Owner Terms and Conditions

Your Drive Limited

Last updated 12 October 2017

  1. Introduction and application

    1. Your Drive Limited (Yourdrive, we, us or our) provides an online Vehicle rental website service that facilitates the rental of a Vehicle by its Owner to Yourdrive and from Yourdrive to a Renter, and related services (Yourdrive Service).
    2. These terms and conditions (Terms) set out the terms and conditions that apply to the registration and rental of a Registered Vehicle from an Owner to Yourdrive in accordance with a Booking and set out our, and your, rights and obligations.
    3. Our Terms of Use set out the terms and conditions that apply to any use of yourdrive.co.nz and the Yourdrive Service. Our Terms of Use forms part of these Terms.
    4. We may change these Terms at any time and we will provide you with notice of the change by updating these Terms on yourdrive.co.nz and/or sending you an email.
  2. Definitions and interpretation

    1. In these Terms, unless the context indicates otherwise:
      • Additional Fee means the fee charged by us for an additional service, insurance excess or infringement fee, as set out in Schedule 1;
      • Booked Vehicle means a Registered Vehicle that has been Booked;
      • Booking means a booking for a Rental where a Booking Request has been passed on by us to the Owner, accepted by the Owner and then confirmed by us following payment to us of the applicable Rental Price for the Rental Period by the Renter (and Booked has a corresponding meaning);
      • Booking Request means a request made through the Yourdrive Service for the rental of a Registered Vehicle by a Renter for a specified period;
      • Business Day means any day excluding Saturdays, Sundays and national statutory public holidays in New Zealand;
      • Cancellation Fee means the fee charged by us for a Booking that is cancelled, as set out in Schedule 1;
      • CoF means a certificate of fitness issued in accordance with the Land Transport Rule: Vehicle Standards Compliance 2002 (Rule 35001/1) or any law, regulation or rule replacing that Rule;
      • Damage means damage to a Registered Vehicle (such as broken parts, dents and stains) that occurs during a Rental including the theft of, or of part of, the Registered Vehicle but does not include fair wear and tear (including but not limited to small scratches and scraps, scratches to the underside of the vehicle, or scratches to the wheels) or mechanical failures that occur other than due to the negligence of, or abuse by, a Renter (and Damaged has a corresponding meaning);
      • Damage Claim has the meaning given to that term in clause 5.2;
      • Drop-off Location means, in respect of any Booking, the location agreed between the Renter and the Owner at which the Renter will return the relevant Registered Vehicle to the Owner at the end of the Rental Period;
      • Feedback means feedback provided by a Registered User about his or her dealings with another Registered User, and/or about a Registered Vehicle, in relation to a Booking;
      • GST means goods and services tax in terms of the Goods and Services Tax Act 1985, at the rate prevailing from time to time, including any tax levied in substitution for that tax;
      • Incident means an adverse event involving a Registered Vehicle during a Rental, including an event causing Damage to the Registered Vehicle, theft of (or of any part of) the Registered Vehicle, an accident involving the Registered Vehicle or any event causing the Registered Vehicle to no longer being in a condition appropriate to the level required for the issue of the Registered Vehicle's CoF;
      • Infringement Fee Claim has the meaning given to that term in clause 16.1;
      • Intellectual Property means trade marks, rights in domain names, copyright, patents, registered designs, circuit layouts, rights in computer software, databases and lists, rights in inventions, confidential information, know-how and trade secrets, operating manuals, quality manuals and all other intellectual property, in each case whether registered or unregistered (including applications for the grant of any of the foregoing) and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world, including the goodwill associated with the foregoing and all rights of action, powers and benefits in respect of the same;
      • Land Transport Act means the Land Transport Act 1998;
