelihood that his or her ID and Password have been compromised or is likely to be misused by any third party, the Member should notify Hanamaru immediately of the same.
Article 19 (No Assignment)
19.1 No Member shall assign, in whole or in part, his or her membership, or any of their rights or obligations under the rules set forth herein to any third party. Hanamaru may assign, in whole or in part, any of its rights and obligations hereunder to any affiliate of Hanamaru, with prior notice to the Members.
Article 20 (Member's Prohibited Conduct)
20.1 The Members are prohibited to commit any of the following activities without limitation (and without limiting the effect of this Site Agreement in general):
(a) Provide false or misleading information during the User Signup or using the Services;
(b) Disclose or otherwise make available to any third party a Member's ID or Password, or to impersonate any person or Member, or to otherwise employ technology or artificial intelligence in order to gain an unfair advantage in any Hanamaru Auction (for example, by programming automated bids);
(c) Act in contravention of any notice, caution, or warning from Hanamaru in relation to a violation of this Site Agreement or an abuse of the Services;
(d) Make copies of any data on the Services, including any data made available to Members regarding the vehicles on auction;
(e) Falsely advertise the Services;
(f) Interfere with the Hanamaru Auction or the Services in any way, including through reverse-engineering, the introduction of any viruses or malware, or the use of the Services in a way that was not intended by Hanamaru (including, to avoid doubt, its use in conjunction with other services by third parties unaffiliated with Hanamaru);
(g) Disparage any of Hanamaru's Services, the Website, the Hanamaru Auction, its officers and personnel, or its affiliates;
(h) Infringe or attempt to infringe Hanamaru's intellectual property rights;
(i) Disclose or attempt to disclose Hanamaru's Confidential Information or the Confidential Information of other Members;
(j) Tamper with the odometer of any vehicles purchased on auction in any way whatsoever;
(k) Contact or attempt to contact the owner or seller of any auctioned vehicles or other Members, without the prior written consent of Hanamaru; and
(l) Breach any provision of this Site Agreement, expressly acknowledging that a repeated breach of a non-material provision is a material breach thereunder.
Article 21 (Disciplinary Measures)
21.1 In the event that a Member fails to comply with any of the provisions of this Site Agreement in general and
Article 20 in particular, Hanamaru may, without prior notice to the Member, take such action against the Member as to restrict his or her rights as set forth in
Article 22 or to terminate the Member as set forth in
Article 23 depending on the degree of the breach. In addition, if Hanamaru suffers any damage due to the Member's breaching
Article 20, the Member shall compensate Hanamaru for the full amount of the damage.
Article 22 (Restriction of Member's Rights)
22.1 A Member's rights to the Services (including any participation in a Hanamaru Auction) may be restricted or suspended in the event of any of the following breaches or non-performance by a Member (which restriction or suspension to be lifted only upon satisfactory remedy of the relevant breach or non-performance):
(a) A Member fails to pay any debt due to Hanamaru in such manner as prescribed by Hanamaru;
(b) A Member fails to effect the transfer of ownership for the vehicle purchased through bidding at the Hanamaru Auction within the stipulated time and manner as determined by Hanamaru;
(c) A Member refuses any offer of settlement in respect of a dispute between Hanamaru and that Member (or where Hanamaru enforces any of its dispute resolution rights under
Article 8);
(d) Any default of obligation, including late payment, violation of this Site Agreement or associated provisions;
(e) Where a Member becomes gainfully employed or is working in concert with a competitor of Hanamaru anywhere in the world; or
(f) On any other grounds giving rise to Hanamaru's reasonable determination that a restriction or suspension of a Member's rights would be appropriate.
22.2 A restriction or suspension of a Member's rights in this
Article 22 may include one or more of the following actions by Hanamaru:
(a) Imposition of Penalty as provided in the
Annex attached hereto;
(b) Re-set or change any Member's credit limit, as applicable;
(c) Restricting a Member's ability to log-in to or access the Hanamaru Auction or the Services;
(d) Rejection of any of that Member's bids on a Hanamaru Auction; or
(e) Suspend a Member's participation in any Hanamaru Auction.
22.3 An attempt to circumvent or bypass any restriction or suspension by Hanamaru may result in a Member's termination under
Article 23.
