Transport Service Provider Services Agreement terms and conditions

d@rt Transport Service Provider Services Agreement terms and conditions

This Transport Service Provider Services Agreement including the terms and conditions set out below as amended from time to time in accordance with its terms (“Agreement”) constitutes a legal agreement between the transport service provider being a company or partnership as specified on the signing page, “the TSP”) and d@rt Pty Ltd ACN 624 441 532 (“d@rt”), having its offices at 450 Graham Street, Port Melbourne VIC 3207.

Introduction

1. d@rt operates a technology platform and provides services that enable authorised transport service providers to receive, fulfill and manage requests for transportation services from Users.
2. The TSP desires to enter into this Agreement for the purpose of accessing and using the d@rt Services to enable it and its Drivers to provide Transportation Services to such Users.
3. Subject to the execution of this Agreement by the TSP, the TSP requests that d@rt provide, and d@rt agrees to provide, the d@rt Services to the TSP on the terms and conditions set out in this Agreement.

It is agreed:

1. Definitions and Interpretation

In this Agreement, the following definitions apply unless the context requires otherwise:

• “Act” means the Commercial Passenger Vehicle Industry Act 2017 (Vic).
• “ACL” means the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
• “Bus” has the meaning given under the Bus Safety Act 2009 (Vic).
• “Business Day” means a day other than a Saturday, Sunday or public holiday in Melbourne, Victoria or Sydney NSW.
• “Confidential Information” means the terms of this Agreement and its subject matter including information disclosed by a party during discussions and meetings relating to the Agreement, the d@rt Data, Driver IDs, information about Drivers, User or User Passenger Information, information relating to transaction volume, marketing and business plans, any business, financial, technical, operational information and such other information of a party (whether disclosed in writing or verbally) that a party designates as being proprietary or confidential in nature or which the other party knows or ought reasonably to be expected to know, is confidential to that party, but does not include the information described in clause 3.
• “d@rt App” means the mobile application provided to authorised Users seeking transportation services.
• “d@rt Data” means all data related to the access and use of the d@rt Services hereunder, including all data related to a User or User Passenger (including any User or User Passenger information), all data related to the provision of Transportation Services via the d@rt Services and the Driver App, and the Driver ID.
• “d@rt Services” mean the technology services provided by d@rt and rendered via a digital technology platform, being an on-demand intermediary and related services that enable transport service providers to seek, receive and fulfill on-demand requests for transportation services by a User seeking transportation services; such d@rt Services include access to the Driver App and d@rt’s related software, websites, payment services as described in clause 5 below, and related support services systems, as may be updated or modified by d@rt at its discretion from time to time.
• “Device” means a mobile device owned or controlled by the TSP or the Driver that meets the minimum operating requirements for mobile devices (if any) on which the Driver App can be installed as authorised by d@rt solely for the purpose of the TSP and its Drivers providing Transportation Services to Users.
• “Driver” means an individual driver who is a TSP employee or TSP contractor engaged by the TSP to provide the Transportation Services or an individual driver who is a partner of the TSP if the TSP is a partnership and who will provide the Transportation Services.
• “Driver App” means d@rt’s mobile application that enables transportation providers, including the TSP, and Drivers to access the d@rt Services for the purpose of seeking, receiving and fulfilling requests for transportation services by Users, and includes any updates or modifications to the application by d@rt at its discretion from time to time.
• “Driver ID” means the identification and password key assigned by d@rt to a Driver that enables a Driver to use and access the Driver App.
• “Driver Information” means any information or data about a Driver, which may include Personal Information of the Driver, that the TSP or the Driver inputs into the Driver App or otherwise provides to d@rt in connection with this Agreement.
• “Fare” has the meaning set forth in clause 1.
• “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
• “Law” means all laws, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws.
• “Notifiable Incident” has the meaning provided for under the Regulations.
• “Personal Information” has the meaning given to it in the Privacy Act.
• “Privacy Act” means the Privacy Act 1988 (Cth).
• “Regulations” means the Commercial Passenger Vehicle Industry Regulations 2018.
• “Regulator” means Commercial Passenger Vehicle Victoria, established by section 115B of the Transport Integration Act 2010.
• “Service Fee” has the meaning set forth in clause 4.
• “Territory” means all of, or specified areas within, Victoria, Australia in which the TSP and its Drivers are enabled by the Driver App to receive requests for Transportation Services.
• “Tolls” means any applicable road, bridge, ferry, tunnel and airport charges and fees, including inner-city congestion, environmental or similar charges as reasonably determined by the d@rt Services based on available information.
• “Transportation Services” means the provision of passenger transportation services to Users and User Passengers via the d@rt Services in the Territory by the TSP and its Drivers using the Vehicles.
• “User” means an end user authorised by d@rt to use d@rt Services for the purpose of obtaining Transportation Services offered by the TSP.
• “User Passenger” means an individual identified by the User as a passenger to travel in any Vehicle as a passenger.
• “User or User Passenger Information” means information about a User or User Passenger made available to the TSP or a Driver in connection with such User’s request for Transportation Services, which may include Personal Information of the User or User Passenger, including their name, pick-up location, contact information or photo.
• “Vehicle” means any vehicle of the TSP that: (a) meets the requirements of d@rt under clause 2or otherwise specified by d@rt for a vehicle on the d@rt Services; and (b) d@rt authorised for use by a Driver for the purpose of providing Transportation Services on behalf of the TSP.
• In this document, unless the contrary intention appears:
  • words importing a gender include any other gender;
  • words in the singular include the plural and words in the plural include the singular;
  • clause headings are for convenient reference only and have no effect in limiting or extending the language of provisions to which they refer;
  • words importing a person includes a partnership and a body whether corporate or otherwise;
  • a reference to dollars is a reference to Australian dollars;
  • a reference to any legislation or legislative provision includes any statutory modification, substitution or re-enactment of that legislation or legislative provision;
  • if any word or phrase is given a defined meaning, any other part of speech or other grammatical form of that word or phrase has a corresponding meaning;
  • the words “including” and “include” mean “including, but not limited to”; and
  • a reference to writing is a reference to any representation of words, figures or symbols, whether or not in a visible form.

