This Agreement provides
1 Definitions and Interpretation
1.1 Definitions
In this Agreement, unless the context otherwise requires:
Accident means a collision between the Vehicle and another motor vehicle, a stationary or moving object or obstruction, a pedestrian, an animal or debris or the theft or vandalism of the Vehicle.
Additional Kilometre Charge means the amount set out in Item 5 of the Payment Schedule.
App Termination means being terminated by any on-demand ride-sharing app.
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Authorised Representative means a current Splend employee or a third party acting as Splend’s agent who Splend has provided written confirmation of their status as an Authorised Representative.
Business Day means any day (other than a Saturday, Sunday or public holiday) on which banks are open for general business in Sydney, New South Wales
Claims means all suits, actions, causes of action, claims and demands for compensation, damages or other relief (including declaratory relief) on any basis whatsoever whether at law, in equity or under statute.
Excess Fee means the fee specified in Item 6 of the Payment Schedule.
Excess Reduction Fee means the weekly fee that the Hirer may opt into to reduce their Excess from the Maximum Excess Fee and is Item 9 on the Payment Schedule.
GST means:
(a) the same as in the A New Tax System (Goods and Services) Act 1999 (Cth);
(b) any other goods and services tax, or any tax applying to the transaction in a similar way; and
(c) any additional tax, penalty tax, fine, interest or other charge under a law for such a tax.
Experienced Driver means the Hirer is aged 25 years old or over and has at least 2 years driving experience after having obtained an unrestricted Australian driving licence.
Increased Excess Fee means the fee specified in Item 8 of the Payment Schedule.
Inexperienced Driver means a Hirer who is not an Experienced Driver.
Insolvency Event means the happening of any following event in respect of a party:
(a) if a natural person, it becomes bankrupt or insolvent;
(b) if a company:
(i) (receivership) a receiver, receiver and manager, official manager, trustee, administrator, other controller (as defined in the Corporations Act) or similar official is appointed, or steps are taken for such appointment, over any of the equipment or undertaking of a party;
(ii) (insolvency) a party is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Act or is presumed to be insolvent under the Corporations Act;
(iii) (ceasing business) a party ceases or threatens to cease to carry on business; and
(iv) (liquidation) an application or order is made for the liquidation of a party or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of a party otherwise than for the purpose of an amalgamation or reconstruction.
Insured Event means an event which gives rise to a right of the Hirer to seek cover under the Loss and Damage Cover
Deposit means the fee specified in Item 4 of the Payment Schedule.
Notifiable Event means an event set out in clause 6 of this Agreement.
Maximum Excess Fee means the fee specified in Item 9 of the Payment Schedule
Privacy Policy means Splend’s Privacy Policy as found on Splend’s website (www.splend.com.au) as amended from time to time.
Reasonable Excuse means any injury to or other impact on the Hirer totally or significantly prevents the Hirer from being able to perform the Hirer’s obligations under this Agreement.
Reduced Excess Fee means the fee specified in Item 7 of the Payment Schedule.
Security means any property whether real property or personal property of which the Hirer is the owner (or in which the Hirer has an interest) or registered proprietor whether beneficial, legal, equitable or other.
Term means the period commencing from the Start Date specified in Item 1 of the Payment Schedule and finishing at the time the Vehicle is returned to the Splend Depot in the state in which it is registered.
Vehicle means the vehicle described in Item 3 of the Payment Schedule.
Weekly Hire Payment means the amount described in Item 2 of the Payment Schedule.
2 Rental
2.1 Pursuant to this Agreement, Splend will let, and the Hirer will take on hire of the Vehicle for the Term of this Agreement.
2.2 Pursuant to this Agreement, the Hirer, as consideration for the hire of the Vehicle agrees to pay the Deposit, the Weekly Hire Payment and all other amounts which are or may become payable by the Hirer pursuant to this Agreement.
3 Additional Drivers
3.1 The Hirer shall be the only authorised driver to drive the Vehicle for a commercial purpose under this Agreement save as set out in this clause.
3.2 One (1) additional person may be specified as the driver (Additional Driver) for private or domestic purposes with approval to be granted at the absolute discretion of Splend.
3.3 The Additional Driver may be permitted, with the express written approval from Splend, to use the Vehicle for commercial purposes in which case the Weekly Hire Payment is increased as as set out in clause 2 of the Payment Schedule.
3.4 Both the Hirer and the Additional Driver must hold a current full (non-probationary) Australian driver’s licence appropriate for the Vehicle at the time that they are driving the Vehicle. The Additional Driver must be 25 years of age or older and must not have had his or her licence suspended or cancelled within the last 2 years and not have accrued any more than 6 demerit points in the last 2 years.
3.5 Splend may, in its absolute discretion, revoke, by way of 48 hours notice to the Hirer, any approval granted pursuant to clause 3.2 or 3.3 hereof.
3.6 The Hirer shall be fully and wholly responsible for the conduct of the Additional Driver in respect of this Agreement
4 Hirer’s Obligations
4.1 The Hirer must not:
4.1.1 Sublet or hire the Vehicle to any other person whether or not for consideration;
4.1.2 Allow the Vehicle to be operated outside his or her authority except as provided for in clause 3 (“Additional Drivers”) above;
4.1.3 Operate the Vehicle or allow it to be operated in a race, speed test, rally, or contest;
4.1.4 Operate the Vehicle or allow it to be operated in breach of any Act, regulations, rules, or bylaws relating to road traffic;
4.1.5 Operate the Vehicle, or allow it to be operated, to tow or propel any other Vehicle.
4.1.6 Operate the Vehicle or allow it to be operated outside a 200 kilometre radius of the GPO of the capital city in which the Splend branch from which the Vehicle was obtained by the Hirer was situated (Permitted Area) without the written permission of Splend except where the end destination of a continuous rideshare trip requires the Vehicle to operate outside the Permitted Area, after which the Vehicle must be immediately returned to operate within the Permitted Area.
