Scooter Rental Agreement & Terms of Service
Last Updates to Our User Agreement & Terms of Service: 10 April 2019.
PLEASE READ EACH PROVISION OF THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICES (DEFINED BELOW), INCLUDING IN RELATION TO FEES, LIMITATIONS OF LIABILITY AND ASSUMPTION OF RISK. THE USE OF OUR SERVICES IS SUBJECT TO YOUR PRIOR EXPRESS ACCEPTANCE OF THIS AGREEMENT. IF YOU HAVE ANY QUESTIONS ABOUT THIS AGREEMENT AND YOUR RIGHTS UNDER IT YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE.
This User Agreement & Terms of Service (collectively, this “Agreement”) is a legally binding agreement between you (“You,” “Your,” or “User”) and International Day of People With Disabilities (ABN 33 627 347 371) (“Toucan,” “We,” “Us,” or “Our”). We are a registered charity, registered in Australia.
This Agreement states the terms and conditions that governs Your use of Our services (as described below).
Our services (“Services”) we offer under this Agreement are comprised of the following:
1) rental of Our electric scooters (“Toucan Scooter”) are collectively referred to as “Products”;
2) all other related equipment, maintenance, charging of the Products, personnel, mobile applications, other software and information provided or made available by Us; and
3) use of Our website, available at www.toucantours.com.au (including any versions optimised for viewing on a wireless or tablet device), Our mobile application (the “App”) and any interactive features, and/or other services that We make available and that post a link to this Agreement.
This Agreement, together with all updates, supplements, additional terms, and all of Our rules and policies collectively constitute this “Agreement” between You and Us.
We agree to allow You to rent the Products, subject to the terms and conditions set forth herein. Unless otherwise indicated, all monetary values set forth in this Agreement shall be deemed to be denominated in Australian dollars (AUD).
In circumstances where you have physically obtained the Product in:
- Queensland, the Additional Terms set out in Annexure A will apply; and
- New South Wales, the Additional Terms set out in Annexure B will apply.
Please read these additional terms carefully.
- RENTAL AND USE OF PRODUCTS.
1.1. You are the Sole User of the Services: You certify and expressly agree that You are the sole renter and You are responsible for compliance with all terms and conditions contained in this Agreement. You understand that when You activate a Product, the Product must be used ONLY BY YOU. You must not allow others to use a Product that You have activated.
1.2. You are At Least 18 Years Old: You represent and certify that You are at least 18 years old. Operation or use of any Products by any minor is expressly prohibited.
1.3. You are a Competent Operator: You represent and certify that You are familiar with the operation of the Product, and You are reasonably competent and physically fit to use the Product. By choosing to ride a Product, You assume all responsibilities and risks for any injuries and/or medical conditions, as detailed further below. You are responsible for determining whether conditions, including rain, snow, hail, ice or electrical storms, and/or any other conditions, whether caused by the weather or otherwise, make it dangerous to operate a Product. You are advised to adjust Your riding behaviour and braking distance to suit all conditions and variables, including weather and traffic. You may be required to undergo an assessment by Us as to whether You are competent to safely use the Product.
1.4. Products are the Exclusive Property of Toucan: You agree that the Products, and any Toucan equipment attached thereto, at all times, remain the exclusive property of Toucan. You must not dismantle, write on, or otherwise modify, repair or deface any Products, or any part of any of the Products, or any other Toucan equipment in any way. You must not write on, peel, or otherwise modify or deface any sticker on the Products in any way. You must not use any Products for any advertising or commercial purpose.
1.5. Only Use Products Where Allowed: You expressly agree that You will only use the Products in areas where the Products are allowed. You agree that You will not use any Products in any restricted areas (such as cities that prohibit certain Products), and You assume all responsibility and liability for any operation of any Product in any restricted area, including any fines or fees as a result of Your use of any of the Products in any restricted areas. Please carefully review any applicable Additional Terms which identify the relevant restrictions in the state or territory you are using the Product. You recognise that your use of the Product in a restricted area could cause reputational damage to Toucan and administrative inconvenience and Toucan reserves the right to charge You a fee of $80 as a result of Your use any of the Products in any restricted areas. If You leave the Products outside of the authorised area, this could also cause reputational damage to Toucan and administrative inconvenience and Toucan may be required to retrieve the Product. Toucan reserves the right in these circumstances to charge You a $160 retrieval fee, at Toucan's sole and absolute discretion.
1.6. Compliance with Laws: You agree to follow all laws, rules, regulations, and/or ordinances pertaining to the use, riding and/or operation of the Products, including those pertaining to the Products in the area where You are operating the Products, including, without limitation, helmet laws. Please carefully review any applicable Additional Terms in this respect.
You are solely responsible and liable for any violation of any laws, rules, regulations, and/or ordinances while using the Services, including improper riding and/or parking, and you agree that you are solely responsible and liable for any and all consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, costs and expenses, penalties, lawyers’ fees, judgments, fees (including impounding fees charged by any local government) and/or disbursements of any kind, or nature whatsoever, whether foreseeable or unforeseeable, and whether known or unknown, as a result of your use of any of the Services.
1.7. Payment of Fines and Fees : You agree to pay any fines, fees, penalties, impounding charges, and/or any other charges incurred by either You or Toucan, that result from You parking any Product improperly, or as a result of You violating any law, by-law, rule, regulation, and/or ordinance while using the Services. You further agree that, to the extent permitted by law, We may, in Our sole discretion, pay on Your behalf all fines, fees, penalties, impounding charges, and/or any other charges incurred directly to the appropriate authority, and You will pay us for what we paid to the appropriate authority or their designated agent(s) plus a reasonable administrative fee. You authorise Us to bill You directly for these amounts to the credit/debit card and/or other payment method You used to rent the Product. You agree and acknowledge that, to the extent permitted by law, we may co-operate with all federal, state, municipal and local officials charged with enforcing infractions to provide any information necessary as they may request or may otherwise be required.