2. Provision of d@rt Services
   • Subject to the terms and conditions of this Agreement, the TSP engages d@rt to provide, and d@rt agrees to provide to the TSP, the d@rt Services to enable the TSP and its Drivers to provide Transportation Services to Users from the date of this Agreement.
   • The TSP acknowledges and agrees that d@rt is a technology services provider and that d@rt does not provide transportation services, function as a transportation carrier, nor operate as an agent for it in relation to the transportation of passengers.
   • In requesting to use the d@rt Services, the TSP agrees to be bound by the terms and conditions of this Agreement and agrees to procure that all of its Drivers who will provide Transportation Services pursuant to this Agreement are made aware of the terms and conditions of this Agreement and agree to comply with such terms and conditions as they apply to the relevant Driver before they commence providing any Transportation Services as a Driver.
3. Use of the d@rt Services
   • Driver ID and Driver Information
     • The TSP acknowledges and agrees that in order for the TSP and its Drivers to provide Transportation Services to Users, and to enable Drivers to access and use the Driver App, the TSP and/or the Driver will be required to provide or make available to d@rt certain Driver Information of the Driver, or to upload such Driver Information to the Driver App, to enable d@rt to determine whether the Driver meets any Driver requirements or requirements to be an active driver using the d@rt Services, to authorise the Driver to access the d@rt Services and use the Driver App and to enable Users to use the d@rt App.
     • d@rt will issue a Driver ID to the TSP for each of the TSP’s Drivers providing the Transportation Services to enable them to access and use the Driver App on a Device.
     • The TSP agrees that it will, and that it will ensure that its Drivers will, maintain the Driver IDs in confidence and not share any Driver IDs with any third party, ensure that no Driver ID will be used by any person other than the Driver associated with such Driver ID, and ensure that Driver IDs are used only for the purpose of providing Transportation Services or using the Driver App.
     • The TSP agrees that it will, and that it will ensure that its Drivers will, immediately notify d@rt of any actual or suspected breach or improper use or disclosure of a Driver ID or the Driver App.
   • Provision of Transportation Services
     • When the Driver App is active, User requests for Transportation Services may appear to a Driver via the Driver App if the Driver is available and in the vicinity of the pick-up location.
     • If a Driver accepts a User’s request for Transportation Services, the d@rt Services will provide certain User or User Passenger Information to such Driver via the Driver App, including the User or User Passenger’s first name and pick-up location.
     • In order to enhance User satisfaction with the d@rt App and the Transportation Services, it is recommended that the Driver wait at least 10 minutes for a User to show up at the pick-up location.
     • The Driver will obtain the User or User Passenger’s destination from the Driver App.
     • The TSP acknowledges and agrees that once a Driver has accepted a User’s request for Transportation Services, the d@rt App may provide certain Driver Information about the Driver to the User, including the Driver’s first name, contact information, photo and the Vehicle being used by the Driver including make, location, and license plate number.
     • The TSP shall not, and shall ensure that its Drivers do not, contact any User or User Passenger or use any User or User Passenger Information for any reason other than for the purposes of fulfilling Transportation Services via the Driver App.
     • As between d@rt and the TSP, the TSP acknowledges and agrees that:(a) the TSP and its Drivers are solely responsible for determining the most effective, efficient and safe manner to perform each instance of Transportation Services; and (b) except for the d@rt Services, the TSP shall ensure all necessary equipment, devices, tools and other materials required to perform the Transportation Services are available to the TSP and its Drivers, at the TSP’s own expense.
   • The TSP’s relationship with Users
     • The TSP acknowledges and agrees that the provision of Transportation Services by the TSP and its Drivers to a User creates a legal contract and direct business relationship between the TSP and the User and that d@rt is not a party to such contract or relationship between the TSP and the User.
     • d@rt is not responsible or liable for the actions or inactions of a User or a User Passenger in relation to the activities of the TSP, a Driver or any Vehicle.
     • The TSP shall have the sole responsibility for any obligations or liabilities to a User, User Passenger or other third party that arise from its provision of Transportation Services.
     • The TSP acknowledges and agrees that it and its Drivers are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable Laws, including any requirements under the Act and the Regulations) regarding any acts or omissions of a User or User Passenger or any other third party.
     • The TSP acknowledges and agrees that d@rt may release the contact and/or insurance information of the TSP and/or a Driver to a User upon such User’s reasonable request.
     • The TSP also acknowledges and agrees that, unless specifically consented to by a User, neither the TSP nor the Driver may transport or allow inside any Vehicle individuals other than a User or User Passenger during the performance of Transportation Services for such User.
     • The TSP acknowledges and agrees further, and shall ensure that its Drivers agree, that a User or User Passenger should be transported directly to their specified destination using the route specified in the Driver App, or as otherwise directed by the applicable User or User Passenger, without unauthorised interruption or unauthorised stops.
   • The TSP’s relationship with d@rt
     • The TSP acknowledges and agrees that d@rt’s provision to the TSP of the Driver App and the d@rt Services creates a legal and direct business relationship between d@rt and the TSP.
     • d@rt does not, and shall not be deemed to, direct or control the TSP or its Drivers generally or in their performance under this Agreement specifically, including in connection with the operation of the TSP’s business, the provision of Transportation Services, the acts or omissions of its Drivers, or the operation and maintenance of any Vehicles.
     • Whilst authorised to provide Transportation Services under this Agreement, the TSP and its Drivers retain the sole right to determine when and for how long each of them will utilise the Driver App or the d@rt Services. The TSP and its Driver retain the option, via the Driver App, to attempt to accept or decline or ignore a User’s request for Transportation Services via the d@rt Services, or to cancel an accepted request for Transportation Services via the Driver App, subject to d@rt’s then-current cancellation policies.
     • The TSP will not, and will ensure that its Drivers do not: (a) display d@rt’s names, logos or colours on any Vehicle(s); or (b) wear a uniform or any other clothing displaying d@rt’s names, logos or colours. The foregoing does not apply if the TSP and d@rt have agreed otherwise, if so required by law or directed to do so by d@rt.
     • The TSP acknowledges and agrees that it has complete discretion to operate its independent business and direct its Drivers at its own discretion, including the ability to provide services at any time to any third party separate and apart from Transportation Services.
     • d@rt retains the right to, at any time in d@rt’s sole discretion, deactivate or otherwise restrict the TSP or any Driver from accessing or using the Driver App or the d@rt Services in the event of a violation of this Agreement, any Driver’s code of conduct, the TSP’s or any of its Drivers’ disparagement of d@rt, the TSP’s or any of its Drivers’ act or omission that causes harm to d@rt’s brand, reputation or business as determined by d@rt in its sole discretion. d@rt also retains the right to deactivate or otherwise restrict the TSP or any Driver from accessing or using the Driver App or the d@rt Services for any other reason at the sole discretion of d@rt (acting reasonably).
   • The TSP’s relationship with Drivers
     • The TSP acknowledges and agrees that it shall have sole responsibility for any obligations or liabilities to Drivers that arise from its relationship with its Drivers (including in connection with the provision of the Transportation Services by its Drivers on behalf of the TSP). The TSP acknowledges and agrees that it exercises sole control over the Drivers and will comply with all applicable Laws (including tax and employment laws) governing or otherwise applicable to its relationship with its Drivers.
     • Prior to any Driver using the Driver App or providing the Transportation Services on behalf of the TSP, the TSP will ensure that each of its Drivers:
       • meet the Driver requirements set out in this Agreement;
       • meet any requirements to be an active driver using the d@rt Services as notified to the TSP by d@rt in writing;
       • are authorised by d@rt to access the d@rt Services for the purpose of seeking, receiving and fulfilling requests for Transportation Services to be provided by Drivers to Users on behalf of the TSP.
     • Ratings
       • The TSP acknowledges and agrees that: (a) after receiving Transportation Services, a User will be prompted by the d@rt App to provide a rating of such Transportation Services and Driver and, optionally, to provide comments or feedback about such Transportation Services and Driver; and (b) after providing Transportation Services, the Driver will be prompted by the Driver App to provide a rating of the User and, optionally, to provide comments or feedback about the User or User Passenger. The TSP shall instruct all Drivers to provide ratings and feedback in good faith.
       • The TSP acknowledges that d@rt desires that Users have access to high-quality services via the d@rt App. In order to continue to receive access to the Driver App and the d@rt Services, each Driver must maintain an average rating by Users that exceeds the minimum average acceptable rating established by d@rt for the Territory, as may be updated from time to time by d@rt in its sole discretion (‘Minimum Average Rating’).  In the event a Driver’s average rating falls below the Minimum Average Rating, d@rt will notify the TSP and may provide the Driver in d@rt’s discretion, a limited period of time to raise his or her average rating above the Minimum Average Rating.  If such Driver does not increase his or her average rating above the Minimum Average Rating within the time period allowed (if any), d@rt reserves the right to deactivate such Driver’s access to the Driver App and the d@rt Services.  Additionally, the TSP acknowledges and agrees that repeated failure by a Driver to accept User requests for Transportation Services while such Driver is logged in to the Driver App creates a negative experience for Users of the d@rt App.  Accordingly, the TSP agrees and shall ensure that if a Driver does not wish to accept User requests for Transportation Services for a period of time, such Driver will log off of the Driver App.
       • The TSP acknowledges and agrees, and shall inform and obtain the consent of each Driver, that d@rt reserves the right to use, share and display Driver and User ratings and comments in any manner in connection with the business of d@rt without attribution to or approval of the TSP or the applicable Driver.
       • The TSP acknowledges and agrees that d@rt are distributors (without any obligation to verify) and not publishers of Driver and User ratings, and User and User Passenger comments, provided that d@rt reserves the right in its sole discretion to edit or remove comments in the event that d@rt believes such comments include obscenities or other objectionable content, include an individual’s name or other Personal Information, or violate the Privacy Act or other applicable Law, or d@rts content policies.
     • Devices
       • The TSP shall either supply Devices to each Driver or require Drivers to provide and use their own Device.
       • The TSP and/or its Drivers are responsible for the acquisition, cost and maintenance of such Devices as well as any necessary wireless data plan, and d@rt shall make available the Driver App for installation on such Devices.
       • d@rt hereby grants the TSP’s authorised Drivers or other users a personal, non-exclusive, non-transferable user licence and right to install and use the Driver App on a Device solely for the purpose of providing Transportation Services to Users or User Passengers.
       • The TSP agrees to not, and shall cause each applicable Driver to not, provide, distribute or share, or enable the provision, distribution or sharing of, the Driver App (or any data associated therewith) with any third party. The foregoing licence and right granted under clause 7.3 shall immediately terminate and the TSP and the relevant Driver will delete and fully remove the Driver App from a Device in the event that the TSP and/or the applicable Driver ceases to provide Transportation Services using that Device.
       • The TSP agrees, and shall inform each applicable Driver, that: (a) use of the Driver App on a Device requires an active data plan with a wireless carrier associated with the Device; and (b) use of the Driver App on a Device as an interface with the d@rt Services may consume very large amounts of data through the data plan.
       • d@rt recommends that Devices should only be used under a data plan with unlimited or very high data usage limits, and d@rt shall not be responsible or liable for any fees, costs, or overage charges associated with any data plan.
     • Location Based Services
       • The TSP acknowledges and agrees that each Driver’s geo-location information must be provided to the d@rt Services via the Driver App installed on a Device in order to provide Transportation Services.
       • The TSP acknowledges and agrees, and shall inform and obtain the consent of each Driver, that: (a) the Driver’s geo-location information will be monitored and tracked by the d@rt Services when the Driver is logged into the Driver App and available to receive requests for Transportation Services, or when the Driver is providing Transportation Services; and (b) the approximate location of the Vehicle being used by the Driver will be displayed to the User before and during the provision of Transportation Services to such User and User Passenger. In addition, d@rt may monitor, track and share a Driver’s geo-location information obtained by the Driver App and Device for safety, security, technical, marketing and commercial purposes, including to provide and improve d@rt’s products and services.

