LEARNER DRIVER AGREEMENT
1.1 In this Agreement references to “we”, “our”, “us” and “Passfirstgo” means Pass First Go Pty Ltd ACN 638 264 810 and including its employees, contractors, agents and assigns.
1.2 These Terms and any policies or rules which may be posted by Passfirstgo on the Site from time to time (collectively the “Terms”) set out the terms and conditions on which Passfirstgo offers you access to and use of our Website, services, webapp and tools (collectively the “Site”).
1.3 Please read these Terms carefully. When you access and/or use the Site you will be deemed to have read and understood, and to have agreed to be bound by, these Terms.
- Services Offered
2.1 Passfirstgo provides a software platform, via the Site, that connects Driving Instructors who are qualified to provide driving instruction lessons, to Learner Drivers seeking to obtain such lessons (collectively the “Services”).
2.2 Passfirstgo does not act as an insurer or agent on behalf of Driving Instructors or Learner Drivers. Passfirstgo’s responsibility shall be limited to;
a) Providing Driving Instructors and Learner Drivers with a facility to connect and enter into direct transactions, which Passfirstgo is not a party to; and
b) Acting as the agent of the Driving Instructor for the limited purpose only of collecting payment from the Learner Driver of such amounts properly charged by the Driving Instructor (including applicable fees and/or taxes) in accordance with these Terms and remitting the same to the Driving Instructor.
3.1 “Account” means the account which you open when you register on the Site as a Member.
3.2 “Collective Content” means Passfirstgo Content and Member Content.
3.3 “Content” means text, graphics, images, music, software (excluding any part of the Site), audio, video, information or other materials.
3.4 “Driving Instructor” means a Member who offers driving instruction lessons. Each Driving Instructor is an independent legal entity offering their own lessons using the Site and is therefore an independent third party provider.
3.5 “Learner Driver” means a Member who requests driving instruction lessons from a Driving Instructor using the Services.
3.6 “Lesson” means a driving instruction lesson provided by a Driving Instructor to a Learner Driver.
3.7 “Member” means a person who completes Passfirstgo’s account registration process, including but not limited to Learner Drivers and Driving Instructors.
3.8 “Member Content” means all Content that a Member posts, uploads, publishes, submits or includes in their profile to be made available through the Site and/or Services.
3.9 “Passfirstgo Content” means all Content that Passfirstgo makes available through the Site, including any Content licensed from a third party, but excluding Member Content.
3.10 “Tax” or “Taxes” includes any sales taxes, goods and services taxes and any other taxes that Driving Instructors may be required by law to collect and remit to governmental agencies.
3.11 “Website” means the website operated by Passfirstgo and available at http://www.passfirstgo.com.au and includes any other websites through which Passfirstgo makes the Services available.
- Nature of Relationship
4.2 Driving Instructors shall have the right to accept or decline a Request received from a Learner Driver using the Site in their absolute discretion.
4.3 The Learner Driver acknowledges and agrees that Passfirstgo does not guarantee that any given Request will be accepted. Passfirstgo’s responsibility shall be limited to providing the Learner Driver with access to the software platform provided by the Site in accordance with these Terms.
4.4 Upon acceptance of a Request, the Driving Instructor shall be obliged to provide the Lesson to the Learner Driver in accordance with the Request and these Terms.
4.5 It is agreed that nothing contained in these Terms shall constitute a relationship of partnership, joint venture, or employer and employee between any of the parties. Except as expressly permitted under these Terms, no party has the authority to act as the agent of, or to bind, another party hereto and no party shall hold itself out as being the agent of the other party or as having the authority to bind the other party.
- Learner Driver Warranties
5.2 You warrant that you are aged 16 years or above, and hold a current and valid Learner Permit Driver Licence issued in a state or territory of Australia.
5.3 You warrant that you are able to enter into these Terms and that you are not subject to any restrictions preventing you from doing so.
- Terms of Service
6.2 These Terms expressly supersede any prior agreements or arrangements with you.
6.3 Passfirstgo shall be entitled to immediately terminate these Terms, access to the Site and/or the provision of Services at any time in its absolute discretion, without any notice to you.
6.4 Passfirstgo reserves the right to amend these Terms by posting a notice on the Site. If you continue to access and/or use the Services after publication of such notice, you will be deemed to have read and understood, and to have agreed to be bound by, the amended Terms.
6.5 Passfirstgo reserves the right to make changes to the Site and/or the Services at any time in its absolute discretion, without any notice to you.
