d@rt Individual Driver Services Agreement terms and conditions
This Individual Driver Services Agreement including the terms and conditions set out below (“Agreement”) as amended from time to time in accordance with its terms constitutes a legal agreement between you, the individual driver specified on the signing page (“you”) and d@rt Pty Ltd ACN 624 441 532, having its offices at 450 Graham Street, Port Melbourne VIC 3207, (“d@rt”).
- d@rt operates a technology platform and provides services that enables drivers to seek, receive and fulfil requests for transportation services from Users.
- You desire to enter into this Agreement for the purpose of accessing and using the d@rt Services to enable you to provide Transportation Services to such Users.
- You request that d@rt provide, and d@rt agrees to provide, the d@rt Services to you on the terms and conditions set out in this Agreement.
It is agreed:
- Definitions and Interpretation
In this Agreement, the following definitions apply unless the context requires otherwise:
- “Act” 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.
- “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 an authorised User 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 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 enables transport providers to seek, receive and fulfill on-demand requests for transportation services by Users 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.
- “Driver App” means the mobile application provided by d@rt that enables transportation providers, including individual drivers, to access the d@rt Services for the purpose of seeking, receiving and fulfilling on-demand request 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 number assigned by d@rt to you that enables you to use and access the Driver App.
- “Driver Information” means any information or data about you, which may include Personal Information about you, input into the Driver App or otherwise you provide 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 the 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 you are enabled by the Driver App to receive requests for Transportation Services (if any).
- “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 you using the Vehicle.
- “User” means an end user authorised by d@rt to use d@rt App for the purpose of obtaining Transportation Services offered by you.
- “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 you 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 your vehicle that: (a) meets the requirements of d@rt under clause 4.2 or otherwise specified by d@rt for a vehicle on the d@rt Services; and (b) is authorised by d@rt for use by you for the purpose of providing Transportation Services.
- “Your Device” means a mobile device owned or controlled by you 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 you providing Transportation Services to Users.
- 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.
- Provision of d@rt Services
- Subject to the terms and conditions of this Agreement, you engage d@rt to provide, and d@rt agrees to provide to you, the d@rt Services to enable you to provide Transportation Services to Users of the d@rt App from the date of this Agreement.
- You acknowledge and agree 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 the transportation of passengers.
- In requesting to use the d@rt Services, you agree to be bound by the terms and conditions of this Agreement.
- Use of the Services
- Driver ID and Driver Information
- You acknowledge and agree that in order for you to provide Transportation Services to Users, and to enable you to access and use the Driver App, you will be required to provide or make available to d@rt certain Driver Information, or to upload such Driver Information to the Driver App, to enable d@rt to determine whether you meet any requirements to be an active driver using the d@rt Services, to authorise you 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 you with a Driver ID to enable you to access and use the Driver App on Your Device in accordance with this Agreement.
- You agree that you will maintain your Driver ID in confidence and not share your Driver ID with any third party and you will ensure that your Driver ID is used only for the purpose of providing Transportation Services or using the Driver App.
- You will immediately notify d@rt of any actual or suspected breach or improper use or disclosure of your Driver ID or Driver App.
- Provision of Transportation Services
- When the Driver App is active, User requests for Transportation Services may appear to you via the Driver App if you are available and in the vicinity of the pickup location.
- If you accept a User’s request for Transportation Services, the d@rt Services will provide you with certain User or User Passenger Information via the Driver App, including the User or User Passenger’s first name and pickup location.
- In order to enhance User satisfaction with the d@rt App and your Transportation Services, it is recommended that you wait at least 10 minutes for a User to show up at the requested pickup location.
- You will obtain the destination the User or User Passenger’s from the User from the Driver App.
- You acknowledge and agree that once you have accepted a User’s request for Transportation Services, the d@rt App may provide certain Driver Information about you to the User, including your first name, contact information, photo and the Vehicle’s make, location, and license plate number.
- You shall not contact any User or User Passenger or use any User or User Passenger’s personal data for any reason other than for the purposes of fulfilling Transportation Services via the Driver App.
- As between d@rt and you, you acknowledge and agree that: (a) you shall be 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, you shall provide all necessary equipment, devices, tools and other materials, at your own expense, to perform the Transportation Services.
