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Terms and Conditions
Mercer Cycles
Terms and Conditions
HIRE TERMS
These Hire Terms, together with any Hire Form provided to a Customer, set out the agreement (this Agreement) under the terms of which the Customer (the Customer, you, your) will rent the Bike from The eBike Specialist Pty Ltd ABN 79 662 099 498 (The eBike Specialist, we, us, our).
1. HIRE FORM, THIS AGREEMENT
(a) These Hire Terms will apply to all the Customer’s dealings with The eBike Specialist, including being incorporated in all agreements, quotations or orders under which The eBike Specialist is to rent out an Bike to the Customer (each a ‘Hire Form’) together with any additional terms included in such Hire Form (provided such additional terms are recorded in writing).
(b) The Customer will be taken to have accepted this Agreement if:
(i) the Customer accepts a Hire Form; or
(ii) if the Customer orders, accepts or pays for any Bike provided by The eBike Specialist after receiving or becoming aware of this Agreement.
(c) The eBike Specialist may accept or reject any request to rent out a Bike to a Customer and is under no obligation to accept any particular request.
(d) By accepting this Agreement, the Customer acknowledges and warrants that:
(i) the Customer has read and agreed to these Hire Terms;
(ii) all information provided to The eBike Specialist is true, correct and complete;
(iii) the Customer has the legal capacity to enter into this Agreement; and
(iv) before renting any Bike, the Customer will provide to The eBike Specialist:
A. a copy of the Customer’s valid photograph identification showing the Customer’s current residential address (either a current driver's licence or WA Photo Card); and
B. a signed copy of this Agreement, including Schedule 1 and Schedule 2 of this Agreement.
(v) For the avoidance of doubt, the Customer may sign this Agreement and the Schedules on separate occasions and in doing so, will not invalidate or otherwise affect the operation of this Agreement.
(e) In the event of any inconsistency between these Hire Terms and any Hire Form, the clauses of these Hire Terms will prevail to the extent of such inconsistency.
2. HIRE
(a) The eBike Specialist rents out the Bike to the Customer and the Customer accepts from The eBike Specialist the hire of the Bike for the Hire Term upon and subject to the provisions of this Agreement.
(b) The eBike Specialist rents out the Bike to the Customer on the terms of this Agreement in consideration for the Customer’s acceptance of the terms of this Agreement, including the Customer’s agreement to pay any fees and other payments that become payable under this Agreement.
3. PRE HIRE
The Customer warrants that they will:
(a) read and sign The eBike Specialist’s guidelines and/or instructional material prior to the Start Date;
(b) undertake or otherwise complete any pre-hire inspection processes prior to the Start Date; and
(c) ensure that any person collecting or taking delivery of the Bike on behalf of the Customer is authorised by the Customer to do so.
4. BOOKING CHANGES
4.1 DATE CHANGE
(a) The Customer may change the date of their booking at no charge up until 72 hours prior to the Start Date.
(b) If the Customer requests a booking change within 72 hours of the Start Date, they will be charged the Booking Change Fee.
(c) All date change requests must be made by emailing fremantle@theebikespecialist.com.au or by calling 0478 075 964.
4.2 NAME CHANGE
(a) The Customer may change the name on their booking up until 24 hours prior to the Start Date.
(b) The Customer acknowledges that change requests made within 24 hours of the Start Date will not be accepted.
(c) All name change requests must be made by emailing fremantle@theebikespecialist.com.au or by calling 0478 075 964.
5. BIKE USE
(a) (Pick-up) The Bike must be picked up on the Start Date, at the Start Time and from the Collection & Return Address.
(b) (Return) The Customer must return the Bike to the Collection & Return Address on or before the Return Time on the Return Date. If the Customer fails to return the Bike before the Return Time, the Customer must promptly pay the Late Payment Charge for each 1-hour period after the Return Time during which the Bike has not been returned.
(d) (Condition on return) The Bike must be returned in Original Condition. For the purpose of this clause, ‘Original Condition’ means the same state (excluding ordinary wear and tear) and complete with all the tools, tyres, accessories and equipment.
(e) Notwithstanding any other clause in this Agreement, The eBike Specialist may demand the early return of the Bike to The eBike Specialist, or retake possession of the Bike, if The eBike Specialist reasonably suspects that:
(i) damage to the Bike or injury to any person in connection with the Bike is reasonably likely; or
(ii) the Bike may be used for an unlawful purpose.
5.2 USE
(a) The Customer must, at all times while using the Bike, wear:
(i) a helmet compliant with Australian standards.
