PARTIES:

  1. DRIVE SHARE PTY LIMITED ACN 644 079 667 (“DRIVE SHARE”); AND
  2. YOU, A CUSTOMER OF PKUP SERVICES AND LICENSEE OF THE PKUP APP (“YOU”, “YOUR”, “YOURSELF” OR “CUSTOMER”)

BACKGROUND

A. Drive Share is the provider of Drive Share Services and the PKUP App.
B. You are a user of Designated Driver Services.
C. Pursuant to this Agreement, Drive Share agrees to provide You Drive Share Services and license to You the PKUP App to facilitate Your use of Designated Driver Services as provided by a Driver.
D. The capitalised terms in this ‘Background’ section are defined in clause 1 of this Agreement.

1                 Definitions

Accident includes any accident, incident, event or situation You or the DDS Vehicle may have been involved in during or related to Your access of Designated Driver Services, including:

(a) a situation involving the attendance of law enforcement, emergency services or health professionals;
(b) a vehicle crash and damage;
(c) personal injury;
(d) traffic infringement; and
(e) theft, loss or damage of personal property.

Additional Costs means any applicable road, bridge or airport charges incurred by the Driver in providing Designated Driver Services to You.

Affiliate means any entity that is directly or indirectly controlled by Drive Share or which directly or indirectly controls Drive Share, where control means having more than 50% of the voting stock or other ownership interest or the majority of the voting rights of that entity.

Agreement means these terms and conditions and any annexures or additional attachments to it.

Associated Third Party means a third party associated with You in Your use of Designated Driver Services. This includes any other individuals that is considered a passenger when the Driver provides Designated Driver Services to You.

Cancellation Fee has the meaning given to it in clause 9.2.

Cancellation Policy has the meaning given to it in clause 9.2.

Confidential Information means all information exchanged between the parties and with any Customer before, on or after the date of this Agreement including:

(a) Customer Data;
(b) Drive Share Data;
(c) information associated with Drive Share including transaction volume, marketing and business information, financial, technical, and operational and such other non-public information;
(d) information which, either orally or in writing is designated or indicated as being the proprietary or confidential information of a party;
(e) information derived or produced partly or wholly from the information including any calculation, conclusion, summary or computer modelling;
(f) information which is capable of protection at law or equity as confidential information; and
(g) whether the information was disclosed:

(i) orally, in writing or in electronic or machine-readable form;
(ii) before, on or after the date of this Agreement; or
(iii) as a result of discussions between the parties concerning or arising out of this Agreement.

Commencement Date means the date on which You agree to the terms of this Agreement in accordance with clause 2.1.

Customer Data means all data, content and information owned, held, used or created by or on behalf of You that is stored using, or inputted into, the Drive Share Services or PKUP App including, but not limited to, Your name, phone number, profile photo, gender, date of birth, pick up location and destination.

DDS Vehicle means the vehicle as defined in clause 5.2.

Designated Driver Services or DDS means the provision of driving services to You, using the DDS Vehicle, on an on-demand basis as facilitated by the Drive Share Services and the PKUP App.

Designated Payment Method means the payment method designated by You on the PKUP App for any payment associated with Designated Driver Services (including the Fee) or as otherwise provided for under this Agreement.

Drive Share Data means any data collected, held or transmitted by Drive Share in Your use of Drive Share Services and PKUP App including Customer Data.

Drive Share Services means facilitating, by acting as an intermediary and through the PKUP App, You to seek and receive Designated Driver Services. This includes Drive Share acting as a limited payment agent and collecting agent on behalf of the Driver in collecting any payment from You. For the avoidance of doubt, Drive Share or its Affiliates do not independently provide Designated Driver Services to You.

Driver means the independent provider of Designated Driver Services in accordance with the PKUP Driver Terms and Conditions.

Driver Data means all data, content and information owned, held, used or created by or on behalf of the Driver that is stored using, or inputted into, the Drive Share Services or PKUP App including but not limited to the Driver’s name, phone number, details and location.

