In these terms and conditions, unless the context otherwise requires:
"Act" means the Competition and Consumer Act 2010 (Cth).
"At-Fault Accident" means an accident in relation to which the Driver is held legally responsible for the damages or injury.
"Business Day" means a day other than a weekend or public holiday in the State or Territory in which
the Vehicle is hired.
"Claim" means any claim, demand, action or proceeding.
"Contract" means the Rental Agreement and these Terms and Conditions.
"Designated Collection Location" means the location specified in the Rental Agreement for collection of the Vehicle, or any other location as agreed between the Owner and the Driver.
"Designated Return Location" means the location specified in the Rental Agreement for return of the Vehicle, or any other location as agreed between the Owner and the Driver.
"DMCR" means Drive My Car Rentals Pty Ltd ACN 075 505 494.
"Driver" means an individual who has agreed to hire a Vehicle from the Owner in accordance with the Contract.
"Drive My Car Fee" means the amount payable by the Driver to DMCR as identified on the Rental Agreement.
"GST" means the Goods and Services Tax as imposed by the GST Law together with any related interest, penalties, fines or other charge.
"GST Amount" means any amount (or the relevant part of a Payment) multiplied by the appropriate rate of GST.
"GST Law" has the meaning given to that term in A New Tax System (Goods and Services) Act 1999 as amended, or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a Goods and Services Tax in Australia and any regulation made under that Act.
"Owner" means a Person who has agreed to hire out his or her Vehicle to a Driver in accordance with the Contract.
"Owner Checklist" means the document entitled ‘Owner Checklist’ which forms part of the Rental Agreement.
"Owner Rate" means the amount payable by the Driver to the Owner as identified on the Rental Agreement.
"Parties" means DMCR, the Owner and the Driver.
"Liability" means any amount payable under or in connection with the Contract including any amount payable by way of indemnity, reimbursement or otherwise (other than a GST Amount) and includes the provision of any non-monetary consideration.
"Person" includes an individual, the estate of an individual, a body politic, a corporation, an association (incorporated or unincorporated) and a statutory or other authority.
"Prescribed Terms" means any terms, conditions, guarantees and warranties which the Act and any other law expressly provides may not in respect of the Contract be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent.
"Rental Agreement" means the document entitled ‘Rental Agreement for Use of Motor Vehicle’.
"Rental Period" means the period of time that the Owner and Driver have agreed for use of the Vehicle as identified on the front page of the Rental Agreement.
"Taxable Supply" has the meaning given to that term by GST Law.
"Terms and Conditions" means these terms and conditions which govern the operation of the Rental Agreement.
"Vehicle" means one or more cars, utes, sport utility vehicles and other automotive vehicles made available for hire by an Owner in accordance with the Contract.
"Vehicle Inspection Form" means the document entitled ‘Vehicle Handover Compliance’ which forms part of the Rental Agreement.
"Website" means the www.drivemycarrentals.com.au website and the content, features and services offered through it.
Words importing the singular shall include the plural (and vice versa).
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.
Governing Terms and Conditions
Change in Control
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.
The Driver warrants that he/she:
is licensed to drive the Vehicle in the State or Territory in which they will be using the Vehicle;
will make the Vehicle available for periodic servicing as and when the service intervals fall due;
has not incurred any speeding fines in the last twelve (12) months;
has not been in an At-Fault Accident in the last twelve months;
has not had his/her license suspended in the last twelve months;
has held an Australian Drivers license continuously for more than two years or has a valid international drivers license and a valid license from their country of residence which has been held continuously for more than two years;
has not been the subject of bankruptcy proceedings in the last seven years;
is twenty-one (21) years of age or older;
has reviewed all insurance policies applicable to the Vehicle including any Compulsory Third-Party (CTP) insurance and has satisfied himself/herself as to the suitability of any applicable insurance policies;
will not modify the Vehicle in any way, irrespective of whether the modifications are reversible or permanent; and
will not drive the Vehicle for more than:
an average of one hundred (100) kilometers per day for the first six (6) months of any Rental Period; and
20,000 kilometers per annum on a pro-rata basis for any part of the Rental Period that exceeds six (6) months.
Vehicle handover procedure - Owner
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.
