Terms of Access and Use

BACKGROUND
A. These Terms of Access and Use ("Terms") govern your access and use of this site, social media accounts, applications, platforms and any associated or linked sites, accounts, applications and platforms ("Site") owned or controlled by us, FPND Pty Ltd (ACN 612 352 217) trading as Carbiz Rentals (“Company”) and form a binding contractual agreement between you and the Company.
B. For this reason, the Terms are important, and you should ensure that you read them carefully and contact the Company with any questions before you access and use the Site or accept any products and services offered by, or on behalf of, the Company (“Products and Services”).
C. By using the Site or by accepting any Products and Services, you acknowledge and agree that you have had sufficient chance to read and understand the Terms and you agree to be bound by them.
D. If you do not agree to the Terms, please do not access or use the Site or accept any Products and Services.
OPERATIVE PROVISIONS
1 ACKNOWLEDGEMENTS
1.1 You acknowledge and agree that the Company:
1.1.1 to the full extent permitted by law,
1.1.2 makes the following available to you without assuming a duty of care:
(a) the Products and Services;
(b) the Site; and
(c) all information about the Products and Services or any other content on the Site (“Content”);
1.1.3 has not assessed the suitability of any Products and Services or the Content to your individual circumstances;
1.1.4 recommends that you obtain an independent legal, accounting and financial advice in connection with Products and Services and the Content; and
1.1.5 makes the Content available for general information only and does not make an offer or inducement to enter into a legally binding contract in connection with the Products and Services, unless expressly stated otherwise.
1.2 You further acknowledge and agree that:
1.2.1 if the Company pays any commission to any third party for referring you to the Company:
(a) it does not do so to induce or influence your decision to acquire any Products and Services or enter into any contract with the Company;
(b) you have not received an advice from any third party referrer that is in any way intended or likely to induce or influence your decision to acquire any Products and Services or enter into any contract with the Company; and
(c) it relies on the third party referrer to provide any disclosures to you required by any applicable law; and
1.2.2 your act of accessing and using the Site constitutes your electronic signature to the Terms, and the Terms may not be denied legal effect or enforceability solely because the agreement between the parties as to the Terms was formed electronically.
2 PRODUCTS AND SERVICES
2.1 If the Company provides you with any Products and Services, you must comply with the terms and conditions of the relevant agreement for the provision of such Products and Services, and the Company’s continued provision of such Products and Services is subject to your compliance with those terms.
3 CONSUMER GUARANTEES
3.1 If you are a consumer under Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any other similar law (“Australian Consumer Law”), the Products and Services come with consumer guarantees or similar rights that cannot be excluded by law.
3.2 Nothing in the Terms excludes such consumer guarantees or similar rights, and any other term or condition of the Terms is subject to those rights.
3.3 If you are a consumer under the Australian Consumer Law, and that law or any other applicable law prohibits provisions in a contract excluding or modifying the application or exercise of, or liability under, any guarantee, condition, warranty or assurance, then, to the full extent permitted by law, the Company’s liability for any breach of such guarantee, condition, warranty or assurance will be limited, at its election, to one or more of the following:
3.3.1 if the breach relates to products, then the replacement of the products or the supply of equivalent products; the payment of the cost of replacing the products or of acquiring equivalent products; or the repair of such products or payment of the cost of having the products repaired;
3.3.2 if the breach relates to services, then the re-supply of the services or the payment of the cost of having the services re-supplied; and
3.3.3 if any damage is caused to your computer software or hardware as a result of you accessing or using the Site, then the repair or rectification of that software or hardware or payment of the cost of having them repaired or rectified, except that, if applicable, this limitation does not apply to a breach of consumer guarantees relating to clear title, undisclosed securities and undisturbed possession under sections 51 to 53 of the Australian Consumer Law.
4 DISCLAIMER REGARDING PRODUCTS AND SERVICES
4.1 To the full extent permitted by law, the Company disclaims any warranty, condition guarantee, assurance or representation, whether express or implied, in connection with:
4.1.1 the Products and Services and your use of them;
4.1.2 compliance of the Products and Services with the relevant laws and regulations; and
4.1.3 fitness of the Products and Services for any particular purpose.
