TERMS AND CONDITIONS

1. Subscription Term

1.1 The Subscription Term commences on the Commencement Date and will continue until terminated by either party under clause 1.2 or terminated earlier in accordance with clause 18.

1.2 Subject to clause 1.5, either party may terminate this Agreement at any time and on a without cause basis upon the provision of notice to the other party which is not less than the Expiry Notice Period.      

1.3 If the Customer provides a notice under clause 1.2, then, subject to clause 1.4, the Subscription Term will end at the conclusion of the Expiry Notice Period.

1.4 If: (a) the Customer has provided a notice under clause 1.2;

(b) the Subscription Term has not ended; and

(c) the Customer has not returned the Bike to Lug+Carrie, the Customer may, by notice in writing to Lug+Carrie, change their mind and decide to continue the subscription in which case this Agreement will continue.

1.5 If a Customer has terminated this Agreement by providing notice under clause 1.2 but subsequently wishes to enter into an agreement with Lug+Carrie for the use of a bicycle within six (6) months of the termination of this Agreement, the Customer must pay to Lug+Carrie an amount equal to the Bike Swap Fee in Item 12.

2. Rental of Bike

2.1 Lug+Carrie agrees to hire the Bike to the Customer for the Subscription Term and the Customer agrees to take the Bike on hire for that period and to pay the Subscription Amount to Lug+Carrie for the duration of the Subscription Term on the terms and conditions set out in this Agreement.

2.2 The Customer is entitled to use the Bike for the Subscription Term.

2.3 Lug+Carrie may substitute the Bike for another bike at any time during the Subscription Term and Lug+Carrie will be responsible for collecting the Bike and delivering the substitute bike to the Customer. Any such substitute bike must be of an equivalent type and specification as the substituted bike.

2.4 For the avoidance of doubt, the Customer will continue to incur and be liable for all Subscription Amounts and all other monies payable under this Agreement, until the later of:

(a) the end of the Subscription Term (regardless of whether the Customer has returned the Bike to Lug+Carrie prior to the end of the Subscription Term); and

(b) if the Customer does not exercise its right to purchase the Bike under clause 6, the date that all of the Bike (including all Accessories, Keys and parts of the Bike) is returned to Lug+Carrie and are in the possession of Lug+Carrie in full working order and in the same condition as at the commencement of the Subscription Term (fair wear and tear exempted).

3. Authorised Riders

The Customer agrees that:

3.1 It must ensure that each Authorised Rider complies with all the provisions of this Agreement as if they were the Customer; and

3.2 all acts and omissions of an Authorised Rider will be deemed to be acts and omissions of the Customer for the purpose of this Agreement and the Customer will be responsible and liable for all acts or omissions of any Authorised Rider as if they were the acts or omissions of the Customer.

4. Delivery and return of Bike

4.1 Subject to clause 4.2, the Customer shall, at its own cost:

(a) on the Commencement Date collect the Bike from Lug+Carrie or such person as nominated in writing by Lug+Carrie; and

(b) subject to clause 6, return the Bike to Lug+Carrie, or to any alternate location reasonably directed by Lug+Carrie, on the End Date.

4.2 If requested by the Customer, Lug+Carrie may agree to deliver the Bike to the Customer on the Commencement Date:

(a) if the premises from which the Bike is to be delivered are within 25 km of a Service Centre in the case of Customers in Melbourne, and located within the Sydney Operating Area in the case of Customers in Sydney; and

(b) the Customer pays the Delivery Fee as referred to in Item 11 to Lug+Carrie.

4.3 Unless otherwise agreed in writing by Lug+Carrie, collection or delivery of the Bike under this clause 4 will take place between the hours of 9.30am to 4pm other than on a Sunday or Public Holiday.

4.4 Deliveries or pickups will only take place at a Customers’ residence.

5. Change of Bike and Accessories

Subject to, and without limiting, clause 12:

5.1 the Customer may, subject to availability, swap the Bike or any Accessories for another bike or accessories of the same or lesser value once within 28 days of the Commencement Date;

5.2 if the Customer wishes to swap the Bike or any Accessories for another bike or accessories after 28 days of the Commencement Date, the Customer must pay the relevant Swap Fee (as referred to in Item 12) to Lug+Carrie; and

5.3 any bike or accessories which are swapped for the Bike or any Accessories in accordance with this clause 5 will be selected by Lug+Carrie.

6. Purchase of Bike

6.1 At any time from the Purchase Option Date, the Customer has the right to acquire title to the Bike by paying the Purchase Amount to Lug+Carrie.

6.2 The Customer may provide a notice to Lug+Carrie that it wishes to acquire title to the Bike (Notice).

6.3 Upon receipt of the Notice, Lug+Carrie will notify the Customer of the Purchase Price which the Customer must pay in order to acquire title to the Bike (Purchase Amount Notice).