(ii) closed toe footwear; and
(iii) upper and lower body clothing.
(b) While not a requirement, The eBike Specialist recommends that the Customer wears a full-face helmet and additional protective equipment, which may include but is not limited to; knee and elbow protection, chest and back protection, gloves, eyewear and neck braces.
(c) The Customer must ensure that the Bike is only used:
(i) in a safe, proper and skilful manner;
(ii) in circumstances where the Customer is always in control and within their ability;
(iii) with precaution and regard to the Customer’s and other people’s safety;
(iv) in such a way that ensures the Bike will be returned to The eBike Specialist in its Original Condition;
(v) strictly by the Customer only, and the Customer must ensure that no other person uses the Bike;
(vi) in accordance with the Bike manufacturer’s requirements, recommendations and instruction manuals;
(vii) in accordance with any instructional material or guidelines provided by The eBike Specialist; and
(viii) in accordance with all Laws, rules and regulations applicable to the Bike and its use, including rules relating to the use of bicycles on roads, wearing a helmet while operating a bicycle and permitted cycling locations.
(d) The Customer must:
(i) keep any records in relation to the use of the Bike reasonably required by The eBike Specialist, as notified to the Customer from time to time; and
(ii) keep the Bike in the Customer’s custody at all times.
5.3 PROHIBITED ACTIONS
(i) use the Bike for any dangerous or illegal purpose, contest or performance test;
(ii) attempt any trail or road, unless they have the ability to do so;
(iii) use the Bike where the Customer has a physical or mental condition which may impact their ability to safely operate the Bike;
(iv) allow any person except the Customer to operate the Bike;
(v) smoke or drink alcohol while using the Bike;
(vi) transport another person on the Bike;
(viii) sublease, rent, sell, or otherwise transfer the Bike to any other person (the Customer will be solely responsible for any damage or loss caused to the Bike while it is in the possession of a third-party);
(ix) use the Bike when it is damaged or unsafe, including due to any technical or mechanical faults;
(x) make any alterations to the Bike, including by attempting to remove any paint and/or stickers from the body of the Bike or affixing any other stickers or labelling on the body of the Bike; or
(xi) affix or install any accessories, equipment or device on or to the Bike without The eBike Specialist’ prior written consent.
(b) If the Customer breaches clause 5.3(a) above, The eBike Specialist may terminate this Agreement immediately in accordance with clause 16.1 and the Customer will be liable to pay any fees and other payments under this Agreement.
6. PAYMENT
6.1 FEES
The Customer must pay the Hire Fees and the Bond to The eBike Specialist, in the amounts and at the times set out in the Hire Form, or as otherwise agreed in writing.
6.2 TIME FOR PAYMENT
6.3 PAYMENT METHOD
The Customer must pay Fees using the fee payment method specified in the Hire Form.
6.4 GST
Unless otherwise indicated, amounts stated in a Hire Form do not include GST. In relation to any GST payable for a taxable supply by The eBike Specialist, the Customer must pay the GST subject to The eBike Specialist providing a tax invoice.
6.5 CARD SURCHARGES
The eBike Specialist reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
6.6 CREDIT CARD STORAGE
The eBike Specialist will store the Customer’s credit card details for use at a later date, if required in relation to any additional charges set out in this Agreement or loss or damage to the Bike caused or contributed to by the Customer.
7. BOND AND CREDIT CARD AUTHORISATION
(a) To hire the Bike to the Customer, The eBike Specialist requires the payment of a bond as set out in the Hire Form or as otherwise specified by The eBike Specialist, to cover any fees, damage or issues with the Bike (Bond).
(b) Upon return of the Bike:
(i) The eBike Specialist may claim the Bond against any amount owed by the Customer to The eBike Specialist under this Agreement; and
(ii) once The eBike Specialist is reasonably satisfied that there has not been any damages or issues in relation to the Bike and the Customer does not owe any amounts to The eBike Specialist, or if the owing amounts have been claimed from the Bond and there is a remaining amount, then the relevant remaining amount will be paid back to the Customer’s original payment method. The eBike Specialist will endeavour to do this on the same day as return of the Bike, where practical.
7.2 CREDIT CARD AUTHORISATION
(c) The Customer authorises The eBike Specialist:
(i) to keep the credit card details they provide as part of paying the Bond (Credit Card) on file; and
(ii) to use the Credit Card to recoup any amounts owed to The eBike Specialist after the return of the bike, to the extent those amounts exceed the Bond.
(d) The Customer authorises and requests that The eBike Specialist debits payments from the Credit Card in accordance with this clause 7.