4.1.7 Allow the Vehicle to be modified without the express permission of Splend, which may be provided at Splend’s sole and absolute discretion. Such modifications must be removed by the Hirer and any damage caused by the modifications or the removal thereof rectified prior to the end of the Term.
4.1.8 Permit the Vehicle to be used by the Additional Driver for commercial purposes including rideshare and any hire and reward unless expressly permitted by Splend pursuant to clause 3 of this Agreement.
4.1.9 Operate the Vehicle in a manner which causes or is likely to cause unreasonable wear and tear to the Vehicle.
4.1.10 Operate the Vehicle in a manner inconsistent with this Agreement.
4.2 The Hirer must:
4.2.1 ensure that:
4.2.1.1 The Additional Driver is aware of the terms of this Agreement.
4.2.1.2 The Vehicle is not driven or parked in a reckless manner.
4.2.1.3 The Vehicle is locked and secure at all times when it is not in use.
4.2.1.4 No person interferes with any part of the engine, transmission, braking, suspension or other installed systems.
4.2.1.5 No person smokes inside the Vehicle (including vapour or electronic cigarettes).
4.2.1.6 The Hirer attends a monthly scheduled meeting with an Authorised Representative.
4.2.1.7 The Vehicle is not driven on any unsealed surface.
4.2.1.8 The Hirer takes all reasonable steps to ensure the Vehicle is not used by the Additional Driver for commercial purposes including ridesharing unless expressly permitted by Splend pursuant to clause 3 of this Agreement.
4.2.1.9 The Hirer pays all monies owing under this Agreement on or before the date the monies become due.
4.2.1.10 The Hirer downloads and uses the Splend App as directed by Splend.
4.2.1.11 The Hirer adheres to all relevant legislation (whether State/Territory or Federal) as introduced, repealed and/or amended from time to time.
5 Warranties
5.1 The Hirer warrants that the Hirer:
5.1.1 is eligible to work in Australia for the Term of the Agreement.
5.1.2 Will be using the Vehicle for working with on-demand/ride-sharing apps approved by Splend wholly or predominantly for commercial purposes over the Term of the Agreement.
5.1.3 Has read and understood each of the provisions of this Agreement and by signing this Agreement agrees to be bound by its terms.
5.1.4 Has fully and honestly disclosed to Splend any material fact which might impact on Splend’s decision to enter into this Agreement.
6 Notifiable Events
As soon as practicable, and in any event, within 24 hours of the Hirer becoming aware of any of the following events, the Hirer must notify Splend of:
6.1.1 Any change of address or mobile number for the Hirer or the Additional Driver;
6.1.2 The Hirer or the Additional Driver being charged with any offence including but not limited to drink driving, drug driving or other driving-related offence;
6.1.3 The Vehicle being stolen;
6.1.4 The keys to the Vehicle being lost or stolen;
6.1.5 The Vehicle being damaged (other than fair wear and tear);
6.1.6 The Hirer or the Additional Driver being made a bankrupt;
6.1.7 The Hirer or the Additional Driver incurring the loss of demerit points for any reason;
6.1.8 The Hirer Driver or the Additional Driver’s licence being suspended or cancelled for any reason;
6.1.9 The Hirer or the Additional Driver being convicted of a criminal offence;
6.1.10 The Hirer being the subject of an App Termination;
6.1.11 The Hirer or Additional Driver being diagnosed with a medical condition that could affect his or her driving; or
6.1.12 Any other adverse event that could result in the Hirer being unable to drive and/or unable to pay the rental fees.
6.1.13 Any material change in circumstances of the Hirer or Additional Driver that might reasonably lead to an increased risk of a claim being made for which the Hirer may seek an indemnity from Splend.
7 Breakdowns and Impounding
7.1 If any warning light is activated or if the Vehicle requires mechanical attention, the driver must stop driving immediately and contact either Splend or 24 hour Roadside Assistance. For the avoidance of doubt the Hirer is not relieved of any of the Hirer’s obligations under this Agreement, including obligations to pay sums owing including but not limited to the Weekly Hire Payment in the event any warning light is activated or if the Vehicle requires mechanical attention.
7.2 The Hirer shall not arrange or undertake any repairs or towing without Splend’s prior authority except to the extent that repairs or towing are immediately necessary to prevent further damage to the Vehicle or to other property.
7.3 Approved repairs that either fall within the items in clause 17 or are under manufacturer’s warranty will be paid by Splend, provided the Hirer was not responsible for the damage.. All authorised repairs must be arranged and authorised by Splend.
7.4 If the Vehicle becomes unfit to drive due to a breakdown that was not the fault of the Hirer (or the Additional Driver), Splend in any case will attempt to provide the Hirer with an alternative vehicle. The vehicle shall be made available at a Splend branch, not the breakdown location and will only be provided to the Hirer upon the satisfaction that the damage was not caused by an Accident. In this event the Hirer shall remain liable for payments under this Agreement and no replacement vehicle shall be provided by Splend.
7.5 If the Vehicle is impounded by law enforcement, council enforcement, or towing provider, the Hirer shall remain liable for payments under this Agreement and no replacement vehicle shall be provided by Splend.
7.6 In the event the Vehicle is the subject of a manufacturer’s recall, the Hirer must take the Vehicle to the manufacturer for repair. Splend will be not be liable to the Hirer for any replacement car, reimbursements, costs, expenses or loss or damages claim (including but not limited to loss of earnings) in relation to the recall.
