Terms of Use

Last Updated 7 November 2019

1. Background

eMoped Pty Ltd ACN 631 764 844 (eMoped, We, Our, Us and other similar terms) provide a service which enables the user (User, You, Your and other similar terms) to:

(a). view the content on the website, located at the url https://emoped.com.au/ (Website); and
(b). use the Android and/or iOS versions of the mobile app (App) to rent electric Mopeds.

Collectively termed the service (Service).
You acknowledge and agree that You have had sufficient opportunity to read and understand the terms and conditions contained in this document (Terms of Use). By making use of any part of this Service You agree to be bound by these Terms of Use. If You do not agree to these Terms of Use, You must:
(a). not make use of any part of the Service;
(b). uninstall the App; and
(c). cease accessing the Website.


2. Your obligations

2.1 Registration
(a). You must register an account with Us via the App before making use of any of the Mopeds. Further information on how to register via the App can be located by following this link (Registration Process).
(b). Upon verification of Your account, payment method and drivers licence We will activate Your account and You will have access to make use of the Mopeds.
(c). We reserve Our right to refuse Your application, at Our sole and absolute discretion. If we reject Your application, You must immediately uninstall the App and cease using the Service.

2.2 Payment
(a). You must pay for use of the Service each time You make use of the Mopeds, beginning from the earlier of when You reserve or take control of the Moped. The rates for use of the Mopeds is set out on Our rate sheet (viewable here Rate Sheet) which may be amended from time to time, in Our sole discretion. It is Your responsibility to make Yourself aware of the current rates before making use of the Moped.
(b). You acknowledge and agree, payment for use of the Mopeds, and all associated fees, will be deducted automatically via the Payment Method You provided on registration of Your Account.
(c). You are responsible to pay any applicable taxes and bank fees associated with the use of the Service and Payment Method.
(d). We will provide You a tax invoice via email upon receipt of payment.
(e). Supplemental terms may apply to various promotions, rewards and giveaways which We carry out from time to time, in Our sole discretion. Such supplemental terms will not be detrimental to these Terms of Use.

2.3 General obligations
(a). (Accidents, damage, theft or vandalism) If You are involved in an accident, or damage occurs while You are in possession of the Moped You must, as soon as practicable, contact Our Support Line and report the incident. You must comply with Our reasonable demands in relation to the incident including, but not limited, to completing any police report, insurance report or incident report. If You are unable to contact Our Support Line You must report the incident, as soon as practicable, to the local police force.
(b). (Alcohol and other drugs) You must not operate the Moped if You are under the influence of alcohol or any other drugs which have the potential to impede Your capacity to operate the Moped. For the avoidance of any doubt, You must always have a blood alcohol concentration of .00 whenever You operate the Moped.
(c). (Compliance with Road Rules) You are required to comply with all Road Rules in the state in which You use the Services. A failure to comply with Road Rules may lead to fines, penalties and damages which You are solely liable for, and which Our insurance may not cover.
(d). (Faults) You are required to inspect the Moped before beginning Your ride. If the Moped indicates a fault or You have a reasonable belief a fault exists You must not ride the Moped and You must notify Us via the Support Line. If a fault occurs while You are operating the Moped, You must immediately find a safe place to stop and contact the Support Line.
(e). (Fines, infringements and tolls) You are solely responsible for any parking fines, towing fees, tolls or traffic infringements incurred while You are in control of the Moped. In addition, if You leave the Moped in a parking zone, where a parking fine is reasonably foreseeable to be incurred within the next forty eight (48) hours, You will be liable for any parking fine incurred as a result of leaving the Moped in that zone. Any amounts incurred as anticipated by this clause will be charged to You via the Payment Method and where necessary We will provide Your details to any relevant authority.
(f). (Loss) You are responsible for ensuring the Moped and any accessories, including the helmets, are always safely secured while You are in possession of the Moped and on completion of its use. We will charge You for all cost We incur arising from Your failure to comply with this clause.
(g). (Network, devices and data access) You are solely responsible for obtaining Your own network access and compatible mobile device in order to use the Service. Any connection, data, device or other similar fees associated with using the Service are incurred by You.
(h). (Passengers) You must not carry a passenger on the Moped if You do not hold the requisite motorcycle licence. Where You do carry a passenger, the combined weight of the riders must not exceed 150 kilograms.
(i). (Phone holder) You acknowledge the generic mobile phone holder attached to the Moped is not suitable for all makes and models of mobile devices. It is your sole responsibility to ensure suitability for your phone taking into consideration the Moped may vibrate and travers bumpy roads. The use of the phone holder is at your sole risk.
(j). (Repairs) You are responsible for any repairs, in excess of normal wear and tear, and which is not otherwise covered by insurance, which arise from Your use of the Moped. For the avoidance of any doubt You may be liable for damage caused if You fail to comply with the local Road Rules, operating the Moped off road or allowing anyone other than Yourself from operating the Moped.
(k). (Return of the Moped) On completion of use, the Moped must be returned to a Designated Parking Area. Within the Designated Parking Area, You must ensure the Moped is parked it in an official council nominated motorcycle parking bay, which has no time limits, meter fees or clearway conditions. It is Your sole responsibility to ensure the Moped has sufficient battery power to complete Your journey and return it to a Designated Parking Area. You are also responsible for ensuring the helmets are securely locked in their compartment.

