A. Splend and the Customer wish to enter into this Flexi-Own Subscription Agreement (Agreement) to enable the Customer to rent the Vehicle for the Minimum Term.
B. At the conclusion of the Agreement, Splend may offer the Customer the ability to purchase the Vehicle.
1.1 Definitions
In this Agreement:
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 Driver means a person other than the Customer who has been approved by Splend under clause 4 to drive the Vehicle.
Additional Driver Fee means the amount set out in Item 13 of Schedule A.
Additional Mileage Charge means the amount set out in Item 8 of Schedule A.
App Termination means being terminated by any on-demand rideshare or delivery platform mobile application.
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 with 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.
Comprehensive Vehicle Insurance means comprehensive vehicle insurance for the Vehicle by an insurer acceptable to Splend from time to time.
Corporations Act means the Corporations Act 2001 (Cth).
Covered Event means an event which gives rise to a right of the Customer to seek cover under the Loss and Damage Cover.
CTP Insurance means Compulsory Third Party motor vehicle insurance for the Vehicle arranged by Splend in accordance with clause 16 of this Agreement.
Disqualifying Offence means any offence referred to in regulation 24(2) of the Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017 (NSW) or an equivalent offence in any other Australian State or Territory.
End Date means the date specified in Item 2 of Schedule A.
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.
Insolvency Event means, in relation to a party, any one of more of the following:
(a) if a natural person becomes bankrupt or insolvent;
(b) if a company, where:
(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.
Loss and Damage Cover means the financial protection offered to the Customer by Splend in the event of an Accident for the purposes of reducing the Customer’s costs associated with loss of and/or damage to the Vehicle if the conditions set out in this Agreement are met.
Loss and Damage Waiver means the fee specified in Item 9 of Schedule A, payable by the Customer to Splend in the event of an Accident to activate the Loss and Damage Cover.
Minimum Term means:
(s) for a 48 month Term, a period of 26 weeks; or
(b) for a 60 month Term, a period of 52 weeks.
Notifiable Event means any event set out in clause 6 of this Agreement.
Payment Holiday means the pause of the Customer’s payment obligations in accordance with clause 11.
PPSA means the Personal Property and Securities Act 2009 (Cth).
Reasonable Excuse means any injury or other impact on the Customer that totally or significantly prevents the Customer from being able to perform the Customer’s obligations under this Agreement.
Subscription Payment Date means the day of the week specified in Item 3 of Schedule A, or as varied by Splend by providing 28 days prior written notice to the Customer.
Subscription Payments means the Setup Fee and the Weekly Subscription Payments payable by the Customer to Splend in consideration of the Customer’s use of the Vehicle in accordance with this Agreement.
Security Interest has the meaning given in section 12 of the PPSA.
Setup Fee means the fee specified in Item 7 of Schedule A.
Splend App means the mobile application developed by Splend as amended or varied from time to time.
Start Date means the date specified in Item 1 of Schedule A.
Supplementary Payment means any Additional Mileage Charge, Loss and Damage Waiver or any other amount (other than Subscription Payments) which is, or may become, payable by the Customer under and in accordance with this Agreement.
Unpaid Toll Notice means a notice, in respect of the Vehicle, advising that a toll fee (however described) is due and payable or has been unpaid.
Used Vehicle means a Vehicle which, at the Start Date, has a first registration date less than 18 months before the Start Date.
Term means the period commencing on the Start Date and finishing on the End Date, which may be varied pursuant to clause 11.
Vehicle means the vehicle described in Item 6 of the Schedule or as replaced as the case may be pursuant to clause 7.4 of this Agreement.
Weekly Subscription Payment means the amount described in Item 4 of Schedule A, debited from the Customer’s nominated bank account, weekly in advance.
1.2 Interpretation
(a) In this Agreement, unless the context requires otherwise:
(i) the singular includes the plural and vice versa;
(ii) a gender includes the other genders;
(iii) other grammatical forms of a defined word or expression have a corresponding meaning;
(iv) a reference to a document is to that document as amended, novated, supplemented, extended or restated from time to time;
(v) a reference to a party to this Agreement includes that party’s executors, administrators, successors, permitted assigns and permitted substitutes;
(vi) a reference to a person or an entity includes a natural person, partnership, body corporate, association, joint venture, governmental or local authority (whether or not having a separate legal personality) and any other body or entity (whether incorporated or not);
(vii) a reference to a thing (including a right) includes a part of it but nothing in this clause 1.2(a)(vii) implies that part performance of an obligation constitutes performance of the obligation;
(viii) money amounts are stated in Australian currency;
(ix) a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, or a party, an annexure, an exhibit or a schedule to, this Agreement and a reference to this Agreement includes any annexure, exhibit and schedule to this Agreement; and
(x) a reference to a time of day is to that time in the capital city of the jurisdiction in which the relevant Splend depot that provides the Vehicle is located.
(b) In this Agreement, headings are used for convenience only and do not affect the interpretation of this Agreement.
(c) In this Agreement, a reference to all or any part of a statute, rule, regulation ordinance or by-law is to that statute, rule, regulation, ordinance or by-law as amended, consolidated, re-enacted or replaced from time to time and a reference to a statute includes all rules, regulations, ordinances and by-laws issued under that statute.
(d) When used in this Agreement, “including”, “for example” or any similar expression is not used, and must not be interpreted, as words of limitation.
(e) Any provision in this Agreement which binds more than one person binds all of them jointly and each of them severally unless a contrary intention is expressed.
(f) No provision of this Agreement may be construed adversely to a party solely because that party was responsible for the preparation of this Agreement or the preparation or proposal of that provision.
(g) In this Agreement, a reference to a “power” includes a right, power, authority, discretion or remedy.
(h) In this Agreement, the words “in writing” include any communication sent by letter, facsimile transmission, email or any other form of communication capable of being read by the recipient.
(i) If the day on or by which something is required to be done or may be done under this Agreement is not a Business Day, that thing must be done on or by the next Business Day.
(j) In this Agreement and for all other schedules and annexures thereto, the terms “subscription” and “hire” are taken to have the same meaning and shall be interchangeable.
2.1 Pursuant to this Agreement, Splend will let, and the Customer will take on hire of the Vehicle for the Term and on the terms of this Agreement.
2.2 The Customer does not have the right, obligation or contingent obligation to purchase the Vehicle other than in accordance with the terms of this Agreement. At the expiry of the Term, subject to the Customer complying with the terms of this Agreement, the Customer may request to purchase the Vehicle from Splend for a price of no less than $1.00. Splend agrees to consider any such request but may accept or reject any such request in its absolute discretion.
2.3 Where the Customer elects to purchase the Vehicle in accordance with clause 2.3, the Customer agrees to pay any associated stamp duty, directly to the relevant transport authority or as otherwise directed by Splend.
2.4 The Customer agrees to pay to Splend:
(a) the Setup Fee;
(b) the Weekly Subscription Payment;
(c) The Additional Driver Fee (if any); and
(d) each Supplementary Payment as required by this Agreement.