8 Petrol
8.1 The Hirer is responsible for the cost of fuel used during the hire.
8.2 Upon return, surrender or re-possession of the Vehicle, the Vehicle must be returned with a full tank of petrol with the correct fuel (whether diesel or petrol of the appropriate octane rating)
8.3 The Hirer will ensure the correct fuel is used for the Vehicle, whether diesel or petrol of the appropriate octane rating. The Hirer is liable for any damage caused to the vehicle as a result of incorrect or contaminated fuel.
9 Tolls and Infringements
9.1 In the event that Splend receives an Unpaid Toll Notice relating to the period the Vehicle was on hire, an administration fee will be charged in addition to the toll fee.
9.2 In the event that Splend receives notice of a speeding, parking or other traffic infringement relating to the period the Vehicle was on hire, Splend will complete a statutory declaration nominating the Hirer as the driver of the Vehicle and an administration fee will be charged.
10 Payment
10.1 The Hirer is to pay the Weekly Hire Payment on or before the due date.
10.2 Splend will issue weekly invoices within 48 hours of the payment of the Weekly Hire Payment by the Hirer.
10.3 All direct debits of the Weekly Hire Payment will be withdrawn from the Hirer’s account provided every Wednesday of the week. The payment will cover the forthcoming week starting Monday – Sunday. All Weekly Hire Payments are taken in advance. Splend may amend the day of the week the withdrawal takes place by giving the Hirer 4 weeks’ written notice.
10.4 Where any payment is declined or the direct debit authority is revoked by the Hirer, this shall be treated as a breach of a material term of this Agreement and as a result of this breach Splend may, at its discretion, terminate this Agreement. For the avoidance of doubt the Hirer is not relieved of any of the Hirer’s obligations under this Agreement, including obligations to pay sums owing including but not limited to the Weekly Hire Payment in the event of termination of this Agreement pursuant to this clause.
11 Vehicle Hire Charges
11.1 Kilometre Limitations
For all kilometres the Vehicle travels in the 7-day week (defined as Monday to Sunday), the Hirer will pay the Additional Kilometre Charge, which will be paid weekly in arrears via direct debit each Wednesday
12 Vehicle Condition
12.1 Upon termination of this Agreement the Hirer acknowledges that he or she is responsible for ensuring that the Vehicle is returned to Splend in the same condition as it was rented to the Hirer allowing for what is deemed by Splend to be fair wear and tear in accordance with the Australian Finance Industry Association Fair Wear and Tear Guide Summary (found on page 6 at http://www.afla.com.au/downloads/FairWear&TearGuide.pdf ). The Hirer accepts that failure to do so will result in Splend being authorised to direct debit the reasonable cost of returning the Vehicle to the same condition as it was rented to the Hirer subject to fair wear and tear.
12.2 The Hirer agrees that an Authorised Representative may do monthly checks on the condition and performance of the Vehicle.
13 Hirer’s Liability for Damage and Cleaning
13.1 Except to the extent such damage is covered by the Loss or Damage Cover, the Hirer is absolutely liable for any damage irrespective of fault.
13.2 If the Vehicle is returned in a dirty condition that requires cleaning or de-odorising, the Hirer is liable for the full cost of this cleaning or repair and any consequent loss of use of the Vehicle.
14 Accidents
14.1 In the event of an Accident involving the Vehicle, the Hirer shall:
14.1.1 Notify Splend (by calling 1800 SPLEND (1800 775 363)) of the full circumstances as soon as practical; and in any event within 24 hours of the Accident;
14.1.2 Notify the police if required under the relevant road rules or if a third party involved in an Accident leaves the scene failing to provide their details (including drivers licence, name, address and insurer);
14.1.3 Whenever possible, record full details of all parties involved in the Accident, including but not limited to their full legal name, address, driver’s licence number, vehicle registration, vehicle make, owner and model, telephone number, insurer and policy or claim number. In addition, record details of all witnesses to the Accident and take photos of the accident site and damaged Vehicles if safe to do so;
14.1.4 Follow any reasonable direction provided by Splend in respect of conduct of the Hirer following the accident.
14.2 In the event of an Accident, the Hirer shall not:
14.2.1 Make any admission of liability;
14.2.2 Arrange or undertake any repairs or salvage without Splend’s prior authority.
14.2.3 engage any towing service without express written authorisation by Splend except where required to do so by law.
14.3 In the event that an Accident renders the Vehicle unfit to drive:
14.3.1 Splend will make no refund for the unused hire period and will endeavour to provide a replacement vehicle subject to availability, which will only be provided to the Hirer upon the Excess Fee being paid to Splend and will be provided at Splend’s absolute discretion.
14.3.2 Splend shall not be responsible for the cost of transporting the Hirer and any accompanying passengers away from the accident location.
14.3.3 Splend is to provide or facilitate the provision of the Hirer with an alternative vehicle of comparable specifications and value to the Vehicle and, the vehicle shall be made available at a Splend branch, not the accident location such Vehicle to be made available until the Vehicle is repaired or a payout in respect of the Vehicle is received in the event of a total loss. The provision of the alternative vehicle shall not, except at Splend’s absolute discretion, extend past the date the payout is received or the vehicle is repaired, as applicable.
14.3.4 Splend shall not be required to comply with clause 14.3.3 where:
14.3.4.1 The Hirer’s negligence caused or contributed to the accident rendering the Vehicle unfit to drive.
14.3.4.2 Splend believes, on reasonable grounds, that the Hirer’s negligence caused or contributed to the accident rendering the Vehicle unfit to drive.
14.3.4.3 The Hirer fails or has failed to provide full co-operation to Splend in respect of an Accident including but not limited to acts or omission which delay the claim or repair process.
