04/11/2017

Terms and Conditions

Website Terms and Conditions of Use
urbancommute.com.au


IMPORTANT

• Using an electric scooter is dangerous.
• There is a risk of injury, disability or death.
• If you hire a scooter from us, you do so at your own risk.
• Please check your local and state laws prior to using scooter in public areas. In NSW rules are yet to be approved for use on roads and public areas.
• You agree that we are not liable for any injury, disability, death, damage to
property, harm, or other loss that you or anybody else suffers as a result of
your use of our scooter.
• By using this website you agree to be bound by these terms and conditions.
You should read all of these terms and conditions. If you do not agree to be bound by them, then you must not use the website and you must not book a scooter through us.


1. About the Website
1.1. Welcome to urbancommute.com.au (the ‘Website’). The Website provides general information about electric kick scooters and enables users of the Website (‘Users’) to book and pay for the hire of electric kick scooters (‘Services’).
1.2. The Website is operated by Tempswap Pty Ltd (ACN 607 118 972) trading as urbancommute.com.au. Access to and use of the Website, or any of its associated products or Services, is provided by urbancommute.com.au. Please read these terms and conditions (the ‘Terms’) carefully. By using, browsing and/ or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of its products or Services, immediately.
1.3. urbancommute.com.au reserves the right to review and change any of the Terms by updating this page at its sole discretion. When urbancommute.com.au updates the Terms, it will use reasonable endeavours to provide you with notice of updates of the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.

2. Acceptance of the Terms
You accept the Terms by registering for the Services and/or making any payment as required under the Terms for use of the Services. You may also accept the Terms by clicking to accept or agree to the Terms where and if this option is made available to you by urbancommute.com.au in the user interface.

3. Booking the Services
3.1. In order to access the Services, you are required to make a booking through the Website (‘Booking’).
3.2. As part of the Booking process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details). This may include but is not limited to:
(a) an email address
(b) preferred username
(c) a password
(d) a copy of an identification document such as a driver’s licence
(e) PayPal account details or bank account details
(f) credit card details
3.3. You warrant that any information you give to urbancommute.com.au in the course of completing the registration process will always be accurate, correct and up to date.
3.4. You may not use the Services and may not accept the Terms if:
(a) you are not of legal age to form a binding contract with urbancommute.com.au; or
(b) you do not otherwise have the legal capacity to form a binding contract with urbancommute.com.au; or
(c) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident.

4. Your obligations as a User
4.1. Before Scooting: As a User, you agree that before using any scooter that you are provided by urbancommute.com.au (‘Scooter’), you will do the following:
(a) check Scooter wheels to confirm that they are safe and functional;
(b) check folding mechanisms to confirm that they are safe and functional;
(c) check bolts to confirm that they are secure, safe and functional;
(d) check bell to confirm that it is functional; and
(e) test all brakes to ensure that they are safe and functional.
4.2. While Scooting: When using the Scooter, you agree:
(a) to use the Scooter to your own abilities;
(b) to wear a helmet at all times when using the Scooter;
(c) to wear appropriate footwear at all times when using the Scooter;
(d) to exercise due care for your safety and for the safety of other people and property;
(e) to exercise due care for the Scooter and to avoid damaging the Scooter;
(f) to only use the Scooter on paved surfaces and/or hard surfaces and not on grass or dirt;
(g) if using the Scooter on Sydney Harbour Bridge, to use bike lanes and to keep left at all times;
(h) to pay attention to weather conditions and to refrain from using the Scooter in the wet. Instead, you will fold the Scooter up and walk;
(i) to pay attention to pedestrians and traffic, and to slow down and stop if necessary in order to navigate congested areas.
(j) to pay attention to your own wellbeing and to refrain from using the Scooter if you are unwell. If necessary, you may contact urbancommute.com.au to discuss alternative options;
(k) to drink plenty of water so that you stay hydrated;
(l) that the rear brake on the Scooter can get very hot when descending steep hills. You must monitor your speed and use other brakes such as hand brakes when possible to avoid excessive reliance on the rear brake;
(m) in the event that the Scooter runs out of battery, to fold the Scooter up and walk. If necessary, you may contact urbancommute.com.au to obtain an alternative Scooter;
(n) to promptly return the Scooter to urbancommute.com.au, or have the Scooter available at the designated pick-up location, at the time that your Booking expires.
4.3. General: As a User, you agree to comply with the following:
(a) you will not share your Website profile with any other person;
(b) you will use the Services only for purposes that are permitted by:
(i) the Terms; and
(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(c) you have sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services;
(d) any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify urbancommute.com.au of any unauthorised use of your password or email address or any breach of security of which you have become aware;
(e) you must not expressly or impliedly impersonate another User or use the profile or password of another User at any time;
(f) any content that you broadcast, publish, upload, transmit, post or distribute on the Website (‘Your Content’) will always be accurate, correct and up to date and you will maintain reasonable records of Your Content.
(g) you agree not to harass, impersonate, stalk, threaten another User of the Website (where interaction with other Users is made available to you);
(h) access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of urbancommute.com.au providing the Services;
(i) you will not use the Services or the Website in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of urbancommute.com.au;
(j) you will not use the Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;
(k) you agree that commercial advertisements, affiliate links and other forms of solicitation may be removed from User profiles without notice and may result in termination of the Services. Appropriate legal action will be taken by urbancommute.com.au for any illegal or unauthorised use of the Website;
(l) you acknowledge and agree that any automated use of the Website or its Services is prohibited; and
(m) you agree that you may not allow any other person or organisation to use the Services or to use the Scooter without our prior written consent.

