Interpreting your rental agreement
INTERPRETING YOUR RENTAL AGREEMENT – Part B
The Rental Agreement ("Rental Agreement") between TMTR and You is made on the date shown on the Rental Document You have signed in respect of the Motorcycle ("Rental Document") and is made up of that Rental Document and these Terms and Conditions.
In these Terms and Conditions:
“Australian Consumer Law” means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (cth) as amended or replaced from time to time.
"Authorised Rider / Joint Renter" means: an additional rider who is noted on the Rental Agreement as an Authorised Rider or Joint Renter.
‘Collection Costs’ means TMTR reasonable costs of collecting unpaid rental charges from You (including TMTR legal costs) and Oggy enterprises Pty Ltd administration fee of $132.00 (incl GST) and its debt collection agents fee equal to 12% of the unpaid rental charges;
‘Excess Amount’ means the amount shown as Excess Amount on the Rental Agreement.
‘Excess Reduction’ means the product called Excess Reduction that You may purchase before the rental commences to reduce any excess amount payable;
‘Loss Damage Waiver’ means the loss damage waiver described on the Rental Agreement as LDW which reduces Your financial responsibility for loss damage to the Motorcycle to the Excess Amount;
"TMTR" means Oggy Enterprises Pty Ltd trading as Tasmanian Motorcycle Tours and Rentals. ABN 180 822 172 76
‘Rental Charges’ means the fees, costs, amounts and charges specified on the Rental Agreement.
"Rental Period" means the period commencing on the date shown on the Rental Document and ending on the date that You return the Motorcycle to TMTR;
"Substitute Motorcycle Insurance" means a policy of motor motorcycle insurance held by You or an Authorised Rider which covers You or the Authorised Rider while You or the Authorised Rider use the Motorcycle as a substitute for the motorcycle insured under that policy;
"Motorcycle" means the motorcycle described on the Rental Document (or any substitute motorcycle), and includes its parts, components, accessories and contents supplied by TMTR;
"You" or "Your" refers to the person(s) with whom the Rental Agreement is made.
Unless otherwise agreed by TMTR:-
(a) Only You or an Authorised Rider will ride the Motorcycle; and
(b) You and any Authorised Rider are currently licensed to ride the Motorcycle and have been so licenced to ride for a period of 12 months or longer (excluding any time under a learner's permit or a provisional licence); and
(c) You and the Authorised Rider are not under 25 years age; and
(d) You and the Authorised Rider have not had Your rider’s licence cancelled, endorsed or suspended within the last three years.
2 WHERE YOU CAN AND CANNOT RIDE THE MOTORCYCLE
2.1 You and any Authorised Rider must only use the Motorcycle on a road, which is properly formed and constructed as a sealed, metalled or graded gravel road.
2.2 You and any Authorised Rider must not ride or take the Motorcycle:
(a) out of Tasmania
(b) in the snow.
(c) above the snow line.
(d) on beaches or through streams, dams, rivers or flood waters;
(e) outside any town or city limits between sunset and sunrise
2.3 If the Rider and or Authorised Rider are in breach of the terms and conditions of the Rental Agreement, they are in breach of contract and are responsible for any loss, consequential damage or liability.
3 USE OF THE MOTORCYCLE
3.1 You and any Authorised Rider must:
(a) not allow the Motorcycle to be used for any illegal purpose, race, contest or performance test of any kind;
(b) not allow the Motorcycle to be used to tow or push anything;
(c) not carry more passengers than may be properly accommodated, or carry a greater load than that for which it was built;
(d) not be under the influence of alcohol, drugs or have a blood alcohol content that exceeds the legal limit in the State or Territory in which the Motorcycle is driven;
(e) not allow the Motorcycle to be used to carry passengers for payment or reward of any kind;
(f) not use the Motorcycle when it is damaged or unsafe;
(g) not use the Motorcycle to transport goods, except in compliance with
all necessary approvals, permits, licences and government requirements (to be obtained at Your cost) and in accordance with the Motorcycle manufacturer's and TMTR’s recommendations;
(h) not use the Motorcycle for the conveyance or towing of any load which is incorrectly loaded or secured or is in excess of that for which the Motorcycle was constructed;
(i) not use the Motorcycle to carry any inflammable substance which has a flash point under 22.8°C or any other explosive or corrosive substances; and
(j) not use the Motorcycle in contravention of any law.
3.2 You must pay for any unauthorised repairs to the Motorcycle and for all parking and traffic infringements in respect of the Motorcycle during the Rental Period.
3.3 You and any Authorised Rider must not carry any animal or pet on the motorcycle.
3.4 You and any Authorised Rider must not ride the motorcycle if TMTR has so directed You and any Authorised Rider.
4 MAINTENANCE, SECURITY AND SAFETY
4.1 You and any Authorised Rider must:
(a) maintain all of the Motorcycle’s engine oils and engine coolant levels to the manufacturer’s specifications, as set out in the Motorcycle’s operations manual as required to maintain the Motorcycle’s efficient performance;
(b) keep the Motorcycle locked and the keys under Your or the Authorised Rider’s personal control at all times.