(e) The Customer must ensure that the Credit Card has at all times available capacity to be charged any amount potentially payable under this Agreement.
8. TECHNICAL FAULTS, ACCIDENTS & DAMAGE
8.1 TECHNICAL FAULT
If the Bike breaks down or has a fault or issue during the Hire Term (Fault), then:
(b) the Customer must not attempt to use the Bike if it is unsafe to do so.
(c) If, following the inspection, The eBike Specialist determines that the Fault:
(i) has not been caused by the Customers breach of this Agreement; and
(ii) such Fault is unable to be repaired within a timely manner,
then the Customer will be entitled to a pro rata refund of the Hire Fees based on the period of actual use (Refund).
(d) The Refund amount will be determined at the sole discretion of The eBike Specialist and by reference to the Hire Period initially agreed and the period of actual use.
8.2 LOSS, DAMAGE AND ACCIDENTS
(a) If the Bike is involved in an accident or claim during the Hire Term, or if damage or loss is sustained to the Bike (including if the Bike is lost, stolen or vandalized), the Customer, or the person or property of any third party in connection with the Bike, the Customer must:
(i) immediately report the incident to The eBike Specialist as soon as practicable, if the incident cannot be reported immediately;
(ii) not, without The eBike Specialist’ prior written consent, make or give any offer, promise of payment, settlement, waiver, release or admission of liability in relation to the incident, except as required by Law; and
(iii) provide to The eBike Specialist, within a reasonable time, any statement, information or assistance which The eBike Specialist or an insurer requests, including by attending a lawyer’s office or a court to give evidence.
(b) The Customer must not, and must not allow any third party, to service, repair, fix or otherwise alter the Bike, including replacing any parts of the Bike.
9. CUSTOMER’S LIABILITY IN RELATION TO LOSS, DAMAGE AND PERSONAL INJURY
(a) The Customer will be fully responsible to The eBike Specialist for:
(i) any loss or damage to the Bike during the Hire Term, or otherwise when the Bike is in the Customer’s possession, notwithstanding whether the loss or damage was the Customer’s fault, and must give reasonable notice to The eBike Specialist in writing of any such loss or damage; and
(ii) all personal injury or damage to the property of any person or any other vehicle which is caused or contributed to by the Bike during the Hire Term, or otherwise when the Bike is in the Customer’s possession.
(b) The eBike Specialist will provide an invoice to the Customer for the cost of an incident described in clause 9(a) above, which must be paid at the times set out in such an invoice.
10. PERSONAL PROPERTY
The eBike Specialist is not liable to any person for any loss of, or damage to, of any personal property that is left in the Bike after its return to The eBike Specialist or stolen from the Bike or otherwise lost or damaged during the Hire Term.
11. OWNERSHIP, POSSESSION, TITLE AND GPS TRACKING
11.1 OWNERSHIP AND GPS TRACKING
(a) The Bike is, and will at all times be and remain, the property of The eBike Specialist, notwithstanding delivery of the Bike to the Customer or the possession and use of the Bike by the Customer.
(b) The Customer will not have any right, title or interest in or to the Bike except as expressly set out in this Agreement.
(c) The eBike Specialist reserves the right to fit all Bikes with a GPS or other similar tracking device in order to locate the Bike at all times, however the Customer will be notified of this beforehand. The Customer must not remove, attempt to remove or otherwise tamper with such a tracking device at any time.
11.2 POSSESSION
The Customer must not, without The eBike Specialist’ prior written consent, part with possession of the Bike during the Hire Term.
12. INSURANCE
(a) The Customer acknowledges that The eBike Specialist may, in its discretion, hold insurances in relation to the Bike but such insurances may not cover the Customer or the Customer's use of the Bike and The eBike Specialist will have no obligation or requirement to insure the Customer's use of the Bike under this Agreement. The Customer is strongly encouraged to take out adequate insurance to cover all potential liabilities that could arise from their use of the Bike.
(b) If The eBike Specialist notifies the Customer that it holds insurance in relation to the Bike, the Customer must not do or permit anything to be done which may make The eBike Specialist' insurance invalid or able to be cancelled or which may increase The eBike Specialist' insurance premiums.
(c) The eBike Specialist reserves the right to apply any insurance policy it does hold in respect of the Bike during the Hire Term, to damage or loss caused or contributed to by the Customer, however The eBike Specialist is under no obligation to. If The eBike Specialist chooses to make a claim under an applicable insurance policy in accordance with this clause in respect of any damage or loss during the Hire Term, the Customer will be required to pay any excess payable by The eBike Specialist in respect of such a claim.
