These Rental Terms, together with any Booking Form located on the Byron Bay Backpacker Car Rentals website (the Website) or provided to a customer, set out the agreement (this Agreement) under the terms of which you or the company which you represent (the Customer, you, your) will rent the Vehicle from J & K BETTISON PTY LTD ABN 34 634 607 837 trading as Byron Bay Backpacker Car Rentals (Byron Bay Backpacker Car Rentals, us, our).
1. BOOKING FORM, THIS AGREEMENT
(a) These Rental Terms will apply to all the Customer’s dealings with Byron Bay Backpacker Car Rentals, including being incorporated in all agreements, quotations or orders under which Byron Bay Backpacker Car Rentals is to rent a Vehicle to the Customer (each a ‘Booking Form’) together with any additional terms included in a such Booking Form (provided such additional terms are recorded in writing).
(b) The Customer will be taken to have accepted this Agreement if:
(i) the Customer accepts a Booking Form; or
(ii) if the Customer orders, accepts or pays for any Vehicle provided by Byron Bay Backpacker Car Rentals after receiving or becoming aware of this Agreement.
(c) By accepting this Agreement, the Customer acknowledges and warrants that:
A. have a valid driver’s licence of a licence class that permits them to drive the Vehicle;
B. will provide a copy of their valid driver’s licence/s to Byron Bay Backpacker Car Rentals before renting any Vehicle; and
C. have the legal capacity to enter into this Agreement.
(d) In the event of any inconsistency between these Rental Terms and any Booking Form, the clauses of these Rental Terms will prevail to the extent of such inconsistency.
Byron Bay Backpacker Car Rentals rents to the Customer and the Customer accepts from Byron Bay Backpacker Car Rentals the rental of the Vehicle upon and subject to the provisions of this Agreement.
The Customer must pay the Fees to Byron Bay Backpacker Car Rentals, in the amounts and at the times set out in the Booking Form or as otherwise agreed in writing.
3.2. TIME FOR PAYMENT
Unless otherwise agreed in writing:
(a) the Customer must pay the Fees upfront at the time of booking; and
(b) in all other circumstances, if Byron Bay Backpacker Car Rentals issues an invoice to the Customer, payment must be made by the time(s) specified in such invoice.
3.3. PAYMENT METHOD
The Customer must pay Fees using the fee payment method specified in the Booking Form.
3.4. ONLINE PAYMENT PARTNER
4. VEHICLE USE
Pick-up and Return
(a) The Vehicle must be picked up no earlier than 12:00pm AEST on the Start Date.
(b) Subject to clause 16, the Customer must, before 5:00pm AEST on the Return Date, return the Vehicle to Byron Bay Backpacker Car Rentals at the Return Address in the same condition as it was in on the Start Date.
(c) For the purposes of this clause, ‘same condition’ means the same state (excluding ordinary wear and tear) and complete with all the tools, tyres, accessories and Equipment and in the same state of cleanliness as the Vehicle was on Start Date.
(d) If the Customer does not comply with clause 4(b), the Customer must promptly pay the Late Charge that will apply depending on how long the Customer retains possession of the Vehicle, unless otherwise directed by Byron Bay Backpacker Car Rentals.
(e) The Customer must ensure that the Vehicle is only used:
(i) in a proper and skilful manner, by either the Customer or an Additional Driver;
(ii) in accordance with the Vehicle manufacturer’s requirements, recommendations and instruction manuals; and
(iii) in accordance with all Laws, rules and regulations applicable to the Vehicle and its use.
(f) The Customer must not, and must not allow any third party to:
(i) use the Vehicle for any dangerous or illegal purpose, contest or performance test;
(ii) allow the Vehicle to be used by more than the Specified Number of Drivers;
(iii) allow anyone except the Customer and, if applicable, any Additional Drivers to drive the Vehicle;
(iv) use or allow the Vehicle to be used while the driver is under the influence of alcohol or drugs;
(v) use the Vehicle when it is damaged or unsafe;
(vi) drive the Vehicle on an unsealed road, with the exception of access roads made of gravel, if they are no longer than 50 metres in length and if the speed of the Vehicle does not exceed 10 kilometres per hour;
(vii) use or allow the Vehicle to be used to carry passengers for payment of any kind;
(viii) make any alterations to the Vehicle;
(ix) affix or install any accessories, equipment or device on or to the Vehicle without Byron Bay Backpacker Car Rentals’ prior written consent; or
(x) use the Vehicle for the conveyance or towing of any load unless the Customer receives Byron Bay Backpacker Car Rentals’ prior written consent and the load is correctly loaded and secured and not in excess of that for which the Vehicle was manufactured.