Fees means the Fare, Additional Costs, Cancellation Fee and Tips.

Fare has the meaning as set out in clause 10.1.

GST has the meaning given in the GST Act.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property Rights or Intellectual Property means all intellectual property rights and interests throughout the world whether registered or unregistered, including trade marks, designs, patents, inventions, copyrights and analogous rights, trade secrets, know how processes, concepts, Confidential Information and all other intellectual property.

Interior Items has the meaning given to it in clause 5.5.

Invoice has the meaning given to it in clause 10.6.

Mechanical Failure has the meaning given to it in clause 5.4.

PKUP App means the mobile application, as updated or modified from time to time, as licensed by Drive Share to You to facilitate Your access and receipt of Drive Share Services.

PKUP Driver Terms and Conditions means the agreement between the Driver and Drive Share.

Register means to register on the PKUP App in accordance with requirements as set out in 3.2.

Tax Invoice has the meaning given to it in the GST Act.

Term has the meaning given to it in clause 17.1.

Tips means any tips You may wish to provide to the Driver for a satisfactory provision of Designated Driver Services.

2                 NATURE OF THIS AGREEMENT

2.1            (Consent to this Agreement): By making the relevant clickwrap consent or checking / ticking the relevant box as set out by Drive Share or as displayed on the PKUP App, You agree and acknowledge that You:

(a) have read and understood the terms of this Agreement; and
(b) have accepted and agree to be bound by all terms of this Agreement.

2.2            (Exclusion of employment, agency and partnership): Nothing in this Agreement is to be treated as creating a partnership, joint or co-venture or fiduciary obligation between the parties. Except as specifically provided, no party may act or has any authority to act as agent of or trustee for or in any way bind or commit any other party to any obligation.

3                 CUSTOMER REGISTRATION

3.1            (Registration): Before accessing any Drive Share Services or the PKUP App, You agree to Register on the PKUP App.

3.2            (Requirements): To Register on the PKUP App, You must:

(a) be 18 years of age or over;
(b) have the capacity to enter into this Agreement;
(c) provide the information as required under clause 3.3;
(d) provide a valid Designated Payment Method; and
(e) agree to comply with the terms of this Agreement.

3.3            (Information): To Register on the PKUP App, You will be required to provide the following information:

(a) Your personal details including Your full name (first and last name), contact number, email address; and
(b) any other information as required by Drive Share from time to time.

3.4            (Verification): Notwithstanding clause 6.3, Drive Share may request evidence to verify information as provided under clause 3.2 including at the time when You Register on the PKUP App.

3.5            (Restriction of Registration): You must not Register on the PKUP App more than one (1) time. You must not impersonate or Register for anyone other than Yourself.

3.6            (Failure to comply): Where You fail to comply with any requirements in this clause 3, Drive Share may refuse to allow You to Register on the PKUP App.

4                 USE OF DRIVE SHARE SERVICES

4.1            (Drive Share’s relationship with You): You agree and acknowledge that:

(a) Drive Share agrees to provide You with Drive Share Services and license to You the PKUP App. Drive Share and any of its Affiliates do not have a legal or business relationship with any Associated Third Parties;
(b) Designated Driver Services are provided by a Driver. Drive Share and any of its Affiliates are at no time providing You with any Designated Driver Services;
(c) You will provide all necessary equipment, tools and materials including a mobile device/s for the access of the Drive Share Services, PKUP App and Designated Driver Services;
(d) Once You make a DDS Request, Drive Share may provide Your name, contact information, photo, location and other information Drive Share deems appropriate to the Driver for the Driver’s provision of Designated Driver Services. This data is likely to include Customer Data; and
(e) For the purpose of accessing Designated Driver Services, Drive Share may provide You with the name, contact information and location of the Driver. This data is likely to include Driver Data;

4.2            (Your relationship with a Driver): You agree and acknowledge that:

(a) to request Designated Driver Services, You may submit a DDS Request for the access of Designated Driver Services;
(b) where a Driver accepts Your DDS Request, You create a legal and direct business relationship between the Driver and Yourself, and You enter into an agreement for the provision of Designated Driver Services directly with the Driver;
(c) Drive Share and any of its Affiliates are not responsible or liable for any action or inaction of the Driver in relation to You or Your activities and is not liable for any loss (direct or indirect) incurred by Your use of any Designated Driver Services; and
(d) You are solely responsible for and agree to undertake all reasonable, necessary and proper precautions with respect to using Designated Driver Services including but not limited to maintaining all relevant or required insurance policies as required under clause 6.1.