6.4 Upon the Customer paying to Lug+Carrie the Purchase Amount set out in the Purchase Amount Notice , the Subscription Term ends and title to, and property in, the Bike shall pass from Lug+Carrie to the Customer provided that:

(a) the Customer has paid to Lug+Carrie the last Subscription Amount and all other amounts accrued, due and payable under the Agreement as at the date of paying the Purchase Amount; and

(b) no Event of Default is continuing.

7. Subscription Amount

7.1 The Customer agrees to pay to Lug+Carrie the amount of the Subscription Amount on each Subscription Amount Payment Date.

7.2 Lug+Carrie may increase the amount of the Subscription Amount, the Delivery Fee (as defined in Item 11) or the Swap Fee (as defined in Item 12) by providing the Customer with notice of the relevant increase which is not less than the Expiry Notice Period.

7.3 Lug+Carrie may set off any amount owing by the Customer to Lug+Carrie, whether or not due for payment, against any money due for payment by Lug+Carrie to the Customer under any agreement, understanding or arrangement between Lug+Carrie and the Customer.

7.4 If the Customer fails to make any payment by the relevant Subscription Amount Payment Date, breaches any term of the Agreement or is the subject of an Insolvency Event, then, without prejudice to any other right or remedy available to Lug+Carrie and to the extent permitted by law, Lug+Carrie may, in its sole discretion, elect to do any one or more of the following:

(a) terminate the Agreement in accordance with clause 18;

(b) enter the property of the Customer in order to repossess the Bike and the Customer grants Lug+Carrie and its agents an irrevocable license to do so;

(c) charge the Customer for all costs and expenses incurred by Lug+Carrie in trying to recover any amounts the Customer owes to Lug+Carrie (including any fees paid to a debt collector, mercantile agent or similar); and

(d) exercise any rights which Lug+Carrie may have under law, including the Personal Property Securities Act 2009 (Cth).

7.5 The Customer may not set off or combine any amount owing by Lug+Carrie to the Customer, whether or not due for payment, against any money due for payment by the Customer to Lug+Carrie under an Agreement and the Customer must pay, and not withhold, any amount due to Lug+Carrie under this Agreement notwithstanding the Customer may be in dispute with Lug+Carrie regarding the Bike supplied by Lug+Carrie to the Customer.

7.6 If the Customer is a Retail Customer and uses the Bike for any business or commercial purpose in breach of clause 8.1(e)(i) then Lug+Carrie may increase the Subscription Amount by an amount equal to the difference between the Subscription Amount and the amount Lug+Carrie charges Commercial Customers for similar bicycle subscription services.

7.7 Lug+Carrie Retail pricing include an amount for GST. For other pricing, unless otherwise expressly stated in writing in an Agreement, all amounts payable by the Customer in connection with an Agreement do not include an amount for GST. If GST is payable on any supply made by Lug+Carrie under this Agreement, the Customer must pay to Lug+Carrie, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where the Customer is required by this Agreement to reimburse or indemnify Lug+Carrie for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that Lug+Carrie will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by Lug+Carrie in respect of the reimbursement or payment. This clause does not merge on completion or termination of the relevant Agreement or contract. In this clause, words and expressions which are defined in the GST Act have the same meaning given to them by the GST Act.

8. Use of Bike

8.1 The Customer agrees that:

(a) at all times during the Subscription Term the Customer remains responsible for the use of the Bike;

(b) at all times it must ensure that the Bike is used in an appropriate manner and in accordance with any procedures and directions published or notified by Lug+Carrie (including instructions on how to safely operate the Bike, charge the battery, lock the Bike and maintain the Bike) and not in breach of any laws (including any road safety laws);

(c) the Bike must only be used by the Customer and any Authorised Rider (under the supervision of the Customer) and the Customer is responsible for all acts and omissions of any Authorised Rider;

(d) any safety and operational information supplied or demonstrated with the Bike must be conveyed to the person using the Bike;

(e) Lug+Carrie is not responsible for the provision of any operational induction or training for the use of the Bike;

(f) the Bike must only be used for: (i) if the Customer is a Retail Customer, personal use and not for any business or commercial purpose; (ii) if the Customer is a Commercial Customer, business or commercial use and not for any personal use; (iii) and the purpose and capacity for which it has been specifically designed and not for any other or illegal purpose;

(g) the Customer must, at its own cost, keep the Bike in good condition at all times during the Subscription Term and notify Lug+Carrie if the Bike requires any servicing, maintenance or repair;

(h) the Customer must safely and legally store the Bike: (i) if the Customer is a Retail Customer, on private property; (ii) and if the Customer is a Commercial Customer, at a Storage Location, and undercover when the Bike is not in use and to take all reasonable steps at all times to protect and safeguard the Bike from theft, Damage or loss;

(i) the Customer must not Damage, change, alter, modify or tamper with the Bike;

(j) without limiting clause 19.3(d) the Customer must immediately notify Lug+Carrie if any sign or identifying plate on the Bike is removed, defaced or damaged;

(k) the Customer must notify Lug+Carrie as soon as the Customer becomes aware of any fault or potential fault with the Bike that if left unattended could result in further damage to the Bike or result in a safety hazard;