4. Drivers, Vehicles and the Act/Regulations
   • Driver Requirements
     • The TSP acknowledges and agrees that each Driver shall at all times: (a) hold and maintain (i) a valid driver’s licence with the appropriate level of certification to operate the Vehicle assigned to such Driver, and (ii) all licenses, permits, approvals and authority that are necessary for a Driver to provide passenger transportation services to third parties in the Territory, including any driver accreditation requirements under the Act and the Regulations; (b) possess the appropriate and current level of training, expertise and experience to provide Transportation Services in a professional manner with due skill, care and diligence; (c) comply with all applicable Law; and (d) maintain high standards of professionalism, service and courtesy.
     • The TSP acknowledges and agrees that each Driver may be subject to certain background and driving record checks from time to time in order for such Driver to qualify to provide, and remain eligible to provide, Transportation Services.
     • The TSP acknowledges and agrees that d@rt reserves the right, at any time in d@rt’s sole discretion, to deactivate or otherwise restrict a Driver from accessing or using the Driver App or the d@rt Services if the TSP or such Driver fails to meet the requirements set forth in this Agreement.
   • Vehicle Requirements
     • The TSP acknowledges and agrees that each Vehicle shall at all times be: (a) properly registered to operate as a passenger transportation vehicle in the Territory, including, if not a Bus, being registered under the Act and the Regulations (as applicable); (b) owned or leased by the TSP, or otherwise in the TSP’s lawful possession; (c) suitable for performing the passenger transportation services contemplated by this Agreement; (d) maintained in safe, roadworthy and good operating condition; and (e) inspected annually by a licensed vehicle tester and a certificate of roadworthiness provided to d@rt within 5 Business Days of being obtained.
     • The TSP agrees that each Vehicle which is not a Bus will have one of the following: a sign, sticker or similar thing affixed to the Vehicle which (a) identifies the Vehicle is a commercial passenger vehicle; (b) identifies the registered provider; (c) that are approved by the Regulator; or (d) number plates that identify the vehicle as a commercial passenger vehicle.
   • Requirements under the Act and the Regulations, and other related requirements
     • The TSP acknowledges that it and its Drivers are persons to whom the safety duties under the Act and the Regulations apply.
     • The TSP acknowledges and agrees that it is aware of and will act in accordance with all requirements imposed on it under the Act and the Regulations, and will ensure it Drivers also comply with the Act and the Regulations.
     • The TSP further agrees that it will, and will ensure that its Drivers will, in carrying out this Agreement comply with all d@rt policies, procedures and requirements as posted on the d@rt website, http://www.dart.org.au, from time to time.
     • The TSP agrees and acknowledges that its or its Driver’s continued access or use of the d@rt Services after any such policies, procedures and requirements are posted on the d@rt website constitutes their consent to be bound by the policies, procedures or requirements, and further, should any of these policies, procedures or requirements conflict with anything hereunder expressly included in this Agreement, the policies or requirements shall prevail.
     • Twenty (20) days written notice will be provided in the event of a material change to an existing term, policy, procedure or requirement that detrimentally affects the TSP’s rights under this Agreement.
   • Documentation
     • To ensure the TSP’s and each of its Drivers’ compliance with all requirements in clauses 1, 4.2 and 4.3 above, and to allow d@rt to comply with their regulatory requirements, the TSP must provide d@rt with written copies of all such licenses, permits, approvals, authority, accreditation, registrations and certifications (“Documentation”) prior to the TSP’s and the applicable Drivers’ provision of any Transportation Services. Thereafter, the TSP must submit to d@rt written evidence of all such Documentation as it is renewed.   Further, the TSP must notify d@rt each time any of a Driver’s rights to operate a vehicle have been altered or removed in any way, including suspended, disqualified or cancelled.
     • d@rt shall, upon request, be entitled to review such licenses, permits, approvals, authority, accreditation, registrations and certifications from time to time. d@rt reserves the right to independently verify the TSP’s and/or any Drivers’ Documentation from time to time in any way d@rt deems appropriate in its reasonable discretion and the TSP consents, and represents and warrants that it has obtained consent from each of its Drivers, for d@rt to undertake such verification, including by supplying the police or any relevant regulatory authority with a copy of that Documentation.