15 Loss or Damage Cover
15.1 Subject to payment of the Excess Fee and the provisions of this Agreement (including specifically but not limited to clauses 2, 3, 4, 6, 8, 12, 13,14, 15 and18) under the Loss or Damage Cover included with the hire of the Vehicle (subject to clauses 15.2 and 15.3 below), the Hirer and any Additional Driver receive cover in the event of an Accident:
a. In respect of any liability they might have to Splend in respect of the loss of or damage to the Vehicle and its accessories and spare parts and any other expenses of Splend including towing and salvage costs associated with the recovery of the Vehicle and its accessories and spare parts; and
b. To a cap of $10,000,000, in respect of any liability they might have for damage to any property (including injury to any animal) belonging to any other person and arising out of the use of the Vehicle. This indemnity does not apply to any property being transported in the Vehicle at the time of the accident.
15.2 Exclusions.
The cover set out in clause 15.1 above shall not apply where:
15.2.1 The driver of the Vehicle is under the influence of alcohol (being a blood alcohol content level greater than 0.05% or the legal limit, whichever is the lower) or any drug that affects his or her ability to drive the Vehicle;
15.2.2 The damage to the Vehicle has been caused or contributed to by smoking in the Vehicle;
15.2.3 The Vehicle is or has been used in committing an illegal or unlawful act (other than a traffic offence which does not automatically result in the loss of the Hirer’s Driver’s licence in the State or Territory in which the vehicle is situated;
15.2.4 The cover sought is in respect of damage to the undercarriage of the Vehicle;
15.2.5 The damage to the vehicle has been caused or contributed to by passengers to the Vehicle.
15.2.6 The cover sought is respect of damage caused to property or vehicles owned by the Hirer’s friends, family, work colleagues or employees.
15.2.7 The Vehicle is in an unsafe or unroadworthy condition that arose during the course of the hire and that caused or contributed to the damage or loss, and the Hirer or Additional Driver was aware or ought to have been aware of the unsafe or unroadworthy condition of the Vehicle;
15.2.8 The Vehicle is operated in contravention of clause 4.1 or 4.2;
15.2.9 The Vehicle is driven by any person who is not a named, authorised Additional Driver;
15.2.10 The Vehicle (including its accessories and spare parts) is wilfully or recklessly damaged by the Hirer or by an authorised Additional Driver, or is lost as a result of wilful or reckless behaviour of the Hirer or Additional Driver or any such person within their reasonable control;
15.2.11 The Vehicle is operated off-road or on any beach;
15.2.12 The Vehicle including its accessories and spare parts is damaged as a result of submersion or driving thorugh any body of water.
15.2.13 The Vehicle is operated outside the Term;
15.2.14 The Vehicle is operated above the climatic snow line as it varies on a seasonal basis.
15.2.15 The Vehicle (including its accessories and spare parts) is damaged by any item carried outside the Vehicle, such as a surfboard or bicycle;
15.2.16 The Vehicle is otherwise driven in contravention of any insurance policy covering the Vehicle.
15.2.17 The Hirer has made a material, false disclosure or non-disclosure in respect of the Agreement whether or not such disclosure or non-disclosure was deliberate.
15.2.18 The Hirer has made a material, false disclosure or non-disclosure in respect of any accident in which the Hirer or the Vehicle is involved whether or not such disclosure or non-disclosure was innocent.
15.2.19 The Hirer has fallen asleep or is asleep in the Vehicle during or immediately preceding the Accident.
15.3 Actions which may reduce the Hirer’s Cover
The cover set out in clause 15.1 above shall be reduced to the extent that Splend suffers prejudice as a result of the act or omission of the Hirer (such prejudice may be so significant as to reduce the cover to zero) where:
15.3.1 Any exclusion set out in clause 15.2 hereof would apply but for the fact it is found to be unenforceable or unlawful.
15.3.2 The Hirer fails, without Reasonable Excuse, to record and provide to Splend within 24 hours of an event which gives rise to a right of the Hirer to seek cover under the Loss and Damage Cover (Insured Event), full details in respect of all parties involved in the circumstances giving rise to the Insured Event including but not limited to their full legal name, address, driver’s licence number, vehicle registration, vehicle make and model, telephone number, insurer and policy or claim number, along with details of any independent witnesses to the accident and photos of the accident site and damaged Vehicles if safe to capture.
15.3.3 The Hirer fails, without Reasonable Excuse, to pay the Excess, the Reduced Excess or the Increased Excess within 48 hours of the occurrence of the Insured Event.
15.3.4 The Hirer fails, without Reasonable Excuse, to notify Splend of any Notifiable Event within 24 hours of the Notifiable Event occurring.
15.3.5 The Hirer engages, unless required to do so by law, a tow service without the express written approval of Splend.
15.3.6 The Hirer fails to provide all co-operation reasonably required to permit Splend to assess the Claim and pursue and recover any monies owing in respect of the Claim including but not limited to provision of written evidence, diagrams and statement and attendance at Court as a witness should such attendance be required.
16 Excess Fee
16.1 In the event of a claim against the Loss and Damage Cover in respect of an Insured Event, the Excess Fee (in the case of an Experienced Driver), Increased Excess Fee (in the case of an Inexperienced Driver) or Maximum Excess Fee (in the event the Hirer opts not to pay the Excess Reduction Fee) is payable in respect of each and every individual claim made pursuant to the Loss and Damage Cover.
16.2 In the event the Hirer opts to pay the Excess Reduction Fee, The Hirer will be liable for the Excess Fee.
16.3 The Excess Fee shall be reduced to the Reduced Excess Fee where:
16.3.1 The Hirer is an Experienced Driver;
16.3.2 The Hirer has installed a dashcam and provided footage from the dashcam which shows the materials events (Dashcam Footage) to Splend within 48 hours of the occurrence of the Insured Event; and
16.3.3 The Hirer has paid the Reduced Excess Fee to Splend within 48 hours of the occurrence of the Insured Event.
16.3.4 The Hirer has called Splend in accordance with clause 14.1 and downloaded and has reported the Insured Event using the Splend App.