13. RISK, LIABILITY AND INDEMNITIES
13.1 RISK
(a) The Customer will bear all risk of loss or destruction of, or damage to, the Bike and its accessories during the Hire Term, or otherwise when the Bike and its accessories is in the Customer’s possession.
(b) The Customer assumes all risks and liability for the Bike and for its use, operation, maintenance, repair and storage (including but not limited to loss of profits, loss of revenue, consequential damage, inconvenience or loss of use for any period of time) and for injuries to or deaths of persons and damage to property arising in connection with such use, operation, maintenance, repair or storage.
13.2 LIABILITY
To the maximum extent permitted by applicable law, the maximum aggregate liability of The eBike Specialist to the Customer in respect of loss or damage sustained by the Customer under or in connection with this Agreement is limited to the total Hire Fees paid to The eBike Specialist by the Customer as at the date of the first event giving rise to the relevant liability.
13.3 PRODUCT LIABILITY AND ASSUMPTION OF RISK
The Customer acknowledges and agrees that the use of Bike may be potentially dangerous and could cause injuries or death to the Customer or third parties or damage to property. By renting or using the Bike, the Customer assumes, to the maximum extent permitted by applicable law, all the risks inherent in the use of the Bike, including the risk of death, injury or damage to personal property occasioned by the use of the Bike, regardless of how such death, injury or damage was sustained and whether as a result of malfunctions of the Bike or other faults of The eBike Specialist.
13.4 INDEMNITY
The Customer agrees at all times to indemnify and hold harmless The eBike Specialist and its officers, employees and agents ("those indemnified") from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Customer or the Customer's officers’, employees’ or agents’:
(a) breach of any term of this Agreement; or
(b) negligent, fraudulent or criminal act or omission.
13.5 CONSEQUENTIAL LOSS
The eBike Specialist will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this Agreement or any goods or services provided by The eBike Specialist, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
14. WARRANTIES
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this Agreement are excluded.
(b) The eBike Specialist does not represent or warrant that hiring an Bike is suitable for the Customers particular circumstances and does not guarantee any particular outcome.
(c) Nothing in this Agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Customer may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
15. DISPUTE RESOLUTION
(a) A party claiming that a dispute has arisen under or in connection with this Agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this Agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
16. TERMINATION
16.1 TERMINATION BY THE EBIKE SPECIALIST
The eBike Specialist may terminate this Agreement immediately by written notice to the Customer if:
(a) the Customer is in breach of any term of this Agreement; or
(b) The eBike Specialist reasonably suspects that:
(i) damage to the Bike or injury to any person in connection with the Bike is reasonably likely; or
(ii) the Bike may be used for an unlawful purpose.
16.2 TERMINATION BY THE CUSTOMER
(a) The Customer may terminate this Agreement by contacting The eBike Specialist at fremantle@theebikespecialist.com.au or by calling 0478 075 964.
(b) Where the Customer terminates this Agreement:
(i) 72 hours or more prior to the Start Date, The eBike Specialist will provide the Customer with a 50% refund of any Hire Fees paid; and
(ii) less than 72 hours prior to Start Date, aal Hire Fees paid are non-refundable.
16.3 EFFECT OF TERMINATION
(a) Upon termination of this Agreement, the Customer must promptly:
(i) pay any amounts due to The eBike Specialist; and
(ii) subject to any contrary direction given by The eBike Specialist, deliver the Bike and any other goods provided therewith to The eBike Specialist.
16.4 SURVIVAL
Any provision of this Agreement which, by its nature, would reasonably be expected to be performed after the termination, will survive and be enforceable after such termination.
17. NOTICES
(a) A notice or other communication to a party under this Agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in the Hire Form, or if no email address is specified in the Hire Form, then the email address most regularly used by the parties to correspond regarding the subject matter of this Agreement as at the date of this Agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party's Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or
(ii) when replied to by the other party,
18. GENERAL
18.1 GOVERNING LAW AND JURISDICTION
This Agreement is governed by the law applying in Western Australia, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Western Australia, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
18.2 BUSINESS DAYS
If the day on which any act is to be done under this Agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this Agreement expressly specifies otherwise.
18.3 AMENDMENTS
This Agreement may only be amended in accordance with a written agreement between the parties.
18.4 WAIVER
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
18.5 SEVERANCE
Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
18.6 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
18.7 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.
18.8 COUNTERPARTS
This Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one agreement.
18.9 COSTS
Except as otherwise provided in this Agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
18.10 ENTIRE AGREEMENT
This Agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.