Terms and Conditions - carbar.com.au

Carbar
Carbar Subscription

1. Introduction
- 1.a. Carbar Autos is an online buying and selling service for used cars.
- 1.b. Please read these Terms and Conditions carefully before you start to use the Carbar Autos Portal.
- 1.c. These Terms and Conditions cover Users of the Carbar Autos Portal. A User may be a Seller or a Buyer of a Vehicle, but may not. The extent of a Buyer’s obligations are outlined in in Carbar Autos’s 3-Day/300km Try/Buy Agreement. The extent of a Seller’s obligations are outlined in the Carbar Autos’s 40 Day Purchase Agreement.
2. Account
- 2.a. If you wish to use the Carbar Autos Portal you can create an account with us via www.carbar.com.au . Your Account will be operated by a username and password, which you may change online at your convenience. The owner of the Account is solely responsible for the activity conducted on the Account.
- 2.b. Subject to these Terms and Conditions, you are granted a non-exclusive, personal, non-transferable and non-sub-licensable licence to use and access the Carbar Autos Portal solely for personal or domestic purposes. You shall not acquire or be entitled to any rights other than those rights expressly set out in these Terms and Conditions.
- 2.c. In relation to your Account, you undertake that :
  - i. You will not disclose your Password to any third party and take reasonable measures to prevent disclosure of your Password to any third parties. You are liable for all use of the Carbar Autos Portal using your Account or Password. Please notify us immediately if you become aware that your Account or Password is being used without authorisation or any other security breach relating to your Account or Password.
  - ii. You will provide only accurate, complete registration information, and you will update that information if it changes. You will create only one account on the Carbar Autos Portal and you will remain responsible for anything that happens through your Account. You must provide and keep us up-to-date with accurate information, including name, address, email address and telephone number.
  - iii. You will not impersonate another buyer or seller or provide false identity information to gain access to or use the Carbar Autos Portal, Website or Services.
- 2.d. We have the right to disable any Account or Password, whether chosen by you or allocated by us, at any time, if in our opinion you have failed to comply with any of the provisions of these Terms and Conditions.
3. Warranties
- 3.a. You acknowledge and agree that, to the extent permitted by law, Carbar Autos makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Carbar Autos Portal (or any goods or services provided in connection with the Carbar Autos Portal). Carbar Autos will not be liable if the Carbar Autos Portal (or any Services provided in connection with the Carbar Autos Portal) are unavailable for any reason, including directly or indirectly as a result of:
  - i. telecommunications unavailability, interruption, delay, bottleneck, failure or fault.
  - ii. negligent, malicious or wilful acts or omissions of third parties (including Carbar Autos’s third party service providers).
  - iii. maintenance carried out by Carbar Autos or any third party service provider in respect of any of the systems used in connection with the provision of the Carbar Autos Portal.
  - iv. services provided by third parties (including internet service providers) ceasing or becoming unavailable.
  - v. Force Majeure Event.
- 3.b. Carbar Autos does not warrant or guarantee:
  - i. the suitability of the Carbar Autos Portal or any Services for any particular purpose or use under specific conditions.
  - ii. the sale of any vehicle on the Carbar Autos Portal within a certain timeframe or at all.
- 3.c. The Pre-Purchase Inspection Services are supplied by a Third Party Provider (and not by Carbar Autos) and Carbar Autos in no way:
  - i. endorses the Pre-Purchase Inspection or the Pre-Purchase Inspection Services.
  - ii. warrants that the Vehicle is roadworthy, safe, in good working order, condition or repair, of merchantable quality, or fit for the purposes intended.
  - iii. endorses the appraisal or valuation of the Vehicle‘s Sales Price as accurate or reliable.
  - iv. is responsible for the accuracy or reliability of any information disclosed or displayed as part of the Pre-Purchase Inspection.
- 3.d. No warranty is given and Carbar Autos will not be liable for:
  - i. any act of omission of a third party, including any failure of a buyer to purchase the vehicle.
  - ii. any loss, damage, cost, expense, personal injury or death to you or any third party arising out of the transaction relating to the Vehicle, use or the test drive of the Vehicle by a Buyer or anyone else.
  - iii. the security of the Vehicle or any damage to the Vehicle prior to or after delivery on the scheduled collection date.
  - iv. the suitability or use of any Third Party Providers or Third Party Products, third party materials or information, goods or services, which may be purchased, advertised or obtained in connection with the Carbar Autos Portal.
  - v. any loss, damage or injury arising of out any conduct, statement, representation, act or omission made by a seller to a buyer or potential buyer regarding the Carbar Autos Portal, the Services, or your Vehicle.
  - vi. any loss or damage caused by Force Majeure Event.
4. Terms & Conditions
- 4.a. You acknowledge that Carbar Autos may use Third Party Products and Third Party Providers to enable us to provide you with the Carbar Autos Portal and that your use of and reliance on it is solely at your own risk.
- 4.b. Carbar Autos makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content displayed on the Carbar Autos Portal by a Third Party Provider or the use of any such Third Party Products, or any transactions completed, and any contract entered into by you, with a buyer, seller or Third Party Provider.
- 4.c. Carbar Autos recommends that you refer to the Third Party Provider’s terms and conditions prior to using the relevant Third Party Products or the Carbar Autos Portal.
- 4.d. Carbar Autos does not endorse, sponsor or approve any Third Party Products or Third Party Providers made available via the Carbar Autos Portal. It is your sole responsibility to determine that specific products or services used by you, meet your individual needs and/or are suitable for the purposes for which they are used.
- 4.e. Any rights you may have to access Third Party Products or Third Party Provider’s shall be limited to:
  - i. the extent of Carbar Autos’s ability to pass on such rights to you; or
  - ii. the relevant Third Party Provider’s licensor terms.
5. Confidential information
- 5.a. Save as required by law, all information supplied by us in relation to Carbar Autos, the Carbar Autos Portal, the services or any terms of this Agreement is confidential and must not be disclosed by you to a third party (except your professional advisors) without our written consent. This includes, without limitation, information provided to you in any form (including written and electronic) and by any means (including during any conversations with you).
6. Intellectual property
- 6.a. Using the Carbar Autos Portal or Services does not give you ownership of, or any right, title or interest in, the Carbar Autos Portal (or any Intellectual Property Rights contained therein) or any information, content or technology that may be provided to, or accessed by, you in connection with your use of the Carbar Autos Portal or Services, all of which is owned by Carbar Autos or our licensors.
- 6.b. Unless otherwise agreed to in writing by the parties, all Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with the Carbar Autos Portal or the performance of the services will vest in, and are assigned to, Carbar Autos.
- 6.c. You will remain the owner of your Content, subject to a royalty-free, transferable, worldwide and perpetual licence for Carbar Autos to use and sub-license any Content you make available to us (and all Intellectual Property Rights contained therein) to perform the Services or any ancillary services, including, without limitation, for marketing purposes.
- 6.d. You agree not to submit Content or any information through the Carbar Autos Portal unless you have the rights to do so and we do not undertake any pre-screening of such Content.
7. Limitation of liability and indemnities
- 7.a. To the maximum extent permitted by law, Carbar Autos excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the provision of the Services or the Carbar Autos Portal.
- 7.b. Nothing contained in this Agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Consumer and Competition Act 2010 or any other national, State or Territory legislation (the Acts) where to do so is unlawful.
- 7.c. To the fullest extent permitted by law, Carbar Autos will not be liable to you or any third party for:
  - i. indirect, consequential, incidental, special or exemplary damages, expenses, losses or liabilities; or
  - ii. loss of profits, business interruption, loss of revenue, economic loss, loss of goodwill, loss of data, downtime costs, loss of use, failure to realise anticipated savings, loss of opportunity or expectation loss or loss of production; or
  - iii. loss of or damage to any property or Vehicle advertised, displayed for sale or sold or bought by you on the Carbar Autos Portal or any personal injury or death to you or any third person, arising out of, relating to or connected to the provision or use of the Services, the Carbar Autos Portal and these Terms and Conditions, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.
- 7.d. Under no circumstances will Carbar Autos’s aggregate liability whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the Vehicle Price.
- 7.e. You agree to defend, indemnify and hold Carbar Autos and its Personnel harmless from and against any and all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against Carbar Autos or which Carbar Autos may pay, sustain or incur as a direct or indirect result of or arising out of:
  - i. the use by you or any third party of the Services or the Carbar Autos Portal.
8. Force majeure
- 8.a. Carbar Autos shall have no liability to you under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business by a Force Majeure Event.
9. General
- 9.a. These Terms and Conditions contain the entire understanding between Carbar Autos and the User and supersedes all prior communications. You acknowledge that you have not relied on any representations made by Carbar Autos which are not set out in this Agreement and to the extent permitted by law.
- 9.b. These Terms and Conditions cannot be amended or varied except in writing signed by both parties. You must not assign or otherwise deal with its rights or obligations under this these Terms and Conditions without Carbar Autos’s prior written consent.
- 9.c. If the whole or any part of any clause of these Terms and Conditions is illegal or unenforceable, that part or whole of that clause will be severed and will not affect the continued operation of the remaining provisions.
- 9.d. If there are any inconsistencies between the terms contained in these Terms and Conditions and the 40 Day Purchase Agreement for Sellers and the 3 Day/300km Try/Buy Agreement for Buyers the respective Seller and Buyer agreements will prevail to the extent of the inconsistency.
- 9.e. Nothing in these Terms and Conditions is to be construed as constituting an agency, partnership, joint venture, or any other form of association between the parties in which one party may be liable for the acts or omissions of any other party. You do not have the authority to incur any obligation or make any representation or warranty on our behalf, or to pledge our credit. We are mere facilitators in procuring an opportunity for you to purchase a motor vehicle and you do so at your own risk.
10. Definitions