- Your relationship with Users
- You acknowledge and agree that the provision of Transportation Services by you to a User creates a legal contract and direct business relationship between you and the User and that d@rt is not a party to such contract or relationship between you 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 you, your activities or the Vehicle.
- You shall have the sole responsibility for any obligations or liabilities to a User, User Passenger or other third party that arise from your provision of Transportation Services.
- You acknowledge and agree that you 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 required under the Act and the Regulations) regarding any acts or omissions of a User or User Passenger or any other third party.
- You acknowledge and agree that d@rt may release your contact and/or insurance information to a User upon such User’s reasonable request.
- You acknowledge and agree that, unless specifically consented to by a User, you may not transport or allow inside the Vehicle individuals other than a User or User Passenger during the performance of Transportation Services for such User.
- You acknowledge and agree further, 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.
- Your relationship with d@rt
- You acknowledge and agree that d@rt’s provision to you of the Driver App and the d@rt Services creates a legal and direct business relationship between d@rt and you.
- d@rt does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Transportation Services, your acts or omissions, or your operation and maintenance of the Vehicle.
- Whilst authorised to provide Transportation Services under this Agreement, you retain the sole right to determine when and for how long you will utilise the Driver App or the d@rt Services. You retain the option, via the Driver App, 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.
- You will not: (a) display d@rt’s names, logos or colours on the 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 you and d@rt have agreed otherwise, if so required by law or directed to do so d@rt.
- You acknowledge and agree that you have complete discretion as to whether you will provide the Transportation Services or otherwise engage in other business or employment activities, 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 you from accessing or using the Driver App or the d@rt Services in the event of a violation of this Agreement, your disparagement of d@rt, your 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 you 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).
- You acknowledge and agree 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 you and, optionally, to provide comments or feedback about you and such Transportation Services; and (b) after providing Transportation Services, you 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. You shall provide ratings and feedback in good faith.
- You acknowledge that d@rt desires that Users have access to high-quality services via d@rt’s App. In order to continue to receive access to the Driver App and the d@rt Services, you must maintain an average rating by Users that exceeds the minimum average acceptable rating established by d@rt for your Territory, as may be updated from time to time by d@rt in its sole discretion (‘Minimum Average Rating’). In the event your average rating falls below the Minimum Average Rating, d@rt will notify you and may provide you, in d@rt’s discretion, a limited period of time to raise your average rating above the Minimum Average Rating. If you do not increase your average rating above the Minimum Average Rating within the time period allowed (if any), d@rt reserves the right to deactivate your access to the Driver App and the d@rt Services. Additionally, you acknowledge that your repeated failure to accept User requests for Transportation Services while you are logged in to the Driver App creates a negative experience for Users of d@rt’s App. If you do not wish to accept User requests for Transportation Services for a period of time, you will log off of the Driver App.
- You acknowledge and agree that d@rt reserves the right to use, share and display your and User ratings and comments in any manner in connection with the business of d@rt without attribution to or approval of you.
- You acknowledge and agree that d@rt are distributors (without any obligation to verify) and not publishers of your 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, other applicable laws, or d@rts’ content policies.
- You are responsible for the acquisition, cost and maintenance of Your Device as well as any necessary wireless data plan, and d@rt shall make available the Driver App for installation on Your Device.
- d@rt hereby grants you a personal, non-exclusive, non-transferable user licence and right to install and use the Driver App on Your Device solely for the purpose of providing Transportation Services to Users or User Passengers.
- You agree 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 6.2 shall immediately terminate and you will delete and fully remove the Driver App from Your Device in the event that you cease to provide Transportation Services using that Device.
- You agree that: (i) use of the Driver App on Your Device requires an active data plan with a wireless carrier associated with Your Device, which data plan will be provided by you at your own expense; and (ii) use of the Driver App on Your Device as an interface with the d@rt Services may consume very large amounts of data through the data plan.
- d@rt recommends that Your Device 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
- You acknowledge and agree that your geo-location information must be provided to the d@rt Services via the Driver App installed on Your Device in order to provide Transportation Services.
- You acknowledge and agree that: (a) your geo-location information will be monitored and tracked by the d@rt Services when you are logged into the Driver App and available to provide Transportation Services, or when you are providing Transportation Services; and (b) the approximate location of the Vehicle 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 your geo-location information obtained by the Driver App and Your Device for safety, security, technical, marketing and commercial purposes, including to provide and improve d@rt’s products and services.
