Terms & Conditions
TERMS AND CONDITIONS
These Terms are entered into between WJ & SL Hurrell (ABN 73 737 211 668) (we, us or our) and you, the customer, person, organisation or entity making the Booking Enquiry, as described in the Schedule and/or Invoice (you or your), together the Parties and each a Party.
- Acceptance and Term
1.1 You accept these Terms by the earlier of:
(a) signing and returning these Terms to us;
(b) confirming that you accept these Terms via the platforms or applications through which we provide these Terms to you;
(c) making a Booking Enquiry; or
(d) making part or full payment of the Hire Fee.
1.2 These Terms will commence on the Commencement Date and will continue until the date you have returned the Vehicle in accordance with clause 9 (as reasonably determined by us), unless earlier terminated in accordance with its terms (Term).
- Vehicle Hire
In consideration of your payment of the Hire Fee and your compliance with these Terms, we agree to hire out the Vehicle to you for the Hire Period, in accordance with these Terms.
- Your Obligations
You acknowledge and agree that:
(a) you will comply with these Terms, our reasonable requests or requirements (including safety procedures and policies), and all applicable Laws; and
(b) you will provide all assistance, information, documentation and licences reasonably necessary to enable us to comply with our obligations under these Terms or at law.
- Australian Consumer Law
4.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Vehicle by us to you which cannot be excluded, restricted or modified (Statutory Rights).
4.2 If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Vehicle hire provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
4.3 This clause 4 will survive the termination or expiry of these Terms.
- Booking process
(a) that you may make a Booking Enquiry with us in person or via our website;
(b) that by making a Booking Enquiry you are bound by these Terms;
(c) to provide us with all information that we require in relation to the Booking Enquiry, including the information outlined in the Schedule;
(d) that we may, at our absolute discretion, notify you whether:
(i) we accept the Booking Enquiry, in which case we will notify you of the Booking;
(ii) any adjustments need to be made to the Booking Enquiry, in which case we will work with you to finalise the Booking; or
(iii) we are unable to assist you with the Booking Enquiry, in which case these Terms will automatically terminate without penalty; and
(e) no Booking Enquiry will be confirmed until we have received all information that we require in relation to the Booking Enquiry, we have issued a Booking to you, and you have accepted the Booking (Confirmed Booking).
- Rescheduling and cancellations
6.1 You may cancel or request changes to a Confirmed Booking up until 7 days prior to the commencement of the Hire Period.
6.2 If you cancel a Confirmed Booking (or request changes to it that we cannot reasonably accommodate) between 7 days and before 3 days prior to the commencement of the Hire Period, you agree that:
(a) where you have not yet paid the Hire Fee, you will be liable to pay us 50% of the Hire Fee; or
(b) where you have paid the Hire Fee upfront, you will only be entitled to a 50% refund of the Hire Fee.
6.3 If you cancel a Confirmed Booking (or request changes to it that we cannot reasonably accommodate) after 3 days prior to the commencement of the Hire Period, you agree that you will be liable for the whole of, and you will not be entitled to any refund of, the Hire Fee.
6.4 You agree to notify us immediately if you need to re-schedule your Confirmed Booking.
6.5 Subject to clause 6.1, while we will make all reasonable efforts to accommodate any request to re-schedule your Confirmed Booking, you acknowledge and agree that:
(a) we may be unable to re-schedule your Confirmed Booking to your preferred date or time; and
(b) any re-scheduled Confirmed Booking is subject to Vehicle availability.
6.6 Subject to clause 6.1, if we are unable or unwilling to re-schedule the Confirmed Booking to your preferred date or time, we will notify you and you may cancel the Confirmed Booking.
7.1 You agree to pay us:
(a) the Security Bond;
(b) the Hire Fee;
(c) any toll fees, traffic infringement fees and parking infringement fees or other charges incurred by you (or the Vehicle) during the Hire Period;
(d) the Late Fee (if applicable); and
(e) any other amount payable to us under these Terms, in accordance with the Payment Terms.
7.2 If any payment has not been made by you in accordance with the Payment Terms, we may (at our absolute discretion):
(a) take steps to recover payment of the relevant amount, including by engaging a debt recovery agency, and recover from you our additional costs of doing so, as a debt due and immediately payable from you; and/or
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid 30 days after the due date for payment in accordance with the Payment Terms.