In these Terms and Conditions, unless the context otherwise requires:
- 10.a. 3 Day/ 300km Try/Buy Agreement is an agreement to purchase the vehicle pending a trial of the vehicle of 3 days or 300 km, whichever comes first, after delivery. Purchasers may return the vehicle, with all monies returned and no obligation to purchase within 3 days or 300km.
- 10.b. 40-day Purchase Agreement is a deferred purchase agreement, where by Carbar Autos’s nominee agrees to buy your Vehicle at an agreed price, buy paying a deposit, with the balance due any time up to and including 40 days after the date of the agreement
- 10.c. ‘Business Days’ means each day excluding Saturdays, Sundays and Public Holidays in Victoria.
- 10.d. ‘Business Hours’ means 9:00am to 5:00pm on Business Days.
- 10.e. ‘Buyer’ means the third party private buyer of the Vehicle.
- 10.f. ‘Content’ means all content, text, emails, files, names, artwork, graphics, video, reports, policies, or other information or materials downloaded, uploaded, sent or received.
- 10.g. ‘Force Majeure Event’ means acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default by or act or omission of a third party such as a Third Party Provider or a Seller, hosting or data centre providers or other suppliers or sub-contractors.
- 10.h. ‘Intellectual Property Rights’ means any intellectual or industrial property rights that have been or may be created or developed, whether or not registered or registrable, including without limitation a patent, trade mark or service mark, copyright, visual image, performance, recording or broadcast, registered design, business name, trade secret, confidential information (including the confidential information), or database or list of information.
- 10.i. ‘Personnel’ includes any officer, employee, agent, contractor, sub-contractor or consultant of Carbar Autos.
- 10.j. ‘Pre-Purchase Inspection has the same meaning given to such phrase in item 4 of the Schedule.
- 10.k. ‘Pre-Purchase Inspection Services’ has the same meaning given to such phrase in item 4 of the Schedule.
- 10.l. ‘Sales Price’ means the sales price for the Vehicle as displayed on the Carbar Autos Portal and includes Taxes, compulsory third party insurance, stamp duty and dealer delivery.
- 10.m. ‘Seller’ means the dealer, wholesaler or third party private seller of the Vehicle
- 10.n. ‘Services’ means the services to be performed by Carbar Autos or its Personnel as part of these Terms and Conditions
- 10.o. ‘Third Party Provider’ means the supply of Third Party Products.
- 10.p. ‘Third Party Products’ means software, products, services or content (including all Intellectual Property Rights contained therein) that:
  - i. (a) are provided by third parties;
  - ii. (b) interoperate with the Services or the Carbar Autos Portal; or
  - iii. (c) may be identified as third party products.
- 10.q. ‘Carbar Autos Portal’ means the portal provided by us to facilitate the sale of motor vehicles including the provision of Services and access to the Website.
- 10.r. ‘User’ means someone who comes onto and interacts with the Carbar Autos Portal.
- 10.s. ‘Vehicle’ means a vehicle which has been displayed, posted or published on the Carbar Autos Portal by you for the purposes of sale by Carbar Autos to a third party buyer.
- 10.t. ‘Vehicle Price’ means the Sales Prices for the Vehicle less the Deposit paid by the Buyer to purchase the Vehicle.
- 10.u. ‘Website’ means the Carbar Autos website located at www.carbar.com.au or any other internet site notified by Carbar Autos from time to time.
- 10.v. ‘you’ means the person or entity and includes anyone acting on your behalf or with your express or implied authority
You and Carbar agree:
- 1. The Vehicle is owned by Carbar Holdings Pty Ltd ACN 612 049 260 LMCT 11637 (Carbar) or a third party that has chosen to offer the Vehicle for customers to use via Carbar Subscription.
- 2. Subject to your Customer Application being approved by Carbar, you and Carbar agree that you will use the Vehicle subject to this Agreement.
Approval of Customer Application
- 3. To complete the Customer Application you must:
  - a. complete all required fields providing true and accurate information;
  - b. provide 100 points of identification;
  - c. provide evidence of your current residential address;
  - d. provide your bank statement or other proof of income (e.g. letter of employment);
  - e. provide a valid full or P2 probationary Australian Driver’s Licence or international Driver’s Licence from your country of residence along with a VicRoads Client ID (as applicable);
  - f. provide evidence of your existing LINKT account (if you don’t have one, a $27.50 nomination fee will be payable for each toll);
  - g. pay the Upfront Fee; and
  - h. pay the Initial Subscription Fee.
- 4. You agree to Carbar performing all relevant consumer credit and driver history checks deemed reasonably necessary for Carbar to approve the Customer Application.
- 5. You agree to pay for any checks referred to in clause 4 that are performed by Carbar, up to the amount of $70.00. If the Customer Application is not approved, you will not be entitled to a refund of this amount.
- 6. Unless you have notified Carbar of any of the following and Carbar has waived any of the following requirements in writing, you agree that you have not:
  - a. incurred any speeding fines in the last twelve (12) months;
  - b. been in an At-Fault Accident in the last twelve (12) months;
  - c. had your driver licence cancelled or suspended in the last twelve months; and/or
  - d. been the subject of bankruptcy proceedings in the last seven (7) years.
- 7. You acknowledge and agree that Carbar may refuse to approve the Customer Application for any reason and is not required to provide reasons for non-approval of the Customer Application.
- 8. If the Customer Application is not approved, Carbar will refund the Upfront Fee and Initial Subscription Fee using the method used to pay. You acknowledge and agree that the Initial Subscription Fee, the Subscription Fee and the Upfront Fee will be non-refundable in all circumstances other than as provided for in this clause 8, clause 46.b and clause 66.
- 9. You agree that you are not entitled to any amounts of interest accrued while your Upfront Fee is held by Carbar (and that these amounts are owned by Carbar), whether or not the Customer Application is approved.
- 10. Carbar will notify you in up to 14 business days if the Customer Application is approved and, if it is, will arrange for Vehicle Handover.
Vehicle Handover
- 11. Subject to approval of your Customer Application, Carbar will arrange for you to pick up the Vehicle or to deliver the Vehicle to a location within 50 kilometres of Melbourne Central Business District, at a time, date and location agreed between you and a Carbar Representative (Vehicle Handover).
- 12. At Vehicle Handover, you must present your Driver’s Licence and complete the Condition Report with a Carbar Representative.
- 13. If you fail to sign the Condition Report at the time of Vehicle Handover, you will forfeit the right to dispute any claim for Damage caused during the Subscription Period.
Subscription Period
- 14. During the Subscription Period:
  - a. the Vehicle must only be driven by you and/or the Approved Driver noted on the Customer Application and approved in writing by Carbar; and
  - b. you and any Approved Driver must:
    