- You, Your Vehicle, and the Act/Regulations
- Your Requirements
- You acknowledge and agree that at all times, you shall: (a) hold and maintain (i) a valid driver’s licence with the appropriate level of certification to operate the Vehicle, and (ii) all licenses, permits, approvals and authority applicable to you that are necessary for you 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 laws; and (d) maintain high standards of professionalism, service and courtesy.
- You acknowledge and agree that you may be subject to certain background and driving record checks from time to time in order to qualify to provide, and remain eligible to provide, Transportation Services.
- You acknowledge and agree that d@rt reserves the right, at any time in d@rt’s sole discretion, to deactivate or otherwise restrict you from accessing or using the Driver App or the d@rt Services if you fail to meet the requirements set forth in this Agreement.
- Vehicle Requirements
- You acknowledge and agree that the Vehicle which is not a Bus 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; (b) owned or leased by you, or otherwise in your 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.
- You agree that the 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 as a commercial passenger vehicle; (b) identifies the registered provider; (c) that are approved by the Regulator; or number plates that identify the vehicle as a commercial passenger vehicle.
- Requirements under the Act and the Regulations, and other related requirements
- You acknowledge that you are a person to whom the safety duties under the Act and the Regulations apply.
- You acknowledge and agree that you are aware of and will act in accord with all requirements imposed on you under the Act and the Regulations.
- You further agree that you will, in carrying out this Agreement, comply with all d@rt policies, procedures and requirements as posted on the d@rt website (www.dart.org.au) from time to time.
- You agree and acknowledge that your continued access or use of the d@rt Services after any such policies, procedures and requirements are posted on the d@rt website constitutes your 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 your rights under this Agreement.
- To ensure your compliance with all requirements in clauses 1, 4.2 and 4.3 above, you must provide d@rt with written copies of all such licenses, permits, approvals, authority, accreditation, registrations and certifications (“Documentation”) prior to your provision of any Transportation Services. Thereafter, you must submit to d@rt written evidence of all such Documentation as it is renewed. Further, you must notify d@rt each time any of your 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 Documentation from time to time in any way d@rt deems appropriate in its reasonable discretion, including by supplying the police or any relevant regulatory authority with a copy of that Documentation.
- Financial Terms
- Fare Calculation and Customer Payment
- You are 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 Your Device and/or time amounts, as detailed at dart.org.au for the applicable Territory (“Fare Calculation”).
- You are also entitled to charge a User for any Tolls, taxes, fees or levies incurred during the provision of Transportation Services, if applicable. You (i) appoint d@rt as your limited payment collection agent solely for the purpose of accepting the Fare, applicable Tolls, taxes, fees and levies from the User on your behalf via the payment processing functionality facilitated by the d@rt Services; and (ii) agree that payment made by a User to d@rt shall be considered the same as payment made directly by the User to you.
- d@rt agrees to remit to you 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 you in the event of such change that would result in a change in Fare. Continued use of the d@rt Services after any such change in the Fare Calculation shall constitute your 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. you took an inefficient route and it culminates in a User complaint, you fail 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.
- You acknowledge and agree 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 you to 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 your behalf (after an investigation) and to recover that cost from you, either by deducting from future Fares owed to the TSP, debiting the your card on file or your bank account on record, or seeking reimbursement from you by other lawful means. You authorize 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 you if it discovers payment processing errors. d@rt may in its sole discretion obtain reimbursement of any amounts owed by you to d@rt by deducting from future Fares owed to you, debiting your card on file or your bank account on record, or seeking reimbursement from you by other lawful means. You authorise 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, you agree to pay d@rt a service fee on a per Transportation Services transaction basis calculated as a percentage of the Fare, as provided to you via email or otherwise made available electronically by d@rt from time to time for the applicable Territory (“Service Fee”). As all Tolls, taxes, fees and levies 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 you in the event of such change. Continued use of the d@rt Services after any such change in the Service Fee calculation shall constitute your consent to such change.
- Cancellation and Waiting Time Charges
- You acknowledge and agree that Users may elect to cancel requests for Transportation Services that have been accepted by you at any time prior to your arrival or cause you 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 your behalf as provided for 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 you hereunder (“Cancellation Fee”).
