EFFECTIVE FROM MARCH 6 , 2019
VERSION COMMENCEMENT DATE: 16 MARCH 2020

PLEASE ENSURE TO READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING OR USING THE PKUP SERVICES. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS AND CONDITIONS, YOU MUST IMMEDIATELY CEASE ACCESSING AND/OR USING THE PKUP SERVICES PROVIDED BY PKUP. YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS IS A BINDING AGREEMENT BETWEEN YOU AND PKUP IN RESPECT OF YOUR USE OF THE PKUP SERVICES.

You accept these terms and conditions and the PKUP Privacy Policy upon registering to the PKUP App and/or submitting an online booking at www.pkup.com.au. The Parties agree to be bound by these Terms and Conditions (“Terms”) governing the access or use by You, an individual, of applications, websites, content, products and services (“PKUP Services”) made available by PKUP Pty. Ltd. a private limited liability company established in Australia, registered through the Australian Securities and Investments Commission under the Australian Business Number of 11 614 887 053 (“PKUP”). You acknowledge that You have read and understood these Terms.

In particular, in accordance with PKUP’s Privacy Policy, You give PKUP consent to:

–              obtain personal information about You from third parties (including payment processors, credit agencies and organisations engaged to perform identification verification and background checks);

–              send direct marketing and other communications to You, until you request PKUP not to do so, using opt-out methods provided by PKUP; and

–              disclose Your personal information to third party service provides, related entities and other entities, including regulatory authorities, enforcement agencies and marketing agencies and other third parties as set out in the Privacy Policy.

Please note some recipients of Your personal information may be located overseas.

These Terms are between You and PKUP, each is a “Party” and collectively referred to as the “Parties”.

PKUP operates and provides the PKUP Services, which provide an online booking platform that facilities the provision of Drivers, and associated collection of payments. PKUP is an intermediary that provides an online platform for You and a Driver to enter into a contract for the Driver’s provision of a Trip to You. Except as expressly stated in these Terms, PKUP’s obligations are limited to the following:

a) managing and operating the PKUP Services, as and when, PKUP reasonably determines and deems it necessary to do so;
b) being an online booking platform that facilities the provision of Trips by Drivers to You; and
c) payment collection in respect of a Trip between the Driver and You.

PKUP IS AN INTERMEDIARY THAT PROVIDES AN ONLINE MARKETPLACE SERVICE AND THE PKUP SERVICES ARE ONLY A PLATFORM WHERE DRIVERS MAY OFFER A TRIP TO YOU. PKUP HOLDS NO RESPONSIBILITY WHATSOEVER WITH THE TRANSPORT METHODS USED BY A DRIVER TO ARRIVE AT THE PICK UP LOCATION OR THE TRANSPORT METHODS THEY USE AT THE END OF A TRIP FROM THE FINAL DESTINATION. PKUP IS NOT A TAXI OR RIDESHARE PLATFORM.

THE AGREEMENT FOR THE DRIVER’S PROVISION AND YOUR RECEIPT OF A TRIP IS AND WILL BE AN AGREEMENT AND CONTRACT SOLELY BETWEEN THE DRIVER AND YOU. PKUP WILL HAVE NO OBLIGATIONS OR LIABILITIES IN RESPECT OF SUCH AGREEMENT AND CONTRACT.

PKUP holds and reserves the right to amend these Terms at PKUP’s discretion, as and when, PKUP deems necessary. It is Your responsibility to ensure that You remain up-to-date with these Terms and if You do not agree to any such amendments, You may terminate Your use of the PKUP Services in accordance with clause 17.

These Terms apply to Your access and use of the PKUP Services.

  1. USING THE PKUP SERVICES

1.1         To use the PKUP Services, You must comply with the following requirements, at all times:

a) have the capacity and competency to enter into a binding agreement under Applicable Laws;
b) only use the PKUP Services in accordance with these Terms and all Applicable Laws;
c) not use the PKUP Services for any illegal or unlawful purposes;
d) upon registering with the PKUP Services, You must provide PKUP with accurate, valid, current, complete and true Registration Details;
e) never use the PKUP Account of any other person;
f) only use a PKUP Services for Your sole, personal use and You must not transfer, sell, sub-license or assign it to a third party;
g) ensure that Your Device is functioning and able to receive and read text messages and push notifications from PKUP;
h) not do anything or try to do anything that will or may interfere with or harm the PKUP Services in any way whatsoever;
i) advise PKUP of any changes to any of Your Registration Details or any other information provided to PKUP;
j) provide PKUP with any information and documents which PKUP reasonably requests from time to time to be able to provide the PKUP Services to You;
k) use a legal and authorised internet network to access and use the PKUP Service.