      • NZTA means the New Zealand Transport Agency and its successors;
      • Owner means a Registered User who has a Registered Vehicle listed as available for rent on his or her Profile;
      • Owner's Fee means, in respect of a Booking, the fee payable by us to the Owner for the rental of the relevant Registered Vehicle calculated at the rate specified by the Owner;
      • Pick-up Location means, in respect of any Booking, the location agreed between the Renter and the Owner at which the Owner will make the relevant Registered Vehicle available to the Renter at the commencement of the Rental Period;
      • Profile means a Registered User's profile on yourdrive.co.nz showing information about the Registered User and any Registered Vehicles of that Registered User, as provided by the Registered User or through Feedback;
      • Registered User means a person who has registered for and been accepted as a registered user of the Yourdrive Service in accordance with clause 4;
      • Registered Vehicle means a vehicle that has been registered in accordance with clause 8 and includes tyres, tools, accessories and other equipment, documents or additional items (such as roof racks) related to that vehicle;
      • Rental means the rental of a Registered Vehicle from an Owner to Yourdrive and, simultaneously, from Yourdrive to a Renter in accordance with these Terms;
      • Rental Price means the price paid or payable (as the context requires) by a Renter for a Rental;
      • Rental Period means, in respect of any Rental, the period of that Rental as set out in the relevant Booking;
      • Renter means a Registered User that has a Booking for a Registered Vehicle;
      • User Content means any content uploaded to yourdrive.co.nz by a Registered User; and
      • you means any individual who accesses or uses yourdrive.co.nz and, where an individual accesses on behalf of an organisation, that organisation (and your and yourself have corresponding meanings).
      • Yourdrive Rental Fee means the fee charged by us to a Renter for a Booking, as set out in a Booking confirmation;
    2. Interpretation: In these Terms, unless the context indicates otherwise:
      1. Defined Expressions: expressions defined in the main body of these Terms have the defined meaning throughout these Terms;
      2. Headings: clause and other headings are for ease of reference only and will not affect the interpretation of these Terms;
      3. Parties: references to any party include that party's successors and permitted assigns;
      4. Persons: references to a person include an individual, company, corporation, partnership, firm, joint venture, association, trust, unincorporated body of persons, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal identity;
      5. Plural and Singular: references to the singular include the plural and vice versa;
      6. Clauses/Schedules: references to clauses and schedules are to clauses in, and the schedules to, these Terms. Each such schedule forms part of these Terms;
      7. Statutory Provisions: references to any statutory provision are to statutory provisions in force in New Zealand and include any statutory provision which amends or replaces it, and any by-law, regulation, order, statutory instrument, determination or subordinate legislation made under it;
      8. Negative Obligations: any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done;
      9. Inclusive Expressions: the term includes or including (or any similar expression) is deemed to be followed by the words "without limitation";
      10. Monetary Amounts: all monetary amounts are stated inclusive of GST and in New Zealand currency, and all amounts payable by a party under these Terms are to be paid in that currency. GST is payable at the same time and in the same manner as is any other amount payable under these Terms, where that amount is subject to GST under the Goods and Services Tax Act 1985;
      11. Documents: references to any document (however described) are references to that document as modified, novated, supplemented, varied or replaced from time to time and in any form, whether on paper or in an electronic form; and
      12. Notices: references to one party notifying another, or agreeing or objecting to any matter means such party notifying, agreeing or objecting in writing.
  3. Consumer Guarantees Act