- Security Bond
8.1 You agree to pay us the Security Bond in accordance with the Payment Terms.
8.2 You agree that the Security Bond may be used to cover amounts due and payable by you to us under these Terms, including:
(a) any toll fees, traffic infringement fees and parking infringement fees or other charges incurred by you (or the Vehicle) during the Hire Period;
(b) any fuel costs, where you fail to fill up the Vehicle fuel tank prior to return;
(c) any balance of the Hire Fee or the Late Fee, where you fail to make payment in accordance with the Payment Terms;
(d) loss, damage (including New Damage, but not including damage listed in the Original Condition Report), or theft to the Vehicle, or where the Vehicle is missing and where theft is deemed to have occurred under clause 9.5;
(e) to rectify New Damage to the Vehicle;
(f) a claim for third party loss caused or contributed to by you; and a claim for an Accident being lodged.
8.3 Subject to your compliance with this Agreement, we will refund you the balance (if any) of the Security Bond within a reasonable time after your return of the Vehicle, in accordance with this Agreement.
- Collection and Return of Vehicle
9.1 You agree to collect the Vehicle from us from the Collection Location and at the Collection Time. You agree that despite any delay in the collection of the Vehicle by you, your obligation to pay the full Hire Fee will remain.
9.2 You agree to return the Vehicle to us in the Original Condition, and with a full tank of fuel, at the Return Location and by the Return Time, or sooner, if requested by us on reasonable grounds (or as otherwise provided under these Terms).
9.3 You agree to comply with any requirements, policies or procedures which apply at the Collection Location and Return Location.
9.4 If you fail to return the Vehicle with a full tank of fuel, you acknowledge and agree that we will charge you for the fuel we are required to replenish at a rate of $2.18 (ex GST) per litre. You acknowledge and agree that this charge is a genuine pre-estimate of loss, suffered or incurred by us, as a result of your failure to return the Vehicle to us with a full tank of fuel.
9.5 If you fail to return the Vehicle to the Return Location within 6 hours following the Return Time, and we are unable to contact you, theft will be deemed to have occurred to the Vehicle and we may take such steps that we reasonably determine necessary to report the theft and recover the Vehicle.
- Late Fee
10.1 We will allow a grace period of 1 hour for the return of the Vehicle, after which, we will charge you the Late Fee until you have returned the Vehicle to us. The Late Fee is as follows:
(a) 61 to 120 minutes late: 1/2 of the daily rental charge for the Vehicle;
(b) 121 minutes to one day late: the daily rental charge for the Vehicle; or
(c) the daily rental charge for the Vehicle for each additional day (or any part thereof) that the Vehicle is returned late.
10.2 You agree that the Late Fee is a genuine pre-estimate of loss, suffered or incurred by us, as a result of your delay in returning the Vehicle.
- Original Condition Report
11.1 Prior to the start of the Hire Period, we will provide you with the Original Condition Report. We will use our best endeavours to ensure that any pre-existing external damage or damage to the upholstery or interior of the Vehicle is clearly and accurately shown on the Original Condition Report.
11.2 You will be given the opportunity to inspect the interior and exterior of the Vehicle, and you are responsible for visually inspecting the Vehicle prior to use to ensure that you understand and accept the Vehicle and its Original Condition and for determining whether the Vehicle is suitable and fit for your particular purposes. During this inspection you will be permitted to take photos and notify us of any damage to, or issues with, the Vehicle, which we will record in the Original Condition Report.
11.3 If the Vehicle is inspected by you in poor light or bad weather, we will allow you a further period of 60 minutes from the time the Vehicle leaves the Collection Location to report any damage not recorded on the Original Condition Report. You agree to act truthfully when reporting any such damage. We will then amend the Original Condition Report to record such damage.
11.4 You agree that, as between us and you, the Vehicle is hired in an “as is, where is” condition as at the Collection Date and throughout the Hire Period.
11.5 You agree that by signing the Original Condition Report, you agree that the Vehicle has been delivered in good condition, free from damage or defect, fit for purpose and in accordance with these Terms (Original Condition), unless expressly set out in the Original Condition Report, in which case the condition set out in the Original Condition Report will be deemed to be the Original Condition.