1.2         It is Your responsibility to download the latest version of the PKUP Services and ensure they remain up to date.

1.3         You acknowledge that when using the PKUP Services, You may be charged standard messaging charges, data charges and/or voice charges from Your Device provider and that these fees/charges are Your responsibility.

1.4         You are responsible for ensuring and maintaining all your PKUP Services Registration Details and login credentials remain confidential, and You will be liable for all activities, transactions and any misuse of the PKUP Services through Your PKUP Account.

1.5         You must notify PKUP immediately if You are unable to access Your PKUP Account, there is any unauthorised access or use of Your PKUP Account, login credentials or Your security has been compromised in any way whatsoever.

1.6         PKUP reserves the right to suspend the PKUP Services and Your PKUP Account if:

a) PKUP has any reason whatsoever to believe that You have provided PKUP with false information; or
b) the security of your PKUP Account has been or is suspected to have been compromised in any way whatsoever; or
c) You have not complied with Your obligations under this clause 1.

1.7         PKUP may block, suspend, alter or update the PKUP Services at any time and without notice to ensure the PKUP Services comply with Applicable Law, to make improvements to the PKUP Services and/or to protect a legitimate interest.

1.8         You acknowledge and agree that You are subject to any other terms and conditions that the Driver may accept on Your behalf during the provision of a Trip, example the terms and conditions when entering a car wash or drive through food services, and these are subject to change from time to time.

  1. BOOKING THE PKUP SERVICES

2.1         The PKUP Services allow You to request a Trip.

2.2         Upon requesting a Trip, You must ensure that:

a) Your Device is on and configured to allow the PKUP Services to function properly; and
b) the PKUP Services are active on Your Device.

2.3         PKUP will inform you via a text message, push notification or confirmation screen through the PKUP Services whether Your Trip request has been accepted, declined or cancelled.

2.4         Through the PKUP Services, PKUP makes best and reasonable endeavours to connect You with a Driver.

2.5         You acknowledge and agree that Your Trip is subject to Driver availability at Your requested pick up location and pick up time and a Driver may accept or decline Your Trip request in their sole and absolute discretion.

2.6         You acknowledge and agree that PKUP or the Driver may cancel Your Trip request in their sole and absolute discretion.

2.7         If Your Trip is accepted through the PKUP Services, You will receive the following information:

a) A text message, push notification or screen notification through the PKUP Services; and
b) Driver information, which includes the Driver’s name, Driver mobile phone number, Driver picture and any other information that PKUP deems appropriate at the time.

2.8         You acknowledge and agree that You must check the booking details upon receiving a booking confirmation through the PKUP Services, including the details of the pick up time and location.

2.9         When You have checked the booking confirmation in accordance with clause 2.7, You must, if there are any errors in Your booking confirmation and as soon as reasonably practicable, contact Your Driver to immediately inform them of the correct details for Your booking.

2.10        You acknowledge and agree that You are solely responsible for any delay that may be caused due to Your failure to check the booking confirmation details in accordance with clause 2.7 and contacting Your Driver immediately in accordance with clause 2.8.

2.11        You acknowledge and accept that Your Driver will receive Your details and personal information, such as, but not limited to, Your name, telephone number, pick up address and drop off address to ensure and enable the Driver to provide the Trip to You.

2.12        PKUP requires each Driver to use all reasonable endeavours and efforts to ensure that they arrive to You at Your requested pick up time, however You must consider adverse conditions, including the traffic, roadworks, traffic accidents or the weather and any other condition that may cause unexpected delays.

2.13        You must collaborate and contact Your assigned Driver for Your Trip if there is any delay with the Driver in reaching You at Your requested pick up time and location and You must be understanding to the Driver where a delay has occurred and negotiate an alternative pick up time.

2.14       If the Driver is unable to reach You, You can use the PKUP services to arrange a substitute Driver to complete Your Trip, subject to availability, and You acknowledge this may cause delays for the substitute Driver in reaching You at Your requested pick up time.

  1. VEHICLE ONLY TRIP

3.1         You agree and acknowledge that if You book a Vehicle Only Trip and request the Driver to drop off or pick up the Vehicle the Driver will drop off or collect the Vehicle and sign any documentation Your behalf.

3.2         Any documentation that is signed on behalf of the Driver does not hold the Driver nor PKUP responsible for any repairs and/or services that the Vehicle will undergo and that is Your sole responsibility and liability.

3.3         You agree and acknowledge that any error, problem or fault with the services of a car servicing/repair provider does not impose any responsibilities or obligations upon PKUP or the Driver and You must resolve any disputes or problems that arise between You and the relevant car service/repair provider.