4.3            (Access conditions): You acknowledge that You must not:

(a) attempt to undermine the security or integrity of the PKUP App;
(b) impair the functionality of the PKUP App or impair the ability of any other user of their use of Drive Share Services or the PKUP App;
(c) attempt to view, access or copy any material or data as contained in the PKUP App other than that which You are authorised to access;
(d) commercially exploit the PKUP App (including by making it available to a third party) without the prior written consent of Drive Share; or
(e) use the PKUP App in a manner including by transmitting, inputting or storing any data, that is objectionable, incorrect, misleading or involves the sale or promotion of any illegal business activities or prohibited products or services or breaches any third party right (including Intellectual Property Rights and privacy rights).

4.4            (Your acknowledgement): You acknowledge and agree that:

(a) Drive Share does not warrant that the PKUP App is secure and free from any virus, hackers or cyber-attacks;
(b) Drive Share may at its discretion vary the nature of the Drive Share Services or the features it provides via the PKUP App; and
(c) Drive Share Services and the PKUP App may be unavailable to permit maintenance, undertake bug fixes, deal with security issues or other activity necessary for the ongoing performance of Drive Share Services and continued operation of the PKUP App.

5                 DDS VEHICLE

5.1            (Requirement to provide DDS Vehicle): You agree to provide a DDS Vehicle for the Driver’s provision of Designated Driver Services. You agree not to provide a vehicle that is not designated as a DDS Vehicle for the Driver’s provision of Designated Driver Services.

5.2            (DDS Vehicle): A DDS Vehicle means a vehicle that is (DDS Vehicle):

(a) (Insurance): insured in accordance with the insurance policies contemplated under clause 6.1; and

(b) (Roadworthy): registered with the applicable government organisation certifying that the vehicle is roadworthy and where applicable, appropriate for use and provision of Designated Driver Services;

5.3            (Failure to provide DDS Vehicle): Upon the acceptance of the DDS Request, where You fail to provide a DDS Vehicle and the Driver attends the location at which the purported DDS Vehicle is located, the Driver may in its sole discretion refuse to provide Designated Driver Services to You and may charge You, through the PKUP App, the Fare and / or Cancellation Fee.

5.4            (Mechanical Failure or Accident): To the extent the DDS Vehicle is involved in an Accident or suffers any mechanical failure including any tyre puncture, transmission failure, engine failure or otherwise any failure that renders the DDS Vehicle inoperable, including in relation to the mechanical, electronic or hydraulic function of the DDS Vehicle (Mechanical Failure) in the course of You receiving Designated Driver Services, You agree and acknowledge that:

(a) Drive Share is not liable to any loss or liability You incur in relation to any Accident or Mechanical Failure of the DDS Vehicle;
(b) the Drive Share Services do not include the provision of any mechanical assistance services, including services relating to any Accident or Mechanical Failure;
(c) from the point in time that the Accident or Mechanical Failure occurs, the Driver may cease providing the Designated Driver Services to You; and
(d) from the point in time that the Accident or Mechanical Failure occurs, the Driver has discretion to charge the Fare and any Additional Costs via the PKUP App, in accordance with clauses 1 and 10.2, despite ceasing to provide the Designated Driver Services or otherwise not completing the Designated Driver Services.