(l) the Customer must not make, or allow to be made, any copy of the Key;

(m) if the Key is lost, stolen or damaged the Customer must pay to Lug+Carrie an amount equal to $180 for a replacement key, lock and installation;

(n) subject to clause 6, the Bike must be returned to Lug+Carrie at the end of the Subscription Term in the same condition as provided to the Customer at the Commencement Date (fair wear and tear excepted);

(o) the Customer must not reconfigure, reprogram, repurpose, or otherwise interfere with the ordinary operation of the Bike Software;

(p)if it adds its own accessories to the Bike (such as a pannier, light or bell) it must ensure that those accessories do not Damage the Bike and must remove those accessories before returning the Bike to Lug+Carrie

(q) the Customer has examined the Bike and has satisfied itself as to the quality and fitness for purpose for which it is being hired and if the Bike is defective then the Customer must promptly notify Lug+Carrie of the defect; and

(r) the Customer is not relying on any representations made by or on behalf of Lug+Carrie in respect of the Bike and its performance, and that subject to clause 12, Lug+Carrie has not made any representation and gives no guarantee or warranty that the Bike is suitable for the Customer’s particular purpose.

8.2 The Customer hereby expressly authorises and grants to Lug+Carrie and Lug+Carrie’s representatives an express, irrevocable license to enter the Customer’s premises and any other location where the Bike is located during the Subscription Term for the purpose of:

(a) servicing, repairing, inspecting or retaking possession of the Bike; and (b) otherwise exercising its rights under this Agreement, including clause 11.

9. Maintenance

9.1 Lug+Carrie may, during the Subscription Term and, subject to clause 9.6, at no additional cost to the Customer, undertake and provide to the Customer Maintenance in respect of the Bike.

9.2 Lug+Carrie will provide Maintenance to a Commercial Customer that stores the Bike within the Operational Area. If the Bike is stored more outside the Operational Area then Lug+Carrie may by agreement provide Maintenance to the Commercial Customer at the Commercial Customer’s cost.

9.3 Lug+Carrie may: (a) effect any repair to a Bike that it considers necessary notwithstanding that it may not be part of the Maintenance; and (b) use new, second-hand or remanufactured parts in effecting any repair or maintenance on a Bike.

9.4 The Customer must:

(a) subject to clause 9.6, at its cost and within 14 days of any request from Lug+Carrie, deliver the Bike to a Service Centre or such other address nominated by Lug+Carrie between the hours of 9.00am and 5.00pm Monday to Saturday (excluding public holidays) for the purpose of Lug+Carrie undertaking Maintenance in respect of the Bike;

(b) prior to or at delivery of the Bike to Lug+Carrie, notify Lug+Carrie of any issues, faults or defects with the Bike or damage to the Bike; and

(c) ensure that the Bike is provided to Lug+Carrie in a condition that allows, in Lug+Carrie’s opinion, Lug+Carrie to carry out the Maintenance.

9.5 Upon completion of the Maintenance, the Customer must, at its cost, arrange for the Bike to be picked up from Lug+Carrie within 14 days of the date which Lug+Carrie notifies the Customer that the Maintenance has been completed.

9.6 If requested by the Customer, Lug+Carrie may agree to collect the Bike from the Customer:

(a) if the premises from which the Bike is to be collected are within 25 km of a Service Centre, or located within the Sydney Operating Area; and

(b) the Customer pays any applicable Delivery/Pick Up Fee to Lug+Carrie.

9.6 Maintenance may take place at Lug+Carrie’s Service Centre or at the Customer’s residence.

10. Damage, Loss, Theft

10.1 In the event that the Bike or any part of the Bike is Damaged, lost or stolen, the Customer must:

(a) notify Lug+Carrie of the Damage, loss or theft;

(b) in the case of any theft or suspected theft, report the theft or suspected theft to the police and provide Lug+Carrie with a copy of the report as well as return the original keys and charger;

(c) provide Lug+Carrie with any reasonable information required in respect of the Damage, loss or theft and follow any reasonable directions or procedures relating to the Damage, loss or theft;

(d) if requested by Lug+Carrie and at the Customer’s cost, promptly deliver the Bike and Keys to Lug+Carrie to allow Lug+Carrie to repair any Damage to the Bike or replace any lost or stolen part of the Bike; and

(e) subject to clause 10.3 and if requested by Lug+Carrie, pay to Lug+Carrie the amount Lug+Carrie estimates to be the amount required to replace or repair the Bike or part of the Bike.

10.2 Subject to clauses 10.3 and 12, if the Bike or any part of the Bike is Damaged, lost or stolen, the Customer will be liable for all:

(a) costs of repair of any Damage to the Bike; and

(b) costs of replacing any lost or stolen Bike or part of the Bike,

10.3 Subject to clauses 10.4 and 12, the Customer’s maximum liability under clause 10.2 will be $500 in each separate case of Damage, loss or theft.