2.4 Accounts and security
(a). You are responsible for ensuring no one other than You uses Your installation of the App or any Moped accessed via that App.
(b). If You become aware of any unauthorised use of Your Account, You must notify us immediately by email at the address for notices set out in clause 13(e).
(c). You must keep all usernames and passwords to the App strictly confidential and You remain responsible for:
(i). all activity that occurs via the Service and the App using Your Account, whether authorised or not;
(ii). ensuring the security of the username and password; and
(iii). ensuring all account data is correct, accurate and up to date.


3. Insurance

We hold insurance as required by law for the registration of the Moped only. The insurance We hold does not cover any personal injury, harm, damage loss or death of You or any passenger You carry on the Moped. Nor does Our insurance cover any personal belongings You leave, in on or with the Moped. Any insurance You require is solely Your responsibility.


4. Apple iOS platform

4.1 Application
This clause 4 applies if You have obtained the App through the Apple App Store™.  In the event of a conflict between a provision of this clause 4 and any other provision of these Terms of Use, the provision of this clause will prevail.

4.2 Acknowledgement
You and We acknowledge that these Terms of Use is between You and Us, and not with Apple, and We, not Apple, are responsible for the App and the Service.

4.3 App licence
(a). Your licence to use the App is limited to a non-transferable licence to use the App on any iPhone, iPod Touch, iPad or other Apple iOS device that You own or control, and as permitted by the Usage Rules set forth in the App Store Terms of Service (App Store TOS).
(b). If any provision of these Terms of Use provides for Usage Rules for the App which are less restrictive than the Usage Rules for the APP contained in the App Store TOS, or are otherwise in conflict with the App Store TOS, the terms in the App Store TOS prevail and these Terms of Use are modified to the extent of any inconsistency.

4.4 Support
We are solely responsible for maintenance and support services for the App, if required by applicable law.  You and We acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.

4.5 Warranty
We and not Apple are responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed by these Terms of Use.  In the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price of the App. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App.

4.6 Product claims
You and We acknowledge that We, not Apple, are responsible for addressing any claims against You or any third party relating to the App or the end-user’s possession and/or use of that App, including, but not limited to:
(a). product liability claims;
(b). any claim the App fails to conform to any applicable legal or regulatory requirement; and
(c). claims arising under consumer protection or similar legislation.

4.7 IP rights
You and We acknowledge that, in the event of any third party claim that the App or Your possession and use of the App infringes a third party’s intellectual property rights, We, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim.

4.8 Legal compliance
You represent and warrant:
(a). You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and
(b). You are not listed on any U.S. Government list of prohibited or restricted parties.

4.9 Third Party Beneficiary
You and We acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Use, and that, upon Your acceptance of the terms and conditions of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce this Terms of Use against You as a third party beneficiary thereof.


5. Google Play platform

5.1 Application
This clause 5 applies if You have obtained the App through the Google Play platform (Google Play).  In the event of a conflict between a provision of this clause 5 and any other provision of these Terms of Use, the provision of clause 5 will prevail.

5.2 Acknowledgement
You and We acknowledge these Terms of Use are between You and Us, and not with Google, and We, not Google, are responsible for the App and the Service.

5.3 App Licence
Subject to Your compliance with these Terms of Use, We provide You a personal, revocable, limited and non-transferable licence to use the App.

5.4 IP rights
You and We acknowledge that, in the event of any third party claim that the App or Your possession and use of the App infringes the third party’s intellectual property rights, We, not Google, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim.