5.5            (Interior Items) You acknowledge that all interior content, items or objects of or inside the DDS Vehicle (Interior Items) are Your sole responsibility. To the extent You suffer loss or liability with respect to any Interior Items, You agree that Drive Share, its Affiliates and its respective officers, employees, contractors and agents are not liable to any loss or liability You incur in relation to Interior Items.

5.6            (Liability): You acknowledge that Drive Share, its Affiliates and its respective officers, employees, contractors and agents are at no time liable for any loss or liability incurred in relation the DDS Vehicle including any loss or liability caused by the Driver’s use of the DDS Vehicle in providing Designated Driver Services.

6                 INSURANCE

6.1            (Insurance for accessing DDS): For the Term of this Agreement, You will undertake and maintain at Your expense:

(a) One of the following insurance policies:

(i) a comprehensive car insurance policy over the DDS Vehicle, with no driver restrictions, which protects or covers the Driver and Drive Share from any claims, damages, losses and liabilities arising from an Accident;
(ii) car insurance policy, with third party cover, over the DDS Vehicle, with no driver restrictions and which protects or covers the Driver and Drive Share from any claims, damages, losses and liabilities arising from an Accident (other than those claims arising from damage to the DDS Vehicle itself);

(b) any necessary insurances that a person accessing the Designated Driver Services would prudently maintain, including (but not limited to) insurances that would cover You and the Driver for any claims arising in the course of accessing Designated Driver Services, including claims in relation to damage of any personal property while the Driver is driving the DDS Vehicle;
(c) any insurance policies as directed by Drive Share; and
(d) any insurance policies You may be required to undertake and maintain under law for accessing Designated Driver Services particularly in relation to the DDS Vehicle.

6.2            (Name of insurance): You must be a named insurer on any insurance policy undertaken pursuant to clause 6.1 for the Term of this Agreement.

6.3            (Records of insurance): Drive Share may in its discretion require You to provide copies of the following documents as contemplated under clause 6.1:

(a) copy of the insurance policy / policies;
(b) policy declaration / declarations; and
(c) any other document reasonably relating to clause 1 and as required by Drive Share.

6.4            (Change in insurance): You will provide written notice to Drive Share as soon as practicable of any change in circumstance in relation to any insurance policy taken under 6.1 including but not limited to where:

(a) an insurance policy under 6.1 has been cancelled; or
(b) You make any claim under an insurance policy under clause 6.1.

7                 ACCIDENTS

7.1            (Claims): Where an Accident occurs, You acknowledge that any insurance claim against that Accident will be made on Your insurance policy / policies as contemplated under clause 6.1. You agree that Drive Share its Affiliates and its respective officers, employees, contractors and agents will not be liable for any loss or liability caused by any Accident.

7.2            (Notification of Accident): You agree to provide notice to Drive Share as soon as reasonably practicable of any Accident and agree to cooperate and provide all necessary information to Drive Share as and when directed by Drive Share in relation to any Accident.

7.3            (Traffic infringement): Any traffic infringements incurred by the Driver during the provision of Designated Driver Services by use of the DDS Vehicle will be the Driver’s responsibility and Drive Share will not be liable for any such infringements.

8                 RATINGS

8.1            (Rating): You acknowledge that after Your use of Designated Driver Services, the Driver may be prompted by the PKUP App to provide a rating of Your use of Designated Driver Services and You will be prompted by the PKUP App to provide a rating of the Driver to which provided You with Designated Driver Services.

8.2            (Good faith): Where You provide a rating of the Driver under clause 8.1, You agree to provide Your rating of the Driver in good faith.

8.3            (Use of ratings): Drive Share and any of its Affiliates may use, share, analyse, collate, distribute and display any ratings provided of You and by You for any purpose associated (directly or indirectly) to its business, in any manner Drive Share wishes to do so and without Your prior approval or attribution to You.

9                 CANCELLATION

9.1            (Discretion to cancel): Drive Share or the Driver may cancel, via the PKUP App, any acceptance of a DDS Request and any provision of Designated Driver Services at any time and in its sole discretion.