5. Financial Terms
   • Fare Calculation and Customer Payment
     • The TSP is entitled to charge a fare for each instance of completed Transportation Services provided to a User that are obtained via the d@rt Services (“Fare”), where such Fare is calculated based upon a base fare amount plus distance (as determined by d@rt using location-based services enabled through the Device and/or time amounts, as detailed at http://www.dart.org.au for the applicable Territory (“Fare Calculation”).
     • The TSP is also entitled to charge a User for any Tolls, taxes, fees or levies incurred during the provision of Transportation Services, if applicable. The TSP (i) appoints d@rt as the TSP’s limited payment collection agent solely for the purpose of accepting the Fare, applicable Tolls, taxes, fees or levies from the User on behalf of the TSP via the payment processing functionality facilitated by the d@rt Services; and (ii) agrees that payment made by a User to d@rt shall be considered the same as payment made directly by the User to the TSP.
     • d@rt agrees to remit to the TSP on at least a weekly basis: (a) the Fare less the applicable Service Fee; (b) the Tolls; and (c) any relevant taxes, fees and levies.
   • Changes to Fare Calculation
     • d@rt reserves the right to change the Fare Calculation at any time in d@rt’s discretion based upon local market factors, and d@rt will provide notice to the TSP in the event of such change that would result in a change in the Fare. Continued use of the d@rt Services after any such change in the Fare Calculation shall constitute the TSP’s consent to such change.
   • Fare Adjustment, refund or credit
     • d@rt reserves the right to: (a) adjust the Fare for a particular instance of Transportation Services (g. Driver took an inefficient route and it culminates in a User complaint, Driver fails to properly end a particular instance of Transportation Services in the Driver App, technical error in the d@rt Services, etc.); or (b) cancel the Fare for a particular instance of Transportation Services, (e.g. a User is charged for Transportation Services that were not provided, in the event of a User complaint, fraud, etc.). d@rt’s decision to reduce or cancel the Fare in any such manner shall be exercised in a reasonable manner.
     • The TSP acknowledges and agrees that in circumstances where the Fare has already been paid, when it adjusts or cancels the Fare as provided for in clause 3.1, d@rt also reserves the right to require the TSP reimburse the Fare or part of the Fare to the User. Alternatively, d@rt may provide a User with a refund payment or to credit to their account on the TSP’s behalf (after an investigation) and to recover that cost from the TSP, either by deducting from future Fares owed to the TSP, debiting the TSP’s card on file or the TSP’s bank account on record, or seeking reimbursement from the TSP by other lawful means.  The TSP authorises d@rt to use any or all of the above methods to seek reimbursement.  d@rt’s decision to require reimbursement, provide a refund payment or to credit to the User’s account shall be exercised in a reasonable manner.
     • Further, d@rt reserves the right, to seek reimbursement from the TSP if it discovers payment processing errors. d@rt may in its sole discretion obtain reimbursement of any amounts owed by the TSP to d@rt by deducting from future Fares owed to the TSP, debiting the TSP’s card on file or the TSP’s bank account on record, or seeking reimbursement from the TSP by other lawful means.  The TSP authorises d@rt to use any or all of the above methods to seek reimbursement.
   • Service Fee
     • In consideration of d@rt’s provision of the d@rt Services, the TSP agrees to pay d@rt a service fee on a per Transportation Services transaction basis calculated as a percentage of the Fare, as provided to the TSP via email, otherwise made available electronically by d@rt from time to time for the applicable Territory (“Service Fee”) or posted on d@rt’s website from time to time. As all Tolls, taxes, and fees will be calculated and charged as part of the Fare, d@rt shall calculate the Service Fee based on the Fare inclusive of such amounts except GST.
     • d@rt reserves the right to change the Service Fee at any time in d@rt’s discretion based upon local market factors, and d@rt will provide notice to the TSP in the event of such change. If d@rt increases the Service Fee, the TSP has the right to terminate the Agreement immediately without notice.  Continued use of the d@rt Services after any such change in the Service Fee calculation shall constitute the TSP’s consent to such change.
   • Cancellation and Waiting Time Charges
     • The TSP acknowledges and agrees that Users may elect to cancel requests for Transportation Services that have been accepted by a Driver at any time prior to the Driver’s arrival or cause the Driver to wait at the pick-up location. In the event that either of these circumstances occur, d@rt may charge the User a cancellation and/or waiting time fee on behalf of the TSP as provided in the Cancellation and waiting time fee policy.  If charged, this cancellation fee shall be deemed the Fare for the cancelled Transportation Services for the purpose of remittance to the TSP hereunder (“Cancellation Fee”).
   • Receipts
     • As part of the d@rt Services, d@rt provides the TSP a system for the delivery of receipts to Users for Transportation Services rendered. Upon the completion of Transportation Services for a User by a Driver, d@rt prepares an applicable receipt and issues such receipt to the User via email on behalf of the TSP and applicable Driver.  Such receipts are also provided via email or the online portal available to the TSP through the d@rt Services.
     • Receipts include the breakdown of amounts charged to the User for Transportation Services and may include specific information about the TSP and applicable Driver, including the TSP’s and the Driver’s ID and name and photo, as well as a map of the route taken by the Driver. The TSP shall ensure and shall inform Drivers to ensure that any corrections to a User’s receipts for Transportation Services must be submitted to d@rt in writing within three (3) Business Days after the completion of such Transportation Services.  Absent such a notice, d@rt shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Fare, Tolls, taxes, fees or levies.
   • Taxes
     • The TSP acknowledges and agrees that it is required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to the provision of Transportation Services as required by applicable Law; and (b) provide d@rt with all relevant tax information.
     • The TSP further acknowledges and agrees that the TSP and each of its Drivers are responsible for taxes on their own income arising from the performance of Transportation Services.
     • Notwithstanding anything to the contrary in this Agreement, d@rt may in its reasonable discretion based on applicable tax and regulatory considerations, collect and remit taxes resulting from the TSP’s and/or any Driver’s provision of Transportation Services and/or provide any of the relevant tax information the TSP and/or any Driver has provided pursuant to the foregoing requirements in this clause 7 directly to the applicable governmental tax authorities on the TSP’s and/or the applicable Driver’s behalf or otherwise.