2.5 Splend may increase the Weekly Subscription Payment to reflect increases in the costs of financing, insuring and maintaining the Vehicle, by giving the Customer no less than 4 weeks’ written notice.
2.6 If the request to purchase is not settled within 7 days of the date that Splend accepts the request to purchase made in accordance with clause 2.3, the Agreement will continue until terminated in accordance with clause 22, and the Customer’s payment obligations under clause 2.5 will continue.
3.1 The Customer warrants that, during the Term that:
(a) they are eligible to work in Australia; and
(b) the Vehicle will be used more than 50% of the total time (including time any Additional Driver uses the Vehicle for personal purposes) for the purpose of on-demand rideshare and delivery apps (Rideshare Platforms) approved by Splend;
(c) they hold a current full (non-probationary) Australian driver’s licence.
3.2 The Customer is the only person authorised to drive the Vehicle for a Rideshare Platform under this Agreement.
4.1 Splend may, in its discretion, approve one Additional Driver for private or domestic purposes only, who:
(a) is aged 25 or older;
(b) has not had their licence suspended or cancelled within the last 2 years;
(c) has not accrued any more than 6 demerit points in the last 2 years;
(d) has not had an at fault accident in the last 3 years; and
(e) has completed the Splend Customer declaration form.
4.2 Splend may revoke the approval of an Additional Driver with immediate effect by written notice to the Customer if Splend becomes aware that:
(a) the Additional Driver no longer meets the requirements specified in 4.1; or
(b) the Customer fails to comply with clause 5.1.
4.3 The Customer understands and agrees that:
(a) Splend’s approval of an Additional Driver does not in any way alter the Customer’s rights or obligations under this Agreement; and
(b) The Customer bears full responsibility for the Vehicle irrespective of whether Splend consents to an Additional Driver.
4.4 The Customer hereby indemnifies Splend against any claims, losses, death or injury caused, contributed to or arising out of or in connection with the Additional Driver’s use of the Vehicle, including damage to the Vehicle not covered by Loss and Damage Cover.
5.1 The Customer must not:
(a) sublet or hire the Vehicle to any other person;
(b) allow the Vehicle to be driven by anyone except the Customer and the Additional Driver;
(c) drive the Vehicle or allow it to be driven by any other person (including an Additional Driver):
(i) in a race, speed test, rally, or contest (however described);
(ii) in breach of any Act, regulations, rules, or bylaws;
(iii) to transport more passengers than the Vehicle has seatbelts; or
(iv) to tow or propel any other Vehicle.
(d) 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 Customer prior to the end of the Term unless ownership of the Vehicle is transferred to the Customer.
(e) permit the Vehicle to be used by the Additional Driver for any commercial purpose unless expressly permitted by Splend.
5.2 The Customer must ensure that:
(a) a copy of this Agreement is kept in the Vehicle at all times;
(b) the Additional Driver is aware of and agrees to comply with the terms of this Agreement;
(c) a copy of this Agreement is produced without delay for inspection on demand by a law enforcement officer;
(d) the Vehicle is not driven or parked in a reckless manner;
(e) the Vehicle is locked and secure at all times when it is not in use;
(f) no person interferes with any part of the engine, transmission, braking, suspension or other installed systems;
(g) no person smokes inside the Vehicle;
(h) the Vehicle is not driven on any unsealed surface or in the snow without the prior written consent of Splend;
(i) the Customer complies with all road and traffic laws (whether State/Territory or Federal);
(j) the Customer downloads and uses the Splend App as directed by Splend, including data linking it to at least one or more Rideshare Platform(s), as required by Splend.
(k) the Customer complies with Splend’s Driver Score Card safety program, including instructions to modify driving behaviour to protect driver, passenger or vehicle safety as directed by Splend acting reasonably; and
(l) if the Customer or the Additional Driver drives the vehicle more than 200kms from the rental site, any towing that becomes necessary for any reason will be at the cost of the Customer.
6.1 The Customer must notify Splend within 24 hours of the Customer becoming aware of:
(a) any change of address for the Customer or any Additional Driver;
(b) the Customer or any Additional Driver being charged with drink driving, drug driving or other driving-related offence;
(c) the Vehicle being stolen;
(d) the keys to the Vehicle being lost or stolen;
(e) the Vehicle being damaged (other than fair wear and tear);
(f) the Customer or an Additional Driver being made a bankrupt or subject to an Insolvency Event;
(g) the Customer or an Additional Driver losing demerit points for any reason;
(h) the Customer or an Additional Driver’s licence is suspended or cancelled for any reason;
(i) the Customer or an Additional Driver being convicted of a Disqualifying Offence, including specific offences unrelated to driving;
(j) the Customer being the subject of an App Termination;
(k) the Customer or Additional Driver being diagnosed with a medical condition that could affect driving; and
(l) any other adverse event that could result in the Customer being unable to drive and/or unable to pay any Subscription Payments or Supplementary Payments.
7.1 In the event of an Accident involving the Vehicle, the Customer must:
(a) notify Splend immediately of all relevant details (by calling 1800 775 363) no later than 24 hours after the accident;
(b) notify the police if required under the relevant road rules;
(c) record full details of all parties involved in the Accident, including 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;
(d) if possible, prepare a written statement of the facts signed by all parties or if agreement cannot be reached, obtain a copy of the Police report; and
(e) follow any reasonable direction provided by Splend following the accident.
7.2 In the event of an Accident, the Customer shall not:
(a) make any admission of liability;
(b) arrange or undertake any repairs or salvage without Splend’s prior authority except to the extent that repairs or salvage are necessary to prevent further damage to the Vehicle or to other property; or
(c) engage any towing service without express written authorisation by Splend, except where required to do so by law.
7.3 In the event that an Accident renders the Vehicle unfit to drive, either temporarily or permanently, then upon payment of the Loss and Damage Waiver, Splend will use reasonable endeavours to provide a replacement Vehicle of similar make, model, age, and odometer reading to the Customer (Replacement Vehicle);
7.4 In the event that Splend offers the Customer a Replacement Vehicle, the Replacement Vehicle will be made available for collection by the Customer at a Splend branch.
7.5 Where a Replacement Vehicle is offered under clause 7.3 because the vehicle was “written-off”, then the Replacement Vehicle shall become the Vehicle for the remaining term of this Agreement.
7.6 Splend is not responsible for the cost of transport for any driver or passenger of the Vehicle away from the accident location.
7.7 If an Accident was the fault of the Customer or the Additional Driver, and Splend elects to provide a Replacement Vehicle, then Splend reserves the right to withdraw the Loss and Damage Cover, in which case the Customer has 14 days to source comprehensive motor vehicle insurance covering the Replacement Vehicle. If the Customer does not obtain replacement insurance, Splend may terminate this contract with immediate effect with written notice to the Customer.
7.8 If the Customer is covered by their own comprehensive insurance policy under clause 16.3, the Customer is subject to the terms of that policy and agrees that:
(a) any settlement amount paid to the Customer under that policy in respect of the Vehicle (Insurance Settlement) will be immediately paid to Splend upon receipt; and
(b) Splend will only provide a Replacement Vehicle to the Customer upon receipt of the Insurance Settlement in accordance with clause 7.8(a).