1.8. Prohibited Acts: You expressly certify and agree that you will not:
1.8.1. Operate any Product in violation of any laws, rules, regulations, and/or ordinances, including any and all rules pertaining to riding any Products on footpaths and/or parking Products.
1.8.2. Operate any Product while carrying any briefcase, backpack, bag, or other item if it impedes Your ability to operate safely the Product.
1.8.3. Use any cellular telephone, text messaging device, portable music player, and/or any other device that may distract You from safely operating any Product.
1.8.4. Operate any Product while under the influence of any alcohol, drugs, medication, and/or any other substance that may impair Your ability to safely operate any Product.
1.8.5. Carry any other person on any of the Products.
1.8.6. Use locking mechanisms other than those provided by Toucan.
1.8.7. Park any Product in a manner that does not strictly comply with all applicable laws, rules, and/or regulations. You expressly agree that You are responsible for becoming familiar with any and all applicable laws, rules, and/or regulations in the location that You are operating any Product.
1.8.8. Park or place any Product in a manner that prevents Toucan from accessing it. In these circumstances Toucan could lose rental charges and will be inconvenienced. If You violate this Section, Toucan may charge You an amount for the loss to Toucan occurred from Toucan being unable to access the Product and rent such Product to other Users, up to a maximum of $635, in Our sole and absolute discretion.
1.9. Products are Intended for Only Limited Types of Use: You agree that You will not use any Product for racing, mountain riding/biking, stunt, or trick riding. You agree that You will not operate and/or use any Products on unpaved roads, through water (beyond normal urban riding), or in any location that is prohibited, illegal and/or a nuisance to others. You agree that You will not use any Products for hire or reward, nor use any Products in violation of any law, rule, regulation, and/or ordinance.
1.10. Weight and Cargo Limits: You must not exceed the maximum weight limit for any Products (120 KG) or the cargo carrier/basket on any Products (7 KG), and You must not otherwise use the cargo carrier improperly with regard to type of contents or any visual obstruction or riding impediment. You acknowledge that the front carrier/basket and/or back basket of any Product is intended for light goods only, and that You will not carry people or animals anywhere on any Product.
1.11. No Tampering: You must not tamper with, attempt to gain unauthorised access to, or otherwise use any Services in a manner that does not comply with this Agreement.
1.12. Reporting of Damage or Crashes : You must report any accident, crash, damage, personal injury, stolen or lost Product to Toucan as soon as possible. If a crash involves personal injury, property damage, or a stolen Product, You shall file a report with the local police department within 24 hours.
1.13. You are Responsible for Product Damage: You agree to return any Product to Toucan in the same condition in which such Product was rented, fair wear and tear excepted. You agree that You will be responsible for the cost of repairing and/or replacing any Product that You damage and/or cause damage to. If You vandalise any Product, You shall be liable for the cost of all repairs up to a maximum of $2,800 for each Toucan's sole and absolute discretion.
1.14. Availability and Usage of Products: You agree and acknowledge that Products may not be available at all times. Products require periodic charging of batteries in order to operate. You agree to use and operate Products safely and prudently and comply with all restrictions and requirements associated with Products, as set forth in any all applicable laws, rules, regulations, and/or ordinances. You understand and agree to the following:
1.14.1. The level of charge power remaining in the Product will decrease with use of the Product (over both time and distance), and that as the level of charge power decreases, the speed and other operational capabilities of the Product may decrease (or cease in their entirety).
1.14.2. The level of charging power in the Product at the time You initiate the rental or operation of Product is not guaranteed and will vary with each rental use.
1.14.3. The rate of loss of charging power during the use of the Product is not guaranteed and will vary based on the Product, road conditions, weather conditions and/or other factors.
1.14.4. It is Your responsibility to check the level of charge power in the Product and to ensure that it is adequate for the ride before initiating operation of the Product.
1.14.5. Toucan does not guarantee the distance and/or time that You may operate any Product before it loses charging power completely. The Product may run out of charging power and cease to operate at any time during Your rental of the Product, including before reaching Your desired destination.
2.1. Safety Check: You agree not to ride the Product if there are any noticeable issues, and to immediately notify customer service to alert Toucan of any problems.
2.1.1. If at any time, whether prior to, during, or after riding any Product, You discover any defect or notice any other potentially unsafe condition on any Product, no matter how slight, You must not use the Product, or, if You are already riding the Product, You must immediately cease riding when it is safe to do so.
2.1.2. You agree to immediately report the defect or condition to Toucan.
2.2. Lost or Stolen Products: If a Product is not returned within 48 consecutive hours, then the Product may be deemed lost or stolen, in Toucan's sole and absolute discretion, and a police report may be filed against You with local authorities. The data generated by the Services’ computer is conclusive evidence of the period of use of the Products by You. You must report any disappearance or theft of any Product to Toucan immediately or as soon as possible.
2.3. Helmets; Safety: You acknowledge and accept that You must wear a helmet that meets the AS/NZS 2063:2008 standard certification (“ Permitted Helmet”) as varied by federal regulation at all times while using any of the Services, Products, and/or related equipment, whether required by law or not.
2.3.1. You must wear a Permitted Helmet that has been properly sized, fitted and fastened according to the manufacturer’s instructions.