6. Proprietary Rights; License
   • License Grant

Subject to the terms and conditions of this Agreement, d@rt hereby grants the TSP a non-exclusive, royalty-free, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use (and allows its Drivers to use) the Driver App solely for the purpose of providing Transportation Services to Users and User Passengers and tracking resulting Fares, Tolls, taxes, fees and levies.  All rights not expressly granted to the TSP and its Drivers under this clause 6.1 are reserved by d@rt and its respective licensors.

• Restrictions
  • The TSP shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the d@rt Services, Driver App or any Device in any way; (b) modify or make derivative works based upon the d@rt Services or Driver App; (c) improperly use the d@rt Services or Driver App, including creating internet “links” to any part of the d@rt Services or Driver App, “framing” or “mirroring” any part of the d@rt Services or Driver App or any other websites or systems, or “scraping” or otherwise improperly obtaining data from the d@rt Services or Driver App; (d) reverse engineer, decompile, modify, or disassemble the d@rt Services or Driver App, except as allowed under applicable Law; or (e) send spam or otherwise duplicative or unsolicited messages.
  • In addition, the TSP shall not, and shall not allow any other party to, access or use the d@rt Services or Driver App to: (a) design or develop competitive or substantially similar product or service; (b) copy or extract any features, functionality, or content thereof; (c) launch or cause to be launched or in connection with the d@rt Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the d@rt Services; or (d) attempt to gain unauthorised access to the d@rt Services or its related systems or networks, all except to the extent such actions are allowed under applicable Law.
• Ownership
  • The d@rt Services, Driver App and d@rt Data, including all intellectual property rights therein, are and shall remain (as between the TSP, the Drivers and d@rt) the property of d@rt and its licensors. Neither this Agreement nor the TSP’s or its Drivers’ use of the d@rt Services, Driver App or d@rt Data conveys or grants to the TSP any rights: (a) in or related to the d@rt Services, Driver App or d@rt Data, except for the limited license granted in clause 1; or (b) to use or reference in any manner d@rt’s or its licensors’ company names, logos, product and service names, trademarks, service marks or other indicia of ownership, unless d@rt provides its prior written consent to the TSP doing so before exercising any such rights, which consent may be given and withdrawn by d@rt in its sole discretion.
  • The TSP agrees it will not, and it will ensure that its Drivers do not, try to register or otherwise claim ownership in any of the d@rt Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark or name, unless d@rt provides its prior written consent to the TSP doing so before exercising any such rights, which consent may be given and withdrawn by d@rt in its sole discretion.