Article 23 (Termination for Cause)
23.1 A Member's membership (or membership application, as the case may be) shall be terminated immediately upon the occurrence of any one or more of the following (each a
"Default Event"):
(a) A Member suffers a petition for bankruptcy or winding up (whether voluntary or involuntary), or suffers the appointment of a receiver, manager or administrator over the assets of the Member, or the Member becomes the subject of judicial reconstruction proceedings, or a Member becomes otherwise unable to pay its debts as they fall due;
(b) A Member pays any bid, Deposit or Penalty, or attempts to pay any bid, Deposit or Penalty with false negotiable instruments, including cheques and bank drafts;
(c) A Member suffers a change in control event, defined as the loss of 50% or more of control over its voting stock, or the change of 50% or more of the composition of its Board of Directors;
(d) A Member is delinquent in payment for a purchased vehicle and other associated charges beyond the due date determined by Hanamaru;
(e) Breach of any obligations set forth in
Article 14;
(f) A Member becomes involved in any offence against the public order or national security, or in organised crime;
(g) A Member submits false or misleading information as part of the User Signup;
(h) A Member disregards or acts in contravention of any final settlement terms in a dispute with Hanamaru;
(i) A Member commits one or more acts of moral turpitude;
(j) in the case of a Member who is a sole proprietor or corporation sole, or a company with one (1) director, the death of that partner or director;
(k) A material or repeated breach of any provision of this Site Agreement; or
(l) Any reason that in the reasonable estimation of Hanamaru, would be grounds for the termination of that Member.
23.2 Hanamaru's determination of a Default Event, including the existence thereof, shall be final.
23.3 Termination of a Member's membership under this
Article 23 shall be without prejudice to Hanamaru's ability to recover any outstanding payments and debts due from that Member, but shall be to the prejudice to a Member's ability to receive a return of its Deposit(s), if any.
Article 24 (Termination for Convenience)
24.1 Any Member who wishes to terminate his Membership from the Services may notify Hanamaru of his or her intention no later than one (1) month before the intended termination date by means of mail, email or facsimile with his or her ID and any other corroborating information required by Hanamaru.
24.2 This Site Agreement shall continue to apply until the effective date of termination, which shall be thirty (30) days from the date of notification, or the date an acknowledgement from Hanamaru in regards to such termination request is received by the Member, whichever the later.
24.3 Provided that the applicable terms of this Site Agreement shall survive and continue to apply notwithstanding such termination in the event:
(a) that terminating Member has any debt due to Hanamaru;
(b) that Member has a vehicle registered for bidding in the Hanamaru Auction;
(c) that Member has a vehicle under negotiation or whose auction has yet to be concluded.
24.4 For the avoidance of doubt, the applicable terms of this Site Agreement shall continue to apply to all users who use and browse the Website, notwithstanding their membership status.
Article 25 (Notices)
25.1 Members must notify Hanamaru of any change(s) in their contact information, including trade name, company name, company number, address/company address, company authorised representative, phone number, email address, and other information previously submitted to Hanamaru as part of the User Signup process within fourteen (14) days of such change.
25.2 A Member's failure to comply with
Article 25.1 may result in a suspension or restriction in accordance with
Article 22.1, and the Member shall be solely liable for any and all damage and loss occasioned by such failure that is suffered by Hanamaru.
PART III - AUCTIONS
Article 26 (Types of Auctions)
26.1 As part of the Services, there are two (2) types of Hanamaru Auction, being respectively:
(a) a Tender Auction; and
(b) a E-Bidding Auction.
26.2 Tender Auctions are more specifically regulated under
Article 30 and E-Bidding Auctions are more specifically regulated under
Article 31.
Article 27 (Bidding Period)
27.1 Each Tender Auction and E-Bidding Auction will be conducted as follows:
(a) Tender Auctions and E-Bidding Auctions will be decided and held on specific dates on the particular week subject to Hanamaru's discretion. Dates set for any Tender Auction or E-Bidding Auction may be postponed or cancelled by Hanamaru without prior notice.
(b) In the event that any Tender Auction or E-Bidding Auction fails, or a dispute or uncertainty arises, for example with respect to the auctioned vehicle's registration data, Hanamaru may:
(i) cancel the bids of a particular Member in respect of a particular Vehicle;
(ii) extend the duration of bidding; or
(iii) postpone the auction,
in either case depending on the nature of the dispute or uncertainty.
27.2 Each Member agrees that Hanamaru shall bear no losses nor shall it be liable for damages in the event any Tender Auction or E-Bidding Auction fails, or where Hanamaru exercises any of the rights in
Article 27.1(b).