16.3.5 The Hirer opts in and pays the weekly Excess Reduction Fee
16.4 The Increased Excess Fee shall be reduced to the Excess Fee where:
16.4.1 The Hirer is an Inexperienced Driver;
16.4.2 The Hirer has installed a dashcam and provided Dashcam Footage to Splend within 48 hours of the occurrence of the Insured Event; and
16.4.3 The Hirer has paid the Reduced Excess Fee to Splend within 48 hours of the occurrence of the Insured Event.
16.4.4 The Hirer has downloaded and has reported the Insured Event using the Splend App.
16.4.5 The Hirer opts in and pays the weekly Excess Reduction Fee
17 Maintenance Inclusions and Roadside Assistance
17.1 During the Term of this Agreement, Splend will be responsible for the cost of Scheduled Interval Servicing or such internal as will be notified to the Hirer by Splend to the Hirer from time to time. The Hirer must ensure the vehicle is in attendance at the scheduled service as directed by a representative of Splend. Failure to do so will be considered as a material Breach of this Agreement.
17.2 During the Term of this Agreement, Splend, in its sole discretion will be responsible for providing the following program of maintenance and parts which conform to applicable Australian Standards for the duration of this Agreement:
17.2.1 Scheduled Interval Servicing
17.2.2 Replacement tyres;
17.2.3 Front and rear wheel alignments;
17.2.4 Replacement brake pads;
17.2.5 Replacement brake discs;
17.2.6 Replacement windscreen wiper blades;
17.2.7 Replacement sets of replacement headlight globes; and
17.2.8 Replacement battery.
17.3 For the avoidance of doubt the Hirer is not permitted to undertake any maintenance to the Vehicle of the kind set out in clause 17.1 and 17.2 hereof,
17.4 It is the Hirer’s responsibility to safely retain the keys to the Vehicle.
17.5 Splend will provide the Hirer with Roadside assistance for the term of this agreement. The specific roadside assistance benefits can be found at www.splend.com.au
18 Liability, Indemnity and Release of Splend
18.1 The Hirer hereby indemnifies and shall keep indemnified Splend and its employees and agents against any claims, demands and expenses (including legal costs) incurred or sustained by the Hirer or the Additional Driver by reason of the Hirer’s use and/or possession of the Vehicle.
18.2 The Hirer acknowledges that Splend relies on the truth of the Hirer’s representations in this Agreement.
18.3 Unless Splend is negligent or as required by law, Splend will not be responsible for, and the Hirer releases Splend, its employees and agents from liability for, any loss (including loss of profits), damage, costs or expenses which the Hirer incurs, or death or personal injury to the Hirer or any other person, as a result of the Hirer’s rental.
18.4 Splend gives no express warranties in relation to the Vehicle. Certain conditions and warranties are imported by statute, whether Commonwealth or State, which cannot be excluded, restricted or modified. Splend acknowledges the potential application of the Australian Consumer Law to this Agreement, and nothing herein shall be construed as attempting to exclude the operation of that legislation to this Agreement.
18.5 Where Splend is permitted to limit its liability under applicable legislation for breach of any implied condition or warranty, Splend limits its liability to replacement, repair or re- supply of the Vehicle. All other warranties, conditions and obligations which may otherwise be implied are expressly excluded by this Agreement in their entirety.
19 Termination
19.1 The Hirer must terminate the Agreement after:
19.1.1 6 weeks from the commencement of the Term; and
19.2 If the Vehicle is returned within six (6) weeks from the Start Date, the Hirer is required to pay to Splend the difference between the first 6 weeks’ Weekly Hire Payment and any Weekly Rental Payment amounts the Hirer has paid to Splend.
19.3 Splend shall have the right to terminate the Agreement and repossess the Vehicle (and for that purpose enter any premises and remove the Vehicle) at any time, without notification to the Hirer, and the Hirer will pay reasonable costs of repossessing the vehicle, including towing charges, in any of the following circumstances:
19.3.1 The Hirer is in breach of any material term of this agreement, which shall include but are not limited to the items referred to in clause 4 above and the clauses set out in clause 19.3 hereof;
19.3.2 The Hirer has obtained the Vehicle through fraud or misrepresentation;
19.3.3 Any amounts due and payable under this Agreement fall overdue. ;
19.3.4 The Vehicle appears to be abandoned;
19.3.5 The Vehicle is not returned on the agreed return date;
19.3.6 The Vehicle is damaged and is not repaired within 4 weeks;
19.3.7 Servicing at manufacturer specified intervals is not performed within 2000 kilometres of the specified service interval;
19.3.8 The Hirer or the Additional Driver is charged with drug/drink driving in the Vehicle;
19.3.9 The Hirer or the Additional Driver has driven 20 kilometres per hour or more over the limit;
19.3.10 The Hirer or the Additional Driver behaves in such a manner as to bring Splend into disrepute;
19.3.11 The Hirer or the Additional Driver permits the Vehicle to be used by a driver other than the Hirer or the Additional Driver.
19.3.12 The Additional Driver uses the Vehicle for commercial purposes including ride-sharing unless expressly permitted by Splend pursuant to clause 3 of this Agreement.
19.3.13 The Hirer or the Additional Driver violates any ride-sharing platform driver policies;
19.3.14 Not advising Splend of a Notifiable Event within 24 hours;
19.3.15 Not using the Vehicle wholly or predominantly for business/commercial purposes;
19.3.16 Failure to pay Additional Kilometre fees or any fees due and owing under this Agreement.
19.3.17 The Vehicle is driven outside the Permitted Area;
19.3.18 The GPS tracking device attached to the Vehicle is tampered with or removed.
19.3.19 Splend considers, on reasonable grounds, that the Vehicle is endangered.
19.3.20 Splend provides 72 hours’ notice that the vehicle needs to be returned at the complete discretion of Splend.
19.4 In the event of such termination or repossession listed in clause 19.3 above, the Hirer has no right to a refund of any part of the Weekly Hire Payment.