3.4         If a Driver drops the Vehicle off for repairs/service, You acknowledge and agree that You may be subject to the terms and conditions of the car service/repair provider which are subject to change from time to time at the discretion of the car service/repair provider.

3.5         You agree and acknowledge that once a Driver has completed Your request for a Vehicle Only Trip, the Vehicle is Your sole responsibility and neither PKUP nor the Driver is liable for Your Vehicle, the contents inside the Vehicle or the Vehicle keys.

3.6         Where a Vehicle Only Trip related dispute arises between the Drivers and You, any decision taken by PKUP in settling the dispute in accordance is made in good faith and will be final and binding on You and the Driver.

  1. PKUP SERVICES PAYMENTS

4.1    You must pay for the Trip Fee after the completion of a Trip, which PKUP collects and facilitates on behalf of the Driver.

4.2    Payment of the Trip Fee is made through a payment gateway and/or payment processing service provider (Payment Gateway) chosen and appointed by PKUP.

4.3    In order to book a Trip, You must provide relevant credit/debit card details for PKUP to be able to process the Trip Fee through the relevant Payment Gateway.

4.4    You authorise the nominated Payment Gateway to process Your payment for a Trip and You authorise the Payment Gateway to:

a) use Your payment details to process transactions that are initiated by You;
b) debit or credit your chosen card account that You have provided through Your nominated payment details in Your PKUP Account, including on an automated process and with alternative payment methods in the event there is a failure upon the initial or subsequent attempt to process the payment; and
c) maintain Your payment details.

4.5    If You delete Your payment details, PKUP and the Payment Gateway will not be able to process any further transactions initiated by You and You will be required to add payment details when requesting a Trip.

4.6    You acknowledge and agree that You are subject to any other terms and conditions of the Payment Gateway that are subject to change from time to time at the discretion of the Payment Gateway.

4.7     On behalf of the Drivers, PKUP will be responsible for issuing invoices to You for the Trip provided by the Driver for the Trip Fee.

4.8         Any invoices provided to You under clause 4.7 are provided to You by PKUP to the best of its knowledge based on information provided by the Driver to PKUP and where there are any errors on these invoices, PKUP is released from any obligations or liability in respect of these invoices and any disputes that may arise are between You and the Driver.

4.9    PKUP may assist with settling any payment related disputes that may arise between the Drivers and You.

4.10  Where a payment related dispute arises between the Drivers and You, any decision taken by PKUP in settling the dispute in accordance with clause 4.9 is made in good faith and will be final and binding on You and the Driver.

4.11              If any amount paid by You is fully or partially refundable, for any reason, that amount will be refunded to You in accordance with these Terms and any Applicable Law.

4.12              Any error, problem or fault with payment processing that is not caused by the PKUP Services or PKUP Account must be resolved between You and the relevant Payment Gateway or Your relevant bank institute.

4.13              In the event that there is a default or failure by You to pay the Trip Fee:

a) You will be solely responsible, and must pay, for all costs that are incurred by PKUP;
b) You will be responsible for costs that PKUP may be contingently liable for when attempting to collect any payment owed by You to PKUP under these Terms; and
c) You will be responsible for, at PKUP’s discretion, any and all interest overdue and reasonably undisputed amounts at the annual rate of three per cent over the Reserve Bank of Australia’s base rate as at the date payment was due and not made.

4.14              You agree and acknowledge that when you place a request for a Trip through the PKUP Services, an estimated Trip Fee, as reasonably estimated by PKUP, may be pre-authorised on Your relevant credit/debit card account that You have provided in Your PKUP Account.

4.15            The full or part of the pre-authorised amount may be released back into Your relevant credit/debit card account.

4.16            You agree and acknowledge that all pre-authorisations are held with Your relevant credit/debit card issuing bank.

4.17           You agree and acknowledge that if the pre-authorised amount is to be released in accordance with clause 4.15 and if the reversal process is not completed immediately, it is Your responsibility to contact Your relevant bank and PKUP is released of all liabilities and responsibilities for any delays that You may incur with the release of the pre-authorised amount back into Your relevant bank account.

  1. WAITING CHARGES

5.1        The Driver and/or PKUP cannot be held liable or responsible for any delays caused throughout the delivery of the PKUP Services or a Trip.

5.2       If You cancel within the following timeframes You will be charged subject to the cancelation policy.

  1. CANCELLATION FEES

6.1       You may cancel a request for a Trip from a Driver, at any time, however you will be subject to the fees as set out in this clause.

6.2       If You cancel within the following timeframes You will be charged subject to the Cancellation Policy.

6.3       A Driver has the sole discretion to cancel Your Trip where that Driver is waiting at Your requested pick up location for more than 10 minutes after Your requested pick up time or after a negotiated pick up time in accordance with clause 2.12.