Article 28 (Finality of Bids)
28.1 All bids in a Tender Auction or E-Bidding Auction are offers from a bidding Member but are not considered final until the bids are accepted by the Hanamaru Auction system. All bids accepted as final by the Hanamaru Auction computer system shall be determinative, and Members accept the system's determination of all elements in a concluded auction, including with respect to the winning bidder and the contract price.
28.2 Absent patent and manifest error, Hanamaru will not entertain disputes as to the results of any Tender Auction or E-Bidding Auction that have been determined and generated by the Hanamaru Auction computer system.
Article 29 (Inspection)
29.1 Although the Hanamaru Auction discloses the information on vehicles to be auctioned for the Members' reference, Hanamaru does not assure the veracity and reliability of such information, which for clarity is provided for information purposes only. Hanamaru is and may not be held responsible for any discrepancy between the inspection result disclosed at the Hanamaru Auction and the actual specifications of the vehicle.
29.2 Unless the information supplied is manifestly wrong or misleading, Hanamaru shall not entertain any dispute as to the specifications of the vehicles sold at auction, which are for the avoidance of doubt, sold "as-is", "where-is" and "as-available".
29.3 To the maximum extent permitted under applicable law, each Member who successfully bids for a vehicle under any Tender Auction or E-Bidding Auction fully indemnifies and holds Hanamaru harmless from and against any claims howsoever arising out of a Member's use and reliance of any information on the Website or as part of the Services, including the Hanamaru Auction.
Article 30 (Tender Auction)
30.1 In a Tender Auction, the Members may use the Hanamaru Auction to participate in competitive bidding for certain vehicles by offering the highest pre-tax price for such vehicle under Tender Auction (
"Tender Price").
30.2 To the Tender Price, the following is added and payable by the successful bidder (together the
"Buyer's Premium"):
(a) for Used, Repossessed and Restored vehicles, RM 450 plus 1.5% of the Tender Price
(b) for Salvage Wreck and Scrap vehicles, either RM300.00 or 12% of the Tender Price, whichever the higher; and
(c) TSP (Towing, Storage and Processing Fee) as determined by Hanamaru prior to the Tender Auction.
30.3 Bidders may rebid or cancel a bid within the Bidding Period defined by the Hanamaru Auction.
30.4 When the bids for the Tender Auction have closed, if the Tender Price meets or exceeds the seller's reserve price or if the seller accepts the Tender Price regardless of the reserve price, then such acceptance will be considered acceptance of the Tender Price.
30.5 If two or more bidders are tied for the Tender Price, the bidder who bid the Tender Price first will be awarded.
30.6 No bids made after the bidding period will be accepted.
30.7 Bidders are not allowed to change their bidding price or cancel their bids after the bid is closed no matter what the reason may be including data input errors or operation errors except solely in the case in which the pre-registered information on the auctioned vehicle has been revised before a winning bid is decided.
Article 31 (E-Bidding Auction)
31.1 In a E-Bidding Auction, a Member may use the Hanamaru Auction to participate in an auction in the form of ascending price bidding in relation to certain vehicles under auction.
31.2 Only Members in good standing under this Site Agreement are allowed to participate in the E-Bidding Auction. A Member's good standing shall be solely decided, and may be solely revoked, by Hanamaru.
31.3 In a E-Bidding Auction, a competitive bidding is conducted for each auctioned vehicle by competing for the highest price for the vehicle (
"Highest Bid Price").
31.4 To the Highest Bid Price, the following Buyer Premium are added and payable by the successful bidder:
(a) for Used, Repossessed and Restored vehicles, RM 450 plus 1.5% of the Highest Bid Price
(b) for Salvage Wreck and Scrap vehicles, either RM300.00 or 12% of the Highest Bid Price, whichever the higher; and
(c) Towing, Storage and Processing Fee as determined by Hanamaru prior to the E-Bidding Auction.
31.5 At the expiry of the bidding period, if the Highest Bid Price meets or exceeds the seller's reserve price, the Highest Bid Price shall win the E-Bidding Auction in relation to the vehicle under auction.
31.6 Hanamaru may extend the bidding period in view of the individual circumstances surrounding each E-Bidding Auction.
31.7 Bidders are not allowed to reduce their bids or cancel their bids no matter what the reason may be including data input errors or operation errors.