7.9 Splend will not provide a Replacement Vehicle where:
(a) the Customer’s negligence caused or contributed to the Accident;
(b) Splend believes, on reasonable grounds, that the Customer’s negligence caused or contributed to the Accident;
(c) the Customer fails or has failed to provide full co-operation to Splend in respect of an Accident including acts or omissions which delay the claim or repair process; or
(d) one non-recoverable write off has already previously occurred during the Term.
8.1 If any warning light is activated or if the Vehicle requires mechanical attention, the driver must stop driving and contact either Splend or 24 hour roadside assistance. For the avoidance of doubt, the Customer is not relieved of any of the Customer’s obligations under this Agreement, including obligations to pay sums owing (including the Weekly Subscription Payment) in the event any warning light is activated or if the Vehicle requires mechanical attention.
8.2 The Customer shall not arrange or undertake any repairs or salvage without Splend’s prior written authority, except to the extent that repairs or salvage are immediately necessary to prevent further damage to the Vehicle or to other property.
8.3 Approved repairs and maintenance under clause 19 or that are covered by manufacturer’s warranty will be paid by Splend, provided the Customer was not responsible for the damage. All authorised repairs must be arranged and authorised by Splend.
8.4 If the Vehicle becomes unfit to drive due to a breakdown that was not the fault of the Customer (or an Additional Driver), Splend in any case will attempt to provide the Customer with a Replacement Vehicle subject to availability. The Replacement Vehicle shall be made available at a Splend branch, not the breakdown location and will only be provided to the Customer upon the satisfaction that it is not an Accident. In this event, the Customer shall remain liable for payments and other obligations under this Agreement as if the Replacement Vehicle was the Vehicle.
8.5 Where a Replacement Vehicle is provided under clause 8.4 then the Customer shall continue to use the Replacement Vehicle until such time as the Vehicle is fit to drive, or otherwise clause 7.5 shall apply.
8.6 If the Vehicle is impounded by law enforcement or council enforcement, the Customer shall remain liable for the Subscription Payments and no Replacement Vehicle shall be provided by Splend.
8.7 In the event the Vehicle is the subject of a manufacturer’s recall, the Customer must take the Vehicle to the manufacturer for repair. Splend will not be liable to the Customer for any Replacement Vehicle, reimbursements, costs, expenses or loss or damages claim (including but not limited to loss of earnings) in relation to the recall.
9.1 Kilometre Limitations
(a) If the Customer drives more than 1,000 kilometres in any 7 day week, the Customer must pay the Additional Mileage Charge.
(b) The Additional Mileage Charge will be direct debited weekly on the Subscription Payment Date.
(c) If the Term exceeds 4 years, each time the Additional Mileage Charge equals or exceeds the Weekly Subscription Payment, the Term will reduce by one week, up to a maximum reduction of 52 weeks throughout the Term (excluding Payment Holidays).
10.1 The Weekly Subscription Payment will be debited from the Customer’s nominated bank account on the Subscription Payment Date.
10.2 The Customer will bear the cost of any government imposed statutory charges required to be paid in relation to this Agreement under any applicable State or Federal legislation. Such charges will be disclosed by way of separate line item in the weekly invoice. Splend will advise of any changes to payment required to be made by giving 4 weeks written notice.
10.3 Splend may amend the Subscription Payment Date by giving the Customer 4 weeks written notice.
10.4 Where the direct debit of a Subscription Payment or Supplementary Payment fails (Failed Payment), the Customer will have committed a material breach of this Agreement and will have 7 days to rectify the failed payment. Splend may terminate this Agreement immediately with notice to the Customer if:
(a) the Customer fails to rectify the Failed Payment within 7 days;
(b) two or more payments are outstanding simultaneously; or
(c) more than two Failed Payments have occurred (even if they have been rectified within 7 days) at any time within the previous 6 months.
10.5 A dishonour fee of $40 including GST will apply per Failed Payment. If the Failed Payment, together with the administration and cost recovery fee, is not rectified within 7 calendar days, Splend may, at its discretion, terminate this Agreement.
10.6 The Customer must not deduct or setoff any amount owing to Splend by the Customer under this Agreement.
11.1 The Customer may request a Payment Holiday. The grant of a Payment Holiday is subject to the current Splend policy listed on the Splend Australia website.
11.2 Where a Payment holiday is granted, the Term of this Agreement will be extended by the length of the Payment Holiday.
12.1 The Customer is responsible for returning the Vehicle to Splend in the same condition as it was provided to the Customer, allowing for what is fair wear and tear in accordance with the Australian Finance Industry Association (AFIA) Fair Wear and Tear Guide Summary (AFIA Guide) (found on Splend Australia’s website) (Return Condition).
12.2 If the Customer fails to return the Vehicle in Return Condition, Splend will charge the Customer the reasonable costs to return the Vehicle to the Return Condition.
12.3 The Customer agrees that an Authorised Representative may do monthly checks on the condition and performance of the Vehicle.
13.1 The Customer accepts all liability for any damage to the Vehicle irrespective of fault, except:
(a) in relation to any loss or damage which is covered by the Loss and Damage Cover; or
(b) if:
(i) the Customer has notified Splend of:
(A) the name, residential address, contact phone and licence number of any other person involved (other than the Customer or Additional driver) in the Accident (Third Party);
(B) the registration numbers of all vehicles involved;
(C) an accurate written and diagrammatic description of the Accident and location; and
(D) the names of attending police officers and the stations at which they are based; and
(ii) the Customer has supplied or Splend has established the name of the insurer of any Third Party who was at fault and Splend reasonably believe that the Third Party’s insurer will agree to pay Splend for the Damage; and
(iii) acting reasonably, Splend agrees that the Customer (or Additional Driver, as applicable) was not at fault.
13.2 If the Vehicle is returned in a dirty condition that requires cleaning or deodorising, the Customer is liable for the full cost of this cleaning or repair and any consequential loss of use of the Vehicle.
14.1 Subject to payment of the Loss and Damage Waiver and the provisions of this Agreement (including but not limited to clauses 2, 3, 4, 5, 7, 9, 13, 14, 15, 16, 19) under the Loss and Damage Cover included with the hire of the Vehicle (subject to clauses 14.2 and 14.3 below), the Customer and any Additional Driver receive cover in the event of an Accident:
(a) in respect of any liability relating to the loss of or damage to the Vehicle, its accessories, spare parts and any other expenses incurred by Splend including towing and salvage costs associated with the recovery of the Vehicle, its accessories and spare parts; and
(b) to a maximum 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.