    1. Subject to clause 3.2, nothing in these Terms is intended to limit or replace any rights you may have under the Consumer Guarantees Act 1993 (CGA).
    2. If you are, or are holding yourself out as, using the Yourdrive Service or yourdrive.co.nz for the purposes of a business in terms of section 43(2) of the CGA, you agree that the provisions of the CGA will not apply.
  4. Indemnity

    1. You agree to indemnify us and our related or associated companies, relevant suppliers, licensors and agents (each an Indemnified Party) in respect of any loss, damage, cost or expense (including legal costs on a solicitor and own client basis) suffered or incurred as a result of any:
      1. failure by you to comply with, or breach by you of, these Terms;
      2. breach by you of any warranty given in these Terms;
      3. of your negligent acts or omissions; or
      4. claim, suit or action brought against the Indemnified Party by a third party that the Indemnified Party's use of any material provided by you in connection with your use of the Yourdrive Service infringes that third party's intellectual property rights.
    2. This clause is intended to be for the benefit of, and enforceable by, each Indemnified Party for the purposes of the Contracts (Privity) Act 1982.
  5. Dispute Resolution

    1. Either you or we may, at any time while there is a genuine dispute relating in any way to these Terms (Dispute), give written notice (Dispute Notice) to the other party specifying the subject matter of the Dispute and requiring that you and we meet within 10 Business Days after delivery of the Dispute Notice, to attempt to resolve the Dispute (Dispute Resolution Meeting).
    2. If:
      1. you or we fail to resolve the Dispute at the Dispute Resolution Meeting; or
      2. either you or we fail or refuse to attend the Dispute Resolution Meeting within the 10 Business Day period referred to in clause 5.1, or at an alternative time and venue agreed in writing between you and us,

      you and we will immediately be deemed to have submitted the Dispute to mediation by a single mediator chosen by Yourdrive (Mediation).
    3. In the event of any submission to Mediation:
      1. the mediator will not be acting as an expert or as an arbitrator;
      2. the mediator will determine the procedure and timetable for the Mediation; and
      3. you and we will share equally the cost of the Mediation unless agreed otherwise by you and us.
    4. Neither you or we may issue any legal proceedings (other than for urgent interlocutory relief) relating to any Dispute, unless you or we (as the case may be) has first taken all reasonable steps to comply with clauses 5.1 and 5.3.
  6. Limitation and Exclusion of Liability

    Subject to clause 3 of these Terms, to the fullest extent permitted by law:

    1. we will not be liable for any loss, damage, cost or expense of any kind, whether direct, indirect, incidental, consequential, punitive or otherwise, suffered or incurred by you in connection with your access to, or use of, the Yourdrive Service, yourdrive.co.nz or the content on or accessed through it;
    2. we have no liability to you under or in connection with these Terms (whether in contract, tort or otherwise) except as expressly provided for in clauses 12, 15 and 16; and
    3. all warranties, representations and guarantees, (whether express or implied, by statute or otherwise, including any implied warranties of merchantability, fitness for a particular purpose or non-infringement of intellectual property rights) are excluded.
  7. General

    1. These Terms are governed by the laws of New Zealand. The parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to these Terms and the use of yourdrive.co.nz and the Yourdrive Service.
    2. You may not assign, transfer, or purport to assign or transfer any of your rights and obligations in connection with these Terms. We may assign or otherwise transfer any of our rights or obligations under these Terms to any other person without your consent.
    3. Subject to clause 1, no amendment to these Terms will be effective unless it is in writing and signed by each party.
    4. These Terms record the entire understanding and agreement between us relating to the matters dealt with in these Terms.
    5. If any provision of this agreement is, or becomes, invalid or unenforceable, that provision will be deemed deleted from this agreement. The invalidity or unenforceability of that provision will not affect the other provisions of this agreement, all of which will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision.
  8. Registering a Vehicle

    1. If you wish to use yourdrive.co.nz to rent your vehicle out, you must be a Registered User and you must register your vehicle as a Registered Vehicle.
    2. You must not register a vehicle as a Registered Vehicle unless:
      1. it has a current NZTA vehicle licence and CoF, and is and has been maintained in a condition required for the issue of that CoF;
      2. you have a comprehensive (not third party or third party, fire and theft) insurance policy in place covering the vehicle;
      3. the market value of the vehicle is $300,000 or less; and
      4. you own the vehicle or otherwise have the right to rent the vehicle to Yourdrive as contemplated by these Terms.