The Owner must ensure, at or immediately prior to handover of the Vehicle to the Driver at the Designated Collection Location, that:
The Vehicle’s registration is identical with that listed in the Rental Agreement and will remain valid for the entire Rental Period;
The Vehicle is in a roadworthy, serviceable and safe condition;
The Vehicle’s spare tyre is roadworthy and inflated;
The jack and tyre replacement tools are in the Vehicle;
All Vehicle fluids such as fuel, transmission, oil, coolant, brake & power steering fluid & wiper wash are full;
The Vehicle is reasonably clean; and
All personal belongings are removed from the Vehicle.
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.
The Owner agrees, at or immediately prior to handover of the Vehicle to the Driver, to:
print the Rental Agreement; and
complete and sign the Rental Agreement, including the Vehicle Inspection Form and the Owner Checklist.
The Owner agrees, within 48 hours of the commencement of the Rental Period, to return the signed Rental Agreement, including the completed and signed Owner Checklist, Vehicle Inspection Form and all digital photographs as per instructions on the Vehicle Inspection Form, to DMCR.
Vehicle handover procedure - Driver
The Driver will attend the Designated Collection Location at the time and date agreed with the Owner to pick up the Vehicle.
The Driver agrees to:
review the Rental Agreement completed by the Owner in accordance with clause 6.4(b) above, including the Vehicle Inspection Report and Owner Checklist;
take the necessary steps to satisfy himself or herself as to the accuracy of the information contained in the Rental Agreement, including the Vehicle Inspection Report and the Owner Checklist; and
upon being satisfied as to the accuracy of the information contained in the Rental Agreement, including the Vehicle Inspection Report and the Owner Checklist, sign those documents.
The Driver is responsible for:
ensuring that the odometer seal of the Vehicle is unbroken and shall remain so whilst in his/her care, custody or control;
taking any photographs of the Vehicle at pick up, and storing any such photographs at his/her discretion, for the purpose of validating the condition of the Vehicle at the commencement of the Rental Period; and
ensuring that the Vehicle is registered at the time of pick up and will remain so for the duration of the Rental Period.
Financial Obligations - Driver
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.
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:
Drive My Car Fee;
Carbon Offset Fee (optional); and
any applicable GST.
If the Driver exceeds the excess kilometers specified in the Rental Agreement or the maximum daily kilometer limit in accordance with clause 5.1(k) of these Terms and Conditions, then the Driver shall pay to DMCR the following:
$0.50 per excess kilometer; and
A $40.00 processing fee.
If the Driver makes payment of the items in this clause 8 by Amex, a surcharge of 6% may apply.
Financial Obligations - Owner
The Owner is soley responsible for the organisation and payment of the following:
Pink slip (NSW only and if applicable); and
Blue slip (NSW only and only if Vehicle becomes unregistered).
It is the Owner’s responsibility to attend to the matters identified in clause 9.1 of these Terms and Conditions.
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.
If DMCR agrees to attend to one or more of the matters in clause 9.1, then:
DMCR does so as agent for the Owner, and the Owner remains liable to pay in full the costs incurred in connection with same; and
DMCR will charge a processing fee in the amount of $40.00 to the Owner, which processing fee the Owner agrees to pay.
Default and Consequences of Default
The Driver and/or the Owner (as the case may be) will be in default of these Terms and Conditions if he or she:
Fails to pay any amount to DMCR on or before the due date; or
Fails to comply with any provision of these Terms and Conditions.
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.
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).
Vehicle Condition and Return
On or before the end of the Rental Period, the Driver must return the Vehicle into the control of the Owner at the Designated Return Location at the time and date agreed between the Owner and the Driver.
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 in accordance with clause 11.1 and these 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.
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.
The Driver must ensure that:
The Vehicle (with its keys and all peripheral items, including manuals, wheel locking nuts etc) is returned to the Owner in the same condition as it was at the beginning of the Rental Period, save for any reasonable wear and tear;
The Vehicle is cleaned prior to hand over to the Owner at the Designated Return Location; and
The Vehicle is returned with at least the same amount of fuel as was present at the commencement of the Rental Period.
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 Vehicle Inspection Report.
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.
The Owner must provide the completed Vehicle Inspection Report to DMCR within 48 hours of the return of the Vehicle.
If there is a disagreement over fuel levels at the hand over of the Vehicle, the Owner and Driver should attempt to resolve that dispute between themselves.