19.5 Where the termination or repossession occurs within the first 6 weeks of the Term the Hirer remains liable for amounts specified in clause 19.2 hereof. Termination of this Agreement pursuant to clause 19 hereof does not prejudice the ability of Splend to recover monies due and payable by the Hirer to Splend under this Agreement.
19.6 If the Agreement is terminated at the election of the Hirer, the Hirer shall, at or before the expiry of the Term, return the Vehicle (including car keys) to the Splend Member Centre in the State where the Vehicle is registered, or obtain Splend’s consent to the continuation of the hire, subject always to ongoing payment and any other terms as agreed. Changes to the return date and time and/or return branch are subject to vehicle availability and the Hirer acknowledges such changes are in Splend’s absolute discretion.
19.7 The Hirer must return the Vehicle in the same condition it was in at the Start Date, subject only to fair wear and tear as is detailed in the Australian Finance Industry Association Fair Wear and Tear Guide Summary (found on page 6 at http://www.afla.com.au/downloads/FairWear&TearGuide.pdf ). and as may be updated from time to time (the ‘AFIA Guide’) (though if there is any inconsistency between the AFIA Guide and this Agreement, this agreement will prevail to the extent of the inconsistency). Without limitation the Hirer must return all items supplied with the Vehicle including Logbook and Carjack.
19.8 Subject to fair wear and tear as detailed in the AFIA Guide, the Hirer will be responsible for any costs associated with the repair or replacement of any damaged or excessively worn vehicle tyres, brake pads and/or discs on the Vehicle.
19.9 The termination of the hire under this clause shall be without prejudice to the other rights of Splend under this Agreement or otherwise.
19.10 Termination of this Agreement for any reason shall not affect the accrued rights or liabilities of any party occurring prior to termination.
20 Damages and Charges
20.1 This clause shall apply to the following clauses of this Agreement:
20.1.1 Clause 4.1.1
20.1.2 Clause 4.1.8
20.1.3 Clause 4.1.10
20.1.4 Clause 8.2
20.1.5 Clause 8.3
20.1.6 Clause 9.1
20.1.7 Clause 9.2
20.1.8 Clause 10.3
20.1.9 Clause 13.2
20.1.10 Clause 14.2.3
20.1.11 Clause 17.2
20.1.12 Clause 19.3
20.1.13 Clause 19.8
20.1.14 Clause 19.9
20.2 In the event of a breach of a clause specified in clause 20 hereof damages shall be payable forthwith by the Hirer to Splend in accordance with Schedule B hereto.
20.3 For the avoidance of doubt the right of Splend to claim damages where there is a breach by the Hirer of a clause other than those listed in clause 19.3 hereof shall not be affected by clause 19.3 hereof.
21 Personal injury, personal property and storage of property
21.1 To the maximum extent permitted by law, Splend does not accept any liability for:
21.1.1 Personal injuries sustained during the rental;
21.1.2 Damage or loss of the Hirer’s personal property;
21.1.3 Property belonging to any other person which is carried in the Vehicle.
21.2 In the event that the Hirer or any other person leaves any property with Splend for any reason this is entirely at that person’s own risk and Splend, to the maximum extent permitted by law, will not accept any liability for damage or loss for any reason whatsoever.
22 Claims against Third Parties
22.1 Splend is not responsible for any claims the Hirer may have against third parties for any damage or loss including the Hirer’s liability under this Agreement. Splend will at all times cooperate with the reasonable requests of its insurer
22.2 Splend will provide an invoice and receipt for any amount paid to Splend by the Hirer. Splend does not undertake to provide repair quotes, police reports, photographs or any other information to the Hirer or any other party unless required to do so by law.
23 Security Interests
23.1 In this clause, “PPSA” means the Personal Property Securities Act 2009 (Cth) and “Security Interest” has the meaning given in the PPSA.
23.2 The Hirer acknowledges that this Agreement constitutes a security agreement for the purposes of the PPSA and that the Hirer grants a Security Interest in favour of Splend over:
23.2.1 the Vehicle;
23.2.2 any other vehicles provided in the future by Splend to the Hirer; and
23.2.3 any proceeds (as defined in the PPSA) of the Vehicle or any other vehicles provided in the future by Splend to the Hirer.
23.3 The Hirer acknowledges that it has received value as at the commencement of the term of the hire of the vehicle and that the Security Interest has attached to the vehicle upon obtaining possession of the vehicle.
23.4 The Hirer acknowledges and undertakes:
23.4.1 not to, without the prior written consent of Splend, sell, lease, dispose of, grant (or permit to arise) a Security Interest or other encumbrance over, or part with possession of the Vehicle or any interest in the Vehicle (or purport or attempt to do such a thing);
23.4.2 at Splend’s request, to promptly execute all documents and do anything required to register Splend’s Security Interest in the Vehicle;
23.4.3 to reimburse Splend upon demand for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA;
23.4.4 not to change their name, address or contact details without providing Splend with prior written notice; and
23.4.5 not to issue an amendment demand without the prior written consent of Splend.
23.5 The Hirer acknowledges that its rights in the Vehicle are subject to any Security Interest granted by Splend over the Vehicle and the Hirer hereby releases Splend from any claim arising from any third party enforcing its Security Interest in, or rights in relation to the Vehicle.
23.6 The Hirer and Splend agree not to disclose information in relation to this Agreement of the kind referred to in s 275(1) of the PPSA.