- Account Registration
7.2 You agree that you may not have more than one active Passfirstgo Account and that Passfirstgo has the right to immediate suspend or terminate your access to the Site if you create or allow to be maintained more than one active Passfirstgo Account or if any information provided by you during the account registration process or thereafter proves to be inaccurate, fraudulent or incomplete.
8.2 You will immediately notify Passfirstgo of any suspected misuse or unauthorized use of your Passfirstgo Account.
- Learner Driver Obligations
9.2 You acknowledge that if at the time of receiving a Lesson from a Driving Instructor you wish to request further Lessons, this must be referred back to Passfirstgo via the Site. You acknowledge that failure to do so shall give Passfirstgo the right to immediately suspend and/or terminate your Account.
9.3 You must promptly notify Passfirstgo in writing via the Site of;
a) Any change in details, including but not limited to contact and payment details;
b) Any complaint or claim made, or notified may potentially be made, against you or Passfirstgo;
c) Any breach of the law or these Terms by you; or
d) Any misuse of the Site, Services and/or Collective Content by another Member which comes to your attention.
- Fees, Charges and Payments
10.2 You shall be required to make payment of the Fees in full and in advance to Passfirstgo using the payment gateway ‘braintree’ via the Site. You agree to comply with all third party terms and conditions applicable to use of that payment gateway.
10.3 You acknowledge and agree that the Fees charged by a Driving Instructor for a Lesson may be changed at any time by change to the set price stated on the Site. The Driving Instructor shall not be entitled to pass on any increase in Fees after payment of the subject Fees has been made by you, but shall be entitled to charge the increased Fees for any further Requests.
- Cancellation and Refunds
11.1 You may cancel a Request after it has been accepted by a Driving Instructor. If cancellation occurs;
a) More than 24 hours before the scheduled Lesson is due to start: then you will be entitled to credit equal to the full amount of the Fees paid, which can be used on the Site within 30 days of the date the credit is issued;
b) Less than 24 hours but more than 5 hours before the scheduled Lesson is due to start: then you will be entitled to credit equal to 50% of the Fees paid, which can be used on the Site within 30 days of the date the credit is issued;
c) Less than 5 hours before the scheduled Lesson is due to start: then you will not be entitled to any refund and all Fees paid in relation to the Request shall be forfeit.
11.2 You acknowledge that in the case of illness, emergency or other extenuating circumstances, a Driving Instructor may need to cancel an accepted Request. You will be notified of any such cancellation at the earliest possible opportunity. In such circumstances you shall be entitled to receive a full refund of the Fees paid, but shall not be entitled to receive any other form of compensation (including but not limited to compensation for making alternate arrangements for a Lesson) whatsoever.
- Account Suspension and Cancellation
12.2 Passfirstgo may, in its absolute discretion and without notice to you, decide to suspend, deactivate or cancel your Account at any time by notifying you via the Site or by email.
12.3 In the event that your Account is suspended, deactivated or cancelled;
a) You will not be able to access the Site;
b) Passfirstgo shall not have any obligation to delete or return to you any Content which you have posted to the Site, including but not limited to any reviews; and
c) In the event that;
i) Your Account is cancelled by you – then you will be entitled to a refund of Fees paid in accordance with the refund policy set out in clause 11.1 above.
ii) Your Account is suspended, deactivated or cancelled by Passfirstgo – then you will be entitled to receive a refund of Fees paid for all accepted Requests yet to be performed at the time of suspension, deactivation or cancellation as applicable.
- Member Content
13.2 A Member who chooses to make Member Content available thereby grants to Passfirstgo an irrevocable, worldwide, perpetual, non-exclusive and royalty-free licence with regard to such Member Content, with the right to Passfirstgo to use, sublicense, view, copy, adapt, modify, distribute, transfer, sell, publicly display and otherwise exploit that Member Content in any manner in connection with the Site, including but not limited to marketing and promotion of the Site.
13.3 Passfirstgo shall not have any ownership rights in such Member Content.
13.4 You acknowledge that you are solely responsible for all of your own Member Content and you represent and warrant that;
a) You are the sole and exclusive owner of all such Member Content or are duly authorized to grant to Passfirstgo the rights in such Member Content contemplated by this clause; and
b) Neither the Member Content nor Passfirstgo’s use of the Member Content will infringe, misappropriate or violate any third party’s rights (including but not limited to rights of privacy and intellectual property rights) or result in a breach of any applicable law or regulation.