31.8 Subject to the generality of Article 31.7, successful bidders who have set a
"maximum bidding price" in the Hanamaru Auction system shall be entitled to reduce their bids so as to meet the current highest bidding price at the time of such change during a E-Bidding Auction.
Article 32 (Price Negotiation)
32.1 In the event that the Tender Price or Highest Bid Price for an auctioned vehicle does not reach its reserve price by the end of the bidding period, the Hanamaru Auction may allow the seller and bidders for the vehicle to negotiate on price (hereinafter referred to as
"After Bids Negotiation").
32.2 If, after a reasonable time the seller and the bidders are unable to agree to a price, the vehicle in question may be put up for auction again at a subsequent auction and no claims will be entertained by Hanamaru in respect of any bidder or seller.
32.3 No After Bids Negotiation may take place during any bidding period.
Article 33 (Prohibited Acts during Auctions)
33.1 Hanamaru prohibits the following acts at any Hanamaru Auction, and may impose a penalty for breach of contract as provided in the
Annex on the Member who breaches or, is reasonably considered by Hanamaru to breach this Article, and expel him or her from the Hanamaru Auction:
(a) Make bids or winning a bid by misusing any ID or impersonating a Member;
(b) By making available a Member's ID and Password to others;
(c) Direct negotiations while bidding;
(d) Interference with the operation of the Hanamaru Auction such as putting an extremely high load on the system; and/or
(e) Any other acts which violate any laws, rules and regulations.
Article 34 (Settlement of Disputes)
34.1 In any dispute arising out of or resulting from any auction, all parties shall follow the procedure in
Article 8.
PART IV - SUCCESSFUL BIDS
Article 35 (Sales Contract for Successfully Bidden Vehicle)
35.1 The sale and purchase contract for an auctioned vehicle shall be executed upon Hanamaru's email transmission of a notice of sales contract awarding the successful bidder the vehicle elected through the auction or After Bids Negotiation.
35.2 In the event that the successful bidder refuses to execute a sale and purchase contract, Hanamaru may, on its sole discretion, transfer the right to purchase to the second highest price bidder in relation to a particular vehicle.
Article 36 (Cancellation of Successfully Bidden Vehicle)
36.1 All bids are final, and all determination of winning bids by the Hanamaru Auction system are final. All Members agree and undertake to abide by the rules of the auctions as set out in this Site Agreement.
36.2 Payments of the Tender Price or Highest Bid Price together with all Bidding Charges must be made in accordance with
Article 37.
36.3 A Member's default of
Article 36.2 and
Article 37 may result in disciplinary action under this Site Agreement, including the forfeiture of deposit and the imposition of Penalties.
Article 37 (Payment after Successful Bid)
37.1 A successful bidder who received a notice of winning bid shall pay the exact invoiced amount comprising of the Tender Price or Highest Bid Price or After Bids Negotiation price, as the case may be, all Bidding Charges and tax, if applicable, through bank transfer to the account designated by Hanamaru within three (3) working days from invoice date.
37.2 If the successful bidder fails to make the full payment by the due date set forth in
Article 37.1 above, he or she shall pay a late-payment penalty as provided in the attached
Annex. If the payment remains unpaid by the successful bidder after a past due notice is delivered to him or her and none of his or her intention is indicated, then his or her successful bid is deemed to be cancelled and a penalty for cancellation in addition to the late-payment penalty accrued up to the deemed cancellation date is imposed on him or her as provided in the
Annex.
37.3 The successful bidder who fails to pay the invoiced amount by the due date shall in addition be subject to such sanctions and disciplinary action provided for under this Site Agreement.
37.4 If the invoiced amount is transferred electronically or telegraphically, then successful bidders shall bear all bank transfer fees.
37.5 The invoice amount may not be paid by cheque or promissory note.
37.6 If a Member desires additional services provided by Hanamaru, such as transport between domestic locations and shipping arrangements, separate fees will be applicable.
Article 38 (Repairs, Inspection and Transfer of Title)
38.1 Title to a vehicle purchased through the Hanamaru Auction is transferred from its seller to the Member who made the successful bid for the vehicle (hereinafter
"Purchaser" for the purposes of this
Article 38 and
Article 39) upon realization of the full invoice amount for the said vehicle. The responsibility for risk of loss of, or damage to, the vehicle shall be transferred from the seller to the purchaser at the same time as title to the vehicle is transferred.