4.2 You must not service the Motorcycle or have repairs to the Motorcycle carried out unless TMTR authorises You to do so. TMTR requires verification of the cost of repairs for audit and GST purposes. You should obtain an original tax invoice/receipt to assist TMTR. TMTR will reimburse You for any repairs to the motorcycle authorised by it, provided that the cost of those repairs is verified to the extent that TMTR cannot verify the cost of repairs, TMTR will not reimburse You.
4.3 You and TMTR acknowledge that the Motorcycle is generally in an undamaged condition except as otherwise stated on the Rental Document.
5 LOSS DAMAGE WAIVER, DAMAGE AND LOSS OF PROPERTY
5.1 Subject to this clause 5,and to the fullest extent permitted by applicable law, You are liable:
(a) for the loss of, and all damage to, the Motorcycle; and
(b) for all damage to the property of any person:
(i) which is caused or contributed to by You or an Authorised Rider; or
(ii) which arises from the use of the Motorcycle by You or an Authorised Rider.
This clause 5 does not apply to any damage or loss for which TMTR is liable to You under this Rental Agreement.
Remember that references to the "Motorcycle" include all of its parts, components, accessories and contents (see the definition of "Motorcycle" in clause 1).
5.2 Subject to clause 5.3, if:
(a) You accept the Loss Damage Waiver option on the Rental Document at the commencement of the Rental Period; and
(b) where applicable, You pay the excess shown on the Rental Document for each separate event involving damage to or loss of, the Motorcycle or for each separate event involving damage to the property of any third party which is caused by or arises from the use of the Motorcycle by You or an Authorised Rider, TMTR:
(c) waives Your liability under clause 5.1 for damage to the Motorcycle or loss of the Motorcycle;
(d) provided that You and any Authorised Rider are entitled to be indemnified under a policy of motor motorcycle insurance provided by a registered insurer for Your and an Authorised Rider’s legal liability to a third party for damage to the property of that third party which is caused by the use of the Motorcycle by You or an Authorised Rider.
5.3 You must always pay, and clause 5.2 does not cover:
(a) the excess shown on the Rental Document if there is damage to or loss of the Motorcycle or if there is damage to the property of any third party;
(b) the cost of rectifying any punctures and tyre damage (not attributable to normal wear and tear);
(c) the cost of repairing any damage caused deliberately or recklessly by:
(ii) any other rider of the Motorcycle; or
(iii) any passenger carried during the Rental Period;
(d) the cost of repairing any damage to the Motorcycle or to third party property caused by You or an Authorised Rider using, or permitting the Motorcycle to be used,
in any area prohibited by the Rental Agreement;
(e) the cost of repairing any water damage to the Motorcycle and any resulting damage from that to the Motorcycle.
(f) under any circumstances where the Motorcycle has been refuelled with fuel other than that recommended by the Motorcycle manufacturer.
(h) under any circumstances where the Motorcycle and its keys are unsecured
5.4 For the purposes of this clause 5, You must pay for any damage or repair that may be reasonably determined by TMTR the amount which includes:
(a) the cost of repairs to the Motorcycle or the market value of the Motorcycle
at the time of the loss or damage, whichever is the lesser;
(b) appraisal fees;
(c) towing, storage and recovery costs;
(d) a reasonable administrative fee reflecting the cost of making arrangements
for repairs and towing and other administrative activities; and
(e) a per day loss of use fee based on the estimated downtime of the
If the amount determined by TMTR and paid by You under this clause 5.4 exceeds the final cost of the damage or repair, TMTR will refund the difference to You.
5.5 Roadside assistance. - Pickup is free if it is clear that our motorcycle has suffered a mechanical or electrical failure. If the failure is due to your (or any authorised rider’s) negligence or mistreatment, then you will be liable for pick up charges.
6 RETURN OF MOTORCYCLE
6.1 You must return the Motorcycle to TMTR:
(a) to the place, on the date and by the time shown on the Rental Document (or sooner if required under clause 6.4);
(b) in the same condition as it was at the commencement of the Rental Period, fair wear and tear excepted;
(c) with a full tank of fuel (or otherwise pay to TMTR the cost to refuel the Motorcycle).
6.2 You must return the Motorcycle to a TMTR location during our normal business hours. If You return the motorcycle later than the time shown on the rental document, You must pay all additional rental charges.
(a) You return the Motorcycle on a date, or at a time, or to a place other than that shown on the Rental Document; or
(b) any special conditions set out in the “Rates” section on the Rental Document are breached, the rates shown on the Rental Document will not apply and You must pay the TMTR standard rate for the Motorcycle for the Rental Period.