      If, any time after becoming a Registered Vehicle, the vehicle no longer meets the above requirements, you must remove the vehicle from your Profile and no longer accept any Booking Requests for that vehicle.
    3. When you register a vehicle as a Registered Vehicle you must:
      1. provide a complete and accurate description of the vehicle that is not misleading, with such description including details of any material defects or deficiencies with the vehicle;
      2. specify the Owner's Fee for rental of the vehicle (which may vary for various Rental Periods), it being acknowledged that the Rental Price that will be displayed for a Registered Vehicle will be the Owner's Fee plus the Yourdrive Rental Fee plus GST;
      3. specify a proposed Pick-up Location and proposed Drop-off Location; and
    4. You:
      1. may update the going Owner's Fee at any time, although the Owner's Fee on a Booking, or a Booking Request that you have accepted, cannot be changed;
      2. may update the proposed Pick-up Location and proposed Drop-off Location at any time;
      3. must update the Registered Vehicle details and description immediately if they change.
    5. You warrant to us that the Registered Vehicle matches, and will continue to match the description you have provided at all times while listed on yourdrive.co.nz and during any Rental Period.
  9. Booking Procedure for Owner

    The following procedure will apply in relation to the creation of a Booking:

    1. You will be notified by us if we have received a Booking Request for your Registered Vehicle. On receipt of details of the Booking Request from us, you may, at your sole discretion, choose to accept or decline to rent your Registered Vehicle to us to rent to the Registered User who submitted the Booking Request. If you accept a Booking Request you acknowledge and agree that this will, subject to clause 9.2, result in a Rental.
    2. If you accept a Booking Request submitted by us to you in accordance with clause 9.1, we will have 24 hours to confirm the Booking. If we confirm the Booking during the 24 hour period you agree that you are bound to complete the resulting Rental, provided that you can cancel a Booking in accordance with clause 10. A Booking Request will become a Booking once it is confirmed by us. You acknowledge that our confirmation depends on receiving payment from the prospective Renter
  10. Cancellation of a Booking

    1. Without limiting clause 10.4, you may cancel a Booking via yourdrive.co.nz:
      1. at any time up to 96 hours before the commencement of the Rental Period;
      2. subject to payment by you of the applicable Cancellation Fee, at any time up to 24 hours before the commencement of the Rental Period.
    2. Subject to clause 10.4, you may not cancel a Booking within 24 hours of the commencement of the Rental Period. If you:
      1. fail to make the Booked Vehicle available at the Pick-up Location within 10 minutes of the start of a Rental Period; or
      2. the Renter determines (acting reasonably) that the Booked Vehicle is materially different from the description of the Booked Vehicle on yourdrive.co.nz,

      you will be deemed to have failed to complete a Booking and must pay the applicable Cancellation Fee.
    3. If you cancel a Booking, you will not receive an Owner's Fee. We may terminate your Registered User account if you repeatedly cancel Bookings.
    4. You may cancel a Booking without the need to pay a Cancellation Fee if you meet the Renter at the Pick-up Location at the commencement of a Rental Period and the Renter is, in your opinion (acting reasonably) unfit to drive at the commencement of the Booking Period, including due to intoxication. If you cancel the Booking in accordance with this clause, you will not need to pay a Cancellation Fee and you will still receive the Owner's Fee if:
      1. you notify us immediately of the cancellation and inform us of the reason you cancelled the Booking; and
      2. upon reasonable enquiry, we verify that the reason you cancelled the Booking was reasonable in the circumstances.
    5. We may cancel a Booking at any time if the Renter cancels his or her Booking with us. No Owner's Fee will be paid.
  11. Rental

    1. For each Booking of a Registered Vehicle of which you are the Owner, you agree:
      1. to rent the Registered Vehicle to Yourdrive for the Rental Period in the Booking;
      2. that Yourdrive will rent your Registered Vehicle to the Renter for the Rental Period; and
      3. without limiting clause 13.2, you will act as Yourdrive's agent in handing over, and receiving the return of, the Registered Vehicle to the Renter.
    2. A Rental cannot be extended or altered by agreement between the Owner and the Renter. You agree that you will not permit the Renter to retain a Booked Vehicle beyond the Rental Period. A new Booking can be made that commences at the same time that the existing Rental Period ends, but because a Booking cannot be made retrospectively, the new Booking must be made before the end of existing Rental Period.
    3. You acknowledge that the agreement between Yourdrive and you in respect of a Booking terminates at the end of the Rental Period and therefore your rights under these Terms do not apply beyond the end of the Rental Period.
  12. Pricing and Payment