    i. hold:
    
    1. a valid Australian Driver’s Licence (only full and P2 probationary Driver’s Licences are permitted); or
    
    2. have a valid international Driver’s Licence from your country of residence along with a VicRoads Client ID; and
    
    ii. be aged between twenty-one (21) years and 85 years of age; and
    
    iii. be licensed to drive the Vehicle in the State or Territory in which the Vehicle will be used.
- 15. During the Subscription Period you will ensure that:
  - a. you provide Carbar with a minimum of 7 days prior written notice before using the Vehicle for hire or reward or to carry on a business;
  - b. the Vehicle is not used for any illegal purpose;
  - c. the Vehicle is not operated by you or the Approved Driver when under the influence of alcohol or drugs;
  - d. appropriate care is taken when operating the Vehicle and it is only used for its intended purpose;
  - e. there is no smoking in the Vehicle;
  - f. the Vehicle is not modified in any way, irrespective of whether the modifications are reversible or permanent;
  - g. the GPS Unit located within the Vehicle is not removed, tampered with or modified;
  - h. there are no animals in the Vehicle;
  - i. the Vehicle is not used off-road, or for racing, pace making, testing the Vehicle’s reliability and speed, or teaching someone to drive;
  - j. the Vehicle is not used to jump start any other Vehicle or to tow any other vehicle, trailer, boat or other object.
  - k. the Vehicle is not used to carry a number of passengers which exceeds the designated seating capacity of the Vehicle;
  - l. the Vehicle does not carry anything that would cause the Vehicle to be overloaded;
  - m. the Vehicle is not used to carry any hazardous, toxic or flammable materials;
  - n. the Vehicle is not used in such a manner that a substantial breach of road safety legislation or relevant criminal legislation occurs; and
  - o. the Vehicle (or any of its parts) are not sold, rented or disposed of, and no person is given (purported or otherwise) any legal rights over the Vehicle or registers or attempts to register any interest in the Vehicle under the Personal Property Securities Act 2009 (Cth).
- 16. During the Subscription Period, you must:
  - a. pay for the cost of fuel, oil and tolls;
  - b. ensure that the Vehicle is locked when not in use;
  - c. use the correct fuel type when refueling the Vehicle;
  - d. make the Vehicle available for periodic servicing as and when the service intervals fall due;
  - e. immediately inform Carbar if:
    
