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|1.1||In these terms and conditions, unless the context otherwise requires:|
|2.1||Words importing the singular shall include the plural (and vice versa).|
|2.2||If any provision of these Terms and Conditions is illegal or unenforceable and does not go to the essence of the Contract, these Terms and Conditions should be read as if that provision has been severed and the remaining provisions of the Contract continue in force.|
|3.||Governing Terms and Conditions|
|3.1||These Booking Terms and Conditions and the Website Terms and Conditions are the only terms and conditions which are binding upon the Parties with the exception of those otherwise agreed in writing by the Parties.|
|4.||Change in Control|
|4.1||The Owner shall give DMCR not less than fourteen (14) days prior written notice of any proposed change in ownership of the Owner's Vehicle and/or any other change in the Owner's details (including, but not limited to, changes in the Owner's name, address, or contact phone or fax number/s). The Owner shall be liable for any loss incurred by DMCR as a result of the Owner's failure to comply with this clause.|
|5.1||The Driver warrants that he/she:|
|6.||Vehicle handover procedure - Owner|
|6.1||The Owner must ensure that the Vehicle and its keys arrive at the Designated Collection Location at the time and date agreed between the Owner and the Driver.|
|6.2||The Owner must ensure, at or immediately prior to handover of the Vehicle to the Driver at the Designated Collection Location, that:|
|6.3||The Owner agrees that if any personal belongings are left in the car, they are left entirely at the Owner's risk and DMCR shall incur no liability in respect of any loss or damage to them.|
|6.4||The Owner agrees, at or immediately prior to handover of the Vehicle to the Driver, to:|
|6.5||The Owner agrees, within 48 hours of the commencement of the Rental Period, to return the signed Rental Agreement (DMCR Agreement for Use of Motor Vehicle) including the completed and signed Inspection Report (Vehicle Handover Inspection Report), Handover checklist and all digital photographs as per instructions on the Rental Agreement, to DMCR.|
|7.||Vehicle handover procedure - Driver|
|7.1||The Driver will attend the Designated Collection Location at the time and date agreed with the Owner to pick up the Vehicle.|
|7.2||The Driver agrees to:|
|7.3||The Driver is responsible for:|
|8.||Financial Obligations - Driver|
|8.1||The Driver is required to pay a holding deposit of $50, immediately after agreeing to proceed with a rental. The holding deposit will be deducted from the total amount due for the first rental payment. This holding deposit will be refunded to the Driver in the event that the car that they are booking becomes unavailable.|
|8.2||The Driver is required to make payment to DMCR of the price quoted by DMCR on the Rental Agreement ("Payment Amount"), which price includes and encompasses the following:|
|8.3||In addition to the Payment Amount the Driver is required to pay a Deposit Bond to cover any additional charges, which could include but is not limited to, fuel, additional kilometres or damage. The Deposit Bond, less any additional charges, will be refunded to the Driver within 7 days of the vehicle being returned in accordance with the Rental Agreement and these Booking Terms & Conditions.|
|8.4||If the Driver exceeds the 'free km's per day' specified in the Rental Agreement in accordance with clause 5.1(k) of these Booking Terms and Conditions, then the Driver shall pay to DMCR the following:|
|8.5||If the Driver makes payment for the items in this clause 8 by credit card, a surcharge of 1% may apply. If payment is made by American Express, a surcharge of 3% may apply.|
|9.||Financial Obligations - Owner|
|9.1||The Owner is solely responsible for the organisation and payment of the following:|
|9.2||It is the Owner's responsibility to attend to the matters identified in clause 9.1 of these Booking Terms and Conditions.|
|9.3||Notwithstanding clause 9.2, the Owner may request in writing that DMCR attend to one or more of the matters in clause 9.1. DMCR is not in any way obliged to agree to the Owner's request, and DMCR will not attend to any of the matters in clause 9.1 unless DMCR agreed to do so by written notice to the Owner in accordance with clause 21.|
|9.4||If DMCR agrees to attend to one or more of the matters in clause 9.1, then:|
|10.||Default and Consequences of Default|