    1. You set the Owner's Fee payable by Yourdrive to you for a given Rental Period. We will add the Yourdrive Rental Fee and GST to this amount to arrive at the Rental Price for your Registered Vehicle displayed on your Profile. You are free to change the going Owner's Fee for your Registered Vehicle at any time, although the Owner's Fee on a Booking, or a Booking Request that you have accepted, cannot be changed.
    2. The price payable by Yourdrive to you for the rental of your Booked Vehicle to Yourdrive under a Booking is the Owner's Fee. The Owner's Fee will not include any GST. If you are GST registered and are required to collect GST on the rental of your Booked Vehicle to Yourdrive, you must contact us on hello@yourdrive.co.nz.
    3. We will pay you the Owner's Fee on the 10th day of the month following the month in which the relevant Rental Period ended. Payments will be made by direct deposit in to the bank account details you provide to us via yourdrive.co.nz.
  13. Vehicle Handover Procedure

    The following procedure will apply in relation to the handover of a Booked Vehicle of which you are the Owner:

    1. You must meet the Renter at the Pick-up Location at the commencement of the applicable Rental Period with the Booked Vehicle.
    2. You must not make any representations to the Renter on behalf of Yourdrive
    3. You must ensure that the Booked Vehicle continues to meet the requirements in clause 18.2 for the duration of the Booking. You must ensure that the Booked Vehicle, at the start of the Rental:
      1. is in a roadworthy, serviceable and safe condition;
      2. has a spare tyre that is roadworthy and inflated;
      3. has a jack and tyre replacement tools;
      4. has all required vehicle fluids, transmission, oil, coolant, brake and power steering, and fluid and wiper wash at a satisfactory level to last the duration of the Booking Period;
      5. has a full tank of fuel;
      6. is reasonably clean; and
      7. does not contain any of your personal belongings.
    4. You must, prior to providing the Booked Vehicle to the Renter:
      1. Ensure that the Renter presents to you a driver licence issued to the Renter that is valid and current for the full duration of the Rental Period and that is appropriate for the Booked Vehicle. We will have no liability to you for any Damage if the Renter does not hold a current and valid driver licence that is appropriate for the Booked Vehicle.
      2. Photograph the Booked Vehicle clearly documenting the condition of the vehicle
    5. It is your responsibility to ensure that you take necessary steps to record evidence to prove the condition of the Booked Vehicle at the commencement of the applicable Rental Period. This is required to prove that any Damage you may claim in accordance with clause 15.2 occurred during the applicable Rental Period.
  14. Vehicle Return Procedure

    1. At the end of each Rental Period for a Booked Vehicle of which you are the Owner:
      1. You must be available to collect your Booked Vehicle at the Drop-off Location at the end of the Rental Period
      2. You must photograph the Booked Vehicle noting any areas of Damage.
    2. A Post-Rental Inspection Report of the Booked Vehicle must be printed, completed and signed by you and the Renter immediately following collection of the Booked Vehicle. You must upload a copy to yourdrive.co.nz via the Booking page within two Business Days of the end of the Rental Period.
  15. Damage Claims