9.2            (Cancellation Fee): Where You cancel the DDS Request in a manner or at a time inconsistent with Drive Share’s cancellation policy as made available via the PKUP App, at https://pkup.com.au/cancellationpolicy/ or as otherwise provided by Drive Share (Cancellation Policy), a fee for cancelling the DDS Request may be payable by You through the PKUP App (Cancellation Fee).

9.3            (Exception to Cancellation Fee): Where the Driver has accepted the DDS Request but has failed to provide the Designated Driver Services You will not be charged, via the PKUP App, a Cancellation Fee for cancelling the DDS Request provided that the cancellation is in accordance with Drive Share’s Cancellation Policy.

10              PAYMENT

10.1         (Fare): You agree to pay the Driver a fare for the provision of Drive Share Services to You (Fare). The Fare will be displayed on the PKUP App. For the purpose of this Agreement, Drive Share licenses to You the PKUP App for no consideration. The Fare may vary from time to time based on market conditions and demand for Drive Share Services. You have a right to negotiate with the Driver the Fare.

10.2         (Additional Costs): Where Additional Costs are incurred by the Driver in providing You with Designated Driver Services, You agree to pay the Driver, through the PKUP App, the Additional Costs incurred.

10.3         (GST): If the Driver is registered for GST and has submitted their GST registration details to Drive Share, the Fare displayed on the PKUP App will be inclusive of GST. If the Driver is not registered for GST, the Fare displayed on the PKUP App will be exclusive of GST.  If any GST is payable on the amounts payable under this Agreement, You agree to pay the Driver an amount equal to the GST at the same time as any consideration is made by You to the Driver under this Agreement.

10.4         (Collection agent): Drive Share will act as the Driver’s limited payment collection agent to collect where arising, the Fee (including any GST) through the PKUP App by way of the Designated Payment Method. You likewise agree to make payment to the Driver in relation to the Fee though the PKUP App by way of the Designated Payment Method and You authorise Drive Share to collect this Fee via the Designated Payment Method. You acknowledge that Drive Share’s collection of the Fee under this clause 10.4 shall be considered the same as where payment from You is collected directly by the Driver and that Drive Share is collecting such amounts on behalf of the Driver.

10.5         (Reimbursement): Drive Share may in its sole discretion seek reimbursement from You if Drive Share acting reasonably determines that an error occurred including any payment processing error, an error on the PKUP App has occurred or You otherwise committed fraud. Drive Share may seek reimbursement under this clause 10.5 by any reasonable means including by debiting You by way of the Designated Payment Method or seeking reimbursement from You by any lawful means.

10.6         (Invoice): Pursuant to its provision of Drive Share Services, Drive Share will prepare and distribute on behalf of the Driver an invoice to You setting out the details of the Designated Driver Services as provided by the Driver to You (Invoice).  Where the Driver is GST registered and has submitted their GST registration details to Drive Share, the Invoice will be issued on behalf of the Driver as a Tax Invoice.

11              PKUP APP LICENCE

11.1         (License): Drive Share grants to You a limited, personal, non-exclusive, revocable, royalty free, non-transferable licence to use the PKUP App on Your personal device/s to access Drive Share Services only. The license granted to You under this clause 11.1 does not allow You to sublicense the PKUP App, use the PKUP App for any other purpose, commence independent production or commercially exploit the PKUP App outside of this Agreement.

11.2         (Costs): You acknowledge that You may incur significant costs (not imposed by Drive Share) including data costs by using the PKUP App. You agree that Drive Share and its Affiliates are not liable for any of these costs, fees, surcharges or overuse charges You may incur by Your use of the PKUP App.

12              AUTHORISATION

12.1         (Authorisation): Where You give the Driver instructions (explicit or implicit) via the PKUP App to deal with the DDS Vehicle in a way such that the Driver is required to provide any authorisation on Your behalf (including to provide any signature or to sign on Your behalf), You agree to provide all such authority via the PKUP App to act on Your behalf for the purpose of giving effect to Your instructions to the Driver.