2.3.2. If wearing a helmet is required by the laws, rules, regulations and/or ordinances applicable to the area in which the Product is operated, You agree to comply with such laws and regulations at all times.
2.3.3. You expressly acknowledge and agree that You may need to take additional safety measures or precautions not specifically addressed in this Agreement, and You expressly acknowledge and agree that determining whether You must do so is Your sole responsibility - not Toucan's responsibility.
2.4. Routes: You agree that Toucan does not provide or maintain places to ride the Products, and that Toucan does not guarantee that there will always be a safe place to ride any particular Product. Roads, bicycle lanes, and routes may become dangerous due to weather, traffic, and/or other hazards outside of Toucan's control. Toucan shall not be liable for any of the foregoing, without limitation. You are solely responsible for choosing a responsible and safe route. You must obey all laws at all times in choosing a route, and it is Your sole responsibility to be familiar with the applicable laws, by-laws, rules, regulations, and/or ordinances of the jurisdiction in which You are using Toucan's Services and/or Products.
2.5. Limitations on Rental: You agree that Toucan is not a common carrier. Alternative means of public and private transportation are available to the general public and to You individually. Toucan provides the Services and Products only as a convenience, and such rental availability is intended to be used only by those persons who are able and qualified to operate the Products on their own and who have agreed to all terms and conditions of this Agreement.
- PAYMENT AND FEES.
3.1. Fees: You may use the Products on a pay per ride basis or as otherwise in accordance with the pricing described in the App. Once you have registered and set up an account with us, Products may be used by clicking on the payment method you wish to use and then following the prompts that will appear on-screen. You may check and correct any input errors in your payment up until the point at which you submit your payment to us by clicking the "Pay" button or otherwise agreeing to an obligation to pay for the Products or subscription. Charges include applicable GST (as that expression is defined in section 8.19). Toucan will charge Your credit card or debit card (collectively, Your “Card”) or other agreed payment methods the amount of the fees as described in this Agreement. After you have paid for the Products or subscription, you will receive an order confirmation from us by email, when the contract between you and us will be formed ("Confirmation").
3.2. Promo Codes: Promo codes (“Discounts”) are one-time offers and can only be redeemed via the App. Toucan reserves the right to modify or cancel Discounts at any time. Discounts are limited to one per customer and account and may not be combined with other offers. Discounts are non-transferable and may not be resold.
3.3. Maximum Rental Time and Charges: Maximum rental time is 24 hours. You agree that You will deactivate the Product rental within 24 hours of the time that rental of the Product began. You may then rent again. You agree that You are solely responsible for being aware of any elapsed time related to timely locking any Product. The maximum charge is $285 for any Product, all based on a 24-hour period. After return of the Product, You will be charged the accumulated rental charges, or the maximum 24-hour charge; whichever is less. Products not returned (locked and a ride concluded) within 48 hours will be considered lost or stolen, and You may be charged up to $2,810 for each Toucan Scooter, and $2,105 for each Toucan Scooter, being the replacement cost, and a police report may be filed against You. We may also charge a service fee of $40 reflecting the administrative inconvenience to Us, in Our sole discretion, to cover our costs and wasted time, for rentals in excess of 24 hours where the Product is not considered lost or stolen.
3.4. Valid Credit Card or Debit Card: You must input a valid Card number and expiration date before You will be registered to use the Services. You confirm that you are authorised to use any Cards you provide to us. You authorise Toucan to charge the Card for all fees incurred by You. If You dispute any charge on Your Card account, then You must contact Toucan within 10 business days from the end of the month with the disputed charge, provide to Toucan all trip information that is necessary to identify the disputed charge, such as the date of the trip and the approximate starting and ending times. You agree to immediately inform Toucan of all changes relating to Your Card.
3.5. Pick Up Fees: If You are unable to return any Product to a valid area ( i.e., You deactivate a Product on private property, a locked community, and/or any other unreachable area), and request that the Product be picked up by Toucan, then We, in Our sole and absolute discretion, may charge You a pick-up fee of up to $170, reflecting the inconvenience and cost to Us of retrieving the Product in these circumstances. If any Product accessed under Your account is abandoned without notice, You will be responsible for all fees until the Product is recovered and deactivated, plus a service charge of up to a maximum of $245, reflecting the cost to Us to recover the Product. Fees are subject to change in Toucan's sole and absolute discretion, however changes to any such amounts will be notified to you beforehand and if there are increases, You will then have the right to terminate this Agreement. If you do, we will give you a pro-rated refund of the advance charges already paid by you, based on the unexpired portion of the current subscription period.
- TERMS APPLICABLE TO SUBSCRIPTIONS AND AUTO RENEWALS.
4.1. Generally: To purchase access and use of any subscriptions offered through the Services, You must be at least eighteen (18) years of age. Prior to the purchase and/or rental of any Products or Services, You must provide us with a valid Card number and associated payment information including all of the following: (i) Your name as it appears on the Card, (ii) Your Card number, (iii) the Card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge Your Card or otherwise use a valid gift card. By submitting that information to us or our third party credit card processor, You agree that You authorise us and/or our processor to charge Your Card at our convenience but within thirty (30) days of Card authorisation. For any Product subscription that You order on the Services, You agree to pay the price applicable (including any GST and surcharges) as of the time You submit the subscription. Toucan will automatically bill Your Card or other form of payment submitted as part of the subscription process for such subscription price. We may offer a number of membership plans, including special promotional plans or memberships with differing conditions and limitations. Any materially different terms from those described in this Agreement will be disclosed at Your sign-up or in other communications made available to You, for your acceptance. Some promotional memberships may be offered by third parties in conjunction with the provision of their own products and services. We are not responsible for the products and services provided by such third parties. We reserve the right to modify, terminate or otherwise amend Our offered membership plans.