7. Confidentiality
   • Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, Confidential Information of the other party.
   • Each party acknowledges and agrees that: (a) subject to any clauses to the contrary in this Agreement, Confidential Information of a party shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except to the extent reasonably necessary to perform its obligations under this Agreement, without the other party’s prior written consent; (c) it shall not disclose Confidential Information of the other party to any third party, except to those of its employees, officers, contractors, agents and service providers who have a need to know the Confidential Information (“Permitted Persons”) and only to the extent necessary to perform its obligations under this Agreement, and provided that Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential information of the disclosing party upon the termination of this Agreement, or at the request of the other party (subject to applicable Law and, with respect to d@rt, its internal record-keeping requirements).
   • Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was already possessed by the receiving party prior to it being disclosed by the disclosing party other than through a breach of this Agreement or a breach of an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
   • The TSP acknowledges and agrees that to the extent any of its Drivers receive any Confidential Information in connection with this Agreement, the TSP is solely responsible for ensuring its Drivers comply with the requirements of this clause 7, and will ensure that its Drivers:
     • use the Confidential Information solely for the purposes of providing the Transportation Services on behalf of the TSP;
     • keep and maintain the secrecy and confidentiality of the Confidential Information, and do not disclose any of the Confidential Information without the written consent of the TSP or d@rt (as applicable);
     • notify the TSP of, and use their best endeavours to prevent or remedy, any actual or suspected unauthorised disclosure of the Confidential Information upon becoming aware of that actual or suspected unauthorised disclosure; and
     • immediately destroy or return the Confidential Information in the Driver’s possession or control upon request by the TSP or d@rt (as applicable).
   • If a Driver is required by law to disclose any Confidential Information to a third party, the TSP is responsible for ensuring, and will ensure that the Driver:
     • notifies the third party that the information is confidential to the TSP or d@rt (as applicable); and
     • if possible (i) notifies the TSP or d@rt (as applicable); and (ii) gives the TSP or d@rt (as applicable) a reasonable opportunity to take any steps that the TSP or d@rt (as applicable) considers necessary to protect the confidentiality of that information.
   • This clause 7 survives and continues in force until such time as the Confidential Information is no longer confidential other than by a breach of an obligation of confidentiality under this agreement.
8. Privacy
   • The TSP represents and warrants that prior to any Driver using the d@rt Services or the Driver App or providing the Transportation Services to Users on behalf of the TSP, it will:
     • inform its Drivers that certain Driver Information will be provided to d@rt in accordance with this Agreement (whether such Driver Information is provided to d@rt by the TSP or by the Driver directly) and that such Driver Information may include their Personal Information or any other information of the Driver required to be provided by the TSP or by the Driver to d@rt under this Agreement, including the Driver’s first name, contact information, photo , the Vehicle being used by the Driver (including make, location, and license plate number), Driver’s licensing requirements, information in relation to the use of and sharing of Driver ratings and User and User Passenger ratings and comments in respect of the Driver, use of the Driver’s geolocation information, and that certain Driver Information may be disclosed to Users and User Passengers via the d@rt App;
     • obtain each Driver’s consent to the TSP collecting, using and/or disclosing to d@rt their Driver Information or other information as described in this clause 1;
     • obtain each Driver’s consent to d@rt collecting, using and/or disclosing their Driver Information or other information as described in this clause 1, whether such information is provided to d@rt by the TSP or by the Driver directly, for the purposes of performance of this Agreement, including:
       • to enable d@rt to deliver the d@rt Services, to authorise the Driver to access the d@rt Services and use the Driver App and to enable Users to use the d@rt App;
       • the TSP and the Driver providing the Transportation Services to Users and User Passengers, including d@rt sharing their Driver Information with the TSP and Users and User Passengers via the d@rt App; and
       • for verification purposes relating to the Driver’s documentation or to the Driver meeting any requirements under this Agreement.
     • Subject to any applicable Law, d@rt may provide to a third party any Driver Information or other information (including Personal Information and any d@rt Data) about Drivers in connection with this Agreement, including if:
       • there is a complaint, dispute or conflict, including an accident, relating to a Driver and a User or User Passenger;
       • it is reasonably required to enforce the terms of the Agreement, including verifying Drivers Documentation provided for under clause 4.1of this Agreement;
       • it is required by applicable Law or regulation;
       • it is necessary, in d@rt’s reasonable opinion, to (1) protect the safety, rights, property or security of d@rt, the d@rt Services or any third party, (2) detect, prevent or otherwise address fraud, security or technical issues, and/or (3) prevent or stop activity which d@rt, in its sole discretion, considers to be, or to pose a risk of being, illegal, unethical or legally actionable; or
       • it is required or necessary, in d@rt’s sole discretion, for insurance or other purposes related to the TSP’s and/or Driver’s ability to qualify, or remain qualified, to use the d@rt Services or for the purposes of delivering the Transportation Services to Users and User Passengers; or
       • it is permitted by or reasonably necessary to perform its obligations under this Agreement.
     • The TSP understands that d@rt may retain the TSP’s and/or Driver’s Personal Information and any d@rt Data for legal, regulatory, safety, and other necessary purposes after this Agreement is terminated. d@rt collects, handles, processes and discloses Personal Information (including data referenced in clause 8 above) in accordance with its privacy policy located at http://www.dart.org.au.
     • The TSP acknowledges and agrees that it is responsible for the collection, use, storage and otherwise dealing with Personal Information in the conduct of its business and all matters relating to its business. In performing this Agreement, the TSP will comply with, and ensure that its Drivers and all of its personnel comply with, the requirements of the Privacy Act in respect of all Personal Information (including User or User Passenger Information) collected, used, stored or otherwise handled by them under or in connection with this Agreement and all Personal Information (including User or User Passenger Information) made available to or disclosed to the TSP or its Drivers in connection with this Agreement, the d@rt Services and their use of the Driver App.
     • The TSP undertakes to promptly notify d@rt upon becoming aware of any breach of the Privacy Act (or any other laws that relate to the protection of Personal Information) that may be related to the use of Personal Information (including User or User Passenger Information) by d@rt, the TSP or the TSP’s Drivers under this Agreement.

9. Insurance
   • During the term of this Agreement, the TSP must effect and maintain:
     • public liability insurance for at least $10 million per occurrence, covering claims in respect of:
       • loss of or damage to any real or personal property; and
       • the injury to, or death of, any person (other than liability which is required by Law to be insured under a workers’ compensation policy of insurance), arising out of anything done or omitted to be done by the TSP in providing the Transportation Services or the execution or purported execution of the obligations under this Agreement; and
     • workers’ compensation insurance as required by Law;
     • third party property damage insurance for at least $10 million per occurrence in respect of the Vehicles;
     • compulsory third party motor vehicle insurance in respect of the Vehicle used to provide the Transportation Services; and
     • any other insurances which d@rt reasonably requires.
   • Insurance generally

The TSP must provide notice to d@rt of any intended cancellation of insurances effected in compliance with this Agreement by the TSP.

The TSP must:

• give d@rt acceptable proof of currency and coverage of the insurances referred to in clause 1:
  • before the date of the Agreement;
  • if an insurance policy required under this clause is materially amended;
  • if an insurance policy required under this clause is cancelled; and
  • at least annually and at all other times during the term as reasonably requested by d@rt; and
• give d@rt acceptable proof of currency or coverage of any other insurance maintained by the TSP in respect of Transportation Services prior to the date of the Agreement and at all other times during the Term as reasonably requested by d@rt.

• Premiums

The TSP must pay all premiums in respect of all insurance policies referred to in clause 9.1 by the due date for payment of those premiums.

10. Representations; Disclaimer; No Service Guarantee; Limitation of Liability and Indemnification
    • Representations by the TSP

The TSP hereby represents and warrants to d@rt that: (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) it is duly organised, validly existing and in good standing under the laws of the jurisdiction of its origin; (c) it has not entered into, and during the term will not enter into, any agreement that would prevent it from complying with this Agreement; (d) it will comply with all applicable Law in its performance of this Agreement, including holding and complying with all permits, licenses, registrations and other governmental authorisations necessary to provide (i) Transportation Services using the Drivers and Vehicles pursuant to this Agreement, and (ii) passenger Transportation Services to third parties in the Territory generally; and (e) it shall require all of its Drivers to comply with the applicable terms and conditions set forth in this Agreement and all applicable Law.

