BACKGROUND

A. These Terms of Access and Use (“Terms”) govern your use of this site, application and any associated or linked sites or applications (“Site”) and form a binding contractual agreement between you, the user of the Site, and us, FPND Pty Ltd (ACN 612 352 217) trading as Carbiz Rentals (“Carbiz”).

B. For this reason the Terms are important and you should ensure that you read them carefully and contact Carbiz with any questions before you access and use the Site.

C. By using the Site or by accepting any products and services offered by or on behalf of Carbiz (“Products and Services”), including rental of a motor vehicle (“Hire Vehicle”), you acknowledge and agree that you have had sufficient chance to read and understand the Terms and you agree to be bound by them.  If you do not agree to the Terms, please do not use the Site.

OPERATIVE PROVISIONS

1. ACKNOWLEDGEMENTS

1.1 You acknowledge and agree that, to the full extent permitted by law, Carbiz:

1.1.1 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”);

1.1.2 has not assessed the suitability of any Products and Services or the Content to your individual circumstances;

1.1.3 recommends that you obtain an independent legal, accounting and financial advice in connection with Products and Services and the Content; and

1.1.4 gives no warranty, guarantee or representation about the Products or Services or the accuracy, completeness or currency of the Content or their compliance with the relevant laws and regulations.

1.2 You further acknowledge and agree that:

1.2.1 your act of accessing and using the Site constitutes your electronic signature to the Terms; and

1.2.2 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. GENERAL DISCLAIMER

2.1 To the full extent permitted by law, Carbiz disclaims any warranty, guarantee or representation, whether express or implied, in connection with:

2.1.1 the Products and Services;

2.1.2 the accuracy, completeness or currency of the Content;

2.1.3 the compliance of the Products and Services or the Content with the relevant laws and regulations;

2.1.4 the merchantability of the Products and Services; and

2.1.5 the fitness of the Products and Services or the Content for any particular purpose.

2.2 Carbiz is not be 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 Carbiz has been advised of their possibility) in connection with:

2.2.1 any part of the Products and Services or the Content;

2.2.2 your acquisition or use, or your inability to acquire  or use, any Products and Services or the Content;

2.2.3 your actions or omissions in connection with the Products and Services or the Content (including without limitation as a result of any information provided by you); and

2.2.4 the modification or removal of any part of the Products and Services or the Content.

2.3 You acknowledge and agree that the only warranties, if any, that may apply to any of the Products and Services are those offered by the relevant manufacturer, supplier, installer or any entity providing a warranty.

2.4 When Carbiz acts as a reseller of products and services supplied by third parties or as an agent of the third party, you acknowledge and agree that:

2.4.1 Carbiz is not be 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 Carbiz has been advised of their possibility) in connection with any of those products or services; and

2.4.2 the only warranties, if any, that may apply to any of those products or services are those offered by the relevant manufacturer, supplier, installer or any entity providing a warranty.

3. DISCLAIMER REGARDING USE OF SITE

3.1 To the full extent permitted by law, Carbiz disclaims any warranty, guarantee or representation, whether express or implied that:

3.1.1 the Site, or the server that makes the Site available for your use, is free of software viruses;

3.1.2 the functions contained in any software contained on the Site will not be interrupted or are error-free; and

3.1.3 errors and defects in the Site will be corrected.

3.2 Carbiz is not be 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 Carbiz  has been advised of their possibility) in connection with:

3.2.1 your access to, or use of, the Site;

3.2.2 errors or omissions in the Site;

3.2.3 delays to, interruptions of, or cessation of, any of the Products and Services; and

3.2.4 defamatory, offensive or illegal conduct of any user of the Site,
whether caused as a result of the negligence of Carbiz  or any other cause.

3.3 You agree to accept the full cost of any necessary repair, correction or maintenance of any of your computer software or hardware, which may be necessary as a consequence of you accessing or using the Site.

4. RESTRICTIONS ON USE

4.1 You acknowledge and agree that:

4.1.1 Carbiz owns all intellectual property rights in connection with the Products and Services, the Site and the Content; and

4.1.2 nothing in the Terms constitutes a transfer of any intellectual property rights to you.

4.2 Carbiz grants you a non-exclusive and non-transferable licence to use the Site and the Content in accordance with the Terms.

4.3 You agree to access the Site only for legitimate and lawful purposes.

4.4 Carbiz may, in its absolute discretion, withdraw or restrict your access to the Site or the Content at any time and for any reason.