5.5 Product claims
You and We acknowledge that We, not Google, are responsible for addressing any claims against You or any third party relating to the App or the end-user’s possession and/or use of that App, including, but not limited to:
(a). product liability claims;
(b). any claim that the App fails to conform to any applicable legal or regulatory requirement; and
(c). claims arising under consumer protection or similar legislation.

5.6 Support
We are solely responsible for maintenance and support services for the App, if required by applicable law.  You and We acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to the App.

5.7 Warranty
We and not Google are responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed by these Terms of Use.

5.8 Refunds
You are entitled to seek a refund of the price paid for Your licence to use this App from Google within forty-eight (48) hours of Your purchase.

5.9 Reinstalls
(a) You are entitled to unlimited reinstalls of the App (Reinstall Right).
(b) Notwithstanding clause 5.9(a) in the event the App is removed from Google Play due to an allegation of:
(i) Intellectual Property infringement;
(ii) defamation;
(iii) violation, or the actual violation of a third party’s right of publicity and privacy; or
(iv) the App does not comply with law, or any determination that the App does not comply with the law,

Your Reinstall Right will not apply.
(c). You acknowledge and agree if You are unable to exercise Your Reinstall Right pursuant to clause 5.9(b), to the fullest extent permissible by law, We have no liability to You.


6. Intellectual Property

(a). All title, ownership rights and Intellectual Property, including copyright in relation to the Website and App is owned or used under licence by eMoped.
(b). You must not and must not permit any person to directly or indirectly alter, replicate, copy, recreate, create derivative work from, decompile, reverse engineer, reverse assemble, reverse compile, enhance, interfere with or with part of the Service or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Website or App or any documentation associated with it, with the intent to recreate the Service or provide information about it to any third party.
(c). You must not and must not permit any person to copy or reproduce, or create an adaptation or translation of, all or part of the Website or App in any way, except to the extent reproduction occurs automatically through its ordinary use.


7. Warranties

7.1 Your Warranties
You Warrant:
(a). You are a natural person over the age of eighteen (18) years old;
(b). You have a valid licence to operate the Mopeds in the jurisdiction in which You use the Service;
(c). the driver’s licence You provide via the App is Yours, current, valid, unaltered and a true copy;
(d). all the information provided by You to Us when You register to use the App is accurate complete and up to date;
(e). at the conclusion of Your use of the Moped will return it to, and park it, within a Designated Parking Area in an official motorcycle parking bay which has no time limits, meter fees or clearway conditions;
(f). You will operate the vehicle safely and in accordance with all applicable Road Rules.

7.2 Disclaimer of warranties
(a). To the fullest extent permissible by law, the App, Service and the Website are provided to the You without any representations or warranties.
(b). Use of the Service is on an ‘as is’ basis and there is no guarantee they will be continuously available. The Service will be unavailable from time to time for reasons including but not limited to: internet bandwidth and other connectivity issues; system maintenance; and unforeseen outages.
(c). Nothing in these Terms of Use excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited.  Such legislation includes the Australian Consumer Law which contains guarantees that protect the purchasers of goods or services in certain circumstances.

7.3 Warranties regarding capacity
Each Party represents to each other, as at the date of Registration:
(a). it has taken all necessary action to authorise its entry into and performance of these Terms of Use;
(b). it has the power to enter into and perform its obligations under these Terms of Use; and
(c). its obligations under these Terms of Use are valid and binding and enforceable against it in accordance with its terms.


8. Liability and duty of care

8.1 Your liability
(a). You are liable for any loss or damage directly or indirectly caused by any breach of Your obligations or Warranties under this Agreement.
(b). In the event you cause damage to the Moped, You are liable to pay liquidated damages as set out on our website (Liquidated Damages).
(c). You acknowledge the amounts referred to as liquidated damages are a genuine pre-estimate of the loss and damage we suffer.
(d). We reserve our rights to claim damages for damages done to the Moped or breaches of this agreement, whether or not they are documented as liquidated damages.

8.2 Our liability
(a). We exclude all implied guarantees, conditions and warranties from this Agreement except any Non-Excludable Condition.
(b). To the maximum extent permitted by law, We exclude all liability for any losses suffered or incurred directly or indirectly, (including through negligence) in connection with:
(i). an Event of Force Majeure;
(ii). the lack of availability of Mopeds or Your inability to access the Service in any way;
(iii). Your breach of this Agreement;
(iv). claims made by third parties, including but not limited to passengers You allow to be carried on the Moped; and
(v). any act or omission by You in connection with the Services.