38.2 It is the sole responsibility of the Purchaser to repair the vehicle to ensure its roadworthiness and compliance with all laws and regulations, and obtain inspection certification (perakuan pemeriksaan) from Puspakom Sdn. Bhd., the sole vehicle inspection authority (hereinafter
"Puspakom") within one hundred twenty (120) calendar days from receipt of invoice (
"Repair and Inspection Period"). In respect of this Article:
(a) The Purchaser acknowledges that in the event of a failure to comply with the requirement to repair the vehicle and obtain inspection certification within the Repair and Inspection Period, Hanamaru shall not be obliged to provide any reminders, or to intervene on behalf of the Purchaser with respect to any insurers or authorities;
(b) In the event that Hanamaru does provide any reminders or interventions on behalf of the Purchaser with respect to insurers or authorities, nothing in this Article relieves the Purchaser from its obligations hereunder;
(c) Instances of lengthy delays may compel Hanamaru to inform the relevant parties that the vehicle is to be categorised as "wreck" or "scrap" in accordance with applicable guidelines; and
(d) It is the responsibility of the Purchaser to keep itself informed of any changes to applicable laws, guidelines or regulations, including any applicable guidelines by the Central Bank of Malaysia (Bank Negara Malaysia) regulating insurers that may affect (1) the Repair and Inspection Period or (2) the insurability of the vehicles purchased through Hanamaru.
38.3 It is the sole responsibility of the Purchaser to effect the transfer of ownership which must be done at the Road Transport Department of Malaysia (the Jabatan Pengangkutan Jalanraya, hereinafter
"JPJ") within fourteen (14) calendar days after receipt of the original document for transfer of ownership.
38.4 Purchasers must photograph the vehicle before final re-painting is made on the vehicle being repaired. At a minimum, the photographs must be clear shots of the exterior from all four sides of vehicle, its interior, instrumental panel, engine room, chassis number and engine number must be clearly photographed and such photographic evidence shall be sent to Hanamaru for the purpose of verification and confirmation by Hanamaru.
38.5 In the case of vehicles categorized as "wreck" on the individual auction list, Purchasers will receive original documents of the vehicle purchased but are prohibited to resell the same vehicle before repairs and certification is done pursuant to
Article 38.2 and transfer of ownership is perfected in accordance with
Article 38.3.
38.6
IT IS AN OFFENCE UNDER THE ROAD TRANSPORT ACT 1987 (ACT 333) TO EFFECT ANY TRANSFER OF PRIVATE VEHICLES WITHOUT INSPECTION AND CERTIFICATION. EACH PURCHASER INDEMNIFIES HANAMARU AND HOLDS HANAMARU HARMLESS TO THE MAXIMUM EXTENT UNDER LAW FOR ANY LOSS OR DAMAGE, INCLUDING SPECIFICALLY ANY REGULATORY OR ADMINISTRATIVE ACTION, HOWSOEVER ARISING OUT OF A FAILURE OF THE PURCHASE TO COMPLY WITH THIS ARTICLE AND WITH RELEVANT LEGISLATION.
38.7 In the event Hanamaru cancels transfer of the vehicle for its convenience after the "Pick-up Voucher" is issued to the purchaser, Hanamaru shall bear no liabilities except for pre-determined land transportation fee based on Hanamaru's tariff or actual expense spent by the purchaser.
38.8 In the event that the Purchaser fails to pick up the vehicle within five (5) days after the "Pick-up Voucher" is issued to the purchaser, it is deemed that the Purchaser has waived and relinquished its right to obtain the title of vehicle and Hanamaru may obtain its right of purchasing the vehicle. In such a case, the Purchaser shall not have a right to claim for a refund of payment for the vehicle, or compensation for any damage arising out of loss of the title.
38.9 In the event that Purchaser shall fail to conform to any of the provisions stipulated in this Article, then in addition to any remedy under this Site Agreement or at law, Hanamaru may re-categorize the related vehicle from "wreck" to "scrap" at the discretion of Hanamaru and Hanamaru shall have a right to proceed de-registration of this vehicle at JPJ (if any).
38.10 Purchasers shall notify to Hanamaru immediately if any part of the inspection or transfer of title processes may not be completed within the period and the manner provided in this
Article 38. Such notice shall be sent to Hanamaru before the end of the period for such procedure provided in this
Article 38.
Article 39 (Pick-up of Vehicle)
39.1 The Purchaser shall pick up the vehicle in exchange for a Pick-up Voucher issued by Hanamaru, after the Purchaser makes the full payment of the invoiced amount for the vehicle.