At the conclusion of the Rental Period, subject to photographic evidence and a signed Vehicle Inspection Report being provided to DMCR, the Owner may request in writing that DMCR perform or attend to or arrange the following:
Car cleaning, if the car is returned unreasonably dirty;
Replace any shortfall in fuel, if the tank is not at the same level it was at the start of the Rental Period; and
Repair any damage to the Vehicle sustained during the Rental Period.
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.
If DMCR agrees to attend to one or more of the matters in clause 11.9, then:
DMCR does so as agent for the Owner and the Owner remains liable to pay in full the costs incurred by DMCR;
DMCR will charge a processing fee, per task, in the amount of $40.00 to the Owner, which processing fee the Owner agrees to pay; and
The Driver agrees to indemnify the Owner for the costs incurred by the Owner, including but not limited to the costs at (a) and (b) above.
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.
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.
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.
The Owner is entitled to immediately repossess the Vehicle without notice to the Driver if:
The Driver has illegally parked the Vehicle for longer than 24 hours;
The Driver has used the Vehicle in violation of the law or these Terms and Conditions;
The Vehicle is apparently abandoned;
Payments are in arrears or not being received within 24 hours of the due date;
The Vehicle has not been returned to the Owner at the time and date specified in the Rental Agreement; and/or
The Rental Agreement is terminated in accordance with clause 23.
If DMCR notifies the Owner that the Vehicle may be repossessed, the Owner:
is at liberty to repossess the Vehicle.
may request in writing that DMCR act as his/her agent and repossess the Vehicle on the Owner’s behalf.
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.
If DMCR agrees to repossess the Vehicle , then:
DMCR does so as agent for the Owner and the Owner remains liable to pay in full the costs incurred by DMCR in connection with the repossession;
DMCR will charge a processing fee in the amount of $40.00 to the Owner, which processing fee the Owner agrees to pay; and
The Driver agrees to indemnify the Owner for any costs incurred by the Owner, including but not limited to the costs at (a) and (b) above in connection with repossessing the Vehicle).
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.
The Driver and/or the Owner may cancel a booking, if the Rental Period is less than one (1) month, prior to the Commencement of Booking without incurring any cancellation fee. If the cancellation occurs within twenty four (24) hours of the Commencement of Booking the cancelling party is liable to pay 30% of the Payment Amount 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 within seven (7) days of cancellation.
If the Rental Period is one (1) month or longer, the Driver and/or the Owner may cancel a booking, no later than seven (7) days from the Commencement of Booking, without incurring a cancellation fee. If the cancellation occurs within 7 days of the Commencement of Booking the cancelling party are liable to pay one months Payment Amount to DMCR, which the cancelling party agree 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 within seven (7) days of cancellation.
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 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 within seven (7) days of cancellation.
For long term rentals (exceeding thirty (30) days in duration), the Driver and/or Owner, as an alternative to complying with clause 13.5, may choose to provide the Owner (or Driver as the case may be) and DMCR with one month’s 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 13.6, however a $150 administration fee will apply.
If the Owner cancels a booking after the Commencement of Booking, and the Driver is not in arrears, the Owner agrees that the Driver will be entitled to keep the Vehicle until such time as DMCR has found a like for like replacement Vehicle.
Conditions of Vehicle Use
Subject to clause 14.2, the Vehicle must be driven only by the Driver named on the front page of the Rental Agreement.
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.
Other people who are prohibited from driving the Vehicle are those:
Not licensed for that class of Vehicle at the time of driving;
Who provide a false name, age, address or drivers license;
Whose license has been cancelled, endorsed or suspended within the last 12 months; and/or
Who have held a driver’s license for less than 2 years and/or are less than 21 years of age, unless otherwise agreed in writing by the Owner.
The Driver must:
Immediately report (as soon as he/she is able, taking into account circumstances and personal injury) any loss or damage to the Vehicle (or loss involving the Vehicle) to the Owner and DMCR;
Immediately deliver to the Owner every summons, complaint or paper in relation to loss identified in clause 14.4(a).
Notify the Owner and DMCR, in accordance with clause 21, if he/she wishes to extend the Rental Period 72 hours prior to the completion of the Rental Period. The Rental Period will not be extended unless the Owner and DMCR provide written confirmation to the Drivers in accordance with clause 21.