12.2         (Indemnity): Where the Driver exercises the authority in accordance with clause 12.1, You agree to hold Drive Share harmless in relation to any loss or liability suffered as a consequence of the Driver acting in accordance with the instructions provided under clause 12.1.

13              INTELLECTUAL PROPERTY

13.1         (Ownership):

(a) Title to, and all Intellectual Property Rights in, the Drive Share Services, PKUP App, any information within the PKUP App (other than the Customer Data) and any content produced by Drive Share alone, or together with any Affiliate, is and remains the property of Drive Share (and where applicable, its licensors);
(b) Title to, and all Intellectual Property Rights in, the Drive Share Data are the property of Drive Share. To the extent You own any data generated by Your use of the Drive Share Services or the PKUP App, You will grant Drive Share a worldwide, non-exclusive, fully paid up, transferable, sub-licensable, irrevocable licence to use, store, copy, modify, make available and communicate this data for any purpose whether or not in connection with the exercise of Drive Share’s rights and performance of its obligations under this Agreement. This license shall survive the termination of this Agreement.

13.2         (Drive Share development Rights): Subject to clause 14 (Confidentiality), Drive Share owns all rights, including Intellectual Property Rights, in anything developed or delivered under this Agreement.

14              CONFIDENTIALITY

14.1         (Access to Confidential Information): You acknowledge and agree that in complying with this Agreement, You may have access to or may be exposed to, either directly or indirectly, Confidential Information of Drive Share and / or the Driver.

14.2         (Confidential Information): This Agreement and any information provided by Drive Share to You, which is designated as Confidential Information or which You should reasonably know should be treated as Confidential Information, should be treated as Confidential Information

14.3         (Treatment of Confidential Information): Subject to clause 14.4, You will not use the Confidential Information for any purpose except in compliance with and in order to perform Your obligations under this Agreement;

14.4         (Disclosure): Confidential Information will not include any information to the extent that the information is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided You notify Drive Share of such disclosure as soon as reasonably practicable where legally permitted to do so.

15              REPRESENTATIONS AND WARRANTIES

15.1         (General Warranties): Each party (each a Warranting Party) warrants to the other party:

(a) the execution and delivery of this Agreement has been properly authorised by all necessary action of the Warranting Party;
(b) the Warranting Party has full power and authority to execute and deliver this Agreement and to perform or cause to be performed its obligations under this Agreement;
(c) this Agreement constitute a legal, valid and binding obligation of the Warranting Party enforceable in accordance with its terms by appropriate legal remedy;
(d) this Agreement does not conflict with, or result in a breach of, or default under any material term or provision of, any agreement or deed or any writ, order or injunction, judgment, law, rule or regulation to which the Warranting Party is a party, or is subject to, or bound by; and
(e) the Warranting Party, in satisfying its obligations under this Agreement (including the provision of the services) has not breached any material term or provision of, any agreement or deed or any writ, order or injunction, judgment, law, rule or regulation to which the Warranting Party is a party, or is subject to, or bound by.

15.2         (Your Warranties): You warrant to Drive Share that You:

(a) are aware of the harm or risk a Driver may pose to You or an Associated Third Party by the provision of Designated Driver Services;
(b) have undertaken reasonable precautions with respect to interactions between the Driver, Associated Third Parties and Yourself in connection with the Driver’s provision of Designated Driver Services;
(c) will comply with all of Your obligations under this Agreement and any other obligation provided by relevant laws and regulations;
(d) will undertake and maintain all insurance policies as set out or otherwise required under clause 6;
(e) will not provide to Drive Share or the PKUP App data that contains any virus, trojan horse, or any defect that will disrupt, scrap, index or corrupt the Drive Share Services or the PKUP App; and
(f) have not relied on any representation made by Drive Share with respect to the use of Drive Share Services or the license of the PKUP App.