10.4 Clause 10.3 does not apply if the Damage, loss or theft is caused directly or indirectly by:

(a) the negligence of the Customer or any Authorised Rider;

(b) any act or omission of the Customer or any Authorised Rider which a reasonable person would consider may be likely to result in the Damage, loss or theft; or

(c) any breach of this Agreement.

10.5  In the event that the Bike or any part of the Bike is Damaged, lost or stolen, the Customer will not incur and be liable for any Subscription Amounts in respect of that Bike from the time the Customer makes payment of the amount under clause 10.1(e) until the Bike (or a replacement bicycle) is returned by Lug+Carrie to the Customer.

10.6 Nothing in this Agreement requires Lug+Carrie to repair or replace any Bike which has been Damaged, lost or stolen however, if Lug+Carrie refuses to repair or replace any Bike then this Agreement will automatically terminate.

10.7 If the Bike suffers any Damage, the Customer must:

(a) ensure that the Bike is not used by any person until the Damage has been repaired; and

(b) take all steps necessary to prevent injury to any persons or damage to any property as a result of the Damage.

11. Inspection

Lug+Carrie may at all reasonable times during the Subscription Term:

11.1 inspect the state of repair of the Bike and observe the use of the Bike; and

11.2 do any act, matter or thing which may be required to be done to give proper effect to the terms of this Agreement or to protect Lug+Carrie’s rights in the Bike.

12. Warranties and liability

12.1 If the Customer is a Consumer and Lug+Carrie supplies Personal, Domestic & Household (PDH) Goods or Services to the Customer (even where those PDH Goods or Services are second hand), Lug+Carrie acknowledges that the Customer may have certain rights under the Australian Consumer Law in respect of the Consumer Guarantees as they apply to the PDH Goods or Services supplied by Lug+Carrie and nothing in this Agreement should be interpreted as attempting to exclude, restrict or modify the application of any such rights.

12.2 If the Customer is a Consumer and any goods or services supplied by Lug+Carrie to the Customer are non PDH Goods or Services, Lug+Carrie’s liability to the Customer in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at Lug+Carrie’s discretion) to:

(a) in the case of Bike (i) the replacement of the Bike or the supply of equivalent Bike; (ii) the repair of the Bike; or (iii) the payment of the cost of replacing the Bike or acquiring equivalent goods again; and

(b) in the case of services; (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.

12.3 If the Customer makes a claim against Lug+Carrie which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, Lug+Carrie expressly excludes all liability in respect of the Bike or services supplied by Lug+Carrie to the Customer.

12.4 The Customer acknowledges that:

(a) Bike supplied to the Customer under this Agreement is part of a rental fleet of bicycles and may be supplied as second hand bicycle; and

(b) where a second hand Bike is supplied to the Customer the Bike is unlikely to be in the same condition as if it were a new Bike.

12.5 The Customer acknowledges that the Customer may not have rights under the Australian Consumer Law against Lug+Carrie for a claim that the Bike (including second hand Bike) is not of acceptable quality, or such rights may be diminished, where:

(a) the reason or reasons for the Bike not being of acceptable quality are specifically drawn to the Customer’s attention before making an Offer; or (b) when the Customer examined the Bike during the Subscription Term prior to taking possession upon payment of the Purchase Amount and the examination revealed, or ought reasonably to have revealed, that the Bike were not of acceptable quality.

13. Intellectual Property Rights

13.1 Unless expressly stated by an Agreement, the parties acknowledge and agree that nothing in this Agreement shall be construed as a transfer from Lug+Carrie to the Customer of the ownership of, or title to, any of the Intellectual Property Rights in the Bike, Bike Software or any other Intellectual Property Rights owned by or licensed to Lug+Carrie or a third party and the Customer agrees that it must not infringe or use the Intellectual Property Rights of Lug+Carrie or any other third party which exist in the Bike or Bike Software without the prior consent of Lug+Carrie or relevant third party.

13.2 The Customer acknowledges that, as between Lug+Carrie and the Customer, Lug+Carrie will own all Intellectual Property Rights in respect of the Data.

14. Indemnity

14.1 The Customer indemnifies Lug+Carrie and holds Lug+Carrie harmless from and against all Losses (including all legal costs, and any other associated fees and costs) for which Lug+Carrie incurs as a direct or indirect result of:

(a) any Damage directly or indirectly caused by the Customer or any Authorised Rider;

(b) loss of, or damage to, any real or personal property owned, leased, licensed or controlled by Lug+Carrie, or any real or personal property of any third party, caused directly or indirectly by the Customer or any Authorised Rider;

(c) personal injury (which includes illness) or death of any person caused directly or indirectly by the Customer or any Authorised Rider;

(d) any negligent or wilful act or omission by the Customer or any Authorised Rider; and

(e) any claim made by any Authorised Rider against Lug+Carrie in connection with the use of the Bike.

15. Notification of claims

The Customer must notify Lug+Carrie immediately if it becomes aware of:

15.1 any claim; or

15.2 any death, serious injury or serious illness, in respect of, or caused by, the Bike and the Customer will take all reasonable steps to mitigate any Loss arising as a consequence of the claim, death, serious injury or serious illness.