23.7 The Hirer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by or on behalf of Splend under the PPSA to the extent permitted by the PPSA and agrees to that as between Splend and the Hirer, to the extent permitted by the PPSA, the Hirer will have no rights under (or by reference to) sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA. So far is permitted by law, the Hirer waives its rights;
23.7.1 to receive a copy of any verification statement or financing change statement or a statement of account on sale of the vehicle;
23.7.2 to receive any notice required under the PPSA, including a notice that Splend intends to sell the vehicle or to retain the vehicle on enforcement of the Security Interest granted to Splend; and
23.7.3 where any other personal property or modifications become an accession (as defined in the PPSA) to the vehicle, to claim for any damage to goods when Splend removes the accession, to receive notice of removal of the accession or to apply to the court for an order concerning the removal of the accession.
23.8 Despite any other provision of this agreement, Splend may terminate this Agreement by notice to the Hirer if the Hirer breaches any provision of this clause.
23.9 The Hirer undertakes to promptly execute any further documents and to provide any further information and to do such further acts and things as may be required by Splend to:
23.9.1 (register a financing statement or finance change statement in relation to a Security Interest on the PPS Register;
23.9.2 register any other document required to be registered by the PPSA; or
23.9.3 correct a defect in a statement referred to in clauses 23.9.1 and 23.9.2 above.
23.10 Despite any other provision of this Agreement, the Hirer acknowledges and agrees, including for the benefit of any third party to whom Splend has granted a Security Interest in the Vehicle (“Security Holder”) as follows:
23.10.1 Splend may grant a Security Interest in its interest in the vehicle in favour of a Security Holder (a “Security”) without the Hirer’s consent. The exercise of any rights by the Security Holder under a Security will not constitute a breach or default under this Agreement or otherwise entitle the Hirer to terminate, rescind or revoke this agreement;
23.10.2 the Security Holder has a Security Interest, including a purchase money security interest (as defined in the PPSA) in the Vehicle;
23.10.3 by entering into this Agreement, Splend will be in breach of the Security, unless the Hirer agrees to the terms set out in this clause;
23.10.4 the exercise of any rights by the Security Holder under any lease or other agreement between the Security Holder and Splend will not constitute a breach of default under this agreement or otherwise entitle the Hirer to terminate, rescind or revoke this Agreement;
23.10.5 the Hirer’s rights in respect of Vehicle are expressly subject and subordinated to the rights of the Security Holder (whether arising under the Security, at law or otherwise), and nothing in this Agreement will in any way limit, reduce, vary or otherwise qualify the rights of a Security Holder under or in connection with any Security, any other document connected with any Security or any vehicle and the Security Holder will be entitled to exercise all of its rights under or in respect of the Security to the same extent as if this agreement had not been entered into; and
23.10.6 if a Security becomes enforceable, or if any lease with respect to the Vehicle between the Security Holder and Splend is terminated:
23.10.6.1.1 Splend or the Security Holder may by notice to the Hirer terminate this Agreement and upon such notice the Hirer’s right to possess and use the Vehicle automatically ceases and the Hirer must surrender possession and control of the vehicle to the Security Holder, notwithstanding that the Hirer may not be in breach or default of its obligations under this Agreement;
23.10.6.1.2 the Security Holder may enter any premises where any Vehicle is located to remove the Vehicle from the relevant premises; and
23.10.6.1.3 the Hirer agrees to obtain all necessary consents from the owner, occupier and other interested persons (such as any mortgagee) of the relevant premises where the Vehicle is located to enable the Security Holder to take possession of the Vehicle.
23.11 This clause operates as an agreement between the Hirer and Splend, and as a deed poll by the Hirer for the benefit of any Security Holder.
24 Security Interests
24.1 The Hirer:
24.1.1 Unconditionally acknowledges and represents that it has charged the Security in favour of Splend in respect of any amounts owing under this Agreement.
24.1.2 Consents to the registration of notices, including a caveat or mortgage, as may be appropriate against the title of the Security including any register, or similar, maintained by any authority which is customarily used for that purpose;
24.1.3 Agrees to execute any documents (including legal or statutory mortgages in favour of Splend over any real property not held or acquired on or after the date of this document) in form and substance acceptable to Splend acting reasonably and to pay on demand any associated duties and registration fees;
24.1.4 Agrees to do promptly all things Splend reasonably requires in connection with this clause; and
24.1.5 Unconditionally and irrevocably agrees to Splend procuring the registration of a caveat, mortgage or a notice of its interest on any register.”
25 Privacy Consents
25.1 The terms of Splend’s Privacy Policy (available at www.splend.com.au) form part of these terms and conditions. Splend’s Privacy Policy sets out how Splend collects, uses, stores and discloses the Hirer’s personal information.
25.2 If Splend does not collect Personal Information from the Hirer, Splend will not be able to rent the Hirer a Vehicle and if any of the Personal Information the Hirer provides or has provided is incomplete or inaccurate, the quality of Splend’s services may be compromised.
25.3 By entering into this Agreement and by providing Splend with personal information, the Hirer represents to Splend and Splend proceeds on the basis that the Hirer has read and agree to the terms of Splend’s Privacy Policy.
26 General
26.1 Rights Cumulative
Unless this Agreement expressly states otherwise, the rights and remedies of a party provided in this Agreement are cumulative and do not exclude any rights or remedies provided by law.
26.2 No Merger
The rights and obligations of the parties:
(a) will not merge on completion of any transaction under this Agreement; and
(b) survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any transaction contemplated by this Agreement.
26.3 Survival
Any clause which contemplates that a party has any rights or obligations after termination or expiry of this Agreement survives the termination or expiry of this Agreement.
26.4 Prohibition and Enforceability
(a) The rights, duties and remedies granted or imposed under the provisions of this Agreement operate to the extent not excluded by law.