39.2 The Purchaser is solely responsible for picking up and transporting the vehicle in compliance with the Road Traffic Act 1987 (Act 333) and other relevant laws, and Hanamaru is not responsible for any damage arising out of the removal and transportation. The Purchaser shall transport the vehicle which is not registered as a used car, by means of a carrier car or towing car.
39.3 Hanamaru is not liable for any loss or damage or regulatory action arising in the pick-up and transportation of the vehicle.
39.4 The Purchaser shall inform Hanamaru or storage location of a date and time to pick up the vehicle at least two (2) days in advance.
39.5 If any representative from a transportation company picks up the vehicle on behalf of the Purchaser, the Purchaser shall send a notice by E-mail, to Hanamaru or storage location in advance to notify them of the representative's name and his or her company name, and their authority to transport the vehicle on the Purchaser's behalf. Hanamaru may also require a copy of such representative's driver license or other identification to verify its identity.
39.6 Notwithstanding
Article 39.5, no release of the vehicle shall be made without presentation of the original Pick-up Voucher.
39.7 In the event that the Purchaser fails to pick up the vehicle within five (5) working days after the Pick-up Voucher was issued for the vehicle (hereinafter referred to as
"Successfully Bidden Vehicle Pick-up Period"), the Purchaser shall pay to Hanamaru a penalty as provided in the
Annex.
39.8 In the event that the purchaser fails to pick up the vehicle within the Successfully Bidden Vehicle Pick-up Period, the Purchaser is not entitled to participate in any auction thereafter, and Hanamaru may impose such other sanctions and disciplinary measures under this Site Agreement.
39.9 A vehicle which is not picked up within the Successfully Bidden Vehicle Pick-up Period with no notification from the Purchaser is deemed to be relinquished and abandoned by the Purchaser, and Hanamaru may decide how to deal with the vehicle on its sole discretion. In that case, the Purchaser shall pay to Hanamaru, without delay, a penalty for late pick-up up to the deemed cancellation date as well as penalty for cancellation as provided in the
Annex.
Article 40 (Notice of Delay)
40.1 All Deposits will be forfeit to Hanamaru and the membership granted to the respective Members will be rescinded in the event of unacceptable delays, in addition to any Penalties.
Article 41 (Retention of insured vehicle registration number)
41.1 Vehicle registration number may be retained by the insured. The successful bidder is required to check with the insured or Hanamaru whether ownership of the vehicle can be transferred to the Purchaser together with registration number or not before proceeding its ownership transfer in accordance with
Article 38.3.
In case, the insured intend to retain the vehicle registration number, the successful bidder or purchaser of the vehicle shall follow its intention and shall not have a right to claim any fund or compensation for non-transfer of the vehicle registration number.
ANNEX: PENALTIES
| # |
Cause |
Article |
Penalty (in RM) |
| 1. |
Pick-Up Delay Penalty
Purchased Vehicle are not picked up within Five (5) working days after receipt of the "Pick-up Voucher" issued by Hanamaru.
|
39.8and39.9
|
50 per day of delay
|
| 2. |
Payment Delay Penalty
Payment is not confirmed within Three (3) working days from the date of invoice issued.
|
37.2
|
100 per day of delay until full payment realized
|
| 3. |
Purchased Vehicle Cancellation Penalty (Salvaged and Damaged Vehicles)
(1) Payment for Purchased Vehicles is not confirmed within Five (5) working days from the date of invoice issued. The purchased vehicle will be cancelled.
(2) Cancellation by Purchaser
|
37.2 |
500-10,000per unit |
| 4. |
Purchased Vehicle Cancellation Penalty (Used, Reposessed and Restored)
(1) Payment for Purchased Vehicles is not confirmed within Five (5) working days from the date of invoice issued. The purchased vehicle will be cancelled.
(2) Cancellation by Purchaser
|
37.2
|
500-10,000per unit
|
| 5. |
Exceeded Period Penalty - Repair and Transfer of Ownership
(3) The purchased vehicle is not repaired and certified by PUSPAKOM within ninety (90) days.
(4) The purchased vehicle is not transferred ownership at JPJ within Fourteen (14) days after receipt of the transfer ownership documents.
|
38
|
1,000per unit
|
| 6. |
General Penalty
|
All other provisions in the Site Agreement
|
RM 100
|