    i. a warning light or fault message appears;
    
    ii. you or the Approved Driver become aware of low engine or brake oils, engine coolant levels or tyre pressures; or
    
    iii. the Vehicle develops any fault during the Subscription Period.
- 17. In any of the circumstances set out in subclause 16.e, you must cease using the Vehicle and not perform any repairs. If you do not comply with clause 16.e, you and any Approved Driver will be responsible for any resulting Damage, Claim or third party loss.
- 18. You must immediately report any loss or Damage to the Vehicle (or loss involving the Vehicle) to Carbar and deliver to Carbar every summons, complaint, document or paper in relation to the loss or Damage.
- 19. You agree to pay the Subscription Fee for the duration of the Subscription Period in the following manner:
  - a. The Subscription Fee for the first 4 weeks of the Subscription Period will be paid as the Initial Subscription Fee upon the completion of the Customer Application; and
  - b. The Subscription Fee for the balance of the Subscription Period will be paid fortnightly in advance commencing 4 weeks after the start of the Subscription Period by way of direct debit from your Nominated Account. Each fortnightly payment deadline during the Subscription Period shall be referred to in this Agreement as a ‘Due Date’.
- 20. You consent to Carbar debiting from your Nominated Account all fees, charges and any other amounts payable by you pursuant to the terms of this Agreement when such fees, charges and other amounts become due and payable.
- 21. If, for any reason, Carbar is unable to debit your Nominated Account for any fees, charges and/or any other amounts payable by you under this Agreement, Carbar may, in its absolute discretion and in addition to its other rights under this Agreement:
  - a. make three further attempts to debit your Nominated Account within 24 hours of the first attempt;
  - b. request immediate payment of the applicable fees, charges or other amounts; and/or
  - c. engage debt collection agencies to recover any payments in arrears.
- 22. For every 12 month period during the Subscription Period, You agree to pay Carbar an additional 14 cents for every kilometre travelled by the Vehicle during the Subscription Period in excess of 26,000 kilometres (Additional Kilometre Charge).
- 23. If the Subscription Period is less than 12 months, or this Agreement ends before a subsequent 12 month period to the initial 12 month period is completed, any Additional Kilometre Charge will be calculated on a pro rata basis based on the period of usage.
- 24. You agree that if you become liable for any Additional Kilometre Charge, Carbar may add the Additional Kilometre Charge to your Subscription Fee.
- 25. Any outstanding Additional Kilometre Charge at termination of this Agreement will be invoiced to you.
Damage Cover
- 26. Subject to clause 33, Carbar will pay for Damage Cover for the Vehicle during the Subscription Period.
- 27. If Damage, theft of the Vehicle or third party loss occurs during the Subscription Period or results from your use of the Vehicle, you must:
  - a. immediately notify Carbar; and
  - b. follow all instructions given by Carbar.
- 28. If the Damage Cover is denied for any reason after any Damage, Claim, theft or third party loss is assessed by Carbar or its Insurer, you must pay the amount of any Damage Liability Fee beyond the Excess (Damage Liability Fee).
- 29. The Damage Liability Fee may be determined by Carbar or its Insurer.
- 30. You must continue to pay the Subscription Fee in accordance with clause 19 from the date of the Damage, Claim or theft until the earlier of:
  - a. payment of the Excess;
  - b. the completion of repairs if the Vehicle is damaged;
  - c. the Vehicle is replaced because it is declared a total loss because it is damaged beyond repair; or
  - d. the Vehicle is replaced because it is stolen.
- 31. If the Vehicle suffers Damage or is stolen and provided that you have not committed a Major Breach of this Agreement, Carbar may at its option:
  - a. terminate this Agreement and, subject to the availability of a similar vehicle at a similar subscription fee, grant you the option of entering into a new agreement; or
  - b. terminate the Agreement if no similar vehicle is available at a similar subscription fee.
- 32. If this Agreement is terminated pursuant to clause 311, the Agreement is deemed to have been terminated by mutual consent and no action for damages or penalties will accrue to either Carbar or you as a result of that cancellation.
- 33. You agree that the Damage Cover provided by Carbar is subject to:
  - a. payment (per incident) of the applicable Damage Liability Fee;
  - b. compliance with this Agreement;
  - c. you not being covered under any other policy of insurance; and
  - d. you providing all reasonable information and assistance as may be requested and, if necessary, authorising Carbar to bring, defend or settle legal proceedings, and you agree that Carbar shall at all times have sole conduct of any legal proceedings.
- 34. You must report all accidents to the police if:
  - a. any person is injured;
  - b. the other driver leaves the scene of the accident without exchanging names and addresses; or
  - c. the other driver appears to be affected drugs or alcohol.
  - d. In the event of an accident, you acknowledge that Carbar may insist that the Vehicle be moved to the nearest repairer to secure it.
- 35. You have no cover for any Loss and Damage or any third party loss resulting from:
  - a. a Major Breach of any of this Agreement; or
  - b. use of the Vehicle by any person who is not you or the Approved Driver.
- 36. You are fully responsible and liable for Loss and Damage and third party loss where the Vehicle is operated or used:
  - a. whilst you (or the Approved Driver) are under the influence of alcohol or drugs to the extent that you (or the Approved Driver) are incapable of having proper control of the Vehicle or whilst you (or the Approved Driver’s) blood alcohol content or the level of drugs present in the blood exceeds the limit specified by the law of the state or territory in which the Vehicle is driven;
  - b. on any road or other surface which is not sealed other than a road under repair, or a road notified to you by Carbar;
  - c. in any area or under any circumstances (including crossing a waterway or transporting a Vehicle across a waterway) where the Vehicle may or does become partially or totally immersed in water;
  - d. in a manner that causes:
    