4.2. Subscription Term & Termination: Except in the event of a free trial offer, Your subscription will commence as of the date Your payment for a subscription is received by Toucan. Your subscription will continue in full force for the length of the subscription term You specifically purchased or on a month-to-month term and will automatically renew until such time as You cancel the subscription (the “Subscription Term”). By providing Your payment method information for Your subscription, You are agreeing to pay a subscription fee (and any applicable taxes and service fees (collectively, “Fees”), that will automatically renew, at the then current rate, unless You cancel prior to the expiration of the current Subscription Term. The Fees will be charged to Your original payment method automatically at the beginning of Your Subscription Term, and at the beginning of each renewal Subscription Term thereafter on the calendar day corresponding to the commencement of Your current Subscription Term, unless You cancel Your subscription, or Your account is suspended or terminated pursuant to this Agreement.
In the event that You cancel a subscription in the middle of Your Subscription Term, You will not be entitled to receive a refund for the unused portion of the remainder of that Subscription Term.
4.3. Changes to Subscription Fees: Toucan reserves the right to change the pricing of subscription at any time, subject to notifying You with sufficient prior notice. In the event of a price change, Toucan will post the new pricing on the Services and notify You in advance by sending an email to the address You have registered for Your account. You consent to our ability to change our pricing and the details of our subscription packages through an electronic communication to You. If You do not wish to accept a price or subscription package change made by us, You may cancel Your subscription before the changes come into effect as described below, in which case we will give you a pro-rated refund of the advance charges already paid by you, based on the unexpired portion of the then-current subscription period . If you do not cancel Your subscription, You will be deemed to have consented to the price/subscription package change and authorise Toucan to charge the new Fees to Your payment method.
4.4. Cancellation of Subscription Membership: You have the right to cancel Your subscription membership at any time upon notice to Toucan. To cancel Your subscription membership: open Your wallet in the Toucan App, and click "Manage," then click "Cancel Membership." There are no refunds or credits for partial months. Cancellation of initial membership any time after purchase will result in forfeiture of the membership fee. To avoid a late cancellation fee or forfeiture of the membership renewal fee, membership should be cancelled prior to the end of the then current Subscription Term. Upon cancellation, You will lose access to the areas of the Services designated for subscription members only. This could include any credit and other data and analyses that have been displayed during Your subscription membership. Do not assume that a cancellation or change of an order You have placed with Toucan has been effected until You receive a confirmation from Toucan via email or the Services.
4.5. Cancellation by Us: Toucan will have the right, upon written reasonable notice to You, to terminate this Agreement, and suspend Your access to the subscription, if: (a) You fail to pay Toucan any amount due under this Agreement; and/or (b) You materially breach any term or condition of this Agreement. Toucan shall have the right to terminate this Agreement and suspend Your access to the subscription with or without cause, upon thirty (30) days written notice to You in which case You will no longer be charged for access to the subscription. Upon the expiration or termination of this Agreement for any reason, Your access to, and use of, the subscription will terminate.
You agree that, if We cancel your rental of Products and/or your subscription, Your sole and exclusive remedy is either that: (a) We will issue a credit to Your Card account in the amount charged for the fees you have already paid in connection with the Products or subscription but which you have not been able to use (if Your Card has already been charged); or (b) We will not charge Your Card.
4.6. Free Trials/Promotional Offerings: We may offer promotional trial subscriptions to access the Services for free for a limited time or at special discounted prices. If You sign up for a trial use, Your rights to use the Services are limited by the terms of such trial and will terminate or renew on the terms of Your trial arrangement and/or any applicable Additional Terms. Please be aware that when You sign up for a free trial, You will be required to provide Your Card number and Toucan will confirm Your Card is valid. When We process Your Card, some credit card companies may place a temporary hold on Your account for Your first payment. Please contact Your Card company if You have questions. Please note that We do not provide price protection or refunds in the event of a price drop or other promotional offering.
Once your free trial ends, we or a third party payment processor will begin billing your designated payment method on a recurring basis for your subscription, unless you cancel your subscription prior to the end of your free trial. If your free trial ends and your subscription begins, your subscription will autorenew and you will be billed on a recurring basis for each subscription until you cancel. Instructions for cancelling your membership subscription are described above. Please note that you will not receive a notice from us that your free trial has ended or that the paid portion of your subscription has begun.
4.7. Modifications to Prices or Billing Terms: The purchase and/or rental of Products and/or Services is subject to availability. Products and Services displayed may not be available at all times in the area which you are located and may be substituted with a service of at least the same quality or discontinued at any time. Toucan reserves the right, at any time, to change its prices and billing methods for services, subject to your cancellation rights set out in section 4.3.
4.8. Account Registration And Security: You understand that You will need to create an account to have access to the Services. You will: (a) provide true, accurate, current and complete information about You as prompted by the Services’ registration or subscription page (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If You provide any information that is untrue, inaccurate, not current or incomplete, or Toucan has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Toucan has the right to suspend or terminate Your account and refuse any and all current or future use of the Services (or any portion thereof). You are entirely responsible for the security and confidentiality of Your password and account. Furthermore, You are entirely responsible for any and all activities that occur under Your account. You will not share Your account information or Your user name and password with any third party or permit any third party to logon to the Services using Your account information. You agree to immediately notify us of any unauthorized use of Your account or any other breach of security of which You become aware. You are responsible for taking precautions and providing security measures best suited for Your situation and intended use of the Services. Please note that anyone able to provide Your personally identifiable information will be able to access Your account so You should take reasonable steps to protect this information.