- Return Inspection
12.1 Upon return of the Vehicle by you at the Return Location, we will take reasonable steps to conduct a post rental inspection with you and allow you to take photos of any damage to the Vehicle.
12.2 If you notify us that you do not wish to wait to inspect the Vehicle, or if you have left the Return Location, we will use our best endeavours to conduct the inspection within four hours of the return of the Vehicle, or if the Vehicle is returned after hours, within four hours of the us opening for business.
12.3 We will use the AFIA Fair Wear and Tear Guide – _Car Rental that reasonably distinguishes between fair wear and tear and damage caused during a rental of the Vehicle.
12.4 If any damage is detected in the post rental inspection, we will review the Original Condition Report to ascertain whether the damage is new or pre-existing. If the damage is new (New Damage), we will:
(a) contact you and inform you of the New Damage;
(b) photograph the New Damage;
(c) store the photographic evidence of the New Damage so that it is readily accessible in the event that you dispute it; and
(d) obtain itemised estimates and an assessment of the cost to rectify the New Damage.
12.5 We will supply you with supporting documentation to substantiate repair or replacement costs or estimates to ensure that all charges in relation to the New Damage are transparent and have been applied in a reasonable and proportionate manner.
12.6 In all communications, we will provide contact details to you so as to allow you to obtain further information about the New Damage.
- Title and Risk
13.1 Risk in the Vehicle will pass to you when you have collected the Vehicle from the Collection Location or when we have delivered to Vehicle to you at the Delivery Location. You agree that from this time, you will be solely responsible for the Vehicle until it is returned to us and it is in our full custody and control.
13.2 Title in the Vehicle will at all times remain with us, and you take the Vehicle as a bare bailee only.
- Security Interest
14.1 You agree to not create an encumbrance, lien, charge or other interest on or over the Vehicle.
14.2 You agree that we hold a general lien over the Vehicle, for the satisfactory performance of your obligations under these Terms.
14.3 You agree that these Terms and your obligations under these Terms creates a registrable security interest in favour of us, and you consent to the security interest (and any other registrable interest created in connection with these Terms) being registered on any relevant securities register (and you must do all things to enable us to do so).
15.1 You represent, warrant and agree that:
(a) there are no legal restrictions preventing you from entering into these Terms;
(b) all information and documentation that you provide to us in connection with these Terms is true, correct and complete;
(c) you possess a full and valid Australian or international driver’s licence, you will carry your driver’s licence with you when driving the Vehicle, and you will present your driver’s licence to us upon our request;
(d) you will not commit a Major Breach or drive or otherwise operate the Vehicle under the influence of alcohol or drugs or other intoxicating substance, or otherwise in breach of any law;
(e) you have not been disqualified from driving in the state of Western Australia or elsewhere in Australia and you have not had your driver’s licence suspended or cancelled;
(f) the Vehicle will only be driven by you and within the Local Designated Area (if applicable);
(g) you will report any Accident, traffic infringement or parking infringement which occurs during the Hire Period to us as soon as possible after it occurs;
(h) we will have no responsibility for any damage to personal items contained within or on the Vehicle whilst in your possession and use;
(i) you will not use the Vehicle, or allow the Vehicle to be used, in breach of any laws;
(j) you will keep the Vehicle under your custody and control at all times, and you will not sublease, rent, sell, or otherwise transfer the Vehicle to any other person; and
(k) you will store the Vehicle in a safe location and take all reasonable steps to prevent theft or damage whilst the Vehicle is in your possession.
- Major Breach
16.1 You are prohibited from using, or allowing the Vehicle to be used:
(a) by any person other than you (except where approved by us);
(b) on Flooded Roads;
(c) recklessly or with deliberate intent to cause loss or damage to the Vehicle;
(d) while under the influence of alcohol or drugs or other intoxicating substance;
(e) in an unlawful manner;
(f) to carry, hold or transport dangerous goods;
(g) in relation to motor trades, tests or trials;
(h) to carry passengers for hire, fare or reward or rideshare purposes;
(i) to carry more passengers than which the vehicles has been licenced for;
(j) in such a manner so as to exceed the weight capacity for the Vehicle;
(k) to carry pets;
(l) while you or any person is smoking in or from within the Vehicle, or near a petrol or fuel station that the Vehicle is located at;
(m) in a manner that causes water damage to the Vehicle;
(n) with incorrect fuel;
(o) in a manner that causes Underbody Damage;
(p) in a manner that causes Overhead Damage; or
(q) in any other manner or for any other purpose that we notify to you as being prohibited, (each a Major Breach).