16. Confidentiality

16.1 The Customer:

(a) may use Confidential Information solely for the purposes of the relevant Agreement;

(b) must keep confidential all Confidential Information; and (c) may disclose Confidential Information only to (i) employees and contractors who (A) are aware and agree that the Confidential Information must be kept confidential and (B) either have a need to know the Confidential Information (and only to the extent that each has a need to know), or have been specifically approved by Lug+Carrie; or (ii) as required by law or securities exchange regulation; or (iii) with the prior written consent of Lug+Carrie.

16.2 The Customer must notify Lug+Carrie immediately once it becomes aware of any breach of confidentiality in respect of the Confidential Information and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information.

17. Force Majeure

17.1 Lug+Carrie will not be liable for any failure to perform or delay in performing its obligations under this Agreement if that failure or delay is due to a Force Majeure Event.

17.2 If a Force Majeure Event under clause 17.1 exceeds 20 Business Days, Lug+Carrie may immediately terminate the Agreement by written notice to the Customer.

18 Termination

18.1 Without limiting Lug+Carrie’s other rights under this Agreement, and to the extent permitted by law, Lug+Carrie may terminate this Agreement with immediate effect by written notice on the occurrence of an Event of Default. Each of the following events is an Event of Default:

(a) the Customer fails to pay any Subscription Amount or any other moneys payable under this Agreement on the due date for payment and, has still failed to make such payment more than 14 days after receiving a notice from Lug+Carrie regarding the outstanding payment;

(b) the Customer has breached any material term of this Agreement which is not capable of remedy;

(c) the Customer has breached any term of this Agreement which is capable of remedy and has not remedied the breach within 2 days of receiving notice requiring the breach to be remedied;

(d) a Force Majeure Event exceeds 20 Business Days in accordance with clause 17.2;

(e) a representation, warranty or statement made by the Customer under this Agreement is untrue or misleading in any material way;

(f) the Customer permits a security interest to be created over the Bike (other than in favour of Lug+Carrie);

(g) the Customer is subject to an Insolvency Event;

(h) the Bike is abandoned or condemned or is seized or appropriated by any lawful authority and not released within 5 Business Days; or

(i) if the Customer is a natural person, such person dies or is convicted of an indictable offence or sentenced to a term of imprisonment or is or becomes incapable of managing their own affairs.

18.2 If an Event of Default occurs, Lug+Carrie at its option may:

(a) enforce performance by the Customer of the applicable terms and provisions of this Agreement and recover damages for the breach concerned; or

(b) immediately terminate this Agreement and the Customer’s right to possession and use of the Bike by notice in writing to the Customer.

18.3 Upon termination of this Agreement (including upon termination under clauses 1.2 or 10.4 or service of any notice in accordance with clause 18.1):

(a) all rights of the Customer to use the Bike will terminate;

(b) without limiting any of Lug+Carrie’s other rights, the Customer will immediately become liable to pay to Lug+Carrie all Subscription Amounts and any other amounts which have accrued but not yet been paid by the Customer as at the date of termination;

(c) Lug+Carrie may, directly or by its agent, take possession of the Bike at the Customer’s cost;

(d) to enable Lug+Carrie to exercise its rights under clause 18.3(c) the Customer expressly authorises and grants to Lug+Carrie an express, irrevocable license to enter the premises where the Bike is located and arrange for their removal;

(e) the Customer indemnifies Lug+Carrie for any Losses, costs and expenses (including legal costs on a full indemnity basis) associated with Lug+Carrie exercising its right under clause 18.3(c); and

(f) Lug+Carrie will not be liable for any damage caused to the Customer’s property as a result of Lug+Carrie exercising its right under clauses 18.3(c) and 18.3(d).

18.4 Acceptance of any payment of the Subscription Amount by Lug+Carrie after Lug+Carrie has become aware of an Event of Default will be without prejudice to the exercise by Lug+Carrie of the powers conferred upon Lug+Carrie by this Agreement and such acceptance will not operate as an election by Lug+Carrie either to exercise or not to exercise any of Lug+Carrie’s rights, powers or privileges under this Agreement.

18.5 On termination of this Agreement, the Customer must, at its cost and within 2 Business Days of the date of termination, return to Lug+Carriee the Bike (other than if the Bike has been paid for in accordance with clause 6.4).

18.6 Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.

19. Title to Bike

19.1 Subject to clause 6.4, the Customer acknowledges that Lug+Carrie retains full ownership and title to the Bike throughout the Subscription Term and that the Customer has rights to possess the Bike as a mere bailee only and has no right, title or interest in the Bike. The Customer does not have any right to pledge Lug+Carrie’s credit in connection with the Bike and agrees not to do so.

19.2 Other than as set out in clause 6, the Customer does not have any right, option or obligation to purchase the Bike and acknowledges that no representation has been made to that effect by or on behalf of Lug+Carrie to the Customer whether express or implied, written or oral.