15.3         (Drive Share’s limitations): Drive Share makes no warranties as to:

(a) the actions or inactions of any Driver or Associated Third Parties. You acknowledge that Drive Share and its Affiliates do not evaluate or screen Drivers or Associated Third Parties;
(b) Drive Share Services and the PKUP App, including any content contained within the PKUP App or any provision of its Drive Share Service, will be secure or free from any virus, error, inconsistency, or third party intrusion or attack. Drive Share provides the Drive Share Services and the PKUP App on an “as is” and “as available” basis; and
(c) the availability, uptime or provision of Drive Share Services and the PKUP App. You acknowledge that Drive Share Services and the PKUP App may be unavailable at any time and for any reason (planned or unplanned) and may be subject to delays, limitations, bugs and other factors affecting the provision and performance of the Drive Share Services and the PKUP App. Drive Share and its Affiliates are not responsible for any direct or indirect loss (including loss of income) or liability resulting from such delays downtime, limitations. bugs or other failures.

15.4         (No implied warranties): To the maximum extent permitted by law, Drive Share’s warranties are limited to those expressly stated in this Agreement and Drive Share otherwise makes no representation concerning the quality of the Drive Share Services or PKUP App.

16              INDEMNITY AND LIABILITY

16.1         (No liability): Notwithstanding any other clause in this Agreement, Drive Share, its Affiliates and each of its respective officers, employees, contractors and agents are not liable for any loss, liability or damage (direct or indirect) that is caused by the Driver or any actions or inactions of the Driver. For the avoidance of doubt, Drive Share, its Affiliates and each of its respective officers, employees, contractors and agents are not liable for any loss, liability or damage You suffer from Your use of any Designated Driver Services.

16.2         (Indemnification): You must at all times indemnify and hold harmless Drive Share, its Affiliates and each of its respective officers, employees, contractors and agents from and against any loss, liability or damage (including legal costs and expenses) incurred or suffered by Drive Share arising from any claims against Drive Share where such loss, liability or damage arises out of or in respect of this Agreement and / or Your use or non-use of any Designated Driver Services, except to the extent such loss is caused by gross negligence or wilful misconduct of Drive Share.

16.3         (No indirect loss): To the extent that Drive Share is liable for breach of this Agreement, Drive Share excludes liability for loss of profit, revenue, business, savings, data or product, increased cost of production, loss of goodwill, or other special punitive, indirect or consequential loss or damage of any kind.

16.4         (Maximum liability of Drive Share ): The maximum aggregate liability of Drive Share under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any year exceed an amount equal to the Fees paid by You to a Driver for Designated Driver Services in the previous year (which in the first year is deemed to be the total Fees paid by You from the Commencement Date to the date of the first event giving rise to liability).

16.5         (Your maximum liability): Your maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any year exceed the greater of:

(a) an amount equal to the Fees paid by You to the Driver in the previous year (which in the first year is deemed to be the total Fees paid by You from the Commencement Date to the date of the first event giving rise to liability);
(b) $200,000; or
(c) the proceeds You receive from any applicable insurance policy that covers the liability.

16.6         (Your indemnification for collection, disclosure and storage): In addition to the indemnity outlined in clause 16.1, and for the avoidance of any doubt, You must indemnify Drive Share against all loss (including legal costs and expenses) incurred as a result of Drive Share’s collection, use, disclosure, storage or other involvement with the Driver Data and any other information (in any form) relevant to the Drive Share’s relationship with You under this Agreement.

16.7         (Mitigation): Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of any act or omission by the other party under or in connection with this Agreement.

16.8         (Compliance with Law): Drive Share is not liable to You under this Agreement or otherwise if and to the extent Your use of Designated Driver Services is contrary to any obligations, including those owed under any contracts or any laws.

17              TERM, TERMINATION AND SUSPENSION

17.1         (Term): This Agreement:

(a) starts on the Commencement Date; and

(b) continues, unless terminated under this clause 17 (Term).

17.2         (No-fault termination): Either party may terminate this Agreement at any time by providing notice to the other party.