4.5 To obtain access to certain parts of the Site, you must register on it.  If you register to use the Site or utilise any of our Products and Services, then you:

4.5.1 must not create an account for anyone, other than yourself (except on behalf of a company in accordance with clause 4.5.2);

4.5.2 if creating an account on behalf of a company, must be an officer or agent of the company who is authorised to enter into legally binding contracts on behalf of the company, and you represent and warrant to Carbiz that you are authorised to do so with the express approval of the company;

4.5.3 must not create a false identity or misrepresent an affiliation with another person or entity;

4.5.4 must not adopt a username or password that Carbiz, in its sole discretion, considers offensive;

4.5.5 must not provide your details (including your password) to any other person or do anything that may impact on your security;

4.5.6 agree that Carbiz may remove or block a user for any reason, including without limitation if Carbiz considers that the user utilises any Products and Services inappropriately;

4.5.7 warrant that you are at least 18 years of age; and

4.5.8 agree to receive notification from Carbiz by way of email, SMS or telephone in relation to any of the Products and Services;

4.5.9 you agree that the login and password are for your personal use only; and

4.5.10 you must maintain the confidentiality of the username and password and must not pass on the username or password to any other person.

4.6 Carbiz grants you a non-exclusive and non-transferable licence to use the Site and the Content in accordance with the Terms.

4.7 Except for the limited uses set out in clauses 4.2 to 4.6, you may not use the Site or any part of the Content for any purpose, including without limitation:

4.7.1 reproducing any part of the Content in any form;

4.7.2 transferring or distributing any part of the Content in any form;

4.7.3 transmitting any part of the Content by any medium of communication;

4.7.4 uploading or reposting any part of the Content to any other site;

4.7.5 recompiling, disassembling or modifying any part of the Content;

4.7.6 making any derivate works of any part of the Content; and

4.7.7 using any part of the Content for any commercial purpose.

4.8 You may not modify, copy or reproduce:

4.8.1 the layout of the Site; or

4.8.2 any computer software and code contained in the Site.

5. LIMITATION OF LIABILITY

5.1 You acknowledge and agree that your payment for any Products and Services or the Content (as the case may be) is not refundable under any circumstances.

5.2 However, in the event that the disclaimers or exclusions of liability set out in clauses 2 or 3 are not effective to the full extent, you acknowledge and agree that Carbiz’s liability in respect of the Products and Services is limited to one or more of the following (as determined by Carbiz in its discretion):

5.2.1 if the breach of an implied warranty or condition relates to products:

(a) replacement of the products or the supply of equivalent products; or

(b) reimbursement of payments made by you for the products (excluding any fees or payments charged by, or made to, any government authorities or any other third parties); or

5.2.2 if the breach of an implied warranty or condition relates to services:

(a) re-supply of the services or the supply of equivalent services; or

(b) reimbursement of payments made by you for the services (excluding any fees or payments charged by, or made to, any government authorities or any other third parties).

5.3 In the event that Carbiz makes a reimbursement referred to in clause 5.2, this payment will be made strictly to the payment method used by you in the relevant transaction.

6. LINKS TO THIRD PARTY CONTENT

6.1 The Site contains or may contain links to sites, products, services, information or content owned, provided by or operated by third parties and which are not under Carbiz’s control (“Third Party Content”).

6.2 You acknowledge and agree that:

6.2.1 the links to the Third Party Content are provided as a convenience to you and strictly for information purposes;

6.2.2 the existence of a link to the Third Party Content does not imply any endorsement of it by Carbiz  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;

6.2.3 Carbiz  does not make any proprietary claim to any intellectual property associated with any Third Party Content;

6.2.4 Carbiz  is not responsible for any Third Party Content; and

6.2.5 Carbiz  is not be 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 Carbiz  has been advised of their possibility) in connection with the Third Party Content.

7. BILLING AND PAYMENTS

7.1 You agree to pay all fees and charges for any Products and Services utilised by you, whether through the Site or otherwise, in accordance with the payment terms disclosed to you prior to the relevant transaction.

7.2 If applicable, prior to the relevant transaction, you must nominate your preferred payment method from the available options.  You warrant that you are authorised to use that payment method.  You authorise Carbiz to charge you for the relevant Products and Services using the required payment method.