14.2 Loss and Damage Cover will not apply where:
(a) the driver 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 medication or drug that affects his or her ability to drive the Vehicle;
(b) the damage to the Vehicle has been caused or contributed to by smoking in the Vehicle;
(c) the Vehicle is or has been used in committing an illegal or unlawful act;
(d) the cover sought is in respect of damage to the undercarriage of the Vehicle;
(e) the damage to the Vehicle has been caused or contributed to by passengers in the Vehicle;
(f) the cover sought is in respect of damage caused to property or vehicles owned by the Customer’s friends, family, work colleagues or employees;
(g) 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 Customer or Additional Driver was aware or ought to have been aware of the unsafe or unroadworthy condition of the Vehicle;
(h) the Vehicle is operated in contravention of clause 5.1 or 5.2;
(i) the Vehicle is driven by any person who is not the Customer or an Additional Driver;
(j) the Vehicle (including its accessories and spare parts) is wilfully or recklessly damaged by the Customer or Additional Driver, or is lost as a result of wilful or reckless behaviour of the Customer or Additional Driver or any such person within their reasonable control;
(k) the Vehicle is operated off-road (including any unsealed road) or on any beach;
(l) the Vehicle including its accessories and spare parts are damaged as a result of submersion or driving through any body of water;
(m) the Vehicle is operated outside the Term;
(n) the Vehicle is operated above the climatic snow line as it varies on a seasonal basis;
(o) the Vehicle (including its accessories and spare parts) is damaged by any item carried outside the Vehicle, such as a surfboard or bicycle;
(p) the Vehicle is otherwise driven in contravention of any insurance policy covering the Vehicle;
(q) the Customer has made a material, false disclosure or non-disclosure in respect of any document the Customer completes or question the Customer answers in relation to the application to hire the Vehicle, whether or not such disclosure or non-disclosure was deliberate; or
(r) the Customer has fallen asleep or is asleep in the Vehicle during or immediately preceding the Accident.
14.3 Loss and Damage Cover will be reduced to the extent that Splend suffers prejudice as a result of the act or omission of the Customer or Additional Driver (such prejudice may be so significant as to reduce the cover to zero) where:
(a) any exclusion set out in clause 14.2 would apply but for the fact it is found to be unenforceable or unlawful;
(b) the Customer fails, without Reasonable Excuse, to record and provide to Splend within 24 hours of the Covered Event, full details in respect of all parties involved in the Covered Event including 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;
(c) the Customer fails, without Reasonable Excuse, to pay to Splend the Loss and Damage Waiver within 48 hours of the Covered Event;
(d) the Customer fails, without Reasonable Excuse, to notify Splend of any Notifiable Event within 24 hours of the Notifiable Event occurring;
(e) the Customer engages, unless required to do so by law, a tow service without the express written approval of Splend;
(f) the Customer 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 provision of written evidence, diagrams and statement and attendance at Court as a witness should such attendance be required.
15.1 The Customer understands and agrees that the Loss and Damage Waiver is payable to Splend upon each instance of the Customer seeking and Splend granting Loss and Damage Cover for a Covered Event.
16.1 Splend will maintain CTP Insurance for the Vehicle unless the Customer is required by law to do so, in which case Splend must be listed as an interested party and CTP Insurance will be at the Customer’s cost.
16.2 Where CTP Insurance is taken out by the Customer, Splend will reduce the Weekly Subscription Payment accordingly.
16.3 Vehicle Insurance
(a) If Splend elects not to provide Loss and Damage Cover to the Customer, the Customer must purchase Comprehensive Vehicle Insurance applicable to the use of the Vehicle for commercial purposes.
(b) If Splend includes Loss and Damage Cover in the Weekly Subscription Payment, then any increases in costs or risk will be passed on to the Customer at 1 July each year (or if changed by law) by Splend giving four weeks written notice of the reduction or increase in the Weekly Subscription Payment (as applicable).
(c) Pursuant to clause 16.3(a), if Loss and Damage Cover is not included and Comprehensive Vehicle Insurance is taken out by the Customer, the Loss and Damage Cover referred to in clause 14.1 is not included.
(d) If the Customer purchases their own Comprehensive Vehicle Insurance, Splend must be listed as an interested party on the policy, and the policy is subject to the approval of Splend before commencement and at each renewal.
(e) If the Customer fails to maintain Comprehensive Vehicle Insurance where required, Splend may terminate this Agreement immediately without advance notice to the Customer.
17.1 The Customer is responsible for the cost of fuel or electricity (for electric vehicles) during the Term.
17.2 Upon return, surrender or re-possession of the Vehicle, the Vehicle must be returned to Splend with:
(a) for non-electric vehicles, a full tank of petrol with the correct fuel (whether diesel or petrol of the appropriate octane rating).
(b) for electric vehicles, a fully charged battery.
17.3 The Customer will ensure the correct fuel or electricity charging infrastructure is used for the Vehicle. The Customer is liable for the full cost of repairing any damage caused by the use of incorrect fuel or electricity charging infrastructure or cables.
18.1 If Splend receives an Unpaid Toll Notice for charges incurred during the Term, the administration fee outlined in Schedule B will be charged in addition to the toll fee.
18.2 If Splend receives notice of a speeding, parking or other traffic infringement for an offence occurring in the Term, Splend will complete a statutory declaration nominating the Customer as the driver of the Vehicle and the administration fee outlined in Schedule B will be charged.
19.1 During the Term, Splend is responsible for all maintenance and parts set out in item 12 of Schedule A according to the manufacturer’s recommended servicing schedule, all such maintenance and parts to conform to applicable Australian standards.
19.2 Where the Vehicle requires servicing more frequently than the manufacturer’s recommended servicing schedule (excluding recalls and faults covered by the manufacturer’s warranty), the Customer is responsible for the cost of any additional servicing undertaken, which must be performed at an authorised licensed mechanic and must first be approved by Splend in writing.
19.3 The brand and type of all parts is at the discretion of Splend but will conform to Australian Standards and will not void manufacturer’s warranty.
19.4 The Vehicle is covered by manufacturer’s warranty. Any repairs or rectification outside of the items in 19.1 and not covered by the manufacturer’s warranty must be repaired by the Customer to manufacturer’s standards at the Customer’s cost.
19.5 In the event that the allocated items set out in item 12 of Schedule A are not consumed, no credit will be provided to the Customer.
19.6 The Customer must periodically check engine oil, water, tyre and other vital levels, and ensure that the Vehicle is at all times in roadworthy condition under relevant road regulations.
19.7 The Customer must pay for any replacement keys to the Vehicle. The administration fee outlined in Schedule B will also be charged to the Customer by Splend if replacement keys are required, in addition to the actual cost of the replacement keys.
19.8 Splend will provide the Customer with roadside assistance for the term of this Agreement. The specific roadside assistance benefits can be found at www.splend.com.au.
20.1 The Vehicle may, subject to Splend’s written permission (which must not be unreasonably withheld), move to another city in a state or territory within Australia that Splend operates in, where the location is within 200km of a Splend Service Centre. When determining whether to provide consent, Splend will consider if the move would be reasonably detrimental to Splend’s legitimate business interests.
20.2 The Customer will be responsible for all costs associated with the transfer to the new state or territory, including but not limited to, transfer of registration, changes in CTP Insurance, comprehensive vehicle insurance and any other associated costs.