|10.1||The Driver and/or the Owner (as the case may be) will be in default of these Booking Terms and Conditions if he or she:|
|10.2||Interest on any overdue amounts shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at DMCR's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.|
|10.3||If the Owner and/or the Driver owes DMCR any money the liable party shall indemnify DMCR from and against all costs and disbursements incurred by DMCR in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, DMCR's collection agency costs, and bank dishonour fees).|
|10.4||If the Owner and/or the Driver requests any change to be made to the payment dates under this contract, DMCR reserves the right to charge a $40 administration fee to do so. DMCR is not obligated in any way to accept, or action, such requests.|
|11.||Vehicle Condition and Return|
|11.1||On or before the end of the Rental Period, the Driver must return the Vehicle into the control of the Owner or DMCR at the Designated Return Location at the time and date agreed between the Owner or DMCR and the Driver.|
|11.2||For the avoidance of doubt, after taking possession of the Vehicle, the Driver remains responsible for the Vehicle until it has been returned to the possession of the Owner or DMCR in accordance with clause 11.1 and these Booking Terms and Conditions continue to apply, regardless of whether it is returned during, at the end of, or after the expiry of, the relevant Rental Period.|
|11.3||Subject to clause 13, if the Driver returns the Vehicle to the Owner before the end of the Rental Period the Driver shall remain liable to pay to DMCR the amounts in clause 8.1 for the duration of the Rental Period unless otherwise agreed in writing by the Owner and DMCR.|
|11.4||The Driver must ensure that:|
|11.5||At the time of hand over at the Designated Return Location, the Owner and the Driver must inspect the Vehicle (interior and exterior) and complete and sign the Inspection Report.|
|11.6||It is the Owner's responsibility to ensure that the seal on the odometer of the Vehicle is not broken or has otherwise not been tampered with.|
|11.7||The Owner must provide the completed Vehicle Handover Inspection Report to DMCR within 48 hours of the return of the Vehicle.|
|11.8||If there is a disagreement over fuel levels at the handover of the Vehicle, the Owner and Driver shall resolve that dispute between themselves.|
|11.9||Within 48 hours of the conclusion of the Rental Period, subject to photographic evidence and a signed Inspection Report being provided to DMCR, the Owner may request in writing that DMCR perform or attend to or arrange the following:|
|11.10||If DMCR receives a request in accordance with clause 11.9, DMCR is not obliged in any way to agree to the Owner's request unless DMCR has agreed to do so by written notice to the Owner in accordance with Clause 21.|
|11.11||If DMCR agrees to attend to one or more of the matters in clause 11.9, then:|
|11.12||If the Owner or DMCR (as the case may be) are required to replace any shortfall in fuel, the Driver agrees to pay $3.00 per litre of fuel replaced.|
|11.13||The Owner may, notwithstanding clause 11.9, attend to those matters in clause 11.9 directly, and the Driver agrees to indemnify the Owner for the costs incurred by the Owner.|
|11.14||If the Vehicle is not returned at the time and date specified in the Rental Agreement or agreed to between the Owner and the Driver the Vehicle may immediately be reported as stolen and be de-registered. The Driver will indemnify the Owner or DMCR for costs incurred under this clause (including but not limited to internal administration fees and legal costs on a solicitor and own client basis.|
|12.1||The Owner is entitled to immediately repossess the Vehicle without notice to the Driver if:|
|12.2||If DMCR notifies the Owner that the Vehicle may be repossessed, the Owner:|
|12.3||If DMCR receives a request in accordance with clause 12.2(b), DMCR is not obliged in any way to agree to the Owner's request and DMCR will not attend to repossessing the Vehicle unless DMCR has agreed to do so by written notice to the Owner in accordance with clause 21.|
|12.4||If DMCR agrees to repossess the Vehicle , then:|
|12.5||If the Owner attends to the repossession directly the Driver agrees to indemnify the Owner for the costs incurred by the Owner.|
Bookings may only be cancelled in accordance with this clause 13.
For the purposes of this clause, 'Commencement of Booking' occurs 24 hours prior to the pick-up time and date specified on the Rental Agreement.