- LIMITED LIABILITY OF TOUCAN; RISK WARNING; ASSUMPTION OF RISK BY YOU AND WAIVER.
5.1. Limited Liability: Nothing in these terms shall limit or exclude Our liability to You for any liability that, by law, may not be limited or excluded.
5.2. Cap on Liability: To the extent permitted by law, Our liability to You under or in connection with this Agreement must not exceed the net amount paid by You to Us under this Agreement.
5.3. Indirect Loss: To the extent permitted by law, We shall not be liable to You under or in connection with this Agreement for indirect or consequential losses.
5.4. Risk Warning, Assumption of Risk and Waiver: You acknowledge that accidents, personal injury, death and other harm can happen when You are operating the Product, including as a result of falling, collisions, encountering hidden obstacles and varying terrain and aggravation of existing health conditions. You acknowledge that You have been warned about these possibilities, and You assume all risk in relation to the operation of the Product and Your use of it. This provision will constitute a “risk warning” for the purposes of any applicable law and may operate to exclude or limit any rights You might otherwise have against Us in relation to the supply of the Services.
5.5 Release: To the extent permitted by law, You release Us from all claims (including claims under statute that can be waived by You and negligence claims) arising out of Your use of the Product.
5.5 Exclusion- Implied Terms: Certain terms may be implied into this Agreement by consumer protection law for your benefit in respect of the supply of the Services and Your use of the Product. The operation of some of these implied terms can be excluded in certain circumstances. You agree that, to the extent permitted by law, any statutory guarantees or warranties, insofar as they are relied on by You in the case where personal injury, death or other physical or mental harm have occurred to You arising out of the supply of the Services or Your use of the Product, are excluded from this Agreement, except where significant personal injury arises as a result of Our reckless conduct.
- SUSPENSION AND TERMINATION.
6.1 Temporary Suspension: We may, from time to time, with prior notice, temporarily suspend the operation of any Service (in whole or in part) for repair or maintenance work or in order to update or upgrade any contents, features or functionality.
6.2 Suspension and Termination: We may, at our discretion, with or without prior notice, terminate this Agreement or suspend and/or terminate any Service and/or your use of your account in the event that:
6.2.1 you have materially breached any of the provisions of this Agreement;
6.2.2 you fail to pay any correctly billed charges when due; or
6.2.3 to the extent permitted by law, you become insolvent or make composition with your creditors, or are subject to any event or proceedings which are equivalent or substantially similar under any applicable jurisdiction.
6.3 Breach: If you have breached this Agreement, we may take such action as we deem appropriate. Such a breach by you may result in our taking, with or without notice, all or any of the following actions:
6.3.1 issue of a warning to you;
6.3.2 immediate, temporary or permanent withdrawal of your right to use any Service or Products;
6.3.3 legal proceedings against you for reimbursement of all recoverable loss and damage resulting from the breach; and/or
6.3.4 disclosure of all relevant information to law enforcement authorities as we reasonably feel is necessary.
The responses described above are not limited, and we may take any other action we deem appropriate.
6.4 Upon Termination: Upon termination of your rental of Products, your subscription or your account, for any reason (including where, in accordance with these terms, you cancel or do not renew your subscription):
6.4.1 all rights granted to you under these terms will immediately cease;
6.4.2 you must promptly discontinue all use of the relevant Service and/or Products; and
6.4.3 you must pay us all outstanding amounts that you owe us.
- CONFIDENTIALITY OF INFORMATION; PRIVACY POLICIES.
8.1. Limitation on Availability of Services: Toucan makes every effort to provide the Services 365 days per year, but We do not guarantee that the Services will be available at all times, as force majeure events (see section 8.15 for a description of these types of events) or other circumstances might prevent Toucan from providing the Services. Access to the Services is also conditioned on the availability of Products. Toucan does not represent or warrant the availability of any Services or the availability of any Products at any time. You agree that Toucan may require You to return a Product at any time.
8.2. Access License: Subject to Your strict compliance with this Agreement and the Additional Terms, Toucan grants You a limited, revocable, non-exclusive, non-assignable, non-transferable license to download (temporary storage only), display, view, use, play, and/or print one copy of the Content (as that expression is defined in section 8.3 below) (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless other Internet enabled Device (each, a “Device”) for Your personal, non-commercial use only. This license does not include any resale or commercial use of the Services or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of the Services or their contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. Except as expressly permitted herein, the Services and/or any portion of the Services may not be reproduced, sold, resold, visited or otherwise exploited for any purpose without Toucan's express written consent. Any unauthorised use automatically terminates the permissions and/or licenses granted by Us to You. The foregoing limited license: (i) does not give You any ownership of, or any other intellectual property interest in, any Content (as that expression is defined in section 8.3 below), and (ii) may be immediately suspended or terminated for any reason, in Toucan's sole discretion, and without advance notice or liability.
8.3. Copyright and Ownership: All of the content featured or displayed on the Services, including, without limitation, text, graphics, photographs, images, moving images, sound, and illustrations (“Content”), is owned by Toucan, its licensors, vendors, agents and/or its Content providers. All elements of the Services, including, without limitation, the general design and the Content, are protected by copyright, moral rights, trademark and other laws relating to intellectual property rights. The Services may only be used for the intended purpose for which such Services is being made available. Except as permitted by copyright law, You may not modify any of the materials and You may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information or work contained on the Services. Except as authorised under the applicable copyright laws, You are responsible for obtaining permission before reusing any copyrighted material that is available on the Services. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Your use of the Services. The Services, its Content and all related rights shall remain the exclusive property of Toucan or its licensors, vendors, agents, and/or its Content providers unless otherwise expressly agreed. You will not remove any copyright, trademark or other proprietary notices from material found on the Services.