4.2 The Company is not liable under any circumstances for any losses, damages, costs, expenses, demands, claims or proceedings suffered or incurred by you or brought against you (even if the Company has been advised of their possibility) in connection with:
4.2.1 any part of the Products and Services, including their modification or removal;
4.2.2 your acquisition or use of, or your inability to acquire or use, any Products and Services; and
4.2.3 your actions or omissions in connection with the Products and Services (including without limitation as a result of any information provided by you), whether caused as a result of the negligence of the Company or any other cause.
4.3 You acknowledge and agree that, to the full extent permitted by law, your payment for any Products and Services or the Content is not refundable under any circumstances.
4.4 When the Company acts as a reseller of products or services supplied by third parties or as an agent of the third party, you acknowledge and agree that:
4.4.1 the Company does not have repair facilities or, in some cases, spare parts for those products or services in Australia;
4.4.2 if there is a claim by you in respect of those products or services under the Australian Consumer Law or any other similar law, it may be necessary for the Company to send those products or services to the manufacturer's facilities outside Australia for assessment or repair, or order spare parts for the them from places outside Australia;
4.4.3 the only guarantees or warranties that apply to those products and services are those offered by the relevant manufacturer, supplier, installer or any entity providing such guarantee or warranty; and
4.4.4 to the full extent permitted by law, the Company is not liable under any circumstances for any losses, damages, costs, expenses, demands, claims or proceedings suffered or incurred by you or brought against you (even if the Company has been advised of their possibility) in connection with those products or services.
5 DISCLAIMER REGARDING ACCESS AND USE OF SITE AND CONTENT
5.1 To the full extent permitted by law, the Company disclaims any warranty, condition guarantee, assurance or representation, whether express or implied, in connection with:
5.1.1 the Site, functions contained in any software used on the Site and the server that makes the Site available for your access and use, including that they are free of any viruses or errors;
5.1.2 your access and use of the Site and the Content;
5.1.3 the use, including improper or unauthorised use, of your username or password by you or any other person;
5.1.4 provision, publication or distribution of any data, information or documents by you;
5.1.5 the accuracy, completeness or currency of the Content;
5.1.6 compliance of the Content with the relevant laws and regulations;
5.1.7 fitness of the Content for any particular purpose; and
5.1.8 your breach of the Terms.
5.2 The Company is not liable under any circumstances for any losses, damages, costs, expenses, demands, claims or proceedings suffered or incurred by you or brought against you (even if the Company has been advised of their possibility) in connection with:
5.2.1 your access or use of the Site;
5.2.2 errors or omissions in the Site;
5.2.3 delays to, or interruptions or cessation of, any part of the Site or the Content;
5.2.4 defamatory, offensive or illegal conduct of any user of the Site; and
5.2.5 the Content, including its modification or removal, whether caused as a result of the negligence of the Company or any other cause.
5.3 The Terms contain all the terms and conditions of your agreement with the Company in connection with your access and use of the Site. No other written or oral statement (including statements in any brochure or promotional material published by the Company) is deemed to be incorporated in the Terms. If any inconsistency exists between the Terms and any future published terms of access and use of the Site, then the last published terms will prevail.
6 RESTRICTIONS ON ACCESS AND USE
6.1 You acknowledge and agree that:
6.1.1 the Company owns all intellectual property rights in connection with the Products and Services, the Site and the Content; and
6.1.2 nothing in the Terms constitutes a transfer of any intellectual property rights to you.
6.2 The Company grants you a non-exclusive and non-transferable licence to access and use the Site and the Content in accordance with the Terms.
6.3 You agree to access and use the Site only for legitimate and lawful purposes.
6.4 You agree not to access or use the Site for posting or transmitting any infringing, threatening, libellous, defamatory, obscene, harassing, offensive, scandalous, inflammatory, pornographic or profane material.