19.3 Until such time as full title, property and ownership of the Bike passes to the Customer in accordance with clause 6.4, and while the Bike remains in the Customer’s full control and possession during the Subscription Term:

a) the Customer must hold the Bike as Lug+Carrie’s fiduciary agent and bailee and must not sell, lease, dispose of or otherwise deal with the Bike in any way without Lug+Carrie’s prior written consent;

b) Lug+Carrie may enter the premises of the Customer or any third party where the Bike is being used during the hours of 9.00am to 5.00pm to inspect the Bike and: i) the Customer expressly authorises and grants Lug+Carrie and its agents an express, irrevocable license to enter the premises of the Customer or relevant third party to inspect the Bike; and ii) the Customer indemnifies Lug+Carrie against any Loss that may be incurred or sustained by Lug+Carrie, its employees or agents, as a result of the entry of those premises where the Bike is being used;

c) the Customer must not pledge or grant a security interest in or in any way charge by way of security for any indebtedness, any of the Bike which remain the property of Lug+Carrie during the Subscription Term. If the Customer does pledge or in any way charge by way of security, for any indebtedness, any of the Bike for which property and ownership has not passed to the Customer, the Customer must remove the pledge, charge or security interest immediately and all moneys owing by the Customer to Lug+Carrie will (without prejudice to any other right or remedy of Lug+Carrie) immediately become due and payable to Lug+Carrie; and

d) the Customer must not remove, deface, damage, alter, obliterate or cover up any names, marks, designs, numbers, code or writing on the Bike (including any identifying plate or trade mark).

19.4 If the Customer loses possession of the Bike for any reason, including by way of seizure, or a security interest is created over the Bike (other than by Lug+Carrie) the Customer must immediately notify Lug+Carrie of the loss of possession or creation of security interest (as applicable).

20. Transfer of risk

Notwithstanding clause 19, risk in the Bike transfers to the Customer from the time that the Customer takes possession of the Bike and:

20.1 if title has passed to the Customer (in accordance with clause 6.4 or otherwise), the Bike shall remain at the risk of loss of the Customer;

20.2 if title has not passed to the Customer, the Bike shall remain at the risk of loss of the Customer until such time that the Bike is delivered to Lug+Carrie by the Customer or Lug+Carrie collects the Bike from the Customer; and

20.3 if an Insolvency Event occurs in respect of the Customer then, without the need for notice or demand by Lug+Carrie, the Customer acknowledges that any sale or purported sale of the Bike will not be in the ordinary course of the Customer’s business and the proceeds of any Bike sold in such circumstances will, to the extent of any money owing by the Customer to Lug+Carrie, be held on trust for Lug+Carrie by the administrator, controller or similar officer as the case may be, or if there is no such officer, by the Customer.

21. Personal Property Securities Act (PPSA)

21.1 Words and expressions used in this clause 21 which are not defined in this Agreement but are defined in the PPSA have the meaning given to them in the PPSA.

21.2 The Customer acknowledges that:

a) the agreement for the hire of Bike under this Agreement creates a registrable security interest under the PPSA in the Bike and the proceeds of the Bike and that it has not agreed to postpone the time for attachment of that security;

b) the security interest created under this Agreement attaches to the Bike and the proceeds of the Bike in accordance with the PPSA;

c) value has been given for the creation of the security interest; and

d) where Lug+Carrie has other enforcement rights in addition to the enforcement rights provided for in the PPSA, those other enforcement rights will continue to apply.

21.3 Lug+Carrie is not obliged to act in any way to dispose of or to retain any Bike which have been seized by Lug+Carrie or any person nominated by Lug+Carrie under its rights under the PPSA.

21.4 Without limiting anything else in this Agreement, the Customer consents to Lug+Carrie effecting a registration on the Personal Property Securities Register (PPSR) in relation to any security interest created by or arising in connection with, or contemplated by, this Agreement, including in relation to the Bike. The Customer agrees to promptly do all things necessary to ensure that any security interest created under this Agreement is perfected and remains continuously perfected, Lug+Carrie’s priority position is preserved or secured and any defect in any security interest, including registration, is overcome.

21.5 The Customer must promptly take all reasonable steps which are prudent for its business under or in relation to the PPSA (including doing anything reasonably requested by Lug+Carrie for that purpose in relation to the Bike). Without limiting the foregoing, the Customer must:

a)create and implement appropriate policies and systems to register a security interest in relation to the Bike where the Customer on sells the Bike to a third party or incorporates the Bike into another good or product; and

b) where appropriate, take reasonable steps to identify security interests in relation to the Bike in the Customer’s favour and to perfect and protect them, with the highest priority reasonably available.

21.6 The Customer must indemnify, and on demand reimburse, Lug+Carrie for all expenses incurred in registering a financing statement or financing change statement on the PPSR, and for the enforcement of any rights arising out of any of Lug+Carrie’s security interests.  

21.7 The Customer must not change its name, address or contact details without providing prior written notice to Lug+Carrie and must not register a financing change statement or a change demand without Lug+Carrie’s prior written consent.  