5. Payment
5.1. Our prices may vary from time to time.
5.2. Our current prices are displayed on the Website.
5.3. By making a Booking, you agree to make payment for the Services in accordance with the prices which are displayed on the Website at the time that you make the Booking (‘Booking Fee’).
5.4. Where the option is given to you, you may make payment for the Services by way of:
(a) Electronic funds transfer (‘EFT’) into our nominated bank account
(b) Credit Card Payment (‘Credit Card’)
(c) Cash (‘Cash’)
(d) Cheque (‘Cheque’)
(e) PayPal Australia Pty Limited (ABN 93 111 195 389) (‘PayPal’)
5.5. In some cases we use third party providers (‘Third Party Providers’) to process payments (such as PayPal). If we do that, and you use the Website, the Services or make a payment in relation to your use of the Services, you warrant that you have read, understood and agree to be bound by any terms and conditions which those Third Party Providers apply from time to time.
5.6. You acknowledge and agree that where a request for the payment is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the return or denial of payment.
5.7. You agree and acknowledge that we can vary the price of the Services at any time.

6. Damaging or Losing the Scooter
6.1. You are entirely responsible for the Scooter during the term of your Booking.
6.2. In the event that the Scooter is damaged, broken, stolen, lost, or otherwise adversely affected (“Scooter Loss”) during the term of your Booking, you are liable to compensate urbancommute.com.au for that entire Scooter Loss.
6.3. In the event that you dispute that any Scooter Loss occurred during the term of your Booking, you bear the onus of proving that the Scooter had already incurred the Scooter Loss prior to the commencement of the term of your Booking. Therefore, you should consider taking photographs or making notes of any issues with the Scooter before accepting the Scooter, and should raise any concerns with urbancommute.com.au before accepting the Scooter.
6.4. urbancommute.com.au may in its sole discretion appoint a repairer to repair any Scooter Loss (‘Repairer’). A valid tax invoice from the Repairer will serve as satisfactory evidence of the cost of those repairs of the Scooter Loss.
6.5. In the event that the Scooter needs to be replaced, you are liable for the fair market value of a brand new Scooter of the same or similar specifications to the Scooter which is being replaced.
6.6. You hereby acknowledge and agree that urbancommute.com.au may recover any compensation for which you are liable under this clause, by using the payment details you provided when making your Booking. For example, if you paid by Credit Card, urbancommute.com.au may charge your Credit Card for the cost of repairs to or replacement of the Scooter.

7. Fines and Infringements
7.1. You agree that you are solely responsible for any parking infringements, traffic infringements or other fines or infringements which are incurred in connection with your use of the Services or the Scooter (“Fine”).
7.2. You hereby indemnify urbancommute.com.au to the maximum extent permitted by law for the full amount of any and all Fines.
7.3. You hereby acknowledge and agree that in the event that a Fine is incurred, urbancommute.com.au may recover any compensation for which you are liable under this clause, by using the payment details you provided when making your Booking. For example, if you paid by Credit Card, urbancommute.com.au may charge your Credit Card for the cost of the Fine and any associated costs (such as payment processing fees or service fees).

8. Refund Policy
8.1. urbancommute.com.au will only provide you with a refund of the Booking Fee in the event that we are unable to provide the Services or if we make a decision, at our absolute discretion, that it is reasonable to do so under the circumstances (the ‘Refund’).

9. Copyright and Intellectual Property
9.1. The Website, the Services and all of the related products of urbancommute.com.au are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by urbancommute.com.au or its contributors.
9.2. All trademarks, service marks and trade names are owned, registered and/or licensed by urbancommute.com.au, who grants to you a worldwide, non- exclusive, royalty-free, revocable license whilst you are a Member to:
(a) use the Website pursuant to the Terms;
(b) copy and store the Website and the material contained in the Website in your device’s cache memory; and
(c) print pages from the Website for your own personal and non-commercial use.
urbancommute.com.au does not grant you any other rights whatsoever in relation to the Website or the Services. All other rights are expressly reserved by urbancommute.com.au.
9.3. urbancommute.com.au retains all rights, title and interest in and to the Website and all related Services. Nothing you do on or in relation to the Website will transfer any:
(a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
(b) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
(c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
9.4. You may not, without the prior written permission of urbancommute.com.au and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website which are freely available for re-use or are in the public domain.
9.5. Where you broadcast, publish, upload, transmit, post or distribute Your Content on the Website, then you grant to urbancommute.com.au a non-exclusive, transferrable, perpetual, royalty-free, irrevocable, worldwide licence to broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change Your Content.