|13.2||The Driver and/or the Owner may cancel a booking, if the Rental Period is less than one (1) month, up to seven (7) days prior to the Commencement of Booking without incurring any cancellation fee. If the cancellation occurs within seven (7) days of the Commencement of Booking the cancelling party is liable to pay 30% of the Payment Amount, as per Clause 8.2, to DMCR, which the cancelling party agrees is a genuine pre-estimate of the loss which DMCR may suffer as a consequence of the late cancellation, and which amount the cancelling party agree to pay to DMCR immediately on cancellation.|
|13.3||If the Rental Period is one (1) month or longer, the Driver and/or the Owner acknowledge that if they cancel any time before the Commencement of Booking, after they have signed the Rental Agreement, the cancelling party (Owner or Driver) will be liable to pay to DMCR a minimum of one (1) month's Payment Amount, which the cancelling party agrees is a genuine pre-estimate of the loss which DMCR may suffer as a consequence of the late cancellation, and which amount the cancelling party agree to pay to DMCR immediately on cancellation.|
|13.4||The Driver and/or Owner may cancel a booking at any time after the Commencement of Booking subject to a cancellation fee of 30% of the remaining Payment Amount payable under the Contract, which the cancelling party agrees is a genuine pre-estimate of the loss which DMCR may suffer as a consequence of the late cancellation, and which amount the cancelling party agree to pay to DMCR immediately on cancellation.|
|13.5||For long term rentals (exceeding thirty (30) days in duration), the Driver and/or Owner, as an alternative to complying with clause 13.4, may choose to provide the Owner (or Driver as the case may be) and DMCR with two (2) months' written notice in accordance with clause 21. The cancelling party will not incur a cancellation fee if he/she provides notice in accordance with this clause 13.5, however a $150 administration fee will apply.|
|13.6||If the Owner cancels a booking after the Commencement of Booking, and the Driver is not in arrears, the Owner agrees that, in addition to the Owner being bound by the cancellation terms in clause 13.5, the Driver will be entitled to keep the Vehicle until such time as DMCR has found a like for like replacement Vehicle.|
|14.||Conditions of Vehicle Use|
|14.1||Subject to clause 14.2, the Vehicle must be driven only by the Driver named on the front page of the Rental Agreement.|
|14.2||A person other than the Driver named on the front page of the Rental Agreement may only drive the Vehicle if that person is approved in writing by both the Owner and DMCR, and that person is registered in the DMCR database as a Driver.|
|14.3||Other people who are prohibited from driving the Vehicle are those:|
|14.4||The Driver must:|
|15.1||The Owner grants the Driver automatic damage cover as a nominated Driver on the DMCR Motor Vehicle Fleet policy subject to the terms and conditions of that policy (including any policy arranged by DMCR as agent for the Owner). For vehicles designated as Express Fleet Vehicles the Owner grants the Driver automatic damage cover as an Insured Person under the policy referred to as the Lumley General Policy.|
|15.2||The Owner and the Driver agree and acknowledge that they have read and understood the terms and conditions of the DMCR Motor Vehicle Fleet Policy or in the case of Express Fleet Vehicles, the policy referred to as the Lumley General Policy. The Owner and the Driver also agree and acknowledge that they have read and understood the terms and conditions of the Owner's Compulsory Third-Party (CTP) Insurance policy.|
|15.3||The Owner and Driver acknowledge that the Driver may not be covered by the DMCR Motor Vehicle Fleet Policy or the policy referred to as the Lumley General Policy in the event that the Driver does not comply with the terms and conditions of that policy and/or the Contract.|
|15.4||If the Owner's CTP Insurance policy or registration is listed as 'Private', the Driver may not be covered in the event of an accident involving a third-party personal injury. If the Owner's CTP Insurance policy cover is listed as 'Private' cover, it is the Driver's obligation to obtain their own third-party personal insurance policy.|
|15.5||The Driver and the Owner agree that insurance cover under the DMCR Motor Vehicle Fleet Policy or in the case of Express Fleet Vehicles, the policy referred to as the Lumley General Policy, is subject to:|
|15.6||All loss and damage and each incident leading to loss or damage is subject to a Damage Liability charge per incident.|
|15.7||The Driver is responsible for paying for each Damage Liability charge. The Damage Liability will be charged by DMCR immediately upon notification of an accident. This Damage Liability is refundable to the Driver if it transpires that the Driver was not at fault. However, refund of the Damage Liability is at the discretion of the insurer and not DMCR.|
|15.8||Insurance repair work will not commence until DMCR has received payment of the Damage Liability from the Driver.|
|15.9||The Driver must report all incidents and/or damage relating to the vehicle to DMCR and the Owner within 24 hours. Notification of insurance claims must be made to DMCR in writing within 24 hours of the incident via email@example.com or Suite 1.01 2 – 14 Kings Cross Road Potts Point NSW 2011. .|