• Disclaimer
  • This clause 2 applies only to the maximum extent permitted by applicable Law, and does not (and is not intended to) override any rights that the TSP has pursuant to applicable Law.
  • Subject to clause 4.2, all express or implied guarantees, warranties, representations, or other terms and conditions relating to this Agreement or its subject matter, not contained in this Agreement, are excluded from this Agreement to the maximum extent permitted by applicable Law.
  • Without limiting clause 2.2 and subject to clause 10.4, to the maximum extent permitted under applicable Law, d@rt provides, and the TSP accepts, the d@rt Services and Driver App on an “as is” and “as available” basis, and d@rt makes no representation, warranty, or guarantee:
    • that the condition, performance, accuracy, completeness, merchantability, reliability, timeliness, quality, suitability, or availability or fitness for a particular purpose of the d@rt Services or the Driver App, other than as expressly set out in this Agreement;
    • that the d@rt Services, the Driver App or any of the services requested through the d@rt Services will be uninterrupted or error free;
    • regarding the quality, suitability or safety of Users or User Passengers; or
    • that use of the d@rt Services or the Driver App will result in any requests for Transportation Services.
  • Without limiting clause 2.2 and 10.2.3:
    • d@rt functions as an on-demand lead generation and related service only and makes no representations, warranties or guarantees as to the actions or inactions of the Users or User Passengers who may request or receive Transportation Services from the TSP or any Driver hereunder, and d@rt need not screen or otherwise evaluate Users or User Passengers.
    • By using the d@rt Services and Driver App, the TSP acknowledges and agrees that the TSP or a Driver may be introduced to a third party (including Users and User Passengers) that may pose harm or risk to the TSP, a Driver or other third parties. The TSP and Drivers are advised to take reasonable precautions with respect to interactions with Users, or User Passengers and other third parties encountered in connection with the use of the d@rt Services or Driver App.
    • Notwithstanding d@rt’s appointment as the limited payment collection agent of the TSP for the purpose of accepting payment from Users on behalf of the TSP as set forth in clause 5above, d@rt expressly disclaims all liability for any act or omission of the TSP, any Driver, any User, User Passengers or other third party.
  • No Service Guarantee
    • This clause 3 applies only to the maximum extent permitted by applicable Law, and does not (and is not intended to) override any rights that the TSP has pursuant to applicable Law, and without limiting clause 10.2.
    • d@rt does not guarantee the availability of uptime of the d@rt Services or Driver App. The TSP acknowledges and agrees that the d@rt Services or Driver App may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the d@rt Services or Driver App may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications, and neither is d@rt responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems.
  • Limitation of Liability
    • This clause 4 applies only to the maximum extent permitted by applicable Law, and does not (and is not intended to) override any rights that the TSP has pursuant to applicable Law.
    • If any guarantee, warranty, term or condition is implied or imposed in relation to this Agreement under the ACL or other applicable Law and cannot be excluded (a Non-Excludable Provision), and to the extent d@rt is permitted to limit its liability for a breach of the Non-Excludable Provision then d@rt’s liability for breach of these Non Excludable Provision is limited to one or more at d@rt’s option:
      • in the case of goods, supplied to the TSP as part of the Services under this Agreement, the replacement of the relevant goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired; and
      • In the case of services supplied to the TSP as part of the Services under this Agreement, the supply of relevant Services again, or the payment of the cost of resupplying the Services.
    • Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth), including any Non-Excludable Provision or statutory guarantees that apply to goods and services purchased by consumers (as defined in that Act), and this Agreement will not be construed as excluding, qualifying or limiting any statutory rights or remedies of consumers arising under any Non-Excludable Provision or statutory guarantee except to the extent permitted by that Act where applicable.d@rt shall not be liable under or related to this Agreement for any of the following, whether based on contract, tort or any other legal theory, even if a party has been advised of the possibility of such damages: (1) any incidental, punitive, special, exemplary, consequential, or other indirect damages of any type or kind; or (ii) the TSP’s, Driver’s or any third party’s property damage, or loss or inaccuracy of data, or loss of business, revenue, profits, use or other economic advantage.
    • Except for d@rt’s obligations to pay amounts due to the TSP pursuant to clause 5 above, but subject to any limitations or other provisions contained in this Agreement which are applicable thereto, in no event shall the liability of d@rt under this Agreement exceed the amount of Service Fees actually paid to or due to d@rt hereunder in the six (6) month period immediately preceding the event giving rise to such claim.
    • The TSP acknowledges and agrees that any and all claims the TSP has or purports to have against d@rt should be notified to d@rt within one (1) year after the event(s) that gave rise to such claim and that subject to Law, the TSP forfeits all rights in respect of that claim if the TSP fails to do so.
  • Indemnification
    • The TSP shall indemnify, defend (at d@rt’s option) and hold harmless d@rt and its officers, directors, employees, agents, successors and assigns from and against any and all liabilities, costs, expenses (including legal fees), damages, penalties, fines and taxes arising out of or related to: (a) the TSP’s breach of its representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, User Passengers, regulators and governmental authorities) directly or indirectly related to the TSP’s provision of Transportation Services or access to or use of the d@rt Services (“Losses”).The TSP’s liability is reduced under this clause and shall be reduced proportionately if, and to the extent, d@rt directly caused or contributed to any such Losses.
    • As between the TSP and d@rt, the TSP is and shall be solely responsible for its Drivers’ provision of Transportation Services. As such, the TSP shall indemnify, defend (at d@rt’s option) and hold harmless d@rt and its officers, directors, employees, agents, successors and assigns from and against any and all liabilities, costs, expenses (including legal fees), damages, penalties, fines and taxes directly or indirectly arising out of or related to its Drivers’ provision of Transportation Services or access to or use of the d@rt Services.

11. Dispute resolution
    • Notice of Dispute

If a dispute or difference, other than in relation to when a party exercises its right to terminate this Agreement, arises under or in connection with this Agreement, either party may give the other written notice expressing the nature of the dispute or differences (Dispute Notice).

• Parties to meet

As soon as practicable after receipt by a party of a Dispute Notice, the parties must ensure that their respective senior authorised representatives meet and attempt to resolve the issue.

• Referral to senior executives

If the issue is not resolved within 10 Business Days of the receipt of the Dispute Notice, it will be immediately referred to the most senior executive officers of the parties who will personally or through their nominated delegates (who must be senior to the persons who met under clause 11.2) meet as soon as practical and attempt to resolve the issue.

• Referral to Expert or Arbitrator

If following the meetings described in clauses 11.2 and 11.3 the issue is not resolved within 15 Business Days of the receipt of the Dispute Notice, either party may, by notice to the other:

• if the issue is of a technical nature, identify a person who is an independent expert in its subject matter (Expert) who could be used to resolve the matter; or
• if the issue is not of a technical nature, identify an independent person (Arbitrator) who could be used to arbitrate the matter.

The parties must, within 5 Business Days after receipt of a notice under this clause 11.4, use their reasonable endeavours to agree on who to appoint as the Expert or Arbitrator.

• Issues for resolution by an Expert

An issue is of a technical nature if it is of a kind that, if it were litigated, could be resolved on expert evidence alone. If the parties are unable to agree whether or not an issue is of a technical nature, the opinion of d@rt (acting in good faith) as to whether or not the issue should be referred to an Expert prevails.