- As part of the d@rt Services, d@rt provides you a system for the delivery of receipts to Users for Transportation Services rendered. Upon the completion of Transportation Services for a User by you, d@rt prepares an applicable receipt and issues such receipt to the User via email on your behalf. Such receipts are also provided via email or the online portal available to you through the d@rt Services.
- Receipts include the breakdown of amounts charged to the User for Transportation Services and may include specific information about you, including your name and contact information , as well as a map of the route taken by the you. You must 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.
- You acknowledge and agree that you are 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.
- You further acknowledge and agree that you are responsible for taxes on your 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 your provision of Transportation Services and/or provide any of the relevant tax information you have provided pursuant to the foregoing requirements in this clause 7 directly to the applicable governmental tax authorities on your behalf or otherwise.
- Proprietary Rights; License
- License Grant
- Subject to the terms and conditions of this Agreement, d@rt hereby grants you a non-exclusive, royalty-free, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, 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 you under this clause 1 are reserved by d@rt and its respective licensors.
- You 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 Your 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, you 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.
- The d@rt Services, Driver App and d@rt Data, including all intellectual property rights therein, are and shall remain (as between you and d@rt) the property of d@rt and its licensors. Neither this Agreement nor your use of the d@rt Services, Driver App or d@rt Data conveys or grants to you 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 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 you doing so before exercising any such rights, which consent may be given or withdrawn by d@rt in its sole discretion.
- You agree you will 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 you doing so before exercising any rights, which consent may be given or withdrawn by d@rt in its sole discretion.
- 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 rights and 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.
- Subject to all applicable Laws, you consent to d@rt providing to a third party any information (including Personal Information and any d@rt Data) about you provided in connection with this Agreement, including if:
(a) there is a complaint, dispute or conflict, including an accident, between you and a User or User Passenger;
(b) it is reasonably required to enforce the terms of the Agreement, including verifying Driver Documentation provided for under clause 4.4.1 of this Agreement;
(c) it is required by applicable Law or regulation;
(d) 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;
(e) it is required or necessary, in d@rt’s sole discretion, for insurance or other purposes related to your 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
(f) it is permitted by or reasonably necessary to perform its obligations under this Agreement.
- You acknowledge and agree that you are responsible for the collection, use, storage and otherwise dealing with Personal Information in the conduct of your business and all matters relating to your business. In performing this Agreement, you will 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 you under or in connection with this Agreement and all Personal Information (including User or User Passenger Information) made available to or disclosed to you in connection with this Agreement, the d@rt Services and your use of the Driver App.
- You undertake 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 or by you under this Agreement.
- During the term of this Agreement, you must effect and maintain insurances as required by d@rt under its d@rt policies and requirements posted on the d@rt website (www.dart.org.au) from time to time.
You must provide notice to d@rt of any intended cancellation of insurances effected in compliance with this Agreement by you.
- give d@rt acceptable proof of currency and coverage of the insurances referred to in clause 9.1(if any):
- 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 you 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.
You must pay all premiums in respect of all insurance policies referred to in clause 9.1 (if any) by the due date for payment of those premiums.
- Representations; Disclaimer; No Service Guarantee; Limitation of Liability; and Indemnification
- Representations by You
- You hereby represent and warrant to d@rt that: (a) you have full power and authority to enter into this Agreement and perform your obligations hereunder; (b) you have not entered into, and during the term will not enter into, any agreement that would prevent it from complying with this Agreement; (c) you will comply with all applicable Laws in your 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 Vehicle pursuant to this Agreement, and (ii) passenger Transportation Services to third parties in the Territory generally.
- 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 you have 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 you accept, the d@rt Services and Driver App on an “as is” and “as available” basis, and d@rt makes no representation, warranty, or guarantee: (a) regarding 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; (b) 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; (c) regarding the quality, suitability or safety of Users or User Passengers; or (d) that use of the d@rt Services or the Driver App will result in any requests for Transportation Services.
- Without limiting clauses 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 you, and d@rt need not screen or otherwise evaluate Users or User Passengers.
- By using the d@rt Services and Driver App, you acknowledge and agree that you may be introduced to a third party (including Users and User Passengers) that may pose harm or risk to you or other third parties. You 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 you for the purpose of accepting payment from Users on behalf of you as set forth in clause 5 above, d@rt expressly disclaims all liability for any act or omission of you, any User, User Passenger 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 you have 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. You acknowledge and agree 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.