21.8 The Customer must not without Lug+Carrie’s prior written consent, sell, lease, dispose of, create a security interest in, mortgage or part with possession of the Bike or any interest in it (or purport or attempt to purport to do any of those things) or permit any lien over the Bike.

21.9 The Customer must notify Lug+Carrie as soon as it becomes aware if any personal property which does not form part of the Bike becomes an accession to the Bike or if any of the Bike are situated outside Australia or, on request by Lug+Carrie, of the present location or situation of the Bike.

21.10 The Customer must keep full and complete records of the Bike.

21.11 The Customer must authorise Lug+Carrie to apply any money Lug+Carrie receives from the Customer towards debts, charges and expenses in any priority Lug+Carrie determines in its sole discretion for whatever reason, including in order to maintain the security interest created by this Agreement.

21.12 The Customer must immediately return the Bike if requested to do so by Lug+Carrie following non payment of any amount owing by the purchaser to Lug+Carrie or following breach of any other obligation to Lug+Carrie.

21.13 To the extent that the PPSA permits, the Customer waives its rights to receive a copy of any verification statement or financing change statement; to receive any notice required under the PPSA, including notice of a verification statement; to reinstate the security agreement by payment of any amounts owing or by remedy of any default; and under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 127, 128, 129, 130, 132, 134(2), 135, 136(3), (4) and (5), 137, 142 and 143 of the PPSA.

21.14 The Customer may only disclose information or documents, including information of a kind referred to in section 275(1) of the PPSA, if Lug+Carrie has given prior written consent.

22. Assumption of risk

Subject to, and without limiting, clause 12:

22.1 the Customer acknowledges Lug+Carrie has not made any warranty regarding the condition, suitability or capacity of the Bike for the Customer’s purpose; and

22.2 the Customer and each Authorised Rider: a) uses, operates and possesses the Bike at the Customer’s own risk; and b) agrees that Lug+Carrie has no responsibility or liability for any Loss of the Customer caused by or in connection with the Bike.

23. Acknowledgements and representations

23.1 If an Offer has been accepted by Lug+Carrie, the Customer acknowledges that the Offer was accepted by Lug+Carrie on the basis of, and in reliance upon, any information, specifications, data, representations, statements and documents provided by the Customer.

23.2 The Customer agrees to immediately notify Lug+Carrie of any changes to any information provided by the Customer to Lug+Carrie.

23.3 The Specifications are approximate only and Lug+Carrie makes no representation or warranty as to the completeness or accuracy of the Specifications and the Customer is responsible for making its own enquiries in relation to the completeness and accuracy of the Specifications provided.

23.4 Where any instructions or material in whatever form (including photo identification, documents, information and data) are required to be provided by the Customer to Lug+Carrie before Lug+Carrie can proceed with or complete the provision of the Bike such instructions or materials must be supplied by the Customer to Lug+Carrie.

24. Miscellaneous

24.1 In this Agreement:

a) the singular includes the plural and vice versa and, without limiting the foregoing, if more than one bicycle is specified in Item 4 of the Contract Details a reference to a Bike refers to each bicycle specified in Item 4 of the Contract Details;

b) the word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;

c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;

d) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;

e) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’ or ‘such as’ or similar expressions;

f) headings are inserted for convenience and do not affect the interpretation of this Agreement;

g)no provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the terms or the inclusion of the provision in the terms; and

h) unless otherwise provided, all monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.

24.2 Lug+Carrie may, to the extent permitted by law, vary the Agreement from time to time with the variation becoming effective 28 days after Lug+Carrie provides the Customer notice of the variation (Variation Date).

24.3 A failure to exercise or delay in exercising any right under the Agreement does not constitute a waiver and any right may be exercised in the future. Waiver of any rights under the Agreement must be in writing and is only effective to the extent set out in that written waiver.

24.4 If any provision of the Agreement is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from this Agreement without affecting the validity or enforceability of the remaining provisions.

24.5 This Agreement is governed by the laws in force in Victoria, and the Customer and Lug+Carrie submit to the non-exclusive jurisdiction of the courts of Victoria.

24.6 The Customer must not assign or deal with any of its rights or obligations under this Agreement without Lug+Carrie’s prior written consent.  Lug+Carrie may, to the extent permitted by law, assign, subcontract or deal with any of its rights or obligations under this Agreement where the assignment will not adversely affect the rights of the Customer.

24.7 The termination or expiry of the Agreement does not operate to terminate any rights or obligations under the Agreement that by their nature are intended to survive termination or expiration, and those rights or obligations remain in full force and binding on the party concerned including without limitation the rights and obligations under clauses 1.5, 7.3, 7.4, 7.6, 12, 13, 14, 15, 16, 17, 18.3, 18.5, 18.6, 19, 20 and 24.

24.8 Each party must:

a) do all acts necessary or desirable to give full effect to the Agreement; and

b) refrain from doing anything which might prevent full effect being given to the Agreement.

24.9 The relationship between the parties is and will remain that of independent contractors, and nothing in the Agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.