6.4         If the Driver does not arrive at Your pick up location within 20 minutes after Your requested pick up time or after a negotiated pick up time in accordance with clause 2.12, You will not be charged a Cancellation Fee.

6.5         You will be notified of any Cancellation Fee charged in accordance with these Terms through the PKUP Services.

6.6         PKUP will process any Cancellation Fee payable by You in accordance with clause 3.

  1. REQUIREMENTS OF YOUR VEHICLE

7.1         The Vehicle that will be driven by the Driver during the provision of a Trip must:

a) have a valid and current registration in any Australian State or Territory; and
b) be of a Roadworthy Condition.

7.2       The Driver may refuse to provide the Trip to You and refuse to operate Your Vehicle if it does not comply with clause 7.1 and the Driver holds the right to cancel Your Trip and You will be charged a cancellation fee in accordance to the Cancellation Policy

7.3         The Driver reserves the right to conduct any necessary searches and investigations to determine if Your Vehicle complies with clause 7.1.

7.4         Any fines, charges, expenses and/or liabilities arising from You not complying with clause 7.1:

a) are Your sole responsibility and the Driver and/or PKUP are not liable for any of those fines, charges, expenses or liabilities; and
b) must be paid by You.

7.5         Any losses that the Driver or PKUP incur from You breaching this clause 7 may be deducted from Your payment details provided through Your PKUP Account in accordance with the payment methods set out in clause 4.

7.6         If Your Vehicle breaks down during the provision of a Trip or a Driver determines, acting reasonably, that Your Vehicle is not suitable to complete the Trip:

a) You are liable to pay the Trip Fee;
c) PKUP and/or the Driver will not be held liable or responsible for the Vehicle; and
b) waiting charges may apply in addition to the Trip Fee, at the discretion of the Driver and/or PKUP.

7.7         You agree and acknowledge that the Driver will not provide any technical or mechanical services whatsoever if Your Vehicle breaks down.

7.8         If Your Vehicle breaks down during a Vehicle Only Trip, for any reason, the Driver will inform You and advise You of the location of Your Vehicle.

7.9         You agree and acknowledge that a Driver may leave Your Vehicle unattended, if the Vehicle has broken down, and You will be liable for the Trip Fee.

7.10       All contents, items and objects inside Your Vehicle during the provision of a Trip remain Your contents, items and objects and any losses, fines, charges, liabilities arising from Your possession of these contents, items and objects are Your sole responsibility and the Driver and/or PKUP will not be liable for any losses, fines, charges and/or liabilities that may arise from Your possession of them.

  1. INSURANCE

8.1         You agree and acknowledge that to use the PKUP Services, the Vehicle that will be transported during the Trip , must have fully comprehensive car insurance, with no driver restrictions.

8.2        If You do not comply with clause 8.1, You must immediately cease accessing and/or using the PKUP Services.

8.3         In the event of a claim and/or damages to:

a) Your Vehicle during the provision of a Trip by a Driver;
b) a third party vehicle; and/or
c) third party property or person;

You agree and acknowledge that where the Driver is at fault, PKUP will not be held liable.

8.4     In the event of a claim and/or damages to:

a) Your Vehicle during the provision of a Trip by a Driver;
b) a third party vehicle; and/or
c) third party property or person;

where the Driver is at fault all claims will be made on Your fully comprehensive insurance policy and You must pay any excesses payable on Your fully comprehensive car insurance policy and You accept full responsibility on any excesses payable.

8.5         Under no circumstances will any excesses payable, damages or repair costs be the responsibility of PKUP and/or a Driver.

8.6         All claims where a third party is at fault are made on Your fully comprehensive insurance policy and the Driver and/or PKUP will not be liable for any repair/replacement costs.

  1. TRAFFIC FINES

9.1         All Drivers are bound by relevant Australian state and territory laws.

9.2         Any traffic infringements incurred during the provision of the Trip by the Driver will be the sole responsibility of the Driver, except where the Driver has incurred the traffic infringement due to Your negligence and/or omissions.

9.3         If a Driver incurs a traffic infringement, You must advise PKUP within 1 month from the date of the infringement notice through the form of a letter in which You must provide PKUP with Your Trip invoice number, vehicle registration and a provide a copy of the infringement notice.

9.4         If You do not comply with clause 9.3, You agree and acknowledge that You are solely liable and responsible for the traffic infringement notice.

  1. BEHAVIOUR

10.1         At all times during the provision of a Trip by a Driver, You must not misbehave, act in violation of Applicable Laws and You must not distract or disrespect the Driver.