6.4 TMTR may request the immediate return of the Motorcycle, or TMTR may re-take the Motorcycle without notice, if TMTR reasonably suspects that:
(a) You have breached a term or condition of the Rental Agreement;
(b) damage to the Motorcycle, or injury to persons or property is likely to occur; or
(c) the Motorcycle will be involved in an industrial dispute; or
(d) the Motorcycle may be used for an unlawful purpose;
You must also pay TMTR any cost it incurs as well as all costs and charges under the Rental Agreement for the period up to return/repossession of the Motorcycle.
6.5 TMTR reserves the right to refuse hire of another motorcycle to You following any incident or accident or where You have breached a condition of this Rental Agreement.
7 CLAIMS AND PROCEEDINGS
7.1 Where the use of the Motorcycle by You, an Authorised Rider, or any other person results in an accident or claim, or where damage or loss is sustained to the Motorcycle or any third party property, You and/or any Authorised Rider must:
(a) promptly report such incident to the local police;
(b) promptly report such incident in writing to TMTR;
(c) not, without TMTR’s written consent, make or give any offer, promise of payment, settlement, waiver, release, indemnity or admission of liability;
(d) permit TMTR or its insurer at its own cost to bring, defend, enforce or settle any legal proceedings against a third party in Your name;
(e) permit or ensure that TMTR may claim in Your name or that of the Authorised Rider under any applicable Substitute Motorcycle Insurance, and assist, and cause the Authorised Rider to assist, TMTR in making such a claim, including assigning any right to claim under any Substitute Motorcycle Insurance to TMTR;
(f) complete and furnish to TMTR within a reasonable time any statement, information or assistance which TMTR or its insurer may reasonably require, including attending at a lawyer's office and at Court to give evidence.
8.1 At the end of the Rental Period, You must pay TMTR on demand:
(a) all charges specified on the Rental Document and all charges payable under the Rental Agreement;
(b) any amount paid or payable by TMTR or You to any person arising out of Your use of the Motorcycle or imposed on You or TMTR by any governmental or other competent authority (such as speeding, parking and traffic fines and toll charges); and
(c) any amount for which You are liable to TMTR under the Rental Agreement, in respect of a breach of the Rental Agreement or otherwise.
8.2 The minimum charge You must pay for the rental of the Motorcycle is an amount equivalent to:
(a) one day's rental at the "daily rate" shown on the Rental Document (subject to clause 6.4); plus
(b) the amount payable for the number of kilometres driven during the Rental Period.
8.4 You authorise TMTR to charge all moneys payable to TMTR under the Rental Agreement to Your credit card or charge account.
8.5 TMTR will pay any refund due to You by such method as TMTR may reasonably choose.
9 LIABILITY OF TMTR
9.1 Unless it is negligent, TMTR is not liable to any person, and You indemnify TMTR, for any loss of, or damage to, any property:
(a) stolen from the Motorcycle or otherwise lost during the rental; or
(b) left on the Motorcycle after its return to TMTR.
10 CONSUMER RIGHTS STATEMENT
All Your rights set out in this Rental Agreement are in addition to Your rights as a consumer under applicable consumer protection legislation, including the Australian Consumer Law.
Your consumer rights are not excluded, modified, or restricted by this Rental Agreement. You can find out more about your consumer rights from consumer organisations and bodies such as the Australian Competition and Consumer Commission and State or Territory fair trading authorities.
11.1 Either party may terminate the Rental Agreement at any time if the other party commits a material breach of the Rental Agreement.
11.2 You may terminate the Rental Agreement at any time for any other reason.
11.3 If the Rental Agreement is terminated early for any reason other than a breach by TMTR, You agree to pay rental charges that reflect the actual duration of the rental. Such charges may be higher than those that apply for a longer rental period.
12.1 The Rental Agreement contains the whole agreement between the parties.
12.2 Any waiver by a party of any one breach or default by the other party will not constitute a waiver of any other breach or default.
12.3 The agreement is governed by the law of the State or Territory of the Rental location. The parties submit to the non-exclusive jurisdiction of the courts of that State or Territory and any courts which may hear appeals from those courts in respect of any proceedings in connection with this agreement. The parties will not object to the exercise of jurisdiction by those courts on any basis.
13 PRESUMPTIONS AND INTERPRETATION
13.1 Unless the context otherwise requires:
(a) A word which denotes the singular denotes the plural and vice versa;
(b) Any gender denotes the other genders; and
(c) A person includes an individual, a body corporate and a government body.
13.2 Unless the context otherwise requires, a reference to:
(a) Any legislation includes any regulation or instrument made under it and where amended, re-enacted or replaced means that amended, re-enacted or replaced legislation;
(b) Any other agreement or instrument, where amended or replaced, means that agreement or instrument as amended or replaced.
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