8.4. Trademarks/No Endorsement: All trademarks, service marks and trade names of Toucan used herein (including but not limited to: Toucan name, Toucan corporate logo, the Services name, the Services design, and/or any logos) (collectively “Marks”) are trademarks or registered trademarks of Toucan or its affiliates, partners, vendors or licensors. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify Toucan trademarks in any way, including in advertising or publicity pertaining to distribution of materials on the Services, without Toucan's prior written consent. You shall not use Toucan's name or any language, pictures or symbols which could, in Toucan's judgment, imply Toucan's endorsement in any (i) written or oral advertising or presentation, or (ii) brochure, newsletter, book, or other written material of whatever nature, without prior written consent.
8.5. Solicited Submission Policy: Where Toucan has specifically invited or requested submissions or comments, Toucan encourages You to submit content (e.g., comments to blog posts, participation in communities, tips, etc.) to Toucan that they have created for consideration in connection with the Site (“User Submissions”). User Submissions remains the intellectual property of the individual user. By posting content on our Site, You expressly grant Toucan a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide, fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, perform and display such content and Your name, voice, and/or likeness as contained in Your User Submission, in whole or in part, and in any form throughout the world in any media or technology, whether now known or hereafter discovered, including all promotion, advertising, marketing, merchandising, publicity and any other ancillary uses thereof, and including the unfettered right to sublicense such rights, in perpetuity. Any such User Submissions are deemed non-confidential and Toucan shall be under no obligation to maintain the confidentiality of any information, in whatever form, contained in any User Submission.
8.6. Inappropriate User Submissions: Toucan does not encourage, and does not seek, User Submissions that result from any activity that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to You, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; or (iii) may constitute a crime or tort. You agree that You have not and will not engage in any of the foregoing activities in connection with producing Your User Submission. Without limiting the foregoing, You agree that in conjunction with Your submission, You will not inflict emotional distress on other people, will not humiliate other people (publicly or otherwise), will not assault or threaten other people, will not enter onto private property without permission, will not impersonate any other person or misrepresent Your affiliation, title, or authority, and will not otherwise engage in any activity that may result in injury, death, property damage, and/or liability of any kind. Toucan will reject any User Submissions in which Toucan believes, in its sole and absolute discretion, that any such activities have occurred. If notified by You of a submission that allegedly violates any provision of this Agreement, Toucan reserves the right to determine, in its sole and absolute discretion, if such a violation has occurred, and to remove any such submission from the Services at any time and without notice.
8.7. Inappropriate Material: You are prohibited from using the Services to post or send any unlawful, infringing, threatening, defamatory, obscene, pornographic or profane material or any material that infringes or misappropriates third party intellectual property or could constitute or encourage conduct that would be considered a criminal offense or otherwise violate any law. You further agree that sending or posting unsolicited advertisements or “spam” on or through the Services is expressly prohibited by this Agreement. In addition to any remedies that We may have at law or in equity, if We determine, in our sole and absolute discretion, that You have violated or are likely to violate the foregoing prohibitions or any applicable rules or policies linked to in this Agreement, We may take any action We deem necessary to cure or prevent the violation, including, without limitation, banning You from using the Services and/or the immediate removal of the related materials from the Services at any time without notice. We will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.
8.8. Access and Interference: You agree that You will not use any robot, spider, scraper or other automated means to access the Services for any purpose without our express written permission. Additionally, You agree that You will not: (i) take any action that imposes, or may impose, in Our sole and absolute discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the site or any activities conducted on the Services; or (iii) bypass any measures We may use to prevent or restrict access to the Services.
8.10. User Published Content: User published Content and User Submissions do not represent the views of Toucan or any individual associated with Toucan, and We do not control this Content. In no event shall You represent or suggest, directly or indirectly, Toucan's endorsement of user published Content. Toucan does not vouch for the accuracy or credibility of any user published Content on our Services or User Submissions published through our Services, and do not take any responsibility or assume any liability for any actions You may take as a result of reviewing any such user published Content or User Submission. Through Your use of the Services and Services, You may be exposed to Content that You may find offensive, objectionable, harmful, inaccurate or deceptive. There may also be risks of dealing with underage persons, people acting under false pretence, international trade issues and foreign nationals.
8.11. Third Party Links: From time to time, the Services may contain links to websites that are not owned, operated or controlled by Toucan or its affiliates. All such links are provided solely as a convenience to You. If You use these links, You will leave the Services. Neither We nor any of our respective affiliates are responsible for any content, materials or other information located on or accessible from any other website. Neither We nor any of our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other websites, or any content, materials or other information located or accessible from any other websites, or the results that You may obtain from using any other websites. If You decide to access any other websites linked to or from the Services, You do so entirely at Your own risk.
8.12. Transactional Partners: In some cases, We partner with another company to co-promote their services within our Services. In these cases, You are transacting directly with the other party. On those pages or locations, the transactional partners’ brand is clearly visible and their agreement is posted. When using these partner pages, You are bound by the partner agreement in addition to remaining bound by this Agreement. When there is a conflict between this Agreement and the partner’s agreement, Our Agreement will prevail.