16.2 You acknowledge and agree that where a Major Breach occurs, you:
(a) will be liable for any loss or damage that you, we or a third party may suffer or incur arising from or in connection with the Major Breach; and
(b) you may be liable for an amount that is greater than the Security Bond, including under the indemnity in clause 19.1.
17.1 If an Accident occurs during the Term, you agree to:
(a) immediately notify us of the Accident;
(b) provide us with details of the Accident, including the name, address, contact number and licence number of the other driver;
(c) provide us with the registration numbers of all vehicles involved;
(d) provide us with an accurate description of the incident and location;
(e) provide us with the names of any attending police officers and the stations where they are based; and
(f) provide us with the name of the insurer of the other driver.
- Exclusions to liability
18.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
(a) any personal injury or death to any person, except to the extent caused or contributed to by us or our Personnel in providing the Vehicle to you; and
(b) any loss or damage to any property caused or contributed to by you or your Personnel or any third party (including but not limited to Accident).
18.2 This clause 18 will survive the termination or expiry of these Terms.
- Indemnity by you
19.1 Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, and agree to indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with any personal injury or death to any person or any property loss or damage (including to the Vehicle, your property or any third party’s property) _caused or contributed to by a Major Breach.
19.2 Your liability to indemnify us under clause 19.1 will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of us or any of our Personnel.
19.3 This clause 19 will survive the termination or expiry of these Terms.
- Limitations on liability
20.1 Despite anything to the contrary, to the maximum extent permitted by law:
(a) neither Party will be liable for any Consequential Loss; and
(b) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel).
20.2 Despite anything to the contrary, to the maximum extent permitted by law:
(a) if you are a consumer (as defined under the Australian Consumer Law), we limit our liability to any rights or remedies that you may be entitled to under the Australian Consumer Law and these statutory rights will be your sole and exclusive remedy against us arising from, in connection with, these Terms; or
(b) where you are not a consumer under the Australian Consumer Law, our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Vehicle to you or, in our sole discretion, to us repaying you the amount of the Hire Fee paid by you to us in respect of the hiring out of the Vehicle to which the Liability relates.
20.3 This clause 20 will survive the termination or expiry of these Terms.
21.1 These Terms will terminate immediately upon written notice by:
(a) either Party, if mutually agreed in writing between the Parties;
(b) us, if:
(1) a Major Breach occurs that is capably or remedy, and that Major Breach has not been remedied within 10 Business Days of being notified by us;
(2) a Major Breach occurs that is incapable of remedy;
(3) for any other reason outside our control which has the effect of compromising our ability to provide the Vehicle to you; or
(4) you are unable to pay your debts as they fall due; and
(c) you, if we:
(1) (or any of our Personnel) cause a Substantial Breach of a term of these Terms, and that Substantial Breach has not been remedied within 10 Business Days of being notified by you; or
(2) are unable to pay our debts as they fall due.
21.2 Upon expiry or termination of these Terms:
(a) you must immediately cease using the Vehicle, other than for the purpose of returning the Vehicle to the Return Location;
(b) you are to pay all amounts due and payable under these Terms; and
(c) immediately return to us (where possible), or delete or destroy (where not possible to return), any of our property (including any of our Confidential Information or intellectual property).
21.3 We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of these Terms.
21.4 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
21.5 This clause 21 will survive the termination or expiry of these Terms.
22.1 If a dispute, controversy or claim arises, or if you have a complaint, the Parties agree to meet to result the dispute or complaint in good faith. Where you have made a complaint to us, we will use our reasonable endeavours to respond to you within 15 Business Days. If the Parties are unable to resolve the dispute or complaint, either Party may refer it to the Australian Car Rental Conciliation Service, facilitated by the AFIA.
22.2 Details of how to access the Australian Car Rental Conciliation Service are available on-line at https://www.carrentalconciliationau.com or by calling toll free 1800 366 840.
- Trust provisions
23.1 Each Party described in these Terms as a trustee (Trustee) enters into these Terms only in its capacity as a trustee of the trust of which it is described as the Trustee (Trust).