(b) Any provision of, or the application of any provision of, this Agreement that is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
26.5 Entire Agreement
This Agreement constitutes the entire understanding and agreement between the parties with respect to its subject matter.
26.6 Independent Advice
The parties agree that they have had the opportunity to obtain independent legal and/or accounting advice in relation to the matters in this Agreement and have either entered into this Agreement .
26.7 Representations and Warranties
The parties agree that any warranties provided in this Agreement are relied upon by the other party.
26.8 Amendment
Subject to clause 30 hereof this Agreement may not be amended except in writing executed by the parties.
26.9 Assignment
The obligations under this Agreement are personal to the parties and may not be assigned or dealt with except with the prior written consent of each other party.
26.10 Relationship
Nothing in this Agreement creates a relationship of joint venture, partnership or employee and employer between the parties.
26.11 Severability Clause
In the event that any provision or portion of this agreement shall be determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of the Agreement shall be unaffected thereby and shall remain in force and effect to the fullest extent permitted by law.
26.12 Governing Law
This Agreement is governed by and is to be construed in accordance with the law applicable in New South Wales, Australia
26.13 Australian Consumer Law
26.13.1 You have consumer rights conferred by the Australian Consumer Law and neither this clause nor any other provision of the Rental Contract excludes, restricts or modifies any implied terms, guarantees or rights You may have under that law or any other Federal, State or Territory legislation.
26.13.2 To the extent permitted by law, our liability pursuant to any relevant Australian law is limited at our option to the replacement, repair, or re-supply of the vehicle for the remaining term of your rental or reimbursement of your Rental Charges.
26.14 Exclusive Jurisdiction
Each of Splend and the Hirer irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Courts of New South Wales (and any Court of Appeal).
27 Recovery of Costs
27.1 In the event of breach of this Agreement by the Hirer, Splend may recover all costs and other amounts incurred in recovering sums owing under this Agreement. Such costs may include but are not limited to costs reflecting time spent by Splend’s employees or officers recovering monies owing, costs incurred by Splend in engaging third party debt collectors to recover monies owing or repossess the Vehicle, other debt collection costs, legal costs, Court fees and any associated liquidation or administration fees.
27.2 Any legal costs incurred by Splend in connection with or as a result of breach of this Agreement may be recovered on an indemnity basis, alternatively, if that is not permissible, on a special basis.
28 Interest
28.1 The Hirer must pay Splend interest on any amount owing under this Agreement at the rate of 10% per annum from the date 7 days after the payment is due under this Agreement.
29 Credit Card Authorisation
29.1 The Hirer agrees that Splend may charge, and authorises Splend to Charge, the Hirer’s credit card for any/all fees and charges set out in this Agreement with such charges to include any sums which are owing or become owing to Splend by reason of a breach of this Agreement by the Hirer.
29.2 The Hirer agrees that the authorisation referred to in clause 29.1 shall survive the termination of this Agreement irrespective of the reason for the termination of this Agreement.
30 Modification to this Agreement
30.1 The Hirer agrees that Splend has the right to update, modify or otherwise change this Agreement from time to time either upon written notice to the Hirer, in paper or electronic form, or upon posting of such changes with notice to the Hirer on the Website, provided that the Hirer has at least 28 days’ notice of the changes. By continuing to operate the Vehicle after such changes take effect, the Hirer agrees to be bound by such changes. The Hirer may terminate this Agreement on or before the date the changes are due to take effect, by returning the Vehicle with 7 days prior written notice to Splend
31 Disclosure and Use of Information
31.1 Any information about the Hirer (including personal information and confidential information) that is provided to, obtained by or generated by Splend:
31.1.1 May be used to assess credit and other relevant matters, enter into this Agreement and may be used in relation to other services provided to the Hirer under this Agreement;
31.1.2 May be used or given to any credit reporting agency, including in relation to:
31.1.2.1 Payments which may have been dishonoured and in respect of which recovery action has commenced.
31.1.2.2 Payments made that have been dishonoured;
31.1.2.3 The potential that the Hirer has committed a serious credit infringement; and
31.1.2.4 Such permitted particulars about the Hirer that allow the Hirer to be identified.
31.2 The Hirer agrees, subject to the requirements of the Privacy Act 1988 (Cth.) that:
31.2.1 Splend has informed the Hirer of the disclosure of information concerning it to a credit reporting agency and authorises such disclosures;
31.2.2 Splend may obtain a report on the Hirer’s commercial credit worthiness from a commercial credit reporting agency or a report on the Hirer’s personal credit worthiness from a credit agency at any time and from time to time.
31.2.3 If Splend considers it relevant to collecting overdue commercial payments or monitoring the Hirer, Splend may receive a credit report concerning the Hirer from a credit reporting agency.
31.2.4 Splend may give to and/or seek from any credit providers or from any personal or commercial credit reports concerning the Hirer, information about the Hirer’s personal or commercial credit arrangements and credit worthiness, as permitted under the Privacy Act 1988 (Cth.);
31.2.5 Splend may disclose personal or confidential information to professional advisors (including Splend’s professional advisors and the professional advisors of the Hirer, if any), credit reporting agencies, debt collection agencies, mortgage insurers, insurers, other financial institutions, brokers and valuers, mortgage administrators, other organisations to whom the Lender outsources functions (including mailing and printing houses and IT providers).
31.2.6 Splend may be required by law to disclose the personal or confidential information of the Hirer, and the Hirer authorises this or any other disclosure Splend considers it may be obliged or should provide in its reasonable discretion (but this does not require Splend to disclose any information of the kind referred in section 275(1) of the PPSA.
31.2.7 Splend may use or disclose any private or confidential information as otherwise permitted under the Privacy Act 1988 (Cth.) or related or similar legislation.