7.3 Following the acceptance of your payment, Carbiz will use reasonable endeavours to provide you with the relevant Products and Services within the agreed period of time and in any event as soon as reasonably practicable in the circumstances.  However, you acknowledge that there may be delays in delivering the Products and Services for the reasons outside Carbiz’s control.  Carbiz  is not be 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 it has been advised of their possibility) as a result of the delays in the delivery of the Products and Services.

8. INFORMATION PROVIDED BY YOU

8.1 You represent and warrant in relation to any data or information you provide to Carbiz  or the Site (including any information about another person or entity) that:

8.1.1  you are authorised to provide such data or information;

8.1.2 to the best of your knowledge, such data or information are true, accurate, correct and complete;

8.1.3 you will notify Carbiz immediately of any changes in the data or information previously provided by you;

8.1.4 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

8.1.5 the provision of such data or information by you does not breach any laws or regulations.

8.2 Carbiz reserves the right:

8.2.1 to inspect and verify correctness of the data or information provided by you if it deems necessary; and

8.2.2 not to provide any Products and Services if Carbiz has any suspicious regarding the data or information provided by you, irrespective of any payment made.

9. USE OF GATHERED INFORMATION AND CONTACT BY CARBIZ

9.1 In accordance with Carbiz’s privacy policy (“Privacy Policy”), Carbiz may gather and process the data and information:

9.1.1 which you may provide when accessing the Site, including your name, address, telephone number, email address and other personal information about you; and

9.1.2 regarding the way in which you use the Site, including without limitation information acquired through the use of “cookies” programmed during the access to the Site.

9.2 Carbiz may use and authorise others to use the data and information acquired under clause 9.1 in accordance with the Privacy Policy.

9.3 You acknowledge and agree that the Privacy Policy forms part of the Terms.

10. VARIATIONS

10.1 Carbiz  reserves the right to modify or remove any Content on the Site or vary the Terms:

10.1.1 at any time;

10.1.2 with or without further notice to you; and

10.1.3 without giving you any explanation or justification for such variations.

11. WITHDRAWAL OF OFFER OR SUSPENSION OR TERMINATION OF ACCESS

11.1 Carbiz may withdraw any offer to rent the Hire Vehicle or suspend, restrict, limit or modify your access to the Products and Services, the Site or the Content (as the case may be) at any time and without notice if Carbiz, it its discretion, determines or suspects that your activities in connection with the Products and Services, the Site or the Content:

11.1.1 are in breach or violation of the Terms or the Privacy Policy (as may be varied from time to time) or any other relevant laws, regulations, policies or guidelines;

11.1.2 harm or threaten to harm the interest of Carbiz or any of Carbiz’s associated entities;

11.1.3 have given rise, or may give rise, to legal disputes or liabilities for Carbiz  or any of Carbiz’s associated entities;

11.1.4 have infringed, or may infringe, any intellectual property rights; or

11.1.5 have, or may have, an adverse effect on Carbiz’s goodwill or reputation.

11.2 Carbiz is not be 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 Carbiz has been advised of their possibility) as a result of Carbiz’s actions under clause 11.1 (including without limitation claims or demands for compensation, refund or any other payment or benefit).

12. SECURITY AND REPORTING

12.1 If applicable, you agree that you are responsible for keeping your login name and password for your account on the Site secret and for regularly changing your login name and password for security purposes.

12.2 You acknowledge and agree that Carbiz is not responsible for any third party accessing your account that results from the theft or misappropriation or sharing by you of your login name and password.

12.3 Carbiz reserves the right to suspend or terminate your access to the Site if Carbiz suspects an unauthorised use of your account or the Site.

12.4 You agree to immediately notify Carbiz  regarding:

12.4.1 any breach or violation of the Terms by others of which you become aware; and

12.4.2 any known or suspected unauthorised access to the Site or your account.

13. YOUR WARRANTY AND INDEMNITY

13.1 You represent and warrant that:

13.1.1 you have the legal capacity to enter into the Terms, utilise the Products and Services and access and use the Site and the Content;

13.1.2 if you are acting on behalf of a company or any other entity, you have the authority to bind such company or entity; and

13.1.3 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.

13.2 To the full extent permitted by law, you accept full responsibility for, release Carbiz from, and indemnify Carbiz for and against, any costs, expenses, loss, damage, fees, charges, claims, demands or liabilities, suits or proceedings incurred or suffered by, or made against, in connection with:

13.2.1 your use of the Products and Services:

13.2.2 your access to, or use of, the Site and the Content;

13.2.3 your use, including improper or unauthorised use, of your username or password by you or another person;

13.2.4 any breach of the Terms by you; and

13.2.5 provision, publication or distribution of any data, information or documents by you.

13.3 This clause 13 survives completion, rescission or termination of the Contract for any reason.

14. USE OF HIRE VEHICLE

14.1 If you rent the Hire Vehicle from Carbiz, you acknowledge and agree that:

14.1.1 at the time of collision or third-party loss or damage, irrespective of liability, you must pay the insurance excess, provided that the insurance excess will be refunded to you if the third-party insurance accepts the liability by the third party and pays the cost of the relevant loss or damage in full;

14.1.2 you must maintain the Hire Vehicle in the state of repair and condition in which it was given to you, having regard to the damage check sheet;

14.1.3 you must maintain tyre pressure, fluid and fuel at the proper operating levels and to immediately report any defect to Carbiz;

14.1.4 a person who holds a learner licence or does not hold a current motor vehcile driver’s licence for the particular class of the Hire Vehicle must not drive the Hire Vehicle;

14.1.5 a person whose breath or blood alcohol concentration exceeds the maximum lawful concentration or who is intoxicated or who is under the influence of any drug, toxic, or illegal substance must not drive the Hire Vehicle;

14.1.6 a person who has given Carbiz or for whom you have given Carbiz a false name, age, address or driver’s licence details must not drive the Hire Vehicle;

14.1.7 a person whose driver’s licence has been cancelled, endorsed or suspended within the last 3 years or a person who is under the age of 21 years must not drive the Hire Vehicle;

14.1.8 if the place of hire is in New South Wales, the Hire Vehicle must not be used outside New South Wales;

14.1.9 the Hire Vehicle must not be driven on any unsealed road. No Hire Vehicle (including 4WDs) may be used on off-road conditions, including without limitation fire trails, snow, beaches, sand, tracks, fields and paddocks;

14.1.10 you must not, and must not or permit anyone else to, carry any inflammable, explosive or corrosive materials or to carry any animal or pet, excluding guide dogs;

14.1.11 you must maintain the Hire Vehicle’s engine oils, brake fluids and engine coolant levels to the manufacturer’s specifications as prescribed in the Hire Vehicle manual;

14.1.12 the Hire Vehicle must not be used to carry passengers or property for hire or reward;

14.1.13 the Hire Vehicle must not be used to carry passengers in excess of the capacity of the Hire Vehicle;

14.1.14 the Hire Vehicle must not be used to carry passengers, other than in the interior or cab of the Hire Vehicle;

14.1.15 the Hire Vehicle must not be used to push, propel or tow another vehicle, trailer or any other thing without prior written consent of Carbiz;

14.1.16 the Hire Vehicle must not be used for any race or in any competition;

14.1.17 the Hire Vehicle must at all times be used in compliance with all applicable laws and regulations, including any seat belt and child restraint laws;

14.1.18 you must immediately inform Carbiz of any damage to, or defect in, the Hire Vehicle and, if required by Carbiz, immediately return the Hire Vehicle to Carbiz (which Carbiz may, in its discretion, replace with another Hire Vehicle);

14.1.19 any Hire Vehicle moving and or transport costs will not be reimbursed to you or any other person, unless specifically authorised by Carbiz;

14.1.20 the Hire Vehicle must not be used for any illegal purpose;

14.1.21 the Hire Vehicle must not be used or operated in a reckless or negligent manner or in a way that causes any loss or damage to any person or property; and

14.1.22 the Hire Vehicle must not be used, driven or operated by any person, other than you, without the prior written consent of Carbiz. If anyone else drives the Hire Vehicle in breach of this clause, you:

(a) must immediately pay Carbiz an applicable fine;

(b) you are liable for any and all loss and damage to the Hire Vehicle and any other loss and damage caused by any unauthorised driver, including personal injury to any third party or damage to any third-party property; and

(c) acknowledges that such loos and damage are not covered by any insurance.

15. YOUR LIABILITY

15.1 If you rent the Hire Vehicle from Carbiz, you:

15.1.1 are fully responsible and liable for any and all loss and damage to the Hire Vehicle, whether caused by collision, fire, flood, vandalism, theft, your breach of your rental agreement or any other cause, except to the extent that the third party insurance accepts the liability by the third party and pays the cost of the loss or damage in full;

15.1.2 are fully responsible and liable for any and all loss, damage or injury to any third party caused by the use or operation of the Hire Vehicle.