    1. You acknowledge that Yourdrive will not be liable for any Damage to the Booked Vehicle unless sufficient evidence of the condition of the car immediately prior to the commencement of the Booking and immediately following the conclusion of the Booking is submitted within the timeframe set out in clause 14.2, and contains details of the Damage.
    2. If your Booked Vehicle is Damaged during a Rental you may lodge a claim for repair of the Booked Vehicle (Damage Claim). A Damage Claim must:
      1. be made with us within two Business Days of the end of the Rental Period or you becoming aware of the Damage (whichever is the earlier);
      2. specify the Damage;
      3. include, where possible, photographs of the Damage; and
      4. be emailed to hello@yourdrive.co.nz.
    3. We will assess your Damage Claim and notify you within two Business Days of receipt of your Damage Claim whether we:
      1. accept your Damage Claim, in which case clause 15.6 will apply;
      2. consider your Damage Claim is valid but not yet accepted, in which case clause 15.4 will apply; or
      3. consider your Damage Claim is not valid and is not accepted.
    4. If we consider your Damage Claim is valid, we will refer your Damage Claim to the applicable Renter and notify you within a further five Business Days whether:
      1. the Renter accepts your Damage Claim, in which case clause 15.6 will apply; or
      2. the Renter rejects your Damage Claim, in which case clause 15.5 will apply.
    5. If your Damage Claim is rejected by the applicable Renter in accordance with clause 15.4(b), we will investigate your Damage Claim and the Damage to the Booked Vehicle and endeavour to notify you within a further five Business Days whether we accept or reject your Damage Claim. You agree to provide us and our service providers (including our insurance assessors) with access to the Booked Vehicle at reasonable times to assist with our investigation. If:
      1. we accept your Damage Claim, clause 15.6 will apply; or
      2. we reject your Damage Claim.
    6. If your Damage Claim is accepted, we will repair the Damage or provide payment to you in accordance with clause 15.7.
    7. Repair of your Booked Vehicle or payment in lieu of repair will be in accordance with the following conditions:
      1. we will repair only the Damage that has been accepted by us in accordance with your Damage Claim;
      2. we will select the provider to carry out the Damage repair;
      3. we may, at our discretion, determine that the Booked Vehicle is a "write-off" (including where the Booked Vehicle has been stolen) and pay you the fair market rate for the Booked Vehicle to a maximum of $300,000 in which case you agree to transfer ownership of the Booked Vehicle to us.

      We, or our insurance provider, will determine the fair market rate for the Booked Vehicle, and may consider any relevant factors such as the age, type, make, model and condition of the Booked Vehicle, including by assessing the Booked Vehicle details in your Profile.
  16. Infringment Fee Claims

    1. If you receive an infringement fee:
      1. for parking in any portion of a road in breach of any by-law of a road controlling authority or Part 6 of the Land Transport (Road User) Rule 2004 or an offence detected by approved vehicle surveillance equipment that is:
        1. a speeding offence;
        2. an offence in respect of failure to comply with the directions given by a traffic signal; or
        3. a toll offence; and
      2. the offence to which the infringement fee relates was committed during a Rental Period,

      you may lodge a claim for payment by us of the infringement fee (Infringement Fee Claim). Infringement Fee Claims must be made as soon as is practicable but in no case more than two Business Days after you receive the initial notice of the infringement fee by sending a legible colour copy to hello@yourdrive.co.nz.
    2. We will assess your Infringement Fee Claim and notify you within five Business Days of receipt of the Infringement Fee Claim whether we accept or reject your Infringement Fee Claim (acting reasonably). If we accept your Infringement Fee Claim we will pay the appropriate enforcement authority on your behalf.
  17. Limitation of Liability

    1. You agree that if you leave any personal belongings in car, they are left entirely at your risk, and we incur no liability in respect of any loss or damage to them.
    2. We will not be liable for:
      1. any indirect loss you incur as a result of any Incident or other Damage, including loss of potential income while the Booked Vehicle is being repaired;
      2. any breakdown of your Booked Vehicle due to a mechanical fault that occurs other than due to the negligence of, or abuse by, a Renter; or
      3. any general wear and tear (including but not limited to small scratches and scraps, scratches to the underside of the vehicle, or scratches to the wheels), or consumables (for example oil, brake pads, or cam belts) that your Booked Vehicle requires as a result of use by a Renter.
  18. SCHEDULE 1: FEES


    All Fees set out in this schedule are inclusive of GST.

    The Cancellation Fees are as set out in the below table:

    Conduct

    Cancellation Fee

    Cancellation of a Booking by the Owner at any time from 96 hours up to 48 hours before the Rental Period $50
    Cancellation of a Booking by the Owner at any time from 48 hours up to 24 hours before the Rental Period $100
    Cancellation of a Booking within 24 hours of the commencement of the Rental Period $200
    Cancellation of Booking due to the Booked Vehicle not matching the description $200