• Selection of Arbitrator or Expert

If the parties are unable to agree on who to appoint as an Arbitrator or an Expert within 5 Business Days after receipt of the notice under clause 11.3, d@rt may make the appointment. In making the appointment, d@rt must select a person who is independent of the parties and who is suitably qualified.

• Procedure on arbitration

Subject to any other provision of this document to the contrary, an arbitration is to be conducted in accordance with the Commercial Arbitration Act 2011 (Vic) (CAA) and subject to that Act, with the arbitration rules of the Resolution Institute.

• Procedure on resolution by Expert

11. The Expert appointed under clause 4 or 11.6 acts as an expert and not as an arbitrator.
12. Each party to a dispute which is referred to the Expert for determination must have a reasonable opportunity to make submissions to the Expert.
13. The costs of the Expert must be borne in equal shares by the parties.
14. The Expert’s decision is final and binding on the parties to the dispute, except to the extent of fraud, gross negligence or a manifest error.
15. The provisions of the CAA will not apply to the dispute resolution under this clause 8.
    • Court proceedings and other relief
16. A party may not start court proceedings in relation to any issue or dispute under this document unless it has complied with this clause.
17. This clause does not prohibit a party from exercising any of the rights expressly provided for in this Agreement, or seeking and obtaining appropriate injunctive or interlocutory relief from a court to preserve property or rights or to avoid Losses which are not compensable in damages.
    • Performance not affected

Subject to a either party’s right to terminate this Agreement, despite the parties having a dispute or difference, they must continue to perform their respective obligations under the Agreement.

12. Term and Termination
    • Term

This Agreement shall commence on the date that the Agreement is executed by the parties and shall continue until terminated in accordance with its terms.

• Termination
  • Either party may terminate this Agreement: (a) without cause at any time upon seven (7) days prior notice to the other party; (b) immediately, without notice, for the other party’s breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party.
  • In addition, d@rt may terminate this Agreement or deactivate the TSP or a particular Driver immediately, without notice to the TSP and/or Driver in the event the TSP and/or Driver, as applicable, no longer qualifies, under applicable Law or the standards and policies of d@rt, to provide Transportation Services or to operate the Vehicle, or as otherwise set forth in this Agreement.
• Effect of Termination

Upon termination of the Agreement, the TSP and all Drivers, as applicable, shall: immediately delete and fully remove the Driver App from any applicable Devices.  Outstanding payment obligations and clauses 1 (Definitions), 3.3 (TSP’s relationship with Users), 3.4 (TSP’s relationship with d@rt), 3.5 (TSP’s relationship with Drivers), 3.6 (Ratings), 5.7 (Taxes), 6.3 (Ownership), 7(Confidentiality), 8 (Privacy), 10 (Representations, Disclaimers), 11 (Dispute resolution), 12.3 (Effect of Termination), 13.1 (Compliance with laws), 13.2 (Modification), 13.7 (Entire Agreement), 13.8(Relationship of parties) and13.10 (Governing Law) shall survive the termination of this Agreement.

13. Miscellaneous Terms
    • Compliance with laws

The TSP agrees to comply with all applicable Law, including the Act and the Regulations.

• Modification
  • d@rt reserves the right to modify the terms and conditions of this Agreement at any time, effective upon publishing an updated version of this Agreement, as applicable, on the online portal available to the TSP on the d@rt Services.d@rt reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time.
  • The TSP hereby acknowledges and agrees that, by using the d@rt Services, or downloading, installing or using the Driver App, the TSP is bound by any future amendments and additions to this Agreement, information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Fare calculation.Continued use of the d@rt Services or Driver App after any such changes shall constitute the TSP’s consent to such changes.
• Set off

d@rt may set off against any payment due and payable by it under this Agreement to the TSP, any amount payable by the TSP to d@rt.

• Additional Terms

Additional terms may apply to the TSP’s and Driver’s use of the d@rt Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Additional Terms”).  The TSP may be presented with certain Additional Terms from time to time. Additional Terms are in addition to, and shall be deemed a part of, this Agreement.  Additional Terms shall prevail over this Agreement in the event of a conflict.

• Severability

If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part under any law, such provision or part thereof shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the remainder of this Agreement shall not be affected.  In that event, the parties shall replace the illegal, invalid or unenforceable (part of the) provision with (part of a) provision that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable (part of the) provision, given the contents and purpose of this Agreement.

• Assignment
  • The TSP may not assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party.
  • d@rt may assign or transfer this Agreement or any or all of its rights or obligations hereunder, in whole or in part, under this Agreement from time to time without consent. Should d@rt do so, the TSP has the right to terminate this Agreement immediately, without prior notice.
• Entire Agreement

This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter.  The recitals form part of this Agreement.

• Relationship of the Parties
  • Except as otherwise expressly provided herein with respect to d@rt acting as the limited payment collection agent solely for the purpose of collecting payment from Users on behalf of the TSP, the relationship between the parties under this Agreement is solely that of independent contractors. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship (including from a labor law or tax law perspective), between d@rt and the TSP or d@rt and any Driver; and (b) no joint venture, partnership, or agency relationship exists between d@rt and the TSP or d@rt and any Driver.
  • The TSP has no authority to bind d@rt and undertakes not to hold itself out, and to ensure that each Driver does not hold himself or herself out, as an employee, agent, or authorised representative of d@rt.Where, by implication of mandatory law or otherwise, the TSP or any Driver may be deemed an employee, agent or representative of d@rt, the TSP undertakes and agrees to indemnify, defend (at d@rt’s option) and hold d@rt harmless from and against any claims by any person, entity, regulators or governmental authorities based on such implied employment, agency or representative relationship.
• Notices

Any notice delivered by d@rt to the TSP under this Agreement will be delivered by email to the email address associated with the TSP’s account or by posting on the online portal available to the TSP on the d@rt Services.  Any notice delivered by the TSP to d@rt under this Agreement will be delivered by contacting d@rt at admin@dart.org.au. A notice that is:

• posted on the online portal shall be deemed to have been served at the time when it is posted;
• sent by email is taken to have been delivered one hour after the notice is sent, unless the sender’s machine receives a delivery failure report,

but if the date and time of receipt determined in accordance with subclauses (a) or (b) above is not on a Business Day or is after 5.00pm on a Business Day, the notice is taken to be received at 9.00am on the next Business Day.

• Governing Law

This document is governed by the Laws of Victoria and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria.

Execution page

d@rt:

Date:

TSP: [Complete one for TSP – select if a company or partnership (delete whichever not applicable)]

Date:

Date: