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 (Carbar) or a third party that has chosen to offer the Vehicle for Carbar's 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. next of kin details (phone number, address, email);
  - e. provide your bank statement or other proof of income (e.g. letter of employment);
  - f. provide a valid full or P2 probationary Australian driver licence or international driver’s licence from your country of residence along with a relevant State / Territory issued client identity number (as applicable) (Driver Licence);
  - g. for any State /Territory where toll roads exist, provide evidence of your existing LINKT account (if you don’t have one, a $27.50 nomination fee will be payable for each toll incurred);
  - h. pay the Upfront Fee; and
  - i. pay the Initial Subscription Fee.
- 4.Without limiting your obligation in clause 3.a, when completing the Customer Application, you must tell Carbar if you intend to use the Vehicle for any commercial purpose, including for hire or reward (such as for a ridesharing service) or to carry on a business (Business Use). The consequences of notifying Carbar that the Vehicle will be used for Business Use (either under this clause 4 or clause 17.a) include:
  - a. an increased Subscription Fee;
  - b. Additional Kilometre Charge (if applicable); and
  - c. changes to Damage Cover,
  the details of which will be determined by Carbar and advised to you.
- 5. You agree to Carbar performing all relevant consumer credit and driver history checks deemed reasonably necessary for Carbar to approve the Customer Application.
- 6. 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.
- 7. 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 and all Approved Drivers 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 a 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.
- 8. 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.
- 9. If the Customer Application is not approved, Carbar will refund (if applicable) 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 9.
- 10. You agree that you are not entitled to any amounts of interest accrued while your Upfront Fee and Initial Subscription Fee are held by Carbar (and that these amounts are owned by Carbar), whether or not the Customer Application is approved.
- 11. Carbar will notify you within 14 business days if the Customer Application is approved and, if it is, will arrange for Vehicle Handover.
Vehicle Handover
- 12. Subject to approval of your Customer Application, Carbar will arrange for you to pick up the Vehicle from a Carbar site or to deliver the Vehicle to a location chosen by you within 50 kilometres of Sydney Central Business District, Brisbane Central Business District or Melbourne Central Business District, as applicable, at a time and date agreed between you and a Carbar Representative (Vehicle Handover).
- 14. If you fail to sign the Condition Report at the time of Vehicle Handover, you will not be permitted to collect or take possession of the Vehicle.
- 15. If you elect to display a Personal Number Plate on the Vehicle, you must bring your Personal Number Plate to the Vehicle Handover for the Carbar Representative to affix to the Vehicle.You will be responsible for any costs relating to changeover of number plates.
Subscription Period
- 16. 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;
  - b. you and any Approved Driver must:
    
    hold
    
    i. a valid Driver Licence;
    
    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; and
  - c. you must ensure that any Approved Driver is aware of and complies with the terms of this Agreement, and you are responsible and liable for the acts and omissions of any Approved Driver in connection with this Agreement.
- 17. During the Subscription Period you will ensure that:
  - a. you provide Carbar with a minimum of 7 days prior written notice in accordance with clause 70 if you want to use the Vehicle for Business Use. Carbar reserves the right not to consent (in which case you must not do so) or provide consent subject to certain conditions (including those referred to in clause 4);
  - 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. the Vehicle is not used off-road, or for racing, pace making, testing the Vehicle’s reliability and speed, or teaching someone to drive;
  - i. the Vehicle is not used to jump start any other Vehicle;
  - j. the Vehicle is not used to carry a number of passengers which exceeds the designated seating capacity of the Vehicle;
  - k. the Vehicle does not carry anything that would cause the Vehicle to be overloaded;
  - l. the Vehicle is not used to carry any hazardous, toxic or flammable materials;
  - m. the Vehicle is not used in such a manner that a substantial breach of road safety legislation or relevant criminal legislation occurs; and
  - n. 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.
- 18. During the Subscription Period, you must:
  - a. pay for the cost of fuel 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 at Carbar's nominated Servicing Agent for periodic servicing as and when the service intervals fall due; and
  - 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.
- 19. In any of the circumstances set out in clause 18.e, you must cease using the Vehicle and not perform any repairs. If you do not comply with clause 18.e, you and any Approved Driver will be jointly and severally liable for any resulting Damage, Claim or Loss.
- 20. You must immediately report any Claim, Loss or Damage in relation to the Vehicle to Carbar and deliver to Carbar every summons, complaint, document or paper in relation to the Claim, Loss or Damage.
- 21. 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’.
- 22. All amounts payable under this Agreement are inclusive of GST (unless otherwise specified).
- 23. 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.
- 24. 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 Late Fee and any applicable fees, charges or other amounts; and/or
  - c. engage debt collection agencies to recover any payments in arrears, at your cost.
- 25. 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).
- 26. 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.
- 27. You agree that if you become liable for any Additional Kilometre Charge, Carbar may add the Additional Kilometre Charge to your Subscription Fee.
- 28. Any outstanding Additional Kilometre Charge at termination of this Agreement will be invoiced to you.
Damage Cover
- 29. Subject to clause 35, Carbar will pay for Damage Cover for the Vehicle during the Subscription Period.
- 30. If any Damage, Claim, theft of the Vehicle or 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.
- 31. If the Damage Cover is denied for any reason after any Damage, Claim, theft or Loss is assessed by Carbar or its Insurer, you must pay the amount of any Damage Liability Fee beyond the Excess.
- 32. The Damage Liability Fee may be determined by Carbar or its Insurer.
- 33. You must continue to pay the Subscription Fee in accordance with clause 21 from the date of the Loss, Damage, Claim or theft of the Vehicle until the earlier of:
  - a. payment of the Excess by you;
  - b. the completion of repairs if the Vehicle suffers Damage;
  - c. the Vehicle is replaced because it is declared a total loss because it suffers Damage that cannot be repaired; or
  - d. the Vehicle is replaced because it is stolen.
- 34. If the Vehicle suffers Damage that is not capable of repair or is stolen and provided that you have not committed a Major Breach of this Agreement, the Agreement will be terminated and, subject to the availability of a similar vehicle you will have the option of entering into a new agreement for a new vehicle.
- 35. You agree that the Damage Cover provided by Carbar for the Vehicle is subject to:
  - a. payment (per incident) of the applicable Excess (and Damage Liability Fee, if applicable);
  - b. compliance with this Agreement;
  - c. you or the relevant Approved Driver not being covered under any other policy of insurance; and
  - d. you and any Approved Driver 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.
- 36. You and the Approved Driver 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.
- 37. In the event of an accident, you acknowledge that Carbar may insist that the Vehicle be moved to the nearest repairer to secure it.
- 38. You have no cover for any Claim, Loss or Damage 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; or
  - c. any Business Use which Carbar has not consented to.
- 39. You are fully responsible and liable for Claims, Loss and Damage where the Damage Claim is denied by Carbar's Insurer, including 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 roadway 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's 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 / Territory in which you collected it without the consent of Carbar.
- 40. You have no cover for, and to the full extent permitted by law, Carbar is not liable to you under any circumstances 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. any Claim, Loss or Damage caused or contributed to 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. any Loss, (including consequential loss) damage, costs, expenses, damages or any other liabilities incurred by you, the Approved Driver, a passenger in the Vehicle or any third party resulting from any accident, breakdown or any other failure of a Vehicle, except to the extent such loss is caused by Carbar's breach of this Agreement (e.g. a failure to provide Roadside Assistance in accordance with clause 42 below).
- 41. You acknowledge and agree that no personal accident cover is provided by this Agreement. Your liability, and the Approved Driver's 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
- 42. Standard roadside assistance for the Vehicle is included in the Subscription Fee.
Termination and Repossession
- 43. Carbar, its agents, contractors or representatives may terminate this Agreement at any time if you commit a Major Breach of this Agreement by giving you notice in accordance with clause 70.
- 44. If this Agreement is terminated pursuant to clause 43:
  - a. Carbar, its agents, contractors or representatives may arrange for Vehicle Return; or
  - b. Carbar, its agents, contractors or representatives may:
    
    i. repossess the Vehicle from you or the Approved Driver; and
    
    ii. you will be liable for the cost of repossession, any Late Fees,and any costs to make good any damage to the Vehicle on collection.
- 45. Notwithstanding clauses 43 and 44, Carbar its agents,contractors or representatives may immediately terminate this Agreement and repossess the Vehicle without notice to you if:
  - a. you have illegally parked the Vehicle for longer than 24 hours;
  - b. you have illegally disconnected, damaged, or removed the GPS unit from the Vehicle;
  - c. you have committed a reckless breach of road or traffic legislation;
  - d. the Vehicle is apparently abandoned;
  - e. payments are in arrears for two consecutive Due Dates and are not received within 3 days of being demanded in writing by Carbar;
  - f. 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
  - g. the Vehicle has not been returned to Carbar:
    
    i. at a Return Appointment that had already been rescheduled twice; or
    
    ii. 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.
- 46. You may terminate this Agreement for any reason by giving at least 14 days' notice in accordance with clause 70. If you terminate this Agreement pursuant to clause 46 you must return the Vehicle on expiry of the notice period.
- 47. If the Vehicle is not returned, Carbar, its agents, contractors or representatives may immediately repossess the Vehicle without further notice to you.
- 48. If Carbar, or any of its agents, contractors or representatives repossess 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 and any of its agents, contractors or representatives in repossessing the Vehicle and/or recovering any payments in arrears from you (including towing costs).
Vehicle Return
- 49. 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, spare tyre, tools and wheel locking nuts,
    (Vehicle Return).
- 50. You acknowledge and agree that Carbar will not under any circumstances be liable to you or the Approved Driver for any personal belongings left in the Vehicle after Vehicle Return.
- 51. 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 Fair Wear and Tear;
  - b. the Vehicle must be cleaned;
  - c. the Vehicle must have a full tank of fuel; and
  - d. you must complete the Condition Report.
- 52. 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.
- 53. 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 1 and 48, report the Vehicle as stolen.
- 54. 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.
- 55. If the Vehicle Is not returned with a full tank of fuel you will be charged the Refueling Service Fee per litre of fuel required to refill the tank in its entirety.
- 56. You agree that Carbar may debit any cost arising under clauses 54 and 55 from your Nominated Account.
Traffic Offences, Fines and Fees
- 57. 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.
- 58. You must notify Carbar in writing in accordance with clause 70 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 or the Approved Driver 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.
- 59. If Carbar receives any further correspondence in relation to the fine, penalty, traffic infringement or toll notice assigned under clause 58, 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.
- 60. If you or the Approved Driver challenge any fine, penalty, infringement or toll notice, you do so at your own expense.
Purchase of Vehicle
- 61. You must notify Carbar in writing in accordance with clause 70 if you wish to purchase the Vehicle.
- 62. Carbar will endeavor to respond within three (3) business days with an offer price for the Vehicle which will be fair market value based on the current state and condition of the Vehicle (Offer Price).
- 63. You acknowledge and agree that:
  - a. payment of the Initial Subscription Fee, the Subscription Fee and the Upfront Fee will not be considered, or credited towards, the Offer Price; and
  - b. any paid Upfront Fee, Initial Subscription Fees, and Subscription Fees will not be refunded to you after you have purchased the Vehicle.
- 64. 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.
Transfer of Number Plates
- 65. If You want to, and are permitted by law to, display your Personal Number Plate on a Vehicle:
  - a. you agree to transfer your Personal Number Plate to Carbar for the duration of the Subscription Period;
  - b. you will complete the seller/transferor details section in the appropriate form for exchange/transfer of number plates issued by the relevant State/Territory authority, and return it to Carbar;
  - c. Carbar will transfer the Personal Number Plate to the Vehicle for the duration of the Subscription Period unless otherwise notified by you not to do so;
  - d. upon termination of the Subscription Period, and your compliance with clauses 49 and 51, Carbar will complete the seller/transferor details section in the appropriate form for exchange/transfer of plates issued by the relevant State/Territory authority, and return it to you;
  - e. you agree that Carbar may debit any cost arising under this clause 65 from your Nominated Account; and
  - f. you agree Carbar may debit any cost arising from damage to the Vehicle on changeover of Personal Number Plate.
Carbar Responsibility and Liability
- 66. 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.
- 67. Notwithstanding anything to the contrary in this Agreement, and to the full extent permitted by law, Carbar accepts no liability in respect of and shall not be responsible to you for:
  - a. death or personal injury;
  - b. any damage to any property, or damage to or loss of any Vehicle, except to the extent such damage or loss is caused by Carbar's breach of this Agreement;
  - c. any damage or loss of any belongings left in any Vehicle;
  - d. any fuel costs;
  - e. any incidental expenses;
  - f. any charges or fines mentioned in clause 55;
  - g. any theft or breakdown of any Vehicle, except to the extent caused by Carbar's breach of this Agreement; or
  - h. 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.
No set-off
- 68.To the maximum extent allowed by law, you shall not be entitled to set off any amounts Carbar or any of its related entities owes you against amounts you owe under this Agreement. All payments you make under this Agreement shall be made without any counterclaim and free and clear of (and without any) deduction or withholding.
Assignment
- 69.You cannot assign this Agreement without Carbar's consent. Carbar may(without your prior consent) assign or transfer to any person or otherwise deal in any manner with any of its rights or interests under this Agreement in connection with any securitisation, secured financing or similar transaction.
Notices
- 70. 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
- 71. 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
- 72. Carbar takes all reasonable steps to ensure that your personal information, and the personal information of the Approved Drivers, is securely held and protected from misuse or unauthorised access.
- 73. Full details of how Carbar handles personal information can be found in the Carbar Privacy Policy (which can be viewed on the Website at www.carbar.com.au), and you authorise Carbar to collect, use and disclose personal information in accordance with the Carbar Privacy Policy and any other notifications we provide and consents you provide from time to time.
- 74. You authorise Carbar to collect, use and disclose information (including personal 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.
- 75. 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.
- 76. Carbar may fit a GPS Unit to the Vehicle and operate the GPS Unit to track the Vehicle during the Subscription Period. By agreeing to this Agreement or taking possession of the Vehicle, you authorise Carbar (and you warrant and represent that you have the consent of any Approved Driver for 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 61 to 64. You must not, and must ensure that the Approved Driver does not, tamper with the GPS Unit or remove it from the Vehicle (as this may result in termination of this Agreement pursuant to clause 45.b).
Title and Personal Property Securities Act
- 77. To the extent that Carbar holds title in the vehicle, it 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.
- 78. 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.
- 79. You hereby acknowledge that this Agreement constitutes a Security Agreement which creates a Security Interest in favor of Carbar in the Vehicle supplied by Carbar to you and all proceeds thereto under this Agreement.
- 80. If the Term of this Agreement is such that it falls under the definition of 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.
- 81. 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.
- 82. 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 in accordance with clause 70 of any proposed change in your details (including but not limited to, changes in your address, facsimile number, email address, trading name or business practice);
  - d. waive any rights that you may have had under section 115 of the PPSA upon enforcement;
  - e. 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;
  - f. 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;
  - g. 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; and
  - h. if Chapter 4 of the PPSA would otherwise apply to the enforcement of a Security Interest arising in connection with this Agreement, 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).
- 83. 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.
Changes to this Agreement
- 84.Carbar may, from time to time, change the terms of this Agreement to reflect any changes to the nature of Carbar's business and the provision of Carbar Subscriptions and Vehicles. Carbar will notify you at least 4 weeks before such changes apply to you.
Definitions
- 85. In this Agreement, unless the context otherwise requires:
  - Additional Kilometre Charge has the meaning given in clause 25.
  - Agreement means the terms in this document, and any document described herein as forming part of the terms.
  - Approved Driver means a driver who satisfies the requirements outlined in clause 7 and is authorised by you to drive the Vehicle and have provided 100 points of identification, evidence of their current residential address and their Driver Licence.
  - At-Fault Accident means an accident in relation to which you or the Approved Driver are legally responsible for the Damage, Loss and/or injury.
  - Business Use has the meaning given in clause 4.
  - Carbar Representative means an employee, agent, contractor, authorised third party representative or dealer partner 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.
  - 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.
  - Customer Application means the online application form completed in full by you which forms part of the terms 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 Cover means the comprehensive insurance cover arranged by Carbar in relation to the vehicle.
  - Damage Liability Fee means the fee to settle or remedy any Loss, Damage, theft or Claim, if the Damage Cover is denied for any reason after such Loss, Damage, theft or Claim is assessed by Carbar or its Insurer.
  - Driver Licence has the meaning given in clause 3.f.
  - Due Date has the meaning given in clause 21.b.
  - Excess means the amount of:
    