6.5 The Company may, in its absolute discretion, withdraw or restrict your access to the Site or the Content at any time and for any reason.
6.6 To obtain access to certain parts of the Site, you may need to register on it. If you register to access and use the Site or utilise any of our Products and Services, then you:
6.6.1 must not create an account for anyone, other than yourself (except on behalf of a company, in which case you must be a duly authorised officer, representative or agent of the company);
6.6.2 must not create a false identity or misrepresent an affiliation with another person or entity;
6.6.3 must not adopt a username or password that the Company, in its sole discretion, considers offensive;
6.6.4 agree that your username and password are for your personal use only and you must not provide your details (including your username or password) to any other person or do anything else that may impact on your security;
6.6.5 agree that the Company may remove or block a user for any reason, including without limitation if the Company considers that the user utilises the Products and Services, the Site or the Content inappropriately; and
6.6.6 agree to receive notification from the Company by way of email, SMS or telephone in relation to the Products and Services.
6.7 The Company grants you a non-exclusive and non-transferable licence to use the Site and the Content in accordance with the Terms.
6.8 Except for the limited uses set out in clauses 6.2 to 6.7, you may not access or use the Site or any part of the Content for any purpose, including without limitation:
6.8.1 reproducing any part of the Content in any form;
6.8.2 transferring, distributing or transmitting any part of the Content by any medium of communication;
6.8.3 uploading or reposting any part of the Content to any other site, social media account, application, platform or another form of media;
6.8.4 recompiling, disassembling or modifying any part of the Content;
6.8.5 making any derivate works of any part of the Content; and
6.8.6 using any part of the Content for any commercial purpose.
6.9 You may not modify, copy or reproduce:
6.9.1 the layout of the Site;
6.9.2 the images contained within the Site; or
6.9.3 any computer software and code contained in the Site.
7 SECURITY AND REPORTING
7.1 You agree that you are responsible for keeping your username and password for your account on the Site secret and for regularly changing your username and password for security purposes.
7.2 You acknowledge and agree that the Company is not responsible for any third party accessing your account that results from the theft or misappropriation or sharing by you of your username and password.
7.3 The Company reserves the right to suspend or terminate your access to the Site if the Company suspects an unauthorised use of your account or the Site.
7.4 You agree to immediately notify the Company regarding:
7.4.1 any breach or violation of the Terms by others of which you become aware; and
7.4.2 any known or suspected unauthorised access to the Site or your account.
8.1 The Site contains or may contain links or other references to sites, products, services, information, content, posts or comments owned, provided, operated or made by third parties or which are otherwise not under the Company’s control ("Third-Party Content").
8.2 You acknowledge and agree that:
8.2.1 the links or references to the Third-Party Content are provided as a convenience to you and strictly for information purposes;
8.2.2 the existence of a link or reference to the Third-Party Content does not imply any endorsement of it by the Company and is not to be construed as an offer to sell, or solicitation of an offer to buy, any products or services referred to in the Third-Party Content;
8.2.3 the Company does not make any proprietary claim to any intellectual property associated with any Third-Party Content;
8.2.4 the Company is not responsible for any Third-Party Content; and
8.2.5 the Company is not liable under any circumstances for any losses, damages, costs, expenses, demands, claims or proceedings suffered or incurred by you or brought against you (even if the Company has been advised of their possibility) in connection with the Third-Party Content.
9 PAYMENTS
9.1 You agree to pay all fees and charges for any Products and Services used by you, whether through the Site or otherwise, in accordance with the terms and conditions of the relevant agreement for provision of such Products and Services.
10 INFORMATION PROVIDED BY YOU
10.1 You represent and warrant in relation to any data or information you provide (including any information about another person or entity) that:
10.1.1 you are authorised to provide such data or information;
10.1.2 to the best of your knowledge, such data or information is true, accurate, correct and complete;
10.1.3 you will notify the Company immediately of any changes in the data or information previously provided by you;
10.1.4 you do not impersonate any other person or entity nor do you use a false name or a name that you are not authorised to use when accessing or using the Site; and
10.1.5 the provision of such data or information by you does not breach any laws or regulations.