21.1 Subject to clause 13, the Customer hereby indemnifies and will keep indemnified, Splend and its employees and agents against any Claims, demands and expenses (including legal costs) incurred or sustained by Splend or any of its employees or agents by reason of the Customer’s or any Additional Rideshare Customer’s use and/or possession of the Vehicle, except where it is caused by Splend’s gross negligence, fraud or willful default.
21.2 The Customer acknowledges that Splend relies on the truth of the Customer’s representations and warranties in this Agreement.
21.3 Unless, and only to the extent that Splend is negligent, fraudulent or is required by law, Splend will not be responsible for, and the Customer releases Splend, its employees and agents from liability for any loss (including loss of profits), damage, costs or expenses or other Claims which the Customer incurs, or death or personal injury to the Customer or any other person, as a result of the Customer’s subscription , possession or use of the Vehicle or any Replacement Vehicle provided under this Agreement.
22.1 The Customer may terminate this Agreement with 4 weeks’ written notice to Splend (Termination Notice).
22.2 Where termination takes effect before the end of the Minimum Term, the Customer agrees to pay Splend the difference between the total Weekly Subscription Payments the Customer has paid and the total Weekly Subscription Payments the Customer would have paid had the Agreement run for the Minimum Term.
22.3 In the event that the Customer changes the return date of the Vehicle after giving notice of termination to Splend, the new return date must be no less than 4 weeks from the date of the notice of the new return date.
22.4 No Termination Notice can be given during a Payment Holiday.
22.5 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 Customer, and the Customer will pay reasonable costs of repossessing the vehicle, including towing charges, in any of the following circumstances:
(a) The Customer is in breach of any material term of this agreement;
(b) The Customer has obtained the Vehicle through fraud or misrepresentation;
(c) clause 10.4 applies;
(d) the Vehicle appears to be abandoned;
(e) the Vehicle is not returned on the agreed return date;
(f) the Vehicle is damaged and is not repaired within 4 weeks;
(g) servicing at manufacturer specified intervals is not performed within 2,000 kilometres of the manufacturer specified service interval as notified by Splend;
(h) the Customer or Additional Driver is charged with drug/drink driving in the Vehicle;
(i) the Customer or Additional Driver drives 30 kilometres per hour or more over the speed limit;
(j) the Customer or Additional Driver behaves in such a manner as to bring Splend into disrepute;
(k) the Customer or Additional Driver violates any Rideshare Platform driver policies;
(l) the Customer fails to notify Splend of a Notifiable Event within 24 hours, in accordance with clause 6;
(m) the Customer fails to use the Vehicle wholly or predominantly for business/commercial purposes;
(n) the Customer fails to pay the Additional Mileage Charge;
(o) pursuant to clause 16.3, the Customer or Additional Driver is unable to obtain adequate Comprehensive Vehicle Insurance or does not list Splend as an interested party on the insurance policy;
(p) the GPS tracking device attached to the Vehicle is tampered with or removed;
(q) Splend considers, on reasonable grounds, that the Vehicle is endangered or being driven recklessly (including based on the Splend driver scorecard); or
(r) Where the termination trigger in clause 7.3(a) applies.
22.6 In the event of such termination or repossession referred to in clause 22.5 above, the Customer has no right to a refund of any part of the Weekly Subscription Payment, and is required to pay any charges under clause 22.2.
22.7 Pursuant to clause 16.3, if Splend includes Loss and Damage Cover in the Weekly Subscription Payment, and during the term of this Agreement that cover is withdrawn or materially compromised through no fault of Splend, Splend reserves the right to terminate this Agreement. In such a circumstance, at Splend’s discretion, a new Subscription Agreement may be offered, in which the Customer is required to Purchase Comprehensive Vehicle Insurance, as set out in clause 16.3.
22.8 If the Agreement is terminated at the election of the Customer, the Customer shall, at or before the expiry of the Term, return the vehicle (including car keys) to a Splend branch 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 Customer acknowledges such changes are in Splend’s discretion, acting reasonably.
22.9 The Customer must return the Vehicle in the same condition it was in at the Start Date, subject to fair wear and tear as is detailed in the AFIA Guide as it applies from time to time. 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 Customer must return all items supplied with the Vehicle including any Logbook and Carjack.
22.10 Subject to the AFIA Guide, the Customer is responsible for any costs associated with the repair or replacement of any damaged or excessively worn vehicle tyres.
22.11 The termination of the hire under this clause shall be without prejudice to the rights of either party under this Agreement or otherwise.
22.12 Termination of this Agreement for any reason shall not affect the accrued rights or liabilities of any party occurring prior to termination.
22.13 Any amount payable by the Customer under this clause 22 is payable under any circumstances as compensation to Splend for the loss of the benefits which Splend would have received if the Customer had performed its obligations under this Agreement and is payable whether or not:
(a) Splend has exercised any power under this Agreement;
(b) the event which resulted in Splend exercising any power was a breach of this Agreement; or
(c) the Customer could have performed its obligations under this Agreement after the exercise of any power of Splend under this Agreement.
22.14 Despite anything expressed or implied in this Agreement:
(a) the absence of any event specified in clause 22.5 is a fundamental and essential term and condition of this Agreement; and
(b) the occurrence of an event specified in clause 22.5 constitutes a breach of an essential term of this Agreement by the Customer and constitutes a repudiation of this Agreement by the Customer entitling Splend to accept the repudiation of this Agreement.
23.1 This clause 23 applies to the following clauses of this Agreement:
(a) Clause 5.1(a);
(b) Clause 5.2(l);
(c) Clause 5.2(j);
(d) Clause 7.2(c) ;
(e) Clause 8.5;
(f) Clause 10.5;
(g) Clause 12.2;
(h) Clause 17.2;
(i) Clause 17.3;
(j) Clause 18.1;
(k) Clause 18.2;
(l) Clause 19.7;
(m) Clause 22.5; and
(n) Clause 22.9
23.2 In the event of a breach of a clause specified in clause 23 damages shall be payable by the Customer to Splend in accordance with Schedule B.
23.2 For the avoidance of doubt, the right of Splend to claim damages where there is a breach by the Customer of a clause other than those listed in clause 22.5 shall not be affected by clause 22.5.
24.1 To the maximum extent permitted by law, Splend does not accept any liability for any of the following incurred in association with the Customer or Additional Driver’s use of the Vehicle:
(a) personal injuries sustained during the Term;
(b) damage or loss of the Customer’s personal property in the Vehicle; or
(c) property belonging to any other person which is carried in the Vehicle.
24.2 In the event that the Customer or any other person leaves any property with Splend for any reason then, 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.
25.1 Splend is not responsible for any Claims the Customer may have against third parties for any damage or loss including the Customer’s liability under this Agreement. Splend will at all times cooperate with the reasonable requests of its insurer.
25.2 Splend will provide a receipt to the Customer for any amount paid to Splend by the Customer. Splend does not undertake to provide repair quotes, police reports, photographs or any other information to the Customer or any other party unless required to do so by law.
25.3 In the event that the Customer believes that their credit card issuer will cover the Customer’s liability or any other amount due under the terms of this Agreement, the Customer will pay the sum directly to Splend and Splend will provide a receipt for the sum paid. Splend does not undertake to provide repair quotes, police reports, photographs or any other information to the Customer or credit card issuer unless required to do so by law.
26.1 The Customer acknowledges that this Agreement constitutes a security agreement for the purposes of the PPSA and that the Customer grants a Security Interest in favour of Splend over:
(a) the Vehicle;
(b) any Replacement Vehicle; and
(c) any proceeds (as defined in the PPSA) of the Vehicle or any Replacement Vehicle.
26.2 The Customer 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.
26.3 The Customer acknowledges and undertakes:
(a) 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);
(b) at Splend’s request, to promptly execute all documents and do anything required to register and perfect Splend’s Security Interest in the vehicle;
(c) 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;
(d) not to change its name, address or contact details without providing Splend with prior written notice; and
(e) not to issue an amendment demand without the prior written consent of Splend.
26.4 The Customer acknowledges that its rights in the Vehicle are subject to any Security Interest granted by Splend over the Vehicle and the Customer hereby releases Splend from any claim arising from any third party enforcing its Security Interest in, or rights in relation to the Vehicle.
26.5 The Customer and Splend agree not disclose information in relation to this Agreement of the kind referred to in s275(1) of the PPSA.
26.6 The Customer 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 Customer, to the extent permitted by the PPSA, the Customer 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 Customer waives its rights:
(a) to receive a copy of any verification statement or financing change statement or a statement of account on sale of the Vehicle;
(b) 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; and
(c) 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.
26.7 Despite any other provision of this Agreement, Splend may terminate this Agreement by notice to the Customer if the Customer breaches any provision of this clause 26.
26.8 The Customer 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:
(a) register a financing statement or finance change statement in relation to a Security Interest on the PPS Register;
(b) register any other document required to be registered by the PPSA; or
(c) correct a defect in a statement referred to in clauses 26.8(a) and 26.8(b) above.
26.9 Despite any other provision of this Agreement, the Customer 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:
(a) Splend may grant a Security Interest in its interest in the Vehicle in favour of a Security Holder (Security) without the Customer’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 Customer to terminate, rescind or revoke this Agreement;
(b) the Security Holder has a Security Interest, including a purchase money security interest (as defined in the PPSA) in the Vehicle;
(c) by entering into this Agreement, Splend will be in breach of the Security, unless the Customer agrees to the terms set out in this clause;
(d) 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 Customer to terminate, rescind or revoke this Agreement;
(e) the Customer’s rights in respect of the 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
(f) if a Security becomes enforceable, or if any lease with respect to the vehicle between the Security Holder and Splend is terminated:
(i) Splend or the Security Holder may by notice to the Customer terminate this Agreement and upon such notice the Customer’s right to possess and use the vehicle automatically ceases and the Customer must surrender possession and control of the vehicle to the Security Holder, notwithstanding that the Customer may not be in breach or default of its obligations under this Agreement;
(ii) the Security Holder may enter any premises where any Vehicle is located to remove the Vehicle from the relevant premises; and
(iii) the Customer 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.
26.10 This clause operates as an Agreement between the Customer and Splend, and as a deed poll by the Customer for the benefit of any Security Holder.
27.1 In the event of breach of this Agreement by the Customer, Splend may recover reasonable 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 to 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 the Customer’s breach of this Agreement may be recovered on an indemnity basis, alternatively, if that is not permissible, on a special basis.
28.1 The Customer must pay Splend interest on any amount owing under this Agreement at the rate of 10% per annum calculated on a daily basis from the date 7 days after the payment is due under this Agreement.
29.1 The Customer agrees that Splend may charge the Customer’s credit or debit card for all amounts, fees and charges set out in this Agreement.
30.1 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.
30.2 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.
30.3 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.
30.4 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.
30.5 Entire Agreement
This Agreement contains all of the terms of the contract between the parties with respect to its subject matter.
30.6 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.
30.7 Representations and Warranties
The parties agree that any representations or warranties provided in this Agreement are relied upon by the other party.
30.8 Amendment
This Agreement may not be amended except in writing executed by the parties.
30.9 Assignment
(a) The rights and interests of the Customer under this Agreement are personal to the Customer and may not be assigned or dealt with except with the prior written consent of Splend.
(b) Splend may assign or otherwise deal with its rights and interests under this Agreement and in the Vehicle without the need for consent from the Customer.
30.10 Relationship
Nothing in this Agreement creates a relationship of joint venture, partnership or employee and employer between the parties.
30.11 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 and will remain in force and effect to the fullest extent permitted by law.
30.12 Governing Law
This Agreement is governed by and is to be construed in accordance with the law applicable in New South Wales, Australia and each of Splend and the Customer irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Courts of New South Wales (and any Court of Appeal).
30.13 Australian Consumer Law
(a) The Customer may have consumer rights conferred by the Australian Consumer Law and neither this clause nor any other provision of this Agreement excludes, restricts or modifies any implied terms, guarantees or rights the Customer may have under that law or any other Federal, State or Territory legislation.
(b) To the extent permitted by law, Splend’s liability pursuant to any relevant Australian law is limited at Splend’s option to the replacement, repair, or re-supply of the Vehicle for the remaining term of your subscription or reimbursement of your Weekly Subscription Payments.
1.1 Definitions
In this Agreement:
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 6 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.
Damage and Loss Fee means the fee specified in Item 7 of 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 Damage and Loss Fee means the fee specified in Item 9 of the Payment Schedule.
Inexperienced Drivermeans 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 the party;
(ii) (insolvency) the 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 the party or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the 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.
Loss and Damage Cover means the loss and damage cover described in the agreement which reduces financial responsibility for loss or damage to the Vehicle to the Damage and Loss Fee is certain conditions are met.
Membership Fee means the fee specified in Item 5 of the Payment Schedule.
Notifiable Event means an event set out in clause 6 of this Agreement.
Payment Schedule means Schedule A to this Agreement.
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 Damage and Loss Fee means the fee specified in Item 8 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.
Splend Depot means a Splend Member Support Centre location in Australia as found on Splend’s website.
Start Date means the date specified in Item 1 of the Payment Schedule.
Supplementary Payment means any Additional Kilometer Charge, Damage and Loss Fee, Increased Damage and Loss Fee, Reduced Damage and Loss Fee or any other amount (other than Hire Payments) which is, or may become, payable by the Hires under and in accordance with this Agreement.
Term means the period commencing from the Start Date and finishing on the earlier of:
(a) the second anniversary of the Start Date;
(b) the second anniversary of the date of this agreement;
(c) the second anniversary of the date that the Hirer takes possession of the Vehicle; and
(d) the time the Vehicle is returned to the Splend Depot in the state in which the Vehicle is registered.
Vehicle means the vehicle described in Item 4 of the Payment Schedule.
Weekly Hire Payment means the amount described in Item 2 of the Payment Schedule.
1.2 Interpretation
(a) In this Agreement, unless the context requires otherwise:
(b) In this Agreement, headings are used for convenience only and do not affect the interpretation of this Agreement.
(c) In this Agreement, a reference to all or any part of a statute, rule, regulation ordinance or by-law is to that statute, rule, regulation, ordinance or by-law as amended, consolidated, re-enacted or replaced from time to time and a reference to a statute includes all rules, regulations, ordinances and by-laws issued under that statute.
(d) When used in this Agreement, “include”, “for example” or any similar expression is not used, and must not be interpreted, as words of limitation.
(e) Any provision in this Agreement which binds more than one person binds all of them jointly and each of them severally unless a contrary intention is expressed.
(f) No provision of this Agreement may be construed adversely to a party solely because that party
was responsible for the preparation of this Agreement or the preparation or proposal of that provision.
(g) In this Agreement, a reference to a “power” includes a right, power, authority, discretion or remedy.
(h) In this Agreement, the words “in writing” include any communication sent by letter, facsimile transmission, email or any other form of communication capable of being read by the recipient.
2.1 Pursuant to this Agreement, Splend will let, and the Hirer will take on hire, 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 to Splend:
2.2.1 the Membership Fee on or before the Start Date; and
2.2.2 the Weekly Hire Payment on each Hire Payment Date.
2.3 Pursuant to this Agreement, the Hirer, as consideration for the hire of the Vehicle, agrees to pay each Supplementary Payment under and in accordance with the terms of this Agreement.
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 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 drivers 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 If Splend becomes aware that an Additional Driver no longer meets the requirements under Clause 3.4, or the hirer has failed to comply with clause 6.1 in relation to the Additional Driver, Splend may revoke any approval granted pursuant to clause 3.3 without notice to the Hirer.
3.6 The Hirer shall be fully and wholly responsible for the conduct of the Additional Driver in respect of this Agreement
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 Depot from which the Vehicle was obtained by the Hirer is 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 written 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; or
4.1.10 Operate the Vehicle in a manner inconsistent with this Agreement.
4.2 The Hirer must ensure that:
4.2.1 An Additional Driver is aware of the terms of this Agreement;
4.2.2 The Vehicle is not driven or parked in a reckless manner;
4.2.3 The Vehicle is locked and secure at all times when it is not in use;
4.2.4 No person interferes with any part of the engine, transmission, braking, suspension or other installed systems.
4.2.5 No person smokes inside the Vehicle (including vapour or electronic cigarettes);
4.2.6 The Hirer attends a monthly scheduled meeting with an Authorised Representative;
4.2.7 The Vehicle is not driven on any unsealed surface;
4.2.8 The Hirer takes all reasonable steps to ensure the Vehicle is not used by any Additional Driver for commercial purposes including ridesharing unless expressly permitted by Splend pursuant to clause 3 of this Agreement;
4.2.9 The Hirer pays all monies owing under this Agreement on or before the date the monies become due for payment;
4.2.10 The Hirer downloads and uses the Splend App as directed by Splend; and
4.2.11 The Hirer adheres to all relevant legislation (whether State/Territory or Federal) as introduced, repealed and/or amended from time to time.
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.
6.1 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 any Additional Driver;
6.1.2 The Hirer or any 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 an Additional Driver being made a bankrupt;
6.1.7 The Hirer or an Additional Driver incurring the loss of demerit points for any reason;
6.1.8 The Hirer Driver or an Additional Driver’s licence being suspended or cancelled for any reason;
6.1.9 The Hirer or an 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 an Additional Driver being diagnosed with a medical condition that could affect his or her driving;
6.1.12 Any other adverse event that could result in the Hirer being unable to drive and/or unable to pay any Hire Payments or Supplementary Payments; and
6.1.13 Any material change in circumstances of the Hirer or an 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.
7.1 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 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.v 7.4 If the Vehicle becomes unfit to drive due to a breakdown that was not the fault of the Hirer (or an Additional Driver), Splend in any case will attempt to provide the Hirer with an alternative vehicle subject to availability. The alternative vehicle shall be made available at a Splend Depot, 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 and other obligations under this Agreement as if the alternative vehicle was the Vehicle.
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. Subject to any rights the Hirer has under the Australian Consumer Law, and the provision of a replacement vehicle under clause 7.4, 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.
8.1 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.
9.1 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 the amount set out in Schedule B 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 in the amount set out in Schedule B will be charged.
10.1 The Hirer is to pay the Weekly Hire Payment due on a Hire Payment Date on or before that Hire Payment Date. 10.2 Splend will issue a weekly invoice within 48 hours after the payment of a Weekly Hire Payment by the Hirer. 10.3 All direct debits of the Weekly Hire Payments 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 fundamental 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 the Weekly Hire Payment in the event of termination of this Agreement pursuant to this clause.
10.5 All payments to be made by the Hirer under this Agreement must be calculated and be made without, and free and clear of any deduction for, set-off or counterclaim.
11.1 Kilometre Limitations
The Hirer is entitled to the first 1000 kilometres each 7-day week (defined as Monday to Sunday) in the Weekly Hire Payment. If the Hirer exceeds 1000 kilometres in the 7-day week, the Hirer will pay the Additional Kilometre Charge, which will be paid weekly in arrears via direct debit each Wednesday.
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.
13.1 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.
14.1 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 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; and 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; or
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 Damage and Loss 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 alternative vehicle shall be made available at a Splend Depot, not the Accident location, such alternative 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 acts or omission which delay the claim or repair process.
15.1 Subject to payment of the Damage and Loss Fee and the provisions of this Agreement (including 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:
15.1.1 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 15.1.2 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 in 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 the Hirer or 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 an 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 through 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; or
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 or an Additional Driver (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 the Insured Event which gives rise to a right of the Hirer to seek cover under the Loss and Damage Cover full details in respect of all parties involved in the circumstances giving rise to the Insured Event including 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 to Splend the Damage and Loss, the Reduced Damage and Loss or the Increased Damage and Loss (whichever is applicable) 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; or
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 provision of written evidence, diagrams and statement and attendance at Court as a witness should such attendance be required.
16.1 In the event of a claim against the Loss and Damage Cover in respect of an Insured Event, the Damage and Loss Fee (in the case of an Experienced Driver) or Increased Damage and Loss Fee (in the case of an Inexperienced Driver) is payable to Splend in respect of each and every individual claim made pursuant to the Loss and Damage Cover.
16.2 The Damage and Loss Fee shall be reduced to the Reduced Damage and Loss Fee where:
16.2.1 The Hirer is an Experienced Driver;
16.2.2 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; 16.2.3 The Hirer has paid the Reduced Damage and Loss Fee to Splend within 48 hours of the occurrence of the Insured Event; and
16.2.4 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 The Increased Damage and Loss Fee shall be reduced to the Damage and Loss Fee where:
16.3.1 The Hirer is an Inexperienced Driver;
16.3.2 The Hirer has installed a dashcam and provided Dashcam Footage to Splend within 48 hours of the occurrence of the Insured Event;
16.3.3 The Hirer has paid the Reduced Damage and Loss Fee to Splend within 48 hours of the occurrence of the Insured Event; and
16.3.4 The Hirer has downloaded and has reported the Insured Event using the Splend App.
17.1 During the Term of this Agreement, Splend will be responsible for the cost of scheduled interval servicing 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 fundamental 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:
7.2.1 Scheduled interval servicing;
17.2.2 Replacement tyres;
17.2.3 Front and rear wheel alignments;
17.2.3 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 or clause 17.2.
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
18.1 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 Splend or any of its employees or agents by reason of the Hirer’s or any Additional Drivers use and/or possession of the Vehicle.
18.2 The Hirer acknowledges that Splend relies on the truth of the Hirer’s representations and warranties in this Agreement.
18.3 Unless, and only to the extent, 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 or other Claim which the Hirer incurs, or death or personal injury to the Hirer or any other person, as a result of the Hirer’s rental or possession or use of the Vehicle or any alternative vehicle provided under this Agreement.
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.
19.1 The Hirer may terminate the Agreement after:
19.1.1 6 weeks from the Start Date; and
19.1.2 With 2 weeks written notice to Splend (such written notice can only be given after the expiry of 4 weeks from the Start Date (in other words the minimum period the Term is 6 weeks, such notice to be given in a manner advised by Splend).
19.2 In the event that the Hirer changes their return date post giving notice, the new notice period will be a minimum of 2 weeks from this time.
19.3 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 Payments and any Weekly Rental Payment amounts the Hirer has paid to Splend.
19.4 Splend shall have the right to terminate the Agreement and repossess the Vehicle (and for that purpose enter any premises and remove the Vehicle), and the Hirer will pay reasonable costs of repossessing the vehicle, including towing charges, at the following times:
19.4.1 on date stated in written notice by Splend to the Hirer provided that the date is no less than 2 weeks after the date of the notice (such written notice can only be given after the expiry of 4 weeks from the Start Date);
19.4.2 at any time, without notification to the Hirer if:
19.4.3 The Hirer is in breach of any 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;
19.4.4 The Hirer has obtained the Vehicle through fraud or misrepresentation;
19.4.5 Any amounts due and payable under this Agreement fall overdue;
19.4.6 The Vehicle appears to be abandoned;
19.4.7 The Vehicle is not returned on the agreed return date;
19.4.8 The Vehicle is damaged and is not repaired within 4 weeks;
19.4.9 Servicing at manufacturer specified intervals is not performed within 2000 kilometres of the specified service interval;
19.4.10 The Hirer or the Additional Driver is charged with drug/drink driving in the Vehicle;
19.4.11 The Hirer or the Additional Driver has driven 20 kilometres per hour or more over the limit;
19.4.12 The Hirer or the Additional Driver behaves in such a manner as to bring Splend into disrepute;
19.4.13 The Hirer or the Additional Driver permits the Vehicle to be used by a driver other than the Hirer or the Additional Driver.
19.4.14 The Additional Driver uses the Vehicle for commercial purposes including ride-sharing unless expressly permitted by Splend pursuant to clause 3 of this Agreement.
19.4.15 The Hirer or the Additional Driver violates any ride-sharing platform driver policies;
19.4.16 Not advising Splend of a Notifiable Event within 24 hours;
19.4.17 Not using the Vehicle wholly or predominantly for business/commercial purposes;
19.4.18 Failure to pay excess kilometre fees or any fees due and owing under this Agreement.
19.4.19 The Vehicle is driven outside the Permitted Area;
19.4.20 The GPS tracking device attached to the Vehicle is tampered with or removed.
19.4.21 Splend considers, on reasonable grounds, that the Vehicle is endangered.
19.5 In the event of such termination or repossession listed in clause 19.4 above, the Hirer has no right to a refund of any part of the Weekly Hire Payment.
19.6 Where the termination or repossession occurs within the first 6 weeks after the Start Date the Hirer is required to pay to Splend the difference between the first 6 week’s Weekly Hire Payments and any Weekly Hire Payment amounts the Hirer has paid to Splend.
19.7 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. 19.8 The Hirer shall return the Vehicle (including car keys) to the Splend Depot in the State where the Vehicle is registered on the earlier of:
19.8.1 the date of this Agreement; and
19.8.2 the last day of the Term.
19.9 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 (acting reasonably).
19.10 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.
19.11 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.
19.12 The termination of the hire under this clause shall be without prejudice to the other rights of Splend under this Agreement or otherwise.
19.13 Termination of this Agreement for any reason shall not affect the accrued rights or liabilities of any party occurring prior to termination.
19.14 Any amount payable by the Hirer under this clause 19 is payable under any circumstances as compensation to Splend for the loss of the benefits which Splend would have received if the Hirer had performed its obligations under this Agreement for the applicable Term, and is payable whether or not:
19.14.1 Splend has exercised any power under this Agreement;
19.14.2 the event which resulted in Splend exercising any power was a breach of this Agreement; or 19.14.3 the Hirer could have performed its obligations under this Agreement after the exercise of any power of Splend under this Agreement.
19.15 Despite anything expressed or implied in this Agreement:
19.15.1 the absence of any event specified in clause 19.3 is a fundamental and essential term and condition of this Agreement; and
19.15.2 the occurrence of an event specified in clause 19.3 constitutes a breach of fundamental and essential terms and conditions of this Agreement by the Hirer and constitutes a repudiation of this Agreement by the Hirer entitling Splend to accept the repudiation of this Agreement.
20.1 This clause shall apply to the following clauses of this Agreement:
20.1. Clause 4.1.1
20.1. Clause 4.1.6
20.1. Clause 4.1.8
20.1. Clause 8.2
20.1. Clause 8.3
20.1. Clause 9.1
20.1. Clause 9.2
20.1. Clause 10.4
20.1. Clause 13.2
20.1. Clause 14.2.3
20.1. Clause 17.4
20.1. Clause 19.4
20.1. Clause 19.8
20.1. 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 20.1 hereof shall not be affected by clause 19.4 hereof.
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.
22.1 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.
23.1 In this clause and in clause 24, “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 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;
23.10.6.2 the Security Holder may enter any premises where any Vehicle is located to remove the Vehicle from the relevant premises; and
23.10.6.3 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.
24.1 The Hirer:
24.1.1 Charges the Security in favour of Splend to secure all amounts owing by the Hirer 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.
24.2 Clauses 23.6, 23.7, 23.8 and 23.9 apply to the Security Interest granted under clause 24.1.
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.
26.1 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:
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
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.
26.7 Representations and Warranties
The parties agree that any representations or 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
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 nonexclusive jurisdiction of the Courts of New South Wales (and any Court of Appeal).
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.
28.1 The Hirer must pay Splend interest on any amount owing under this Agreement at the rate of 10% per annum calculated on a daily basis from the date 7 days after the payment is due under this Agreement.
29.1 The Hirer agrees that Splend may charge, and authorises Splend to charge, the Hirer’s credit card for any/all amounts, 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.
30.1 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
31.1 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.