24.10 Notices by a party must be delivered by hand, prepaid post or email and sent to the address of the receiving party as stated in the Contract Details. Notices shall be deemed to have been received by hand upon delivery, by post within two (2) Business Days of sending and by email one hour after the email (unless the sender knows that email has failed to send).

25. Definitions

In this Agreement:

Accessories means the accessories (if any) for the Bike specified in Item 5 of the Contract Details.

Agreement means the bicycle subscription agreement between Lug+Carrie and the Customer which incorporates the terms and conditions set out in this document and the Contract Details.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.

Authorised Riders means those people set out in Item 13 of the Contract Details and any other person approved by Lug+Carrie in writing.

Authority means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.

Bike means the electric bicycle or bicycles specified in Item 4 of the Contract Details and includes:

any Accessories

the Keys, battery, charger, ring lock and chain extension;

any parts for, or additions to, the Bike;

any instructions, manuals, and maintenance records of the Bike; and

any replacement of the Bike,

provided by Lug+Carrie to the Customer.

Bike Software means any software that is installed on, incorporated in or provided with the Bike.

Business Day means any day except a Saturday, Sunday or public holiday in Victoria, Australia.

Commencement Date means the date specified in Item 6 of the Contract Details.

Confidential Information means all information disclosed by Lug+Carrie to the Customer and includes the Agreement but excludes information that:

is public knowledge or becomes available to the Customer from a source other than Lug+Carrie (otherwise than as a result of a breach of confidentiality); or

is rightfully known to, or in the possession or control of the Customer and not subject to an obligation of confidentiality in accordance with the terms of an Agreement.

Consequential Loss means:

any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and

loss which is beyond the normal measure of damages.

Consumer has the same meaning provided to it in section 3 of the Australian Consumer Law.

Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law.

Control has the meaning given in Section 50AA of the Corporations Act 2001 (Cth).

Contract Details means the contract details set out in the schedule before these terms and conditions.

Corporations Act means the Corporations Act 2001 (Cth).

Customer means the party or parties specified in Item 2 of the Contract Details who shall be:

a ‘Retail Customer’ if Item 3(a) of the Contract Details is ticked or checked; or

a ‘Commercial Customer’ if Item 3(b) of the Contract Details is ticked or checked.

Damage means any damage to the Bike or any occurrence which renders the Bike unable to perform its intended function.

Data means all information and data:

collected by the Bike Software;

generated by the Bike Software; and

uploaded to the Bike Software by or on behalf of the Customer or any Authorised Rider.

Delivery Fee means the amount set out in Item 11 of the Contract Details.

End Date means the last day of any notice period provided under clause 1.2.

Event of Default has the meaning given to it in clause 18.1.

Expiry Notice Period means the period set out in Item 7 of the Contract Details.

Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended, varied or replaced from time to time.

Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or the occurrence of any event that has substantially the same effect to any of the preceding events.

Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world, including but not limited to the rights comprised in any patent, copyright, design, trade mark, plant breeders rights, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets and know how, throughout the world for the full period of the rights and all renewals and extensions.

Key means the key provided by Lug+Carrie which is used to unlock the bike frame lock and batter lock(s)for the Bike.

Law includes any statute, regulation, order, code, rule, subordinate legislation or other document that is enforceable in connection with a statute, regulation, order, rule or subordinate legislation.

Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.  

Lug+Carrie means the party specified in Item 1 of the Contract Details.

Maintenance means the maintenance and servicing of the Bike to be undertaken during the Subscription Term by Lug+Carrie.

PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.

Personnel means any employee, officer, agent, or contractor of Lug+Carrie who assists Lug+Carrie in the maintenance of the Bike during the Subscription Term.

PPSA means the Personal Property Securities Act 2009 (Cth).

Purchase Amount means the amount notified by Lug+Carrie to the Customer upon receipt of a Notice under clause 6.2.

Purchase Option Date means the date set out in Item 9 of the Contract Details.

Service Centre means the locations at which Lug+Carrie or its contractors carry out Maintenance as listed on the website www.lug-carrie.com or otherwise notified from time to time by Lug+Carrie.

Specifications means any physical, qualitative, technical or descriptive specifications, dimensions or other particulars of the Bike or photographs or illustrations of the Bike which are to be supplied by Lug+Carrie and which are provided by Lug+Carrie to the Customer, including as part of quote, order, price list, catalogue or other document which describes the Bike.

Storage Locations means, in respect of a Commercial Customer, those locations set out in Item 6 of the Contract Details and any other location approved by Lug+Carrie in writing.

Subscription Amount means the amount set out in Item 10(a) of the Contract Details as may be adjusted in accordance with clause 7.5.

Subscription Amount Payment Date means the dates set out in Item 10(b) of the Contract Details.

Subscription Term means the period of time during which Lug+Carrie will hire the Bike to the Customer.

Sydney Operating Area means the locations at which Lug+Carrie or its contractors carry out Maintenance as listed on the website www.lug-carrie.com or otherwise notified from time to time by Lug+Carrie.