Not use the Vehicle for hire or reward;
Not use the Vehicle for any illegal purpose;
Not use the Vehicle off-road, or for racing, pace making, testing the Vehicle’s reliability and speed, or teaching someone to drive;
Not use the Vehicle when under the influence of alcohol or drugs;
Not carry a number of passengers which exceeds the designed seating capacity of the Vehicle;
Not carry baggage that would cause the Vehicle to be overloaded;
Not carry any hazardous, toxic or flammable materials in the Vehicle;
Not use the Vehicle in contravention of any legislation or regulation which may be in force at any time;
Ensure that the Vehicle is locked when not in use;
Make sure that the correct fuel is used when refueling the Vehicle;
Not sell, rent or dispose of the Vehicle or any of its parts, or purport to give anyone any legal rights over the Vehicle;
Not use the Vehicle in a dangerous or reckless manner;
Not use the Vehicle to carry on a business;
Not smoke or allow others to smoke in, or allow any animals into, the Vehicle without written permission from the Owner;
Not use or permit the Vehicle to be used to jump start any other vehicle; and
Not use or permit others to use the Vehicle to tow any other vehicle, trailer, boat or other object without written permission from the Owner.
The Owner grants the Driver automatic damage cover as a nominated Driver on the DMCR Comprehensive Insurance policy subject to the terms and conditions of that insurance policy (including any policy of insurance arranged by DMCR as agent for the Owner).
The Owner and the Driver agree and acknowledge that they have read and understood the terms and conditions of the DMCR Comprehensive Insurance policy including the terms and conditions of the Owner’s Compulsory Third-Party (CTP) Insurance policy.
The Owner and Driver acknowledge that the Driver may not be covered by the DMCR Comprehensive Insurance Policy in the event that the Driver does not comply with the terms and conditions of that insurance policy and/or these Terms and Conditions.
If the Owner’s CTP Insurance policy cover is listed as ‘Private’ cover, 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 CTP Insurance policy.
The Driver and the Owner agree that insurance cover under the DMCR policy of insurance is subject to:
A valid Rental Agreement;
Payment (per incident) of the applicable insurance excess;
Compliance with these Terms and Conditions;
The Driver not being covered under any other policy of insurance such as his own insurance cover; and
The Driver providing all reasonable information and assistance as may be requested and, if necessary, authorising the insurer (or its nominee) to bring, defend or settle legal proceedings, and the Driver agrees that the Insurer shall at all times have sole conduct of any legal proceedings.
All loss and damage and each incident leading to loss or damage is subject to an insurance excess charge per incident.
The Driver is responsible for paying for each insurance excess charge. The excess will be charged by DMCR immediately upon notification of an accident. This excess is refundable to the Driver if it transpires that the Driver was not at fault. However, refund of the excess is at the discretion of the insurer and not DMCR.
Insurance repair work will not commence until DMCR has received payment of the insurance excess from the Driver.
The Driver must report all claims to DMCR and the Owner within 24 hours of any damage to the Vehicle. Notification of insurance claims can be made via the DMCR website. (Go to www.drivemycarrentals.com.au > Log in > My Account > Claims Centre > New Claim > Add Claim > Make Claim).
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.
In the event of an accident, the Police may take possession to conduct tests that they are entitled to conduct.
The onus is on the Driver to disclose a correct registration number and VIN for the Vehicle to DMCR.
Failure to provide accurate information in accordance with clause 15.12 may render comprehensive and CTP insurance on the Vehicle void or voidable by the insurer.
The Driver must purchase DMCR roadside assistance.
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:
loses and/or misplaces car keys or locks the car keys inside the Vehicle; and
leaves any lights or accessories switched on while the car engine is not running, resulting in a flat battery or other damage.
The Driver authorises DMCR to charge and agrees to pay to DMCR a $40.00 processing fee in addition to charges incurred as a result of the Driver utilising Roadside Assistance other than as required under clause 16.4.
The Owner will be liable for the payment of all roadside assistance costs, including the call out fee, towing fees and replacement parts, if:
Due to fair wear and tear the:
Battery requires replacement;
Vehicle is immobilised for any reason;
Tyres suffer a puncture or are shredded.
The Vehicle requires roadside assistance due to a technical, mechanical or circumstantial failure not attributed to the Driver.
Traffic Offences, Fines and Fees
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.
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.
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.
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).
If the Driver decides to appeal any tickets, fines or other charges, the Driver shall do so at his/her own cost.
DMCR makes no warranty to the Driver that the Vehicle is in a roadworthy condition.
DMCR makes no warranty to the Owner that the Driver has a satisfactory driving record.