23.2 Subject to clause 23.3, and despite any other provision of these Terms, a Liability arising under or in connection with these Terms is limited and can be enforced against a Trustee only to the extent to which the Trustee is indemnified out of the assets of the Trust.
23.3 The limitation set out in clause 23.2 does not apply where the Trustee’s right to indemnification is reduced or lost as a result of fraud, breach of trust or breach of duty by the Trustee.
23.4 This clause 23 will survive the termination or expiry of these Terms.
24.1 Amendment: These Terms may only be amended by written instrument executed by the Parties.
24.2 Assignment: A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
24.3 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is due to an event or circumstance beyond their reasonable control.
24.4 Governing law: These Terms are governed by the laws of Western Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Western Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
24.5 GST: If and when applicable, GST payable on the Hire Fee will be set out in our Invoice. You agree to pay the GST amount at the same time as you pay the Hire Fee.
24.6 Intellectual property: As between the Parties, all Intellectual Property Rights developed, adapted, modified or created by or on behalf of us or our Personnel (including in connection with these Terms or the provision of the Vehicle), whether before or after the date of acceptance of these Terms, will at all times vest, or remain vested, in us.
24.7 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
24.8 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the body of these Terms or the Schedule, and:
Accident means any collision or contact between the Vehicle and any other object, including but not limited to another vehicle, animal or person, or any incident or occurrence that results in the Vehicle being damaged, lost or destroyed or any other vehicle, property, thing, animal or person being injured, killed, damaged, lost or destroyed (as applicable).
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
AFIA means the Australian Finance Industry Association.
Booking means an email from us confirming that we accept the Booking Enquiry, in accordance with clause 5.
Booking Enquiry means an enquiry submitted by you in accordance with clause (a)5(a).
Business Day means a day on which banks are open for general banking business in Western Australia, excluding Saturdays, Sundays and public holidays.
Code of Conduct means The Australian Car Rental Conciliation Service Code of Practice published by the AFIA, as amended from time to time.
Collection Location means the location for the collection of the Vehicle as specified in the Schedule.
Collection Time means the agreed date and time for the collection of the Vehicle as specified in the Schedule.
Commencement Date means the date these Terms are accepted in accordance with their terms.
Confidential Information includes information which:
(a) is disclosed to a receiving Party in connection with these Terms at any time;
(b) is prepared or produced under or in connection with these Terms at any time;
(c) relates to a disclosing Party’s business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms, whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever a receiving Party receives that information.
Confirmed Booking has the meaning given in clause 5(e).
Consequential Loss includes any special loss, consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Flooded Road means a road that has been flooded and has water covering the road surface in excess of 10cm.
Hire Fee means the fee set out in the Schedule or Invoice.
Invoice means our invoice for the Vehicle hire, in relation to which these Terms are incorporated by reference.
Late Fee means the fee payable if the Vehicle is not returned by the Return Time and as specified in the Schedule.
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Vehicle.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.
Major Breach has the meaning given in clause 16.1.
New Damage has the meaning given in clause 12.4.
Original Condition Report means the report detailing the condition of the Vehicle.
Overhead Damage means any damage caused by the Vehicle entering a space or encountering an object that is lower than the height of the Vehicle, including any car park roof or boom gate.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
Return Location means the location for the return of the Vehicle as specified in the Schedule.
Return Time means the agreed date and time for the return of the Vehicle as specified in the Schedule.
Schedule means the schedule to these Terms.
Statutory Rights has the meaning given in clause 4.1.
Substantial Breach means a breach by us of a provision of these Terms, where such term is expressly stated to be an essential term, or a breach by us of a provision of these Terms, where the breach is sufficiently serious and goes to the root of these Terms, so as to deprive you of a substantial part or benefit of these Terms.
Term has the meaning given in clause 1.2.
Terms means these terms and conditions and any documents attached to, or referred to in, each of them (including an Invoice).
Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the Vehicle hire may be contingent on, or impacted by.
Underbody Damage means any damage caused by the Vehicle coming into contact with anything below the bottom of the door seal and the bottom of the front and rear bumper bars.
Unsealed Road means a road that has not been formed using hardening treatments including tar, bitumen, concrete or asphalt.
Vehicle means the vehicle and any accessories the subject of these Terms, as particularised in the Schedule.