- 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 you have 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 you 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 you 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: (a) any incidental, punitive, special, exemplary, consequential, or other indirect damages of any type or kind; or (b) your 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 you 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.
- You acknowledge and agree that any and all claims you have or purport 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 you forfeit all rights in respect of that claim if you fail to do so.
- You 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) Your breach of your 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 your provision of Transportation Services or access to or use of the d@rt Services (“Losses”). Your 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 noted in clause 7, you shall comply with all your obligations under tax laws to the extent applicable under this Agreement. You shall indemnify d@rt from all tax liabilities, duties, levies, claims and penalties that you may be imposed on you, or on d@rt, as a result of your failure to comply with any of these obligations. In particular, but without limitation to the foregoing, such taxes or duties shall include taxes, wages or other duties or withholdings arising in the event that the relationship described in this Agreement, contrary to the meaning and intent of the parties, should be held to be an employment agreement between d@rt and you by a government authority or court.
- Dispute resolution
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).
As soon as practicable after receipt by a party of a Dispute Notice, the parties must attempt to resolve the issue.
- Referral to Expert or Arbitrator
If the issue is not resolved within 15 Business Days of the receipt of the Dispute Notice, either party may, by notice to the other:
(a) 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
(b) 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 11.3, 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.
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
(a) The Expert appointed under clause 11.4 or 11.6 acts as an expert and not as an arbitrator.
(b) Each party to a dispute which is referred to the Expert for determination must have a reasonable opportunity to make submissions to the Expert.
(c) The costs of the Expert must be borne in equal shares by the parties.
(d) 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.
(e) The provisions of the CAA will not apply to the dispute resolution under this clause 11.7.
- Court proceedings and other relief
(a) A party may not start court proceedings in relation to any issue or dispute under this document unless it has complied with this clause.
(b) 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.
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.
- Term and Termination
- This Agreement shall commence on the date that the Agreement is executed by you (electronically or otherwise) and shall continue until terminated in accordance with its terms.
- 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 your Driver ID immediately, without notice, with respect to you in the event that you no longer qualify, 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, you shall: immediately delete and fully remove the Driver App from any of Your Devices. Outstanding payment obligations and clauses 1 (Definitions), 3(Your relationship with Users), 3.4 (Your relationship with d@rt), 3.5 (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), 13.9 (Entire Agreement), 13.10(Relationship of parties) and 13.12 (Governing Law) shall survive the termination of this Agreement.
- Miscellaneous Terms
- Compliance with laws
- You agree to comply with all relevant laws, including the Act and the Regulations.
- 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 you on the d@rt Services.d@rt reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time.
- You hereby acknowledge and agree that by using the d@rt Services, or downloading, installing or using the Driver App, you are 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 your consent to such changes.
- Set off
- d@rt may set off against any payment due and payable by it under this Agreement to you, any amount payable by you to d@rt.
- Additional Terms
- Additional terms may apply to your 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”). You 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.
- 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.
- You may not assign or transfer this Agreement or any of your 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, you have the right to terminate this Agreement immediately, without prior notice.
- Entire Agreement
- This Agreement, including the recitals and all Additional Terms, 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. In this Agreement, the words “including” and “include” mean “including, but not limited to”. 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 your behalf, 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 form a labor law, or tax law perspective), between d@rt and you; and (b) no joint venture, partnership, or agency relationship exists between d@rt and you.
- You have no authority to bind d@rt and undertake not to hold yourself out as an employee, agent, or authorised representative of d@rt.Where, by implication of mandatory law or otherwise, you may be deemed an employee, agent or representative of d@rt, you undertake and agree 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.
Any notice delivered by d@rt to you under this Agreement will be delivered by email to the email address associated with your account or by posting on the online portal available to you on the d@rt Services. Any notice delivered by you to d@rt under this Agreement will be delivered by contacting d@rt at firstname.lastname@example.org. 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.
|EXECUTED by d@rt Pty Ltd ACN 624 441 532 in accordance with section 127 of the Corporations Act 2001 (Cth) by:
Director/Company Secretary signature
Director/Company Secretary name
|EXECUTED by [insert driver name and ABN if applicable] by it authorised signatory:
Signature of driver
Name (please print)