    i. underbody damage, being any damage to the Vehicle that is caused by or directly results from contact between the underside of the Vehicle and any part of the road way or any object or obstruction including curbs, gutters, speed or road humps, barriers or wheel stops; or
    
    ii. overhead damage, being damage to the Vehicle caused by or resulting from an impact between the Vehicle at a point that is level with or above the top of the windscreen;
  - e. under any circumstances where the Vehicle is refueled with fuel other than which is recommended by the Vehicle manufacturer;
  - f. under any circumstances where the Vehicle or its keys are unsecured;
  - g. in any area or region specified to you by Carbar as an area or region in which the Vehicle must not be used;
  - h. in any snow, or alpine resort during the gazetted snow season or in any other area under conditions where a reasonable person would use snow chains;
  - i. on any beach or in any other area exposed to saltwater; or
  - j. out of the state in which you collected it without the consent of Carbar.
- 37. You have no cover for, and to the full extent permitted by law, Carbar is not liable to you for:
  - a. damage to property belonging to, or in the custody of, you or the Approved Driver, or any relative or friend who ordinarily resides with you or the Approved Driver; and
  - b. your liability under any contract or if you have agreed to or accepted liability without Carbar's prior agreement unless you would have been liable irrespective of the terms of that contract.
  - c. any third party for, any loss of use or enjoyment of the Vehicle or any indirect, special or consequential damages arising in any way out of any matter covered by this Agreement.
  - d. Loss and Damage and any third party loss caused or incurred as a result of you fitting anything to the Vehicle incorrectly or not in accordance with the Vehicle manufacturer's recommendations.
  - e. theft of personal belongings from the Vehicle.
  - f. your or any passenger or third party’s loss, (including consequential loss) damage, costs, expenses, damages or any other liabilities resulting from any accident, breakdown or any other failure of a Vehicle.
  - g. No personal accident cover is provided by this Agreement. Your liability for causing personal injuries resulting from use of the Vehicle is covered by the statutory schemes for transport accident compensation in each State and Territory of Australia (subject to the conditions and limitations of those schemes). For details of the scope, conditions and limitations of this coverage, You should contact the relevant authority in the State or Territory in which the Vehicle is registered.
Roadside Assistance
- 38. Subject to clause 39, standard Roadside Assistance is included in the Subscription Fee.
- 39. You are liable for the payment of all roadside assistance costs, including the call-out fee, towing fees and replacement parts, if you:
  - a. lose and/or misplaces car keys or locks the car keys inside the Vehicle; or
  - b. leave any lights or accessories switched on while the car engine is not running, resulting in a flat battery or other damage; and/or
  - c. the tyres suffer a puncture or are shredded.
Termination and Repossession
- 40. Carbar may terminate this Agreement at any time if you commit a Major Breach of this Agreement by giving notice in accordance with clause 69.
- 41. If this Agreement is terminated pursuant to clause 40:
  - a. Carbar may arrange for Vehicle Return; or
  - b. Carbar may:
    
    i. repossess the Vehicle from you or the Approved Driver; and
    
    ii. you will be liable for the cost of repossession.
- 42. Notwithstanding clauses 40 and 41, Carbar may:
  - a. immediately terminate this Agreement and repossess the Vehicle without notice to you if:
    
    i. you have illegally parked the Vehicle for longer than 24 hours;
    
    ii. you have committed a reckless breach of road or traffic legislation;
    
    iii. the Vehicle is apparently abandoned;
    
    iv. payments are in arrears for two consecutive Due Dates and are not received within 3 days of being demanded in writing by Carbar;
    
    v. the Vehicle has not been returned to Carbar at the time, date and place agreed between you and Carbar (Return Appointment) and you have not provided Carbar with at least 3 hours’ notice to reschedule the Return Appointment; or
    
    vi. the Vehicle has not been returned to Carbar:
    
    1. at a Return Appointment that had already been rescheduled twice; or
    
    2. within 7 days of the original Return Appointment;
    
    whichever is earlier, regardless of whether you have provided Carbar with notice that the Vehicle will not be returned at each Return Appointment; or
  - b. terminate this Agreement for any reason by giving you at least 7 days notice in accordance with clause 69 and require that you return the Vehicle on or before the expiry of the notice period. If Carbar terminates this Agreement pursuant to this clause 41.b and:
    
    i. the Vehicle is not returned on or before the expiry of the notice period, Carbar may immediately repossess the Vehicle without further notice to you;
    
    ii. the Vehicle is returned on or before the expiry of the notice period, Carbar will use reasonable efforts to provide you with a similar vehicle via Carbar Subscription at a similar subscription fee.
- 43. If Carbar repossesses the Vehicle in accordance with this Agreement, you agree to indemnify Carbar for the costs (including but not limited to any legal costs) incurred by Carbar in repossessing the Vehicle and/or recovering any payments in arrears from you (including towing costs).
- 44. If your Customer Application is for a SHIFT subscription, you may terminate this Agreement at any time 30 days after the commencement of the Subscription Period by giving two weeks’ notice to Carbar in accordance with clause 69 and returning the Vehicle to Carbar. For the avoidance of doubt, this Agreement will only be terminated pursuant to this clause upon (and the Subscription Fee will be payable up until) the later of:
  - a. the expiry of the two-week notice period; and
  - b. the date when the Vehicle is returned to Carbar.
- 45. If your Customer Application is for a CRUISE subscription, you may terminate this Agreement at any time by giving 3 days notice to Carbar in accordance with clause 69 and returning the Vehicle to Carbar. For the avoidance of doubt, this Agreement will only be terminated pursuant to this clause upon (and the Subscription Fee will be payable up until) the later of:
  - a. the expiry of the 3-day notice period; and
  - b. the date when the Vehicle is returned to Carbar.
- 46. For the avoidance of doubt, if you terminate this Agreement and return the Vehicle to Carbar within the first 30 days of the Subscription Period, and your Customer Application is for:
  - a. a SHIFT subscription:
    
    i. the Upfront Fee will be refunded to you within 7 days after the Vehicle is returned; and
    
    ii. no part of the Initial Subscription Fee will be refunded to you;
  - b. a CRUISE subscription:
    
    i. the Initial Subscription Fee less any Subscription Fees that are payable in respect of the period from the commencement of the Subscription Period to the date that this Agreement is terminated pursuant to clause 45 will be refunded to you within 7 days after the Vehicle is returned; and
    
    ii. no part of the Upfront Fee will be refunded to you.
Vehicle Return
- 47. Upon termination of the Subscription Period, you must:
  - a. immediately arrange for the return of the Vehicle to Carbar; and
  - b. return the Vehicle to Carbar at the Return Appointment with its keys or keyless start device and all parts and accessories, including manuals, audio equipment, GPS Unit, tools and wheel locking nuts. (Vehicle Return).
  Carbar will not under any circumstances be liable to you for any personal belongings left in the Vehicle after Vehicle Return.
- 48. At the time of Vehicle Return:
  - a. the Vehicle must be in the same condition as at the start of the Subscription Period, save for reasonable wear and tear;
  - b. the Vehicle must be cleaned;
  - c. the Vehicle must have a full tank of petrol; and
  - d. you must complete the Condition Report.
- 49. If you fail to sign the Condition Report at the time of Vehicle Return, you will forfeit the right to dispute any claim for Damage allegedly caused during the Subscription Period.
- 50. If the Vehicle is not returned at the Return Appointment, and you do not provide Carbar with a minimum of 3 hours’ notice to reschedule the Return Appointment, Carbar may, in addition to its rights under clauses 42 and 43, report the Vehicle as stolen.
- 51. If the Vehicle is not returned to Carbar in the same condition as at the date of Vehicle Handover (excluding fair wear and tear) due to damage not covered by the Damage Cover, you are responsible for all costs associated with returning the Vehicle to that condition, including replacing any Vehicle accessories supplied to you at the date of Vehicle Handover.
- 52. You agree that Carbar may debit any cost arising under clause 51 from your Nominated Account.
Traffic Offences, Fines and Fees
- 53. You must pay all fines, penalties, traffic infringements, tolls and costs incurred during the Subscription Period or any period outside the Subscription Period in relation to which you or the Approved Driver remain in possession of, or are responsible for, the Vehicle. You consent to Carbar automatically debiting any fines, penalties, infringements, tolls and costs referred to in this clause from your Nominated Account without any notice to you.
- 54. You must notify Carbar in writing in accordance with clause 69 as soon as you become aware that a fine, penalty, traffic infringement or toll has been incurred by you or the Approved Driver. Upon receipt of a fine, penalty, traffic infringement or toll notice Carbar will complete the required documentation to absolve Carbar from liability and nominate you as the responsible party and return the documentation and any statutory declaration to the responsible authority that issued the notice within seven (7) days of receipt of the notice.
- 55. If Carbar receive any further correspondence in relation to the fine, penalty, traffic infringement or toll notice assigned under clause 54, Carbar will charge a $27.50 administration fee, which will be debited with your next Subscription Fee or invoiced to you if this Agreement has been terminated.
- 56. In the event that you challenge any fine, penalty, infringement or toll notice, you do so at your own expense.
Vehicle Swap
- 57. You will accrue a swap credit at the end of every three months throughout the Subscription Period (Swap Credit).
- 58. You may use a Swap Credit to apply to exchange your Vehicle for a different Carbar vehicle (Swap Vehicle).
- 59. If you do not have any Swap Credits, then you may apply to exchange your Vehicle for a Swap Vehicle by paying an additional fee of $150.00 (Early Swap Fee). The Early Swap Fee will only be payable if Carbar approves your application to exchange your Vehicle for a Swap Vehicle.
- 60. Carbar may in its discretion:
  - a. refuse to grant you a Swap Vehicle after assessing the condition of the Vehicle at the time of the swap; or
    
    i. you pay any repair costs required to rectify any damage not covered by the Damage Cover so that the Vehicle is returned to the condition it was in at the time of Vehicle Handover (fair wear and tear excepted); and
    
    ii. if your Customer Application is for a SHIFT subscription, you pay or provide a credit note for the difference between the Upfront Fee for the Vehicle and the Upfront Fee for the Swap Vehicle (if any). For the avoidance of doubt, the original Upfront Fee that you paid for the Vehicle will not be refunded to you if you exchange your Vehicle for a Swap Vehicle; and
    
    ; and iii. if your Customer Application is for a CRUISE subscription, you pay the full amount of the Upfront Fee for the Swap Vehicle. For the avoidance of doubt, the original Upfront Fee that you paid for the Vehicle will not be:
    
    1. credited towards your payment of the Upfront Fee for the Swap Vehicle; or
    
    2. refunded to you if you exchange your Vehicle for a Swap Vehicle.
- 61. If Carbar grants you a Swap Vehicle pursuant to clause 60.b:
  - a. you must complete a Condition Report in respect of the Swap Vehicle;
  - b. you must pay the Subscription Fee for the Swap Vehicle from the date that Carbar grants you the Swap Vehicle; and
  - c. the terms of this Agreement will continue to apply as if ‘Vehicle’ were ‘Swap Vehicle’.
- 62. You may only apply for a Swap Vehicle 30 days after the commencement of the Subscription Period for your current Vehicle.
Purchase of Vehicle by Customer
- 63. You must notify Carbar in writing if you wish to purchase the Vehicle.
- 64. Carbar will endeavor to respond within three (3) business days with an offer price for the Vehicle which will be based on the current state and condition of the Vehicle (Offer Price).
- 65. You acknowledge and agree that:
  - a. the Initial Subscription Fee, the Subscription Fee and the Upfront Fee will not be taken into account, or credited towards, the Offer Price; and
  - b. any paid Initial Subscription Fees, Subscription Fees and, if your Customer Application is for a CRUISE subscription, any paid Upfront Fees, will not be refunded to you after you have purchased the Vehicle.
- 66. If you agree to the Offer Price, you will enter into Carbar’s standard vehicle sale agreement and complete all necessary documents and do anything reasonably necessary to transfer the Vehicle. If your Customer Application is for a SHIFT subscription, any paid Upfront Fees will be refunded to you within 7 days after the Vehicle is transferred to you.
Carbar Responsibility and Liability
- 67. Except as expressly set out in this Agreement, and to the full extent permitted by law, Carbar expressly disclaims any further warranties, conditions, or other terms, either express or implied by statute or otherwise.
- 68. To the full extent permitted by law, Carbar accepts no liability in respect of and shall not be responsible to you for:
  - a. the condition of the Vehicle;
  - b. death or personal injury;
  - c. any damage to any property, or damage to or loss of any Vehicle;
  - d. any damage or loss of any belongings left in any Vehicle;
  - e. any fuel costs;
  - f. any incidental expenses;
  - g. any charges or fines mentioned in clause 53;
  - h. any theft or breakdown of any Vehicle; or
  - i. any liability to you under or in connection with this Agreement whether for negligence, breach of contract, misrepresentation or otherwise, for:
    
    i. loss or damage incurred by you in connection with any claims made by a third party;
    
    ii. loss of profit, goodwill, business opportunity or anticipated saving suffered by you; or
    
    iii. any indirect or consequential loss or damage suffered by you.
Notices
- 69. Any notice to be given to Carbar or you shall be deemed to be given upon it being posted to the address, or sent by email to the email address of, the relevant party as set out in the Customer Application.
Proper law and jurisdiction
- 70. This Agreement is governed by and construed in accordance with the laws of Victoria, Australia. You and Carbar agree to submit to the non- exclusive jurisdiction of its Courts for all purposes of or in connection with this Agreement.
Privacy Act 1988 and GPS Units
- 71. Carbar takes all reasonable steps to ensure that your personal information is securely held and protected from misuse or unauthorised access.
- 72. You authorise Carbar to collect, use and disclose information in respect to any credit it provides to you, including to a Credit Reporting Body. This includes Personal Information required to enable the Credit Reporting Body to provide Carbar with a consumer credit report to assist Carbar in assessing your credit worthiness, payment or default information, information about fraud or any other serious credit infringement, information about adverse court judgments or insolvency.
- 73. If you default in the payment of any monies owed to Carbar, you authorise Carbar to provide that information to a Credit Reporting Body and to obtain an up to date consumer credit report on you.
- 74. Full details of the Carbar Privacy Policy can be viewed on the Website at www.carbar.com.au
- 75. Carbar may fit and operate GPS Units to the Vehicle to enable it to track the Vehicle during the Subscription Period. By agreeing to this Agreement or taking possession of the Vehicle, you authorise Carbar to use the GPS Unit to track the Vehicle until it is returned to Carbar upon termination of this Agreement or the Vehicle is purchased by you in accordance with clauses 63to 66. You agree not to tamper with the GPS Unit or remove it from the Vehicle.
Title and Personal Property Securities Act
- 76. The title in the Vehicle shall at all times remain the property of Carbar which shall be entitled to assign, mortgage, encumber or otherwise deal with the Vehicle subject to this Agreement.
- 77. The Vehicle shall be deemed to be in the possession of, or under your charge or control of from the time when the Vehicle is initially delivered to you until such time as the Vehicle are returned to Carbar in accordance with Agreement.
- 78. You hereby acknowledge that this Agreement constitutes a Security Agreement which creates a Security Interest in favour of Carbar in the Vehicle supplied by Carbar to you and all proceeds thereto under this Agreement.
- 79. If the Term of this Agreement is such that it falls under the definition of a PPS Lease under section 13(1) of the PPSA, you acknowledge that a special type of Security Interest known as Purchase Money Security Interest is created.
- 80. You acknowledge and agree that by entering into this Agreement, you grant a Security Interest to Carbar and in the Vehicle. You additionally agree that Carbar can without notice to you seek registration of its Security Interest (either as a Purchase Money Security Interest if the lease is a PPS lease or otherwise as an ordinary Security Interest) on the PPSR.
- 81. You acknowledge, agree and undertake to:
  - a. Sign any further documents and/or provide any further information (which information you warrant to be complete, accurate and up-to-date in all respects) which Carbar may reasonably require to enable perfection of its Security Interest or registration of a Financing Statement or Financing Change Statement on the PPSR;
  - b. Not register a Financing Change Statement or make a demand to alter the Financing Statement pursuant to section 178 of the PPSA in respect of the Vehicle without the prior written consent of Carbar;
  - c. Give Carbar not less than 14 days written notice of any proposed change in your details (including but not limited to, changes in the your address, facsimile number, email address, trading name or business practice);
  - d. Pay all costs incurred by Carbar in the Registration and maintenance of its Financing Statement to enable registration of its Security Interest (including registering a Financing Change Statement) on the PPSR such costs shall not exceed the regulated cost for registering or maintaining (updating) a Security Interest, as amended from time to time, together with an administrative charge of $10.00 per Registration and/or amendment to, a Security Interest, as a genuine pre-estimate of Carbar’s costs, and/or enforcing or attempting to enforce the Security Interest created by this Agreement including but not limited to, executing subordination agreements;
  - e. Waive any rights that you may have had under section 115 of the PPSA upon enforcement;
  - f. Pursuant to section 157 of the PPSA, unless otherwise agreed in writing by Carbar, you agree to waive the right to receive the Verification Statement in respect of any Financing Statement or Financing Interest Statement relating to the Security Interest;
  - g. Release and hold harmless Carbar from any liability whatsoever in the event of any dispute between Carbar and you as to whether any interest registered on the PPSR constitutes a valid Security Interest;
  - h. Indemnify Carbar from any cost reasonably incurred by Carbar in amending or withdrawing any Security Interest registered by Carbar over the Vehicle provided to you, even if the Registration has occurred through error or mistake on behalf of Carbar
  - i. If Chapter 4 of the PPSA would otherwise apply to the enforcement of a Security Interest arising in connection with this Agreement, you agree the following provisions of the PPSA will not apply to the enforcement of this Agreement: section 95 (notice of removal of accession) to the extent it requires Carbar to give a notice to the Company; subsection 121(4) (enforcement of liquidated assets – notice to grantor); section 130 (notice of disposal), to the extent that it requires Carbar to give a notice to the Company); subsection 132(4) (statement of account if no disposal); section 135 (notice of retention); and 143 (reinstatement of security agreement).
- 82. In this Agreement, the terms “Security Agreement”, “Security Interest”, “Purchase Money Security Interest”, “Registration”, “Personal Property Securities Register” (or “PPSR”), “PPS Lease”, “Proceeds”, “Financing Statement” and “Financing Change Statement” have the meanings given in the PPSA.
Definitions
- 83. In this Agreement, unless the context otherwise requires:
  - Agreement means this document, and any document described herein as forming part of the terms of the Agreement.
  - At-Fault Accident means an accident in relation to which you or the Approved Driver are legally responsible for the damages or injury.
  - Additional Charge includes, but is not limited to:
    