(g) The Customer must:
(i) keep any records in relation to the use of the Vehicle reasonably required by Byron Bay Backpacker Car Rentals, as notified to the Customer from time to time; and
(ii) when the Vehicle is unattended, keep it locked and keep the keys under the Customer’s, or if applicable, the Additional Driver’s control at all times.
(h) You acknowledge that the Vehicle is rented out to you in a clean condition. You must return the Vehicle in the same state of cleanliness (inside and out) it was in on the Start Date (Clean). If the Vehicle is not Clean upon return, a cleaning fee will apply as set out in your Booking Form or otherwise provided to you by Byron Bay Backpacker Car Rentals.
(i) You are responsible for removing all personal items and/or food prior to returning the Vehicle.
(j) The Customer agrees:
(i) to ensure that any user of the Vehicle will at all times be qualified and appropriately trained and licenced to use the Vehicle; and
(ii) that they are responsible for the acts and omissions of any other person they allow to use the Vehicle.
5. BREAKDOWNS AND ROADSIDE ASSISTANCE
Byron Bay Backpacker Car Rentals provides roadside assistance with all Vehicles. If the Vehicle breaks down while in your possession:
(a) you must immediately notify us of the breakdown;
(b) you can contact roadside assistance immediately;
(c) after we receive your notification, we will arrange for the Vehicle to be towed to the closest repair centre or contact roadside assistance;
(d) if repairs cannot be completed within a reasonable time, we will endeavour to replace your Vehicle with a similar model and, if such a replacement is not possible, we will provide you with a refund to the value of the remainder of the Rental Term and, at our absolute discretion, an additional refund; and
(e) any refund under this clause is not an admittance of fault by Byron Bay Backpacker Car Rentals.
(a) If the Vehicle is involved in a road accident or claim during the Rental Term, or if damage or loss is sustained to the Vehicle or the property of any third party in connection with the Vehicle, the Customer must:
(i) promptly report the incident to the local police (if required by law);
(ii) promptly report the incident in writing to Byron Bay Backpacker Car Rentals;
(iii) not, without Byron Bay Backpacker Car Rentals’ prior written consent, make or give any offer, promise of payment, settlement, waiver, release or admission of liability in relation to the incident, except as required by law;
(iv) permit Byron Bay Backpacker Car Rentals or an insurer to bring, defend, enforce or settle any legal proceedings in the Customer’s name in relation to the incident; and
(v) provide to Byron Bay Backpacker Car Rentals, within a reasonable time, any statement, information or assistance which Byron Bay Backpacker Car Rentals or an insurer requests, including by attending a lawyer’s office or a court to give evidence.
(b) If the Vehicle is involved in an accident where the Customer is ‘at fault’ resulting in repairs or an insurance claim:
(i) if the Vehicle cannot be replaced or repaired, Byron Bay Backpacker Car Rentals, at its discretion, will repair the Vehicle or replace it with a similar one, if one is available; and
(ii) the Customer will not be entitled to a refund, if a replacement or repair is not possible.
7. LOSS, DAMAGE AND PERSONAL INJURY
The Customer will be fully responsible to Byron Bay Backpacker Car Rentals for:
(a) any loss or damage to the Vehicle during the Rental Term and must give reasonable notice to Byron Bay Backpacker Car Rentals in writing of any such loss or damage; and
(b) all damage to the property of any person or any other vehicle which is caused or contributed to by the Vehicle during the Rental Term.
Customer’s insurance policy obligations
(a) The Customer must take out on the Start Date and hold for the Rental Term, at its own cost, car rental insurance to cover all risks that a reasonable person hiring the Vehicle would be likely to insure against.
(b) Byron Bay Backpacker Car Rentals does not hold insurance in relation to Vehicles. The Customer acknowledges that Byron Bay Backpacker Car Rentals will have no obligation or requirement to insure the Customer’s use of the Vehicle under this Agreement.
(c) If the Vehicle is damaged, destroyed or stolen during the Rental Term, or otherwise while the Vehicle is in the Customer’s possession, the Customer must compensate Byron Bay Backpacker Car Rentals for any costs of repair or replacement in relation to any loss, theft, damage or destruction.
(d) Byron Bay Backpacker Car Rentals can provide the Customer with a list of insurance companies which Byron Bay Backpacker Car Rentals encourages the Customer to seek coverage with.
9. SECURITY DEPOSIT
(a) To rent you any Vehicle we require the payment of a Security Deposit as set out in your Booking Form or otherwise provided to you to cover any damages or issues with the Vehicle (Security Deposit).
(b) We may waive our right to charge you a Security Deposit and instead charge additional fees in addition to any rates or daily rates applicable if the Customer does not pay a Security Deposit.
(c) Any security deposit paid will not apply to:
(i) Overhead Damage or Underbody Damage (including, without limitation, damage which occurs if you drive the Vehicle into a bridge, a tunnel, a tree, or the roof or boom gate of a car park; or damage to the exhaust systems, suspension and chassis caused by carelessly driving over gutters or kerbs or driving along poor quality roads at excessive speeds) which is not attributable to Fair Wear and Tear;
(ii) You driving the Vehicle in a manner that results in total or partial inundation or immersion of the Vehicle in water or exposure of the Vehicle to salt water (including, without limitation, damage which occurs as a result of you driving the Vehicle through floods, creeks or rivers);
(iii) damage to the Vehicle caused by a breach of clauses 4(e), 4(f), 4(g) and 4(j) (save, in respect of clause 4(e)(iii), for minor infractions);
(iv) damage to a tyre or Equipment not attributable to Fair Wear and Tear that is caused deliberately or recklessly by you; or
(v) theft of the Vehicle, unless you report the Vehicle as stolen to the police immediately on becoming aware of the theft and provide a copy of the police report to Byron Bay Backpacker Car Rentals as soon as you receive it.
(d) For the purposes of this clause 9, any reference to you includes an Additional Driver and any person you or the Additional Driver allow to drive the Vehicle.
The Customer must:
(a) ensure that the Vehicle has a full tank of fuel when it is returned to Byron Bay Backpacker Car Rentals;
(b) on return of the Vehicle pay to Byron Bay Backpacker Car Rentals the costs of refuelling the Vehicle will be as set out in the Booking Form or otherwise provided by Byron Bay Backpacker Car Rentals in writing or on the Website, if the Customer fails to comply with clause 10(a); and
(c) only fill the Vehicle with fuel of a type that meets the Vehicle’s specifications.
(a) The Customer is responsible for the performance and cost of daily maintenance and care of all Vehicles in its possession, including daily checking of all fluids (fuel, oil, water, battery levels etc).
(b) The Customer is required to regularly check the Vehicle for any defects in its operations or safety.
12. ADDITIONAL CHARGES – FINES AND TOLLS
The Customer acknowledges and agrees that the Customer:
(a) will be responsible for the costs of all tolls and fines (e.g. tolls, parking tickets, towing fines) incurred; and
(b) if any additional charges such as fines and tolls are sent back to Byron Bay Backpacker Car Rentals, that Byron Bay Backpacker Car Rentals will charge the Customer an administrative fee as set out in the Booking Form or otherwise provided to the Customer to cover our costs of compliance.
13. PERSONAL PROPERTY
Byron Bay Backpacker Car Rentals is not liable to any person for any loss of, or damage to, personal property that is left in the Vehicle after its return to Byron Bay Backpacker Car Rentals or stolen from the Vehicle or otherwise lost during the Rental Term.
14. OWNERSHIP, POSSESSION AND TITLE
(a) The Vehicle is, and will at all times be and remain, the property of Byron Bay Backpacker Car Rentals, notwithstanding delivery of the Vehicle to the Customer or the possession and use of the Vehicle by the Customer.
(b) The Customer will not have any right, title or interest in or to the Vehicle except as expressly set out in this Agreement.
(c) Byron Bay Backpacker Car Rentals reserves the right to fit all Vehicles with a GPS or other similar tracking device in order to locate the Vehicle at all times.
(d) The Customer must not, without Byron Bay Backpacker Car Rentals’ prior written consent, part with possession of the Vehicle during the Rental Term.
(e) The Customer must not allow any security interest, encumbrance, charge or lien of any kind to arise or remain in relation to the Vehicle, including a repairer’s lien, except:
(i) if a repairer’s lien arises, the Customer must take all necessary steps to have it removed or satisfied, or, at Byron Bay Backpacker Car Rentals’ option, Byron Bay Backpacker Car Rentals may remove or satisfy the lien at the Customer’s cost; and
(ii) a security interest, lien or charge that arises by law in respect of unpaid rates, taxes, fees or duties of any kind, in which event the Customer must pay any money due so that the Vehicle will be free of the lien or charge.
15. PERSONAL PROPERTY SECURITIES
The Customer grants a security interest in all of its present and after acquired property and in all of its present and future rights, title, estate and interest, whether legal and equitable, in relation to any personal property, including any debts owed to the Customer, in favour of the Byron Bay Backpacker Car Rentals to secure the performance of its liabilities and obligations under this Agreement.
If requested by the Byron Bay Backpacker Car Rentals the Customer must immediately sign any documents, provide all necessary information and do anything else required by the Byron Bay Backpacker Car Rentals to ensure that the security interest created in the Byron Bay Backpacker Car Rentals’ favour is a perfected security interest.
The Customer must not grant any other security interest in favour of any party until the Byron Bay Backpacker Car Rentals has perfected its security interest created under these Terms.
The Customer must not do or permit anything to be done that may result in the security interest granted to the Byron Bay Backpacker Car Rentals ranking in priority behind any other security interest.
The Customer acknowledges that these Terms constitute a security agreement for purposes of the PPSA and the Customer will do all things necessary to enable a security interest to be registered under the PPSA and will comply with all requirements of the PPSA.
To the fullest extent permitted by the PPSA, the Customer agrees to contract out of the application of the provisions listed in sections 115(1) and 115(7) and the sections listed therein shall not apply.
The Customer hereby waives any rights the Customer may otherwise have to:
(a) receive any notices or statements the Customer would otherwise be entitled to receive under sections of the PPSA including for the avoidance of any doubt the sections referred to in sections 115(1) and 115(7) of the PPSA;
(b) apply to a Court for an order concerning the removal of an accession under section 97 of the PPSA;
(c) object to a proposal of the Customer to purchase or retain any collateral under sections 130 and 135 of the PPSA; and
(d) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest created under this document.
For the purpose of this clause and other relevant clauses in this Agreement, the expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA.
16. EARLY RETURN
Notwithstanding any other clause in this Agreement, Byron Bay Backpacker Car Rentals may demand the early return of the Vehicle to the Return Address, or retake possession of the Vehicle, if Byron Bay Backpacker Car Rentals reasonably suspects that:
(a) damage to the Vehicle or injury to any person in connection with the Vehicle is reasonably likely; or
(b) the Vehicle may be used for an unlawful purpose.
17. RISK, LIABILITY AND INDEMNITIES
(a) The Customer will bear all risk of loss or destruction of, or damage to, the Vehicle during the Rental Term, or otherwise when the Vehicle is in the Customer’s possession.
(b) The Customer assumes all risks and liability for the Vehicle and for its use, operation, maintenance, repair and storage (including but not limited to loss of profits, loss of revenue, consequential damage, inconvenience or loss of use for any period of time) and for injuries to or deaths of persons and damage to property arising in connection with such use, operation, maintenance, repair or storage.
(c) To the maximum extent permitted by law, the Byron Bay Backpacker Car Rentals’ liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims are for economic loss, or for personal injury or other damage) arising under or in connection with this Agreement:
(i) is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)); and
(ii) is limited, insofar as concerns other liability, to the total money paid to the Byron Bay Backpacker Car Rentals under this Agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
(iii) Nothing in this agreement is intended to limit the operation of the Competition and Consumer Act 2010 (Cth).
(d) The Customer indemnifies Byron Bay Backpacker Car Rentals from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:
(i) the casual maintenance, use, storage or operation of the Vehicle during the Rental Term or otherwise when the Vehicle is in the Customer’s possession;
(ii) injuries to or deaths of persons and damage to property in connection with the Vehicle during the Rental Term or otherwise when the Vehicle is in the Customer’s possession;
(iii) any breach of this Agreement by the Customer; or
(iv) any negligent, fraudulent or criminal act or omission of the Customer, Additional Driver or a person whom the Customer allows to use the Vehicle.
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this Agreement are excluded.
(b) Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, Byron Bay Backpacker Car Rentals’ liability for breach of that non-excludable condition, warranty or guarantee will, at Byron Bay Backpacker Car Rentals’ option, be limited to:
(i) in the case of goods, their replacement or the supply of equivalent goods or their repair; and
(ii) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.
19.1. TERMINATION BY Byron Bay Backpacker Car Rentals
Byron Bay Backpacker Car Rentals may terminate this Agreement in whole or in part immediately by written notice to the Customer if the Customer is in breach of any term of this Agreement.
19.2. TERMINATION BY THE CUSTOMER
(a) The Customer may terminate this Agreement in whole or in part by written notice to Byron Bay Backpacker Car Rentals provided in the Booking Form.
(b) Byron Bay Backpacker Car Rentals will not provide refunds if you cancel your booking.
19.3. EFFECT OF TERMINATION
Upon termination of this Agreement, the Customer must promptly:
(a) pay any payments required by Byron Bay Backpacker Car Rentals in respect of the period of the Rental Term prior to the date of termination; and
(b) subject to any contrary direction given by Byron Bay Backpacker Car Rentals, deliver the Vehicle and any other goods included in a Booking Form (such as Equipment) to the Return Address.
Any provision of this Agreement which, by its nature, would reasonably be expected to be performed after the termination, will survive and be enforceable after such termination.
20.1. GOVERNING LAW
This Agreement is governed by the law applying in New South Wales, Australia.
Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior consent of each other party (such consent not to be unreasonably withheld).
(a) Nothing contained in this Agreement creates an agency, partnership, joint venture or employment relationship between Byron Bay Backpacker Car Rentals and the Customer or any of their respective employees, agents or contractors.
(b) Neither party nor any person acting on its behalf may hold itself out as being entitled to contract or accept payment in the name of or on account of the other party.
This Agreement may only be amended by a document signed by each party.
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
20.7. FURTHER ACTS AND DOCUMENTS Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.
20.8. ENTIRE AGREEMENT
This Agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.
In addition to capitalised terms defined in the Agreement Details above, capitalised terms used in this agreement will have the following meanings:
Additional Driver: means a person described as such in a Booking Form, who must be the holder of a valid driver’s licence of a licence class that permits the person to drive the Vehicle.
Booking Form: has the meaning set out in clause 1(a) of these Rental Terms.
Business Days: means a day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Sydney, New South Wales.
Customer, you, your: means a person described as such in a Booking Form.
Security Deposit: means the security deposit described in clause 9.
Equipment: means any equipment set out in the Booking Form, including (as applicable) any global positioning system receiver or similar device or any child restraint, booster or similar equipment
Fair Wear and Tear: means Fair Wear and Tear described in the Australian Finance Industry Association Car Rental Code of Practice under the annexure headed “AFIA Fair Wear and Tear Guide – Rental Vehicles” and does not include damage (as set out in that annexure).
Fees: has the meaning set out in the Booking Form.
Late Charge: means
(a) the amount set out in the Booking Form or $110 including GST if the Vehicle is returned after 8pm on the Return Date; or
(b) the amount set out in the Booking Form or $110 including GST per day if the Vehicle is returned after the Return Date.
Laws: means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Vehicle is used and includes any industry codes of conduct.
Overhead Damage: means damage (excluding hail damage) to the Vehicle which occurs during the Rental Term above the top of the door seal or the top of the front and back windscreens, or damage to third party property, caused by the Vehicle coming into contact with anything overhanging or obstructing its path, objects being placed on the roof of the Vehicle, or you or any person standing or sitting on the roof of the Vehicle;
PPSA: means the Personal Property Securities Act 2009 (Cth) and PPS Register means the register established and maintained under that Act.
Rental Term: means the period of Vehicle rental, from the Start Date, set out in the Booking Form.
Return Address: means the return address set out in the Booking Form.
Return Date: has the meaning set out in the Booking Form.
Security Interest: has the meaning given to it in the PPSA.
Specified Number of Drivers: The maximum number of driver’s permitted to drive the Vehicle as specified in a Booking Form and consisting of the Customer and any Additional Driver/s.
Start Date: has the meaning set out in the Booking Form.
Underbody Damage: means damage to the Vehicle which occurs during the Rental Term caused by the Vehicle coming into contact with anything below the bottom of the door seal and the bottom of the front and rear bumper bars that in the reasonable opinion of Byron Bay Backpacker Car Rentals was the fault of the driver;
Vehicle: means the vehicle specified in a Booking Form.
In this agreement, the following rules of interpretation apply:
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) (person) a reference to “person” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (currency) a reference to “$” or “dollar” is to Australian currency;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.