(c). Where a Non-Excludable Condition is deemed to apply, to the fullest extent possible under the law, We limit Our liability for any breach to:
(i). in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods; or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and
(ii). in the case of services: the resupply of the services; or the payment of the cost of having the services resupplied.

(d). Where the Non-Excludable Condition’s do not apply the maximum liability We have to You is one thousand Australian dollars.

8.3 No liability for Consequential Loss
Subject to the application of any Non-Excludable Condition, We are not liable for any Consequential Loss.

8.4 No duty of care
(a). To the maximum extent permitted by law, You use the Service at Your own risk and are responsible for compliance with the laws in force where You use the Service.
(b). We make the Service available for use, however We do not assume a duty of care to You or any passenger on the Moped.


9. Indemnity

9.1. Indemnities
(a). You indemnify, defend and hold us, Our officers, directors and affiliates, harmless in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:
(i). Your breach of these Terms of Use, including the warranties set out in clause 6;
(ii). Your negligent acts or omissions;
(iii). any wilful misconduct, unlawful acts or negligence in Your use or misuse of the Service;
(iv). Your actual or alleged breach of any law, legislation, regulation, by-law, code of conduct or Road Rule; and
(v). any claims brought by or on behalf of a third party relating to any act or omission by You, which is not covered by insurance.

(b). Your liability under this clause may be reduced to the extent We contributed to any such loss or damage.

9.2. Survival
This clause 9, survives termination of this Agreement.
10. Suspension of account
We reserve the right to suspend Your access to the Service, if:
(a). Your driver’s licence is suspended;
(b). the Payment Method You have provided to us expires or is cancelled by Your provider;
(c). You fail to provide and maintain accurate and up to date account information; or
(d). there are outstanding fees payable associated with Your account which cannot be recovered via the Payment Method.


11. Termination

11.1 Termination for convenience
(a). You may terminate this Agreement at any time by, cancelling Your account via the App, uninstalling the App and ceasing Your use of the Service.
(b). We may terminate this Agreement by providing You with written notice in accordance with clause 13(e).

11.2 Automatic termination
This Agreement automatically terminates and Your rights to use the Service are immediately revoked if:
(a) You no longer hold the necessary drivers licence to operate the Moped; or
(b). We no longer have the necessary rights to operate the Service, for whatever reason.

11.3 Termination for breach
We reserve the right to terminate this Agreement with immediate effect, and without notice, if:
(a). You breach a material term contained in these Terms of Use;
(b). You breach a Warranty You make to us pursuant to clause 7.1;
(c). Your Account is suspended for more than seven (7) days;
(d). You commit any breach of clause 6 (Intellectual Property); or
(e). You commit a crime using or associated with the use of the Moped.

11.4 Actions on termination
(a). On termination You must immediately uninstall the App and cease using the Service.
(b). All amounts payable by You to Us, including but not limited to, fees for use of the Moped, fines, payments for damage and tolls, become immediately due and payable and You authorise Us to charge You for those amounts via the Payment Method specified in Your Account.


12. Dispute Resolution

12.1 Mediation
(a). If a dispute arises between the Parties in relation to these Terms of Use, either Party may give the other Party a written notice that they intend to arrange mediation.
(b). The Parties must refer the dispute to an independent mediator within twenty one (21) days of the written notice.
(c). If the Parties cannot agree on a suitable mediator, either Party may contact the Law Society in their state and request that they provide a mediator.
(d). The costs of the mediation must be paid by the Parties in equal shares.

12.2 Legal Proceedings
No Party may commence court proceedings unless the dispute remains unresolved for fourteen (14) days from the date of the mediation anticipated in clause 12.1.

12.3 Dispute resolution not to apply to debts
The Dispute resolution procedure set out in this clause 12 will not apply in any instance where We seek to enforce a debt in connection with these Terms of Use.