10.2         At all times during the provision of a Trip by a Driver, You must:

a) not act in a way that puts You, the Driver or any other person at risk of their safety;
b) not smoke or consume any alcohol, tobacco or illicit substances inside the Vehicle;
c) ensure that all children in the Vehicle are restrained in approved safety restraints for their age and weight; and
d) Ensure that all pets are transported in the rear section of the Vehicle and with appropriate restraints or in a carrier.

10.3         If You breach this clause 9, the Driver and PKUP may immediately suspend or cancel the provision of the PKUP Services to You, Your PKUP Account and cease to provide any Trips and You will be charged the Trip Fee and any other additional fees.

10.4         If you breach this clause 9, You agree and acknowledge that any fines or infringements resulting from the breach, are Your sole responsibility and liability.

  1. COMPLAINTS AND FEEDBACK

11.1       At the conclusion of a Trip, You are strongly encouraged to rate Your Driver.

11.2      When providing Your Driver a rating, You must be considerate, fair, accurate and reasonable when leaving a comment, feedback, a complaint, a review or a testimonial about Your experience during the Trip.

11.3       You are encouraged to communicate to PKUP all feedback, complaints, questions, suggestions and issues that You may have and experience while using and accessing the PKUP Services.

11.4       If You have any problems, questions or issues with the PKUP Services, You must report it to PKUP within 7 days of the relevant problem, question or issue occurring.

11.5       PKUP will endeavour to respond to a notification that You have reported to PKUP under clause 10.4 within 10 Business Days after You report it to PKUP and PKUP will endeavour to resolve or provide a reasonable and practicable solution as soon as reasonably possible.

11.6       You agree and acknowledge that PKUP may not be able to resolve all problems, questions or issues that You may have and PKUP will not be liable where You are not satisfied with the way that PKUP has handled, resolved or failed to resolve Your problem, question or issue.

11.7       You agree and acknowledge that PKUP or the Drivers are not liable for any loss or damage to Your personal effects and/or luggage in Your Vehicle during a Trip.

11.8       You agree and acknowledge that You do not carry any valuable personal effects or possessions in Your Vehicle during a Trip.

  1. PRIVACY

12.1       In accordance with the Privacy Policy and these Terms, PKUP may collect, store, process and/or transfer Your personal information in order to facilitate and provide the PKUP Services to You.

12.2       You consent to PKUP collecting, storing, processing and/or transferring Your personal information in accordance with the Privacy Policy and these Terms, including disclosing Your personal information to third parties, if and when required, to provide the PKUP Services to You.

12.3       You agree and acknowledge that PKUP may disclose Your personal information to relevant transport authorities, government and regulatory bodies, marketing agencies, and any other third party as set out in the Privacy Policy.

12.4       As set out in the Privacy Policy, You agree and acknowledge that some or all of Your personal information may be transferred or stored on a server that is not within Australia.

  1. PKUP’S INTELLECTUAL PROPERTY RIGHTS

13.1       All the PKUP Services and associated intellectual property rights (“IP”) remain the property of PKUP.

13.2       Nothing in these Terms grant You or any other person any rights in or related to the PKUP IP, and all rights to the PKUP IP are solely reserved by PKUP.

13.3       Unless You have breached any of these Terms, PKUP grants You a limited, non-exclusive, personal, non-transferable licence during the term of these Terms to use and access the PKUP Services on any Device that You own or control and to run the PKUP Services solely for Your own personal use.

13.4       You or any other person  must not do any of the following:

a) copy, modify, create, reproduce, plagiarise, or create similar works of, decompile, reverse engineer or attempt to derive the composition or underlying information, structure or ideas of, any of the PKUP IP;
b) tamper, destroy, disable, breach with or develop or use or attempt to use any workaround for any security measure provided in the PKUP Services;
c) use any of the PKUP IP in any way whatsoever that may infringe or misappropriate a third party’s intellectual property rights or moral rights;
d) disclose, allow the use of or distribute any of the PKUP IP by any third party in any format through any type or form of service, network or any other means;
e) merge or combine any of PKUP’s IP with any other technology that is not provided solely by PKUP; and/or
f) remove any proprietary notice language on any copies of any of PKUP’s IP.

13.5       You are solely responsible for Your use of the PKUP Services including for any content that You post or transmit through the PKUP Services, including, notes, messages, e-mails, photos, drawings, ideas, images, videos, audio files or any other material or information.

13.6       PKUP has and will never have responsibilities or obligations to monitor Your access or use of the PKUP Services, or the content that You transmit or post through the PKUP Services, however You provide Your consent to PKUP to do so, at PKUP’s discretion, for the purposes of maintaining and providing the PKUP Services, to ensure You are complying with the Terms, Applicable Law, order or requirement of a court, administrative agency or any other government body.