10.2 The Company reserves the right:
10.2.1 to inspect and verify correctness of the data or information provided by you if it deems necessary; and
10.2.2 not to provide any Products and Services if The Company has any suspicious regarding the data or information provided by you, irrespective of any payment made.
11 CONTENT YOU UPLOAD
11.1 The Company may permit you to post, upload, publish, submit or transmit your own information and content on or through the Site ("User Content").
11.2 Should you make any User Content available on or through the Site, you grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content, with the right to use, view, copy, adapt, modify, distribute, license, transfer, communicate, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content on, through or by means of the Site or any other medium of communication.
11.3 You agree that you are solely responsible for all User Content that you make available on or through the Site. You represent and warrant that:
11.3.1 you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content; and
11.3.2 neither the User Content nor the posting, uploading, publication, submission or transmission of the User Content or our use of the User Content on, through or by means of the Site or any other medium of communication will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
12 PRIVACY POLICY
12.1 The Company collects, stores, uses and discloses personal information (as defined in the Privacy Act 1988 (Cth)) in accordance with its Privacy Policy .
12.2 You acknowledge and agree that the Privacy Policy forms part of the Terms.
12.3 The Privacy Policy, inter alia, governs the way the Company collects, stores and uses data and information:
12.3.1 which you may provide when accessing the Site or using the Products and Services, including without limitation your name, address, telephone number, email address and other personal information about you; and
12.3.2 about how you access or use the Site, including without limitation information through the use of cookies.
12.4 The Company may use and authorise others to use the data and information acquired under clause 12.1 in accordance with the Privacy Policy.
13 VARIATIONS
13.1 The Company reserves the right to modify or remove any Content on the Site or vary the Terms:
13.1.1 at any time;
13.1.2 with or without further notice to you; and
13.1.3 without giving you any explanation or justification for such variations.
14 WITHDRAWAL OF OFFER OR SUSPENSION OR TERMINATION OF ACCESS
14.1 The Company may suspend, restrict, limit or modify your access to the Products and Services, the Site or the Content at any time and without notice if the Company, if it determines or suspects that your activities in connection with the Products and Services, the Site or the Content:
14.1.1 are in breach or violation of the Terms, the Privacy Policy, the relevant agreement for provision of the Products and Services or any other applicable laws, regulations, policies or guidelines;
14.1.2 harm or threaten to harm the interest of the Company or any of its associated entities (as defined in Corporations Act 2001 (Cth));
14.1.3 have given rise, or may give rise, to legal disputes or liabilities for the Company or any of its associated entities;
14.1.4 have infringed, or may infringe, any intellectual property rights; or
14.1.5 have, or may have, an adverse effect on the Company’s goodwill or reputation.
14.2 The Company is not liable under any circumstances for any losses, damages, costs, expenses, demands, claims or proceedings suffered or incurred by you or brought against you (even if the Company has been advised of their possibility) as a result of the Company’s actions under clause 14.1 (including without limitation claims or demands for compensation, refund or any other payment or benefit).
15 YOUR WARRANTY
15.1 You represent and warrant that:
15.1.1 you have the legal capacity to enter into the Terms, utilise the Products and Services and access and use the Site and the Content;
15.1.2 if you are acting on behalf of a company or any other entity, you have the authority to bind such company or entity; and
15.1.3 if you are providing data or information about another person or entity, you have an authority from the relevant party for the provision of such information.
16 DISPUTE RESOLUTION
16.1 If you disagree with any matter arising in connection with your use of the Products and Services, the Site or the Content, you can contact the Company using the contact details set out in the Site.
16.2 Prior to commencing any legal proceedings, the parties must negotiate in good faith with a view of resolving any dispute.
16.3 You may also refer the dispute to any relevant authority that governs the Products and Services, the Site or the Content (as the case may be).
16.4 You agree to the jurisdiction of the courts of the State of New South Wales and the Commonwealth of Australia to determine any dispute.