8.13. Representations on User Submissions: You represent and warrant that Your User Submissions and all elements thereof are (a) owned or controlled solely and exclusively by You, You have prior written permission from the rightful owner of the content included in Your User Submissions, or You are otherwise legally entitled to grant Toucan all of the rights granted herein; and (b) Toucan's use of Your User Submissions as described or contemplated herein do not and will not infringe on the copyrights, trademark rights, publicity rights or other rights of any person or entity, violate any law, regulation or right of any kind whatsoever, or otherwise give rise to any actionable claim or liability, including, without limitation, rights of publicity and privacy, and defamation. Furthermore, You shall be solely responsible for Your own User Submissions and the consequences of posting or publishing them.
8.14. Wireless Features: The Services may offer certain features and services that are available to You via Your wireless Device. These features and services may include the ability to access the Services’ features and upload content to the Services, receive messages (including text and SMS messages) from the Services, and download applications to Your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by Your carrier to participate in Wireless Features. Fees and charges may appear on Your wireless bill or be deducted from Your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with Your carrier or wireless Device. You should check with Your carrier to find out what plans are available and how much they cost. Contact Your carrier with questions regarding these issues. You confirm that You are the current subscriber and/or customary user of the mobile number registered with the Services and authorized to incur any message or data charges that may be charged by Your carrier. You are strictly prohibited from registering a mobile number that is not Your own. If We discover that any information provided is false or inaccurate, We may hold, suspend or terminate Your access to the Services at any time. Your participation in the Services is completely voluntary.
8.15. Force Majeure: Neither Toucan nor You shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including, without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of common carriers.
This Agreement is governed by the laws of the Australian State or Territory where you physically activated the Product (“Applicable State”). You consent to the exclusive jurisdiction of the courts of the Applicable State.
If at any time any provision of this Agreement shall be held to be or have become illegal, void, invalid or unenforceable, in whole or in part, in any respect under the law of any jurisdiction, the provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the parties.
To the extent that it is not possible to delete or modify the provision, in whole or in part, as described above, then such provision or part of it shall, to the extent that it is illegal, void, invalid or unenforceable, be deemed not to form part of this Agreement and the legality, validity and enforceability:
(a) under the law of that jurisdiction of any other provision; and
(b) under the law of any other jurisdiction of that or any other provision,
shall not be affected or impaired in any way.
This Agreement contains the whole and only agreement between the parties relating to the subject matter of this Agreement, and therefore excludes any terms implied by law which may be excluded by contract, and supersedes any previous written or oral agreement between the parties (or any of them) in relation to matters dealt with in this Agreement.
8.17. Dispute Resolution: In the event of any dispute, difference or questions arising out of, or in connection with, this Agreement (a “dispute”) a party must, as soon as reasonably practicable, give the other party notice of that dispute. The parties must then use their best efforts to resolve the dispute through good faith negotiations and informal dispute resolution techniques within 90 calendar days of the date of the dispute notice. Toucan will make available for a meeting a representative with authority to settle the dispute. If the dispute doesn’t settle within 90 calendar days of the date of the dispute notice, either party may revert to the courts of the Applicable State. Nothing in this clause 8.17 will preclude either party from taking immediate steps to seek urgent interlocutory or injunctive relief before the courts of the Applicable State.
8.18. Updates to Terms: As our Services evolve, the terms and conditions under which we offer services may be modified, provided that we will not, unless you agree, make any changes in respect of any Services you have already paid for that would significantly reduce the type or level of service you receive (except if we need to do so for security, legal or regulatory reasons). We will always give you as much notice as we reasonably can of such significant changes on the understanding that you have the option of accepting them or cancelling a subscription without penalty, in which case, you should notify us that you wish to cancel your subscription before the changes come into effect, and we will give you a pro-rated refund of the advance charges already paid by You, based on the unexpired portion of the then-current subscription period (see Section 4.4 Cancellation of Subscription). If you do not cancel your subscription before the date on which the changes come into effect (which we will notify to you), this will mean that you have accepted them.
8.19. GST: If GST is payable by a supplier (or by the representative member for a GST group of which the supplier is a member) on any supply made under or in relation to this Agreement, the recipient must pay to the supplier an amount (“GST Amount”) equal to the GST payable on the supply. The GST Amount is payable by the recipient in addition to and at the same time as the net consideration for the supply.
If a party is required to make any payment or reimbursement, that payment or reimbursement must be reduced by the amount of any input tax credits or reduced input tax credits to which the other party (or the representative member for a GST group of which it is a member) is entitled for any acquisition relating to that payment or reimbursement.
In this Agreement “GST” has the meaning given by section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
8.21. Terms Applicable For Apple iOS: If the App that you download, access and/or use is downloaded from the App Store operated by Apple Inc. ("Apple"):
- your licence to use the App is limited to a non-transferable licence to use the App on an Apple-branded device owned or controlled by you and as permitted by Apple’s usage rules published in its App Store terms of service, except that the App may be accessed, acquired and used by other accounts associated with you via Family Sharing or volume purchasing;
- you acknowledge and agree that:
- Apple has no obligation at all to provide any support or maintenance services in relation to the App. If you have any maintenance or support questions in relation to the App, please contact us, not Apple, using the Contacting us details in these terms;
- we, not Apple, are responsible for responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation;
- 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 for the App to you;
- to the maximum extent permitted by applicable law, Apple will have no other warranty obligations whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs and expenses attributable to any failure to conform to any warranty will be our sole responsibility and we are solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed;
- in the event of any claim by a third party that your possession or use (in accordance with these terms) of the App infringes any intellectual property rights, Apple will not be responsible or liable to you in relation to that claim; and
- although these terms are entered into between you and us (and not Apple), Apple and its subsidiaries are third party beneficiaries of these terms and, upon your acceptance of these terms, Apple Inc. (and will be deemed to have accepted the right) to enforce these terms against you as a third party beneficiary thereof;
- you represent and warrant that:
- you are not, and will not be, located in any country that is the subject of a United States Government embargo or that has been designated by the United States Government as a "terrorist supporting" country; and
- you are not listed on any United States Government list of prohibited or restricted parties; and
- you must comply with any applicable third party terms of agreement when using the App, such as your mobile phone provider's data usage agreement.