13.7       Any content that You post or transmit to the PKUP Services must not be unlawful or infringe any third party’s rights (including intellectual property rights) and the content must not be:\

a) inappropriate, profane, defamatory, infringing, obscene, indecent or on an unlawful topic, blasphemous, pornographic, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, or otherwise unlawful material or information, or any material relating to or encouraging money laundering or gambling;
b) any type of file, software and/or other material protected by intellectual property laws unless You own or control the rights or have received all necessary consents;
c) any type of file, software, program and/or other material that contains viruses or corrupt files that may damage the operation of another computer or electronic device;
d) material that advertises or offers to sell or buy any goods or services for any business purpose;
e) material that is commercial, business or of a research nature and purpose;
f) deal with any file, software or content that You know, or reasonably should know, cannot be legally distributed in such manner and/or is illegal;
g) falsify or delete any author attributions, legal or other proper notices or proprietary designations;
h) restrict, inhibit or disrupt any other user from using and enjoying the PKUP Services; or
i) harvest or otherwise collect information about others, without their consent.

13.8       PKUP reserves the right to investigate and/or prosecute, refer to a law enforcement agency any suspected breach of this clause 12 by You or any other person to the fullest extent permitted by Applicable Law and PKUP may, without any prior notice, remove or disable Your access to any of the PKUP Services and Your content on the PKUP Services, which PKUP, acting reasonably, considers that You are in violation of these Terms.

13.9       You grant and consent to PKUP having a worldwide, perpetual, royalty-free, transferable licence to use, copy, modify, adapt and commercially exploit Your content from the PKUP Services for any purpose, such as advertising purposes at PKUP’s reasonable discretion and You warrant and represent that You have full rights to Your content and permitted to provide Your content to PKUP.

13.10     If PKUP uses Your content as set out under clause 12.9, You will not be entitled to any form of payment or compensation for PKUP’s use of Your content.

13.11     PKUP does not require You, nor does PKUP want You to, and You should not ever, send PKUP any confidential or proprietary information to PKUP, except for the information required upon registering to the PKUP Services, or where required by Applicable Laws.

  1. INDEMINITIES

14.1       To the maximum extent that is permitted by law, You indemnify and release PKUP and PKUP’s related bodies corporate, including their respective directors, officers, employees, agents and representatives from and against any losses, damages, liability, claims, costs, penalties and expenses (including, reasonable legal fees) incurred by the directors, officers, employees, agents and representatives arising out of or in connection with any:

a) breach by You of any Applicable Law;
b) breach by You of any of these Terms;
c) misrepresentation or fraudulent, dishonest, unlawful or negligent act or omission by You
d) personal injury (including sickness and death) or property damage caused or contributed to by You in connection with any Trip (including in connection with any motor vehicle accident involving the Vehicle); or
e) claim by a Driver or any other third party caused by any of Your acts or omissions.

  1. LIABILITY

15.1       To the extent permitted by law, all express or implied guarantees, warranties, representations, or other terms and conditions relating to these Terms or their subject matter, that are not contained in these Terms, are excluded from these Terms .

15.2       Without limiting clause 14.1, to the extent permitted by Applicable Law:

a) the PKUP Services are provided on an “as is” and “as available” basis;
b) PKUP makes no representation, warranty, or guarantee regarding the condition, performance, accuracy, completeness, merchantability, reliability, timeliness, quality, suitability, availability or fitness for a particular purpose of the PKUP Services or a Trip;
c) PKUP makes no representation, warranty, or guarantee that the PKUP Services will be uninterrupted or error-free;
d) PKUP makes no representation, warranty, or guarantee about the compatibility of the PKUP Services with any technology;
e) PKUP makes no representation, warranty, or guarantee about the quality, suitability, safety or ability of the Drivers;
f) the PKUP Services provided to You by PKUP (whether through the PKUP Services or via a telephone call) are for general information purposes only and do not constitute any form of advice;
g) You acknowledge and agree that the PKUP Services are an electronic platform to facilitate the assignment of Drivers to provide Trips, and PKUP does not in any manner provide transportation or logistics services or function as a transportation or logistics carrier; and
h) PKUP does not endorse, advise or recommend any of the Drivers, nor does PKUP guarantee or provide any assurance in respect of the behaviour, actions or data of the Drivers (or other users) on the PKUP Services, and You agree that the entire risk arising out of any Trip remains solely with You, to the maximum extent permitted under Applicable Law.