10. Privacy
urbancommute.com.au takes your privacy seriously and any information provided through your use of the Website and/or Services is handled by urbancommute.com.au in accordance with Australian Privacy Law. Please contact us at info@urbancommute.com.au if you have concerns about your privacy.

11. General Disclaimer
11.1. Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
11.2. Subject to this clause, and to the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(b) urbancommute.com.au will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
11.3. Use of the Website, the Services and the Scooter is at your own risk. The Scooter and everything on the Website and everything in connection with the Services is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, volunteers, contributors and licensors of urbancommute.com.au make any express or implied representation or warranty about the Services, Scooter, or any other products or services (including the products or services of urbancommute.com.au) referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) your use of the Scooter;
(b) a defect in the Scooter or a failure of the Scooter;
(c) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(d) the accuracy, suitability or currency of any information on the Website, the Services, or any of its Services related products (including third party material and advertisements on the Website);
(e) costs incurred as a result of you using the Website, the Services or any of the products of urbancommute.com.au;
(f) the Services or operation in respect to links which are provided for your convenience;
11.4. By
making a Booking for the Services, you:
(a) acknowledge and agree that using an electric scooter (‘Scooting’) is a dangerous activity and there is a real risk of injury, disability or death;
(b) to the maximum extent permitted by law, assume all of the risks associated with using the Scooter, the Website and the Services including but not limited to any risks that may arise from carelessness or negligence on the part of urbancommute.com.au, or from dangerous or defective equipment;
(c) warrant that you are physically fit, and are capable of participation in Scooting and related activities;
(d) warrant that you have not been advised by a medical professional not to take part in Scooting or similar activities;
(e) warrant that you do not have any health-related issues that may prevent you from safely taking part in Scooting or related activities;

12. Limitation of Liability
12.1. In exchange for urbancommute.com.au providing the Services and/or providing the Scooter to you, you agree:
(a) that your use of the Services and/or of the Scooter are entirely at your own risk;
(b) that to the maximum extent permitted by law you hereby release urbancommute.com.au and any of its affiliates, directors, officers, employees, agents, volunteers, contributors and licensors from any and all liability for:
(i) your death;
(ii) any other person’s death;
(iii) your physical injury, mental injury or disease (including the aggravation or recurrence of such an injury or disease);
(iv) another person’s physical injury, mental injury or disease (including the aggravation or recurrence of such an injury or disease);
(v) any loss or damage of property (whether your property or somebody else’s);
(vi) any other loss, harm or injury in connection with your use of the Website, the Services or the Scooter.
12.2. urbancommute.com.au’s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
12.3. You expressly understand and agree that urbancommute.com.au, its affiliates, employees, agents, volunteers, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
12.4. You acknowledge and agree that urbancommute.com.au holds no liability for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you as a result of your use of the Website, the Services or the Scooter.

13. Termination of Contract
13.1. If you want to terminate the Terms, you may do so by providing urbancommute.com.au with 14 days’ notice of your intention to terminate by sending notice of your intention to terminate to urbancommute.com.au to info@urbancommute.com.au or via the ‘Contact Us’ link on our homepage.
13.2. urbancommute.com.au may at any time, terminate the Terms with you if:
(a) you have breached any provision of the Terms or intend to breach any provision;
(b) urbancommute.com.au is required to do so by law;
(c) urbancommute.com.au is transitioning to no longer providing the Services to Members in the country in which you are resident or from which you use the service; or
(d) the provision of the Services to you by urbancommute.com.au is, in the opinion of urbancommute.com.au, no longer commercially viable.
13.3. Subject to local applicable laws, urbancommute.com.au reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts urbancommute.com.au’s name or reputation or violates the rights of those of another party.
13.4. When these Terms come to an end, all of the legal rights, obligations and liabilities that you and urbancommute.com.au have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.

14. Indemnity
14.1. To the maximum extent permitted by law, you agree to indemnify, hold harmless and keep indemnified urbancommute.com.au, its affiliates, employees, agents, volunteers, contributors, third party content providers and licensors from and against:
(a) any claim by any person, including all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your use of the Website, the Services or the Scooter;
(b) any direct or indirect consequences of you accessing, using or transacting on the Website, using the Services or using the Scooter;
(c) any damage to or loss of the Scooter during the term of your Booking;
(d) any Fines incurred in connection with your use of the Scooter or your Booking; and/or
(e) any breach of the Terms.

15. Dispute Resolution
15.1. Compulsory:
If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
15.2. Notice:
A party to the Terms claiming a dispute (‘Dispute’) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
15.3. Resolution:
On receipt of that notice (‘Notice’) by that other party, the parties to the Terms (‘Parties’) must:
(a) Within 14 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b) If for any reason whatsoever, 14 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Society of New South Wales or his or her nominee;
(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(d) The mediation will be held in New South Wales, Australia.
15.4. Confidential
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
15.5. Termination of Mediation:
If 60 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

16. Venue and Jurisdiction
The Services offered by urbancommute.com.au is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.

17. Governing Law
The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

18. Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.

19. Severance
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.

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