    i. $2,000 if the driver operating the Vehicle at the material time holds a full Australian driver licence; or
    
    ii. $3,000 if the driver operating the Vehicle at the material time holds a P2 probationary Australian driver licence or an international driver licence from your country of residence along with a relevant State/Territory issued client identity number (as applicable).
  - Fair Wear and Tear means the degree of deterioration judged to be reasonable, taking into account the Vehicle's age and mileage and covering overall condition (from the mechanics and the electrics through to the bodywork and the upholstery), determined in accordance with the AFLA Fair Wear & Tear Guide published from time to time.
  - 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 Subscription Fees payable in respect of the first 4 weeks of the Subscription Period, as specified by Carbar in the Customer Application.
  - Insurer means an APRA approved licensed insurer.
  - Late Fees means an additional$27.50 (including GST), and can be varied from time to time by Carbar giving you at least 4 weeks' notice in accordance with clause 70.
  - Loss means any loss, liability, damage, cost or expense of any kind, including in respect of a third party.
  - 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 16, 17, 18, 19, 30 and 36.
  - 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. includes an individual, the estate of an individual, a corporation, an association (incorporated or unincorporated) and a statutory or other authority.
  - Offer Price has the meaning given in clause 62.
  - Parties means Carbar and you.
  - Personal Number Plate means any number plate owned by you.
  - Refueling Service Fee means the cost of fuel per litre, (as indicated to you at the Vehicle Handover, but subject to price fluctuations during the Subscription Period), plus Carbar's reasonable costs incurred, in order to fill the Vehicle with fuel where the Vehicle in not returned in accordance with clause 51.c.
  - Return Appointment has the meaning given in clause 45.f.
  - Servicing Agent means a supplier of Vehicle repair, maintenance and servicing approved by Carbar (including Carbar's own internal mechanic workshop).
  - 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.
  - 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 clause 9) 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 12.
  - Vehicle Return has the meaning given in clause 49.
  - Website means the https://www.carbar.com.au website and the content, features and services offered through it.
  - You, you or your 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

Purchase of Vehicle

Transfer of Number Plates

Carbar Responsibility and Liability

No set-off

Assignment

Notices

Proper law and jurisdiction

Privacy Act 1988 and GPS Units

Title and Personal Property Securities Act

Changes to this Agreement

Definitions

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