15.3       These Terms do not exclude, restrict or modify any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited.

15.4       If any guarantee, warranty, term or condition is implied or imposed in relation to these Terms under the Australian Consumer Law or any other applicable legislation and cannot be excluded, where PKUP is able to limit Your remedy for a breach of the non-excludable provision, then PKUP’s liability for breach of this provision is limited to the supplying of the services again, or the payment of the cost of having the services supplied again.

15.5       To the maximum extent permitted by Applicable Law:

a) PKUP is not liable for any indirect, special, incidental, exemplary, punitive, or consequential loss or damages of any kind whatsoever, or damages for loss of profits, revenue, goodwill, anticipated savings, business or opportunity, or loss or corruption of data; and
b) PKUP’s maximum total aggregate liability arising out of or in connection with these Terms or their subject matter is limited to the Trip Fee payable in respect of a particular Trip.

15.6       To the extent permitted by Applicable Law and without limiting clause 14.5, PKUP is not liable for:

a) Your reliance on the PKUP Services or any information provided by PKUP through the PKUP Services;
b) You missing or being delayed for a train, flight, event, work or any other circumstance in connection with a Trip (including following any breakdown of Your Vehicle);
c) any loss that You may incur as a result of someone else using Your PKUP Account, either with or without Your knowledge; and
d) any loss or damage that You may incur arising out of or in connection with any Trip, including the conduct of the Driver (and any other person) and any accidents, incidents and issues involving Your Vehicle.

15.7       The limitations and exclusions of liability in this clause 14 apply regardless of the basis on which such liability arises, whether in contract, breach of warranty, tort (including negligence), in equity, under statute, or on any other basis.

  1. FORCE MAJEURE

16.1       Any delay or failure to perform any obligations by either Party under these Terms will not constitute a breach of these Terms, to the extent the delay and/or failure is caused by acts of any government authorities, acts of God, fire, flood, explosion, riots, war, rebellion, or other event beyond the reasonable control of that Party (“Force Majeure”).

16.2       A Party that is affected by a Force Majeure must:

a) notify the other Party within 7 days after it becomes aware of the Force Majeure; and
b) use all reasonable efforts to avoid or minimise the effects of such Force Majeure and commence performance of its responsibilities and/or obligations under these Terms, as soon as such Force Majeure ceases.

16.3       If a Force Majeure continues for a continuous period of more than 7 seven days, either Party may terminate these Terms by notifying the other Party.

  1. TERMINATION

17.1       These Terms continue until such time as they are terminated in accordance with these Terms.

17.2       You may terminate these Terms at any time by closing Your PKUP Account.

17.3       PKUP may terminate these Terms with immediate effect upon notice to You if:

a) it is necessary to comply with any Applicable Law;
b) You cease to satisfy these Terms;
c) You commit a breach of these Terms that is not capable of remedy or (if capable of remedy) is not remedied within 4 Business Days after PKUP notifies You of the breach.

17.4       Upon termination of these Terms for any reason:

a) Your rights to use the PKUP Services will cease immediately, Your registration with PKUP and Your PKUP Account will cease to apply, and PKUP may block Your access to the PKUP Services;
b) PKUP will charge You all the amounts due and owing to PKUP at the date of termination in accordance with clause 3;
c) each Party will promptly return to the other Party all property and materials provided to it by the other Party under these Terms; and
d) the Parties must cease acting in a manner that would imply a continuing relationship between the Parties.

17.5       Clauses 11 (Privacy), 12 (Intellectual Property Rights), 13 (Indemnities), 14 (Liability), 16 (Termination), 21 (Dispute Resolution), 22 (Governing Law) and 23 (Miscellaneous) will survive termination of these Terms.

17.6       Termination of these Terms will not prejudice any rights of the Parties that may have accrued prior to such termination.

  1. PROMOTIONS/DISCOUNT CODES

17.1       Promotions and/or discount codes are subject to the following:

a) they are not valid on national, state or regional public holidays;
b) they are not valid on the 31st day of December of each year;
c) only one promotional ride can be redeemed per booking and per PKUP Account;
d) promotional rides are only valid from one pickup address to one destination address;
e) additional payment is required at time of booking if the promotional ride requires additional pickup addresses or destination addresses;
f) should PKUP and/or a Driver suspect any fraud relating to a promotion, PKUP and/or a Driver may refuse to allow You to use a promotional ride; and
g) PKUP and/or a Driver holds and reserves the right to amend, cancel, suspend or terminate all or any promotion at any time at their discretion.

  1. NOTICE

19.1       Any notices, requests and other communications required or permitted under these Terms must be in writing and sent to the recipient Party as follows:

a) by email to PKUP: support@pkup.com.au; and
b) to You by email or text message (SMS) to the email address or mobile number (as applicable) specified in Your PKUP Account.