    (a) fuel costs incurred in filling the Vehicle’s petrol tank at Vehicle Return;
    
    (b) outstanding costs associated with Damage to the Vehicle;
  - Additional Kilometre Charge has the meaning given in clause 22.
  - Carbar Representative means an authorised representative of Carbar.
  - Carbar Subscription means the Carbar subscription service whereby customers receive a vehicle for the duration of the Subscription Period pursuant to the terms of this Agreement.
  - Customer Application means the online application form completed in full by you which forms part of the terms of this Agreement.
  - Claim means any claim, demand, action or proceeding.
  - Condition Report means the document (whether hardcopy or electronic) entitled ‘Condition Report’ provided by Carbar from time to time, which forms part of this Agreement.
  - Damage means:
    
    i. any damage to the Vehicle including its parts, components and accessories, and including but not limited to, any damage caused by you, the Approved Driver, a third party, or damage from hail, flood, fire, storm, cyclone or other natural disasters.
    
    ii. towing and salvage fees and assessing fees; and
    
    iii. Loss of Use as a result of that damage or theft.
  - Damage Liability Fee has the meaning given in clause 28.
  - Excess means the amount of:
    
    i. $2,000 if the driver operating the Vehicle at the material time holds a full Australian Driver’s Licence; or
    
    ii. $3,000 if the driver operating the Vehicle at the material time holds a P2 probationary Australian Driver’s Licence or an international Driver’s Licence from your country of residence along with a VicRoads Client ID.
  - GPS Unit means a device with electronic global positioning and tracking capabilities, fitted within the Vehicle and used by Carbar to (amongst other things) track, locate the vehicle, and track the kilometres travelled by the Vehicle.
  - Initial Subscription Fee means the amount specified by Carbar in the Customer Application.
  - Damage Cover means the comprehensive insurance cover arranged by Carbar in relation to the Vehicle.
  - Insurer means an APRA approved licensed insurer.
  - Loss means any loss, liability, damage, cost or expense of any kind.
  - Loss of Use means the loss suffered because the Vehicle identified is being repaired or replaced as a result of an accident or because it has been stolen and is being replaced.
  - Major Breach means a breach of any of clauses 14, 15, 16, 17, and 33.
  - Nominated Account means the credit card, debit card, bank account or Paypal account that you have nominated for the purposes of making direct debit payments pursuant to this Agreement.
  - Person includes an individual, the estate of an individual, a corporation, an association (incorporated or unincorporated) and a statutory or other authority.
  - Parties means Carbar and you.
  - Subscription Fee means the fortnightly amount specified in the Customer Application as determined by Carbar.
  - Subscription Period means the period from the date on which the Customer Application is approved until this Agreement is terminated by Carbar or you.
  - Swap Credit has the meaning given in clause 57.
  - Swap Vehicle has the meaning given in clause 58.
  - Upfront Fee means the fee determined by Carbar based on the market value (excluding government costs) of the Vehicle (as advertised on the Website as at the date that the completed Customer Application was submitted to Carbar) that (subject to clauses 8, 45.b and 66) is not refundable.
  - Vehicle means the automotive vehicles chosen by you and made available for to you by Carbar for use by you in accordance with this Agreement and includes the Vehicle's parts, components and accessories.
  - Vehicle Handover has the meaning given in clause 11.
  - Vehicle Return has the meaning given in clause 47.
  - Website means the https://www.carbar.com.au website and the content, features and services offered through it.
  - You means the individual, firm or company that has completed the Customer Application, and agrees to the terms of this Agreement.

Terms & Conditions

1. Introduction

2. Account

3. Warranties

4. Terms & Conditions

5. Confidential information

6. Intellectual property

7. Limitation of liability and indemnities

8. Force majeure

9. General

10. Definitions

You and Carbar agree:

Approval of Customer Application

Vehicle Handover

Subscription Period

Damage Cover

Roadside Assistance

Termination and Repossession

Vehicle Return

Traffic Offences, Fines and Fees

Vehicle Swap

Purchase of Vehicle by Customer

Carbar Responsibility and Liability

Notices

Proper law and jurisdiction

Privacy Act 1988 and GPS Units

Title and Personal Property Securities Act

Definitions

Have a question?