15.1.3 to the full extent permitted by law, release Carbiz from, and indemnify Carbiz against, any costs, expenses, fees, fees, charges, losses, damages, liability, claims, demands, suits or proceedings incurred or suffered by, or made against, Carbiz in connection with the Hire Vehicle, its use by you or any other matter arising out of your rental agreement.

16. FEES AND CHARGES

16.1 If you rent the Hire Vehicle from Carbiz, you must pay all fees and charges referred to in your rental agreement.

16.2 If you rent the Hire Vehicle from Carbiz, you authorise any credit card or any other card or account provided by you to be securely stored in stripe.com platform or a similar platform in accordance the Privacy Policy.

16.3 If you rent the Hire Vehicle from Carbiz, you authorise Carbiz to:

16.3.1 charge to the credit card or any other card or account provided by you with any money due and payable by you under your rental agreement; and

16.3.2 put an authorisation hold in the amount require dby Carbiz frim time to time from the available balance of your credit card or any other card as a security for performance of your obligations under your rental agreement.

17. RETURN OF HIRE VEHICLE

17.1 If you rent the Hire Vehicle from Carbiz:

17.1.1 on or before the end of the hire period (or an earlier day if otherwise required under your rental agreement), you must return the Hire Vehicle to Carbiz to the location nominated by it;

17.1.2 the Hire Vehicle must be returned to Carbiz in the state of repair and condition in which it was given to you, having regard to the damage check sheet, including with all of the Hire Vehicle’s original components and accessories;

17.1.3 you are liable for the replacement cost of any missing components, including without limitation any SD cards, keys, tools, jacking equipment, spare tyres, telematics, roof racks and baby seats;

17.1.4 if you fail to return the Hire Vehicle to Carbiz in accordance with clause 17.1.1, the Hire Vehicle will be immediately reported to the Police as having been stolen;

17.1.5 Carbiz may take possession of the Hire Vehicle without prior demand if:

(a) it is illegally parked;

(b) in Carbiz’s opinion, it is being used in contravention of any law or in breach of your rental agreement;

(c)  in Carbiz’s opinion, it has been damaged or is defective in any way; or

(d) it has apparently been abandoned; and

17.1.6 you are responsible for the Hire Vehicle and the hire will continue until Carbiz makes final inspection of the Hire Vehicle.

18. DISPUTE RESOLUTION

18.1 If a dispute arises in relation to the Terms, prior to commencing any legal proceedings the parties must negotiate in good faith with a view of resolving that dispute.  In the event of your disagreement with any matter arising in connection with your use of the Site you can contact Carbiz’s Relationship Manager by using the “Contact Us” form.

18.2 If the dispute was not resolved pursuant to the procedure set out in clause 18.1, prior to commencing any legal proceedings either party must give the other party a notice requiring that the dispute be resolved by an arbitrator to be appointed by the Institute of Arbitrators and Mediators Australia.

18.3 Each of the parties must cooperate fully with the arbitrator.

18.4 The arbitration is to be conducted in accordance with the Institute’s Rules for the Conduct of Commercial Arbitrations.  Those rules and the decision of the arbitrator are binding on the parties.

19. GENERAL

19.1 Where required by Carbiz, the term “Carbiz” used in the Terms includes all of Carbiz’s directors, officers, employees, contractors, consultants, agents and any other person claiming through or under Carbiz.

19.2 The term “associated entity” used in the Terms has the meaning ascribed to this term under the Corporations Act 2001 (Cth).

19.3 Each party must at its own expense do everything reasonably necessary to give full effect to the Terms and the events contemplated by it.

19.4 If any part of the Terms is found to be void, unlawful or unenforceable, then that part will be deemed to be severable from the balance of the Terms.  The severed part of the Terms will not affect the validity and enforceability of any remaining provisions.

19.5 You must not assign, sublicence or otherwise deal in any other way with any of your rights, title or interest under the Terms.  Carbiz may assign, sublicence or otherwise deal with any of its rights, title or interest under the Terms and in connection with the Site without your consent.

19.6 Nothing on this Site or under the Terms is to be deemed to constitute an offer to sell or serve in jurisdictions where it is illegal to do so.

19.7 The Terms are governed by, and interpreted in accordance with, the laws of the State of New South Wales, Australia, without giving effect to any principles of conflicts of laws.

19.8 You agree to the jurisdiction of the courts of the State of New South Wales, Australia to determine any dispute arising out of the Terms.