DMCR Responsibility and Liability
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.
DMCR has the right to enforce these Terms and Conditions against the Driver and/or Owner in the event of any failure to comply with these Terms and Conditions.
Where these 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.
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.
DMCR does not guarantee that the Website or DMCR’s service will be error-free, uninterrupted or that it will provide specific results.
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.
Except as expressly set out in these Terms and Conditions, DMCR expressly disclaims any further warranties, conditions, or other terms, either express or implied by statute or otherwise.
DMCR accepts no liability in respect of and shall not be responsible to the Owner and/or Driver for:
the condition of the Vehicle;
any information or content provided by the Driver or the Owner;
death or personal injury;
any damage to any property, or damage to or loss of any Vehicle;
any damage or loss of any belongings left in any Vehicle;
any fuel costs;
any incidental expenses;
any charges or fines mentioned in clause 17;
any theft or breakdown of any Vehicle; or
Any failure of the Driver or Owner to honour these Terms and Conditions;
DMCR is not liable to the Driver or Owner under or in connection with these Terms and Conditions whether for negligence, breach of contract, misrepresentation or otherwise, for:
Loss or damage incurred by the Driver and/or the Owner in connection with any claims made by a third party;
Loss of profit, goodwill, business opportunity or anticipated saving suffered by the Owner and/or the Driver; or
Any indirect or consequential loss or damage suffered by the Driver and/or the Owner.
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.
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.
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.
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.
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.
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.
If the Vehicle is recalled under this clause 20, 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.
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.
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.
DMCR may terminate the Rental Agreement at any time if the Driver and/or Owner commit a material breach of these terms and conditions. DMCR must notify the Driver and Owner, in accordance with clause 21, of the termination of the Rental Agreement.
These terms and conditions can only be varied as agreed in writing signed by the Parties.
If the Driver wishes to vary the Owner Rate he/she must obtain the written consent of the Owner and DMCR.
If the Owner wishes to vary the Owner Rate he/she must obtain the written consent of the Driver and DMCR.
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.
Proper law and jurisdiction
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.
Privacy Act 1988
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.
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:
to assess an application by the Owner or Driver;
to notify other credit providers of any default by the Owner and/or Driver;
to exchange information with other credit providers as to the status of a credit account where the Driver and/or Owner is in default; and/or
to assess the creditworthiness of the Driver and/or Owner.
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.
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).
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):
the provisions of goods and services; and / or
the marketing of goods and services by DMCR, its agents or distributors; and/or
analysing, verifying and / or checking the Drivers and/or Owners credit, payment and/or status in relation to the provisions of goods or services;
processing of any payment instructions, direct debit facilities and / or credit facilities requested by the Owner and Driver; and / or
enabling the daily operation of the Driver and/or Owner’s account and / or the collection of amounts outstanding in the Drivers and/or Owners account in relation to the goods or services.
DMCR may give information about the Driver and/or Owner to a credit reporting agency for the following purposes:
to obtain a consumer credit report about the Driver and/or Owner;
allow the credit reporting agency to create or maintain a credit information file containing information abut the Driver and/or Owner.
The information given to the credit reporting agency may include:
personal particulars (the Driver and/or Owner’s name, sex, address, previous addresses, date of birth, name of employer and drivers licence number);
details concerning the Driver and/or Owner’s application for credit or commercial credit and the amount requested;
advice that DMCR is a current credit provider to the Driver and/or Owner;
advice of any overdue accounts, loan repayments and / or any outstanding monies are no longer overdue in respect of any default that has been listed;
that the Driver and/or Owner’s overdue accounts loan repayments and / or any outstanding monies are no longer overdue in respect of any default that has been listed;
information that, in the opinion of DMCR, the Driver and/or Owner has committed serious credit infringement (that is fraudulent or shows an intention not to comply with the Driver’s and/or Owner’s credit obligations);
advice that cheques drawn by the Driver and/or Owner for one hundred dollars ($100.00) or more, have been dishonoured more than once;
that credit provided to the Driver and/or Owner by DMCR has been paid or otherwise discharged.
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.
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.
The failure by the Driver, Owner or DMCR to enforce any provision of the 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.
The Driver and the Owner agree that DMCR may amend these Terms and Conditions at any time. If DMCR makes a change to these Terms and Conditions, then that change will take effect from the date on which DMCR notifies the Driver and Owner.
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.