|15.10||In the event of an accident, the Driver acknowledges that DMCR or the Owner may insist that the Vehicle be moved to the nearest repairer to secure it.|
|15.11||In the event of an accident, the Police may take possession to conduct tests that they are entitled to conduct.|
|16.1||The Driver must purchase DMCR roadside assistance coverage.|
|16.2||The Driver will be liable for the payment of all road side assistance costs, including the call-out fee, towing fees and replacement parts, including if he/she:|
|16.3||The Owner will be liable for the payment of all roadside assistance costs, including the call out fee, towing fees and replacement parts, if:|
|17.||Traffic Offences, Fines and Fees|
|17.1||The Driver is liable for any fines, penalties and costs incurred as a result of any and all traffic offences which occur during the Rental Period or any period outside the Rental Period in relation to which the Driver remains in possession of, or responsible for, the Vehicle. Should, for any reason, DMCR be placed in a position whereby DMCR is required, or requested to assist in the administration or payment of a toll, or fine, on behalf of the Driver, a $40 administration fee will apply.|
|17.2||The Driver is responsible for paying any tolls, fees or charges which they may incur during the Rental Period or any period outside the Rental Period in relation to which the Driver remains in possession of, or responsible for, the Vehicle. Should, for any reason, DMCR be placed in a position whereby DMCR is required, or requested to assist in the administration or payment of a toll, or fine, on behalf of the Driver, a $40 administration fee will apply.|
|17.3||The Driver agrees to notify DMCR and the Owner in writing in accordance with clause 21 as soon as a toll or traffic infringement has been incurred.|
|17.4||Where a toll or infringement notice is received by the Owner, it is the Owner's responsibility to complete the required documentation to absolve them from liability (including statutory declarations stating that they were not the driver).|
|17.5||If the Driver decides to appeal any tickets, fines or other charges, the Driver shall do so at his/her own cost.|
|18.1||DMCR makes no warranty to the Driver that the Vehicle is in a roadworthy condition.|
|18.2||DMCR makes no warranty to the Owner that the Driver has a satisfactory driving record.|
|19.||DMCR Responsibility and Liability|
|19.1||DCMR enters into the Rental Agreement as agent for the Owner with respect to payments and receipts only. DMCR is not liable to any person and the Owner will indemnify DMCR for any costs or charges which DMCR has incurred.|
|19.2||DMCR has the right to enforce these Booking Terms and Conditions against the Driver and/or Owner in the event of any failure to comply with these Booking Terms and Conditions.|
|19.3||Where these Booking Terms and Conditions or any other part of the Website states that DMCR will, or may, do something, DMCR will use reasonable endeavors to do that thing.|
|19.4||DMCR will use reasonable endeavors to maintain and operate the Website but accepts no liability in respect of any part of the Website being unavailable for any period of time.|
|19.5||DMCR does not guarantee that the Website or DMCR's service will be error-free, uninterrupted or that it will provide specific results.|
|19.6||The Owner Rate is paid directly to the Owner by DMCR. Payment to the Owner is contingent upon receipt, by DMCR, of the Owner Rate from the Driver. DMCR is not liable to the Owner for the Owner Rate and acts in the capacity of agent for the Owner with respect to receipt and payment of the Owner Rate.|
|19.7||Except as expressly set out in these Booking Terms and Conditions, DMCR expressly disclaims any further warranties, conditions, or other terms, either express or implied by statute or otherwise.|
|19.8||DMCR accepts no liability in respect of and shall not be responsible to the Owner and/or Driver for:|
|19.9||DMCR is not liable to the Driver or Owner under or in connection with these Booking Terms and Conditions whether for negligence, breach of contract, misrepresentation or otherwise, for:|
|20.1||If the manufacturer of the Vehicle recalls the Vehicle for the purpose of any repair or adjustment to the Vehicle, the Owner is required to notify, in accordance with clause 21, the Driver and DMCR within 7 days of receiving notification of the recall from the manufacturer.|
|20.2||Upon receiving notification from the Owner in accordance with clause 20.1, and subject to clauses 20.3 and 20.4, the Driver must return the Vehicle to the Owner or DMCR (as the case may be) within 7 days of receiving the notification from the Owner.|
|20.3||The Owner may request that the Driver return the Vehicle to DMCR in which case DMCR may arrange for the Vehicle to be returned to the manufacturer in accordance with the Owners instructions.|
|20.4||If DMCR receives a request in accordance with clause 20.3, DMCR is not obliged in any way to agree to the Owner's request and DMCR will not take possession of the Vehicle or attend to delivering the Vehicle to the manufacturer unless DMCR has agreed to do so by written notice to the Owner and the Driver in accordance with clause 21.|
|20.5||If DMCR agrees to deliver the Vehicle to the manufacturer, DMCR will charge a processing fee in the amount of $40.00 to the Owner.|
|20.6||In the event that the Vehicle is rendered unsafe or otherwise undriveable by reason of the manufacturer recall, the Owner agrees to indemnify and to keep DMCR indemnified against any costs incurred and loss and damage suffered by DMCR in connection with the delivery of the Vehicle to the manufacturer.|