17.3         (Consequence of Termination): Where a party terminates this Agreement, You will no longer have access to Drive Share Services and Your license to use the PKUP App will be terminated. On termination, You agree to comply with any reasonable instructions of Drive Share with regard to any property (tangible or intangible) belonging to Drive Share.

17.4         (Obligations Continuing): Clauses which, by their nature, are intended to survive termination or expiry of this Agreement including any outstanding payment obligations and all clauses 1, 2.2, 4.2, 5.4, 5.5, 5.6, 7.1, 7.3, 8.3, 9.2, 9.3, 10, 11.2, 12, 13, 14, 15, 16, 17.4, 18 shall continue in force.

17.5         (Rights to Restrict): Without limiting any other right or remedy available to Drive Share, Drive Share may restrict or suspend Your access to Drive Share Service and Your license to use the PKUP App where Drive Share considers that You have:

(a) undermined, or attempted to undermine, the security or integrity of the Drive Share Service or the PKUP App;
(b) used, or attempted to use, the Drive Share Service or PKUP App:

(i) for improper purposes; or
(ii) used, or attempted to use, the Drive Share Service or PKUP App:

(A) for improper purposes; or
(B) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Drive Share Service or PKUP App; or

(c) caused or are likely to cause harm, loss or any liability (direct or indirect) to Drive Share and any of its Affiliates (as reasonably determined by Drive Share in its sole discretion);
(d) acted in a manner such that Drive Share, in its sole discretion, deems it appropriate to do so; or
(e) otherwise materially breached the Agreement.

18              GENERAL

18.1         (Notices): Any notice delivered by Drive Share to You under this Agreement will be delivered by email to Your email address (as Registered pursuant to clause 3.3) and / or by the PKUP App. Any changes or variations to Your email address must be notified to Drive Share by You as soon as reasonably practicable.

18.2         (Entire Agreement): This Agreement comprises the parties’ entire understanding in relation to the subject matter of this Agreement and supersedes any prior agreement or arrangement.

18.3         (Assignment): You must not assign, create an interest in or deal in any other way with any of its rights or obligations created under this Agreement without the prior written consent of Drive Share.

18.4         (Cumulative): The rights, remedies and powers of the parties under this Agreement are cumulative and not exclusive of any rights, remedies or powers provided to the parties by law.

18.5         (Consent): Unless this Agreement expressly provides otherwise, any approval or consent required to be obtained under this Agreement may be withheld, given conditionally, or given unconditionally, in each case in the relevant party’s absolute discretion.

18.6         (Waiver): A right granted to one party under this Agreement may only be waived by that party giving notice in writing to the other party. A party does not waive any right granted under this Agreement merely by not exercising that right immediately.

18.7         (Severance): Any provision or part of a provision of this Agreement which is invalid or unenforceable in a particular jurisdiction, may be read down or severed to the extent of the invalidity or unenforceability in that jurisdiction only. The invalidity or unenforceability of a provision or part of a provision of this Agreement in one jurisdiction does not affect the:

(a) application of that provision (or any parts of that provision) in any other jurisdiction in which it is valid and enforceable; or
(b) remaining provisions (or other parts of that provision) of this Agreement.

To the extent a provision is to be read down or severed, the parties agree to only read down or sever that part of the provision which is invalid or unenforceable. The parties agree not to sever or read down the entirety of the provision of which contains parts of which are invalid or unenforceable provided that the remaining parts of the provision are valid and enforceable in the relevant jurisdiction.

18.8         (Right to modification): Drive Share reserves the right to modify or amend this Agreement at any time and effective upon publishing the updated version of this Agreement on the PKUP App or otherwise as notified to You. Drive Share will provide You at least 14 days’ notice of any such changes. You acknowledge Your continued use of Drive Share Services and the PKUP App is taken to be consent of any such changes.

18.9         (Governing law and Jurisdiction): This Agreement is governed by the laws in force in the Australian Capital Territory and the parties submit to the exclusive jurisdiction of the Supreme Court of the Australian Capital Territory to decide any dispute between them in relation to this Agreement.

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