8.22: Terms Applicable For Google
If the App that you download, access and/or use is downloaded from Google Play:
You are allowed unlimited reinstalls of the App without any additional fee, provided that if the App is removed from Google Pay due to (a) an allegation of infringement, or actual infringement, of any third party Intellectual Property Right; (b) an allegation of, or actual violation of, third party rights; or (c) an allegation or determination that such Product does not comply with applicable law (collectively "Legal Takedowns") then the App will be removed from all portions of Google Play and you will no longer have a right or ability to reinstall the App.
You may also be able to claim a refund from Google for purchases made in the App if you qualify under the Google Play refund policy at https://support.google.com/googleplay/answer/2479637?p=play_refund.
We grant to the User a nonexclusive, worldwide, and perpetual license to perform, display, and use the App. The "User" means you and may also include, but is not limited to, a family group and family members whose accounts are joined together for the purpose of creating a family group. Family groups on Google Play will be subject to reasonable limits designed to prevent abuse of family sharing features.
8.23. Google Maps : The map data that We provide to You in our App is based on the current map information available to us which may be provided by a third party such as through the incorporation of the Google Maps API, and may be inaccurate or incomplete. If You utilize map functionality We make available through our App, You acknowledge and agree to be bound by Google, Inc.’s Google Maps/Google Earth Additional Terms of Service, available at https://maps.google.com/help/terms_maps.html.
ACCEPTANCE OF AGREEMENT
I certify that I am at least 18 years old, and that I have carefully read and expressly agree to all of the terms and conditions set forth in this Agreement.
Model Withdrawal Form
If You wish to withdraw from this Agreement, please fill in the form below and send it back to Us at the following address (please complete):
Model Withdrawal Form
To : Toucan Tours
Address: [please complete]
Fax: [please complete]
E-Mail: [please complete]
Hereby I/we (*) withdraw from the Agreement concluded by me/us (*) for the provision of the following Products (or Services) :
Products/Services order on :
Ordered on (*) / received on (*):
Name(s) of the consumer(s):
Address of the consumer(s):
Signatures of the consumer(s) (only in case of notification on paper)
(*) Delete as applicable.”
Queensland- electric scooters Toucan Scooter
- The local roads authority (which includes local councils) can erect signage prohibiting the use of wheeled recreational devices (which includes motorised scooters) in certain places. Such signs must be obeyed.
- The Toucan Scooter cannot be used on roads at night (although they can be used on paths at night), and cannot be used on the following:
- a road with a dividing line (i.e. a road marking formed by a line or 2 parallel lines, broken or continuous, designed to indicate the parts of the roads to be used by vehicles travelling in opposite directions)
- a road with a median strip (i.e. a dividing strip designed to separate vehicles travelling in opposite directions);
- a road on which the speed limit is more than 50km/h; or
- a one-way road with more than 1 marked lane.
You may be exempt from wearing an Approved Helmet in the following limited circumstances:
(a) If You are a member of a religious group, wearing a type of headdress customarily worn by that group, making it impracticable to wear an Approved Helmet.
(b) If You are carrying a doctor’s certificate stating You cannot wear a helmet for medical reasons or because a physical characteristic which makes it unreasonable to require You to wear an Approved Helmet.
1.3 When in possession of a Toucan Scooter You may be allowed to cross a road if You cross the road by the shortest safe route and does not stay on the road longer than necessary to cross the road safely.
1.4 When travelling on a Toucan Scooter on a road You must:
- keep as far to the left side of the road as is practicable; and
- not travel alongside more than one other pedestrian or vehicle travelling on the road in the same direction as You, unless You are overtaking other pedestrians.
Footpath and shared path
1.5 When You are travelling on a Toucan Scooter You must:
- keep to the left of the footpath or shared path unless it is impracticable to do so;
- give way to any pedestrian (except a person travelling in or on a wheeled recreational device or wheeled toy, or using a personal mobility device) who is on the footpath or shared path.
For these purposes, a shared path is “an area open to the public (except a separated footpath) that is designated for, or has as one of its main uses, use by both the riders of bicycles and pedestrians, and includes a length of path for use by both bicycles and pedestrians beginning at a shared path sign, or shared path road marking, and ending at the nearest of the following:
- an end shared path sign or end shared path road marking;
- a no bicycles sign or no bicycles road marking;
- a bicycle path sign or bicycle path road marking;
- a road (except a road-related area);
- the end of the path.
Bicycle path and separated footpath
1.6 When travelling on a Toucan Scooter You must not be on a part of a separated footpath designated for the use of pedestrian unless the person is crossing the separated footpath by the shortest safe route and does not stay on the footpath for longer than necessary to cross the separated footpath safely.
1.7 When travelling on a Toucan Scooter on a bicycle path or part of a separated footpath designated for the use of bicycles, You must keep out of the path of any bicycle.
1.8 If You are travelling on a Toucan Scooter You must not travel past a no wheeled recreational devices or toys sign.
Electric scooters must not be towed etc.
1.9 If You are travelling on a Toucan Scooter You must not:
- travel in or on a wheeled recreational device or wheeled toy that is being towed by a vehicle;
- hold onto a vehicle while the vehicle is moving;
- travel within 2m of the rear of a moving motor vehicle continuously for more than 200m.