13. General provisions

(a). Assignment – We may assign any of Our rights and obligations under these Terms of Use by notifying You of such an assignment. You must not assign Your rights under these Terms of Use.
(b). Entire agreement – This document contains the entire agreement between the Parties in connection with its subject matter and supersedes all previous agreements and understandings except as otherwise provided herein.
(c). Further assurances – This clause ensures that if a Party is required to do anything further to comply with its obligations under these Terms of Use, it is bound to do so.
(d). Governing law and jurisdiction – The laws of Queensland and Australia govern these Terms of Use. The Parties submit to the non-exclusive jurisdiction of the Supreme Court of Queensland and the Federal Court of Australia.
(e). Notices – In circumstances where We need to contact You We will send You notices via the email address on Your Account profile. We can be contacted by:
(i). email at support@emoped.com.au; or
(ii). post to eMoped Pty Ltd, 28/23 Ashtan Place, Banyo QLD 4014.

(f). Privacy – By installing the App You acknowledge Our Privacy Policy applies to Your use of the Service, which includes provisions which allow us to track the location of the Moped while it is in Your possession. Our Privacy Policy is available on the Website at https://emoped.com.au/privacy/.
(g). Severance – If anything in these Terms of Use is unenforceable, illegal or void then it is severed, and the rest of these Terms of Use remain in full force and effect.
(h). Survival – Any clause which is expressed to survive, or which by its nature is intended to survive termination of these Terms of Use, survives termination.
(i). Variation – We expressly reserve the right to make changes to these Terms of Use. You will be notified of any variation via email and through a publication on the Website. If You do not agree to the amended Terms of Use, You must cease using the Service and uninstall the App.


14. Definitions and interpretation

14.1 Definitions
In these Terms of Use, the following defined terms are used:
Account means Your account with us which You create upon registration via the App.
Agreement means the terms and conditions contained in this Terms of Use.
App means the mobile application available through Google Play and Apple iStore, known as eMoped, which forms part of the Service.
Business Days means a day (other than a Saturday or Sunday) upon which banks are ordinarily open for business in Brisbane, Queensland, Australia.
Business Hours means 9:00am to 5:00pm on Business Days.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
Designated Parking Area means an official motorcycle parking bay which has no time limits, meter fees or clearway conditions, which is within the parking area’s designated by eMoped, and where the GPS signal can be detected (viewable here Designated Parking Areas).
eMoped means eMoped Pty Ltd ACN 631 764 844.
Event of Force Majeure means an unforeseen event beyond the control of the affected Party, including an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, hacking, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a product, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, ransomware or other malicious code.
Intellectual Property means all industrial and intellectual property rights including, without limitation, patents, copyrights, trade marks, circuit layout rights, right to extract information from databases, design rights, trade secrets,  rights of confidence, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them).
Moped means the electronic motor vehicles, owned by eMoped, which users of the Service rent from Us from time to time.
Non-Excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.
Parties mean the User and eMoped.
Payment Method means the method You select at registration, which facilitates Your payment for the Services.
Personal Information takes its meaning from section 6 of the Privacy Act 1988 (Cth).
Privacy Law means:
(a). the Privacy Act 1988 (Cth); and
(b). any other law that governs the use, disclosure or management of data or information relating to persons which apply to either of the Parties.
Registration means the process You undertake using the App to apply for use of the Services, which We may accept or reject in Our sole discretion.
Road Rules means all traffic, road, parking and other laws, regulations, by-laws and other statutory provisions relating to the operation of Mopeds in the state in which the Services are provided.
Service means the combined Moped rental service, App and Website each operated by eMoped.
Support Line means www.emoped.com.au live chat and phone: #Insert details for Support Line for circumstances where a User has an Accident#.
Warranties takes its meaning from clause 7.
Website means the website available at https://emoped.com.au/ and any subdomains.

14.2 Interpretation
In this Agreement:
(a). a reference to:
(i). one (1) gender includes the others;
(ii). the singular includes the plural and the plural includes the singular;
(iii). a person includes a body corporate;
(iv). a document or instrument includes the document or instrumented as novated, altered, supplemented or replaced from time to time;
(v). a Party includes the Party’s executors, administrators, successors and permitted assigns;
(vi). a statute, regulation or provision of a statute or regulation (Statutory Provision) includes:
(A). that Statutory Provision as amended or re-enacted from time to time; and
(B). a statute, regulation or provision enacted in replacement of that Statutory Provision;
(vii). an amount of money is to an amount in Australian dollars ($AUD);
(viii). time is to Australian Eastern Standard Time; and
ix. a Schedule refers to a Schedule contained in this Agreement;

(b). including and similar expressions are not words of limitation;
(c). where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
(d). headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation;
(e). where a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed, or the event must occur on or by the next Business Day; and
(f). a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of a provision in it.