|20.7||If the Vehicle is recalled under this clause 20 and the vehicle is no longer available, the Owner will refund to the Driver any of the amounts paid by the Driver pursuant to clause 8.1 that relate to the unexpired portion of the Rental Period, such amount to be repaid within seven (7) days, and the Contract will automatically terminate upon repayment.|
|20.8||The Owner and DMCR shall not be liable to the Driver for any loss or damage incurred by the Driver as a consequence of the manufacturer recall, the obligation in clause 20.2 or the consequent termination of this Contract in accordance with clause 20.7|
|Any notice to be given to the Owner, Driver or DMCR shall be deemed to be given upon it being posted to the address or sent by email to the email address of the Owner, Driver, or DMCR (as the case may be) set out in the Rental Agreement|
|The Owner and Driver may not assign or transfer or purport to assign or transfer any of its rights or obligations under or in connection with this Contract to any other person whatsoever.|
|The Driver may terminate the Rental Agreement at any time if the Owner commits a material breach of the Contract. The Driver must notify the Owner and DMCR, in accordance with clause 21, of the termination of the Rental Agreement|
|23.1||The Owner may terminate the Rental Agreement at any time if the Driver commits a material breach of these terms and conditions. The Owner must notify the Driver and DMCR, in accordance with clause 21, of the termination of the Rental Agreement. Should an Owner terminate under these conditions the Driver is liable for payment to DMCR, a minimum of 30% of the remaining Payment Amount payable under the contract.|
|23.2||DMCR may terminate the Rental Agreement at any time if the Driver and/or Owner commit a material breach of these Booking Terms and Conditions. DMCR must notify the Driver and Owner, in accordance with clause 21, of the termination of the Rental Agreement. In the event of termination under this clause the party responsible for the breach is liable for payment to DMCR, a minimum of 30% of the remaining Payment Amount payable under the contract.|
|24.1||These Booking Terms and Conditions can only be varied as agreed in writing signed by the Parties.|
|24.2||If the Owner wishes to vary the Owner Rate he/she must obtain the written consent of the Driver and DMCR.|
|24.3||DMCR reserves the right to charge for any variation amounts payable to DMCR that would otherwise normally be charged as part of the Rental Agreement.|
|25.||Proper law and jurisdiction|
|25.1||The Contract shall be governed by and construed in accordance with the laws of the State or Territory in which the Vehicle is registered. The Owner and Driver agree to submit to the non-exclusive jurisdiction of the Courts of that State or Territory and Courts of Appeal there from for all purposes of or in connection with the Contract.|
|26.||Privacy Act 1988|
|26.1||The Driver and Owner each agree and hereby authorise DMCR to obtain from a credit reporting agency a credit report containing personal credit information about them.|
|26.2||The Driver and Owner agree and hereby authorise DMCR to exchange information about them (or either of them) with those credit providers named in a consumer credit report issued by a credit reporting agency for the following purposes:|
|26.3||The Driver and the Owner understand that the information exchanged in accordance with clause 26.2 above can include anything about the credit worthiness, credit standing, credit history or credit capacity of that party that credit providers are allowed to exchange under the Privacy Act 1988.|
|26.4||The Driver and the Owner consent to DMCR being given a consumer credit report to collect overdue payment on commercial credit (section 18k (1) (h) Privacy Act 1988).|
|26.5||The Driver and Owner agree that personal credit information provided may be used and retained by DMCR for the following purposes (and for other purposes as shall be agreed between the Driver and/or the Owner and DMCR or required by law from time to time):|
|26.6||DMCR may give information about the Driver and/or Owner to a credit reporting agency for the following purposes:|
|26.7||The information given to the credit reporting agency may include:|
|27.1||Subject to any Prescribed Terms, the Contract embodies the sole terms and conditions of the agreement between the Driver, Owner and DMCR and supersedes all other conditions and agreements between the parties.|
|27.2||No party is entitled to a right of set-off in relation to an amount which is payable under this Contract and all amounts payable are required to be paid in full.|
|27.3||The failure by the Driver, Owner or DMCR to enforce any provision of the Booking Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect the party's right to subsequently enforce that provision.|
|27.4||The Driver and the Owner agree that DMCR may amend these Booking Terms and Conditions at any time. If DMCR makes a change to these Booking Terms and Conditions, then that change will take effect from the date on which DMCR notifies the Driver and Owner.|
|27.5||The Driver and the Owner each warrant that they have the power to enter into the Contract and that he/she has obtained all necessary authorisations to allow him/her to do so, and that the Rental Agreement creates binding and enforceable legal obligations.|