  1. ENTIRE AGREEMENT

20.1       These Terms constitute the entire agreement between the Parties in connection with the subject matter of these Terms, and no agreement or understanding varying or extending the same will be binding on either Party unless arising out of the specific provisions of these Terms.

20.2       These Terms supersede all previous communications (either oral or written) between the Parties with respect to the subject matter of these Terms.

  1. RELATIONSHIP OF THE PARTIES

20.1       Nothing in these Terms is intended to constitute a fiduciary relationship or an agency, partnership or trust, and neither Party has authority to bind the other Party.

  1. DISPUTE RESOLUTION

22.1       The Parties agree and acknowledge that any dispute arising out of or relating to these Terms must be attempted to be resolved and settled in an amicable matter.

22.2       If a dispute is not resolved by the Parties in accordance with clause 21.1 after 60 (sixty) days of amicable negotiation, the dispute must be referred to arbitration, in accordance with claus

22.3, before a Party may resort to any form of litigation.

22.3       PKUP reserves the right to elect an arbitrator at its sole discretion and You must agree with the elected arbitrator chosen by PKUP.

22.4       The arbitrator’s decision will be final and binding on the Parties.

22.5       The Parties may seek appropriate interim or injunctive relief in any court having jurisdiction over the subject matter in accordance with Applicable Law, to enforce and/or prevent breach of its rights and remedies arising out of these Terms.

  1. GOVERNING LAW

23.1       These Terms are governed by and construed in accordance with the laws of the Commonwealth of Australia, and the Parties agree to submit to the exclusive jurisdiction of the courts of Australia.

  1. MISCELLANOUS

24.1       You may not assign or transfer any of Your rights, interests or obligations under these Terms to any third party without PKUP’s prior written approval.

24.2       PKUP may assign PKUP’s rights, interests or obligations under these Terms to any person at PKUP’s own discretion.

24.3       If any provision in these Terms is prohibited or unenforceable in the jurisdiction of the Commonwealth of Australia, these Terms will be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of these Terms or affecting the validity or enforceability of such provision.

24.4       Either Party may exercise a right, power or remedy under these Terms at its discretion and separately or concurrently with another right, power or remedy. No failure or delay on the part of either Party in exercising any right, power or privilege under these Terms will operate as a waiver, nor will any single or partial exercise of any right, power or privilege under these Terms preclude any other or further exercise of any other rights, powers or privileges by such Party.

24.5       Subject to any express provisions in these Terms, the rights, powers, or remedies of a Party under these Terms are cumulative and in addition to, without excluding or limiting, any right, power and/or remedy, in any other part of these Terms or otherwise provided at law or in equity.

 

Definitions

Applicable Laws means all Australian laws, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, statutory rules of an industry body, statutory and mandatory codes or guideline.

Business Days means any day except a Saturday, Sunday or public holiday

Cancellation Fee means the amount payable by You as a result of You cancelling a Trip in accordance with clause 5.

Company and/or PKUP means PKUP Pty. Ltd. ABN 11 614 887 053.

Device means an electronic device with a functioning mobile number with the ability to read PKUP text messages and push notifications and/or a computer enabling You to access the PKUP Services.

Driver/s means the individual driver who is registered with PKUP to provide You with Trips.

Parties means You and PKUP.

Privacy Policy means PKUP’s current privacy available at www.pkup.com.au/privarypolicy as amended from time to time, at the discretion of the Company.

PKUP Account means the PKUP account created and registered by You through the PKUP Services.

Terms and Conditions and/or Terms means these terms and conditions and PKUP’s Privacy Policy, as amended from time to time, at the discretion of the Company.

Trip means the travel performed by a Driver with Your Vehicle, which You and other passengers may be traveling in or a Vehicle Only Trip facilitated through the PKUP Services.

Trip Fee means the cost charged for a Trip, cancellation fee and/or any other additional fees specified through the PKUP Services.

PKUP Services means applications, websites, content, products and services made available by PKUP.

Registration Details means Your name, email address, telephone number and other information that You provide to PKUP upon registering to access the PKUP Services.

Roadworthy Condition means a vehicle that is of a roadworthy condition in accordance with the road safety legislation of the applicable state in which that vehicle is registered.

Vehicle means a motor vehicle (must be a motor car, not a motorcycle or scooter), owned or operated by You that will be used by the Driver for the provision of a Trip which must not exceed 4.5 tonnes GVM and car seating must not exceed 12 adults.

Vehicle Only Trip means the travel performed by a Driver with Your Vehicle, which You or any other passengers are not travelling in, facilitated through the PKUP Services.

You and/or Your means you, an individual.

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