14.2 You acknowledge that Member Content may be shared via third party services which interact with the Site.
14.4 You acknowledge that Passfirstgo may send you informational text messages in connection with providing the Services. You may opt out of receiving these text messages at any time but doing so may impact your use of the Services.
- Member Conduct
a) Violate or participate in any violation of any applicable law, rule, regulation or Tax obligation;
b) Contact another Member for any purpose other than communicating about transacting on Passfirstgo;
c) Attempt to solicit another Member to join third party services or websites that are in competition with the Services, without Passfirstgo’s prior written consent;
d) Access the Site or Collective Content to find another Member and then complete a transaction independent of the Site in order to circumvent the obligation to pay Fees or otherwise avoid your obligations under these Terms;
e) Use any kind of software, device, script, robot, backdoor or any other means or process to access, scrape, crawl or spider any web pages or other services contained in the Site or the Collective Content;
g) Use or access the Site or Collective Content for any commercial or other purpose that is not expressly permitted by these Terms;
h) Infringe the rights of any person or entity, including but not limited to privacy rights, intellectual property rights and contractual rights;
i) Interfere with or damage the Site, including but not limited to through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
j) Use the Site or Services to store, transmit, distribute, post or submit any information about another Member or third party, including but not limited to personally identifiable information;
k) Impersonate any person or entity, or misrepresent yourself or your affiliation with any person or entity;
l) Post, upload, publish, submit or transmit any Content which;
i) Violates or encourages any conduct that would violate any applicable law or regulation, or which would give rise to some civil liability;
ii) Is fraudulent, false, misleading or deceptive;
iii) Is defamatory, obscene, pornographic, vulgar or offensive;
iv) Promotes discrimination, bigotry, racism, hatred, harassment, violence or harm against any individual or group; or
v) Promotes illegal or harmful activities or substances;
m) Systematically retrieve data or other content from the Site or Services to create or compile, directly or indirectly, a collection, database, directory or similar;
n) Use, display, mirror or frame the Site or Collective Content or any part thereof, or Passfirstgo’s name, logo or other proprietary information, without Passfirstgo’s prior written consent;
o) Access, use or interfere with non-public areas of the Site or Passfirstgo’s computer systems, including but not limited to scanning or testing the vulnerability of any part of the Site or Passfirstgo’s computer systems;
p) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise interfere with any technological measure implemented by Passfirstgo, its providers or any other third party to protect the Site, Services or Collective Content;
q) Use the Site, Services or Collective Content in any way to send altered, deceptive or false source-identifying information;
r) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or Collective Content; or
s) Advocate, encourage or assist any third party in doing any of the foregoing.
15.2 Passfirstgo reserves the right to investigate and prosecute any violations of this clause to the maximum extent permitted by law.
15.3 Passfirstgo shall have the right, but is not obliged, to monitor your access to and use of the Site and Collective Content, and shall be entitled to review or edit any Member Content to ensure compliance with these Terms. Passfirstgo reserves the right, in its absolute discretion and without prior notice, to disable access to any Collective Content which it considers objectionable or otherwise in breach of these Terms.
- Ownership and Intellectual Property
16.2 You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notice appearing in the Site or Passfirstgo Content.
a) A limited, non-exclusive, non-transferable license to download, install and access the Site solely for your own personal use;
b) A limited, non-exclusive, non-transferable license to access and view Passfirstgo Content, and any Member Content to which you are permitted access, solely for your own personal purposes and in accordance with these Terms.
17.2 It is an essential term of this license that you will not use, copy, adapt, modify, distribute, sub-license, sell, transfer, publicly display or perform, transmit, broadcast or otherwise exploit the Site or Collective Content, except as expressly permitted in these Terms.
- No Endorsement
18.2 Each Member is responsible for exercising due diligence and care when deciding whether to interact with any other Member.
19.2 You acknowledge and agree that you are responsible for conducting your own assessment, and may have regard to the Driving Instructor’s Member profile and any reviews which appear on the Site, as to whether you wish to transact with a particular Driving Instructor.
19.3 You acknowledge and agree that you are responsible for your own safety. If any time you have reasonable concerns for your own safety or the safety of any third person, you shall be entitled to bring the Lesson to an end immediately. In such circumstances you must notify Passfirstgo of what has occurred via the Site and Passfirstgo may in its absolute discretion offer you a refund of the Fees paid.
19.4 You acknowledge and agree that you will not engage in any conduct which may reasonably lead a Driving Instructor to feel concerned for their safety or the safety of any third person. Should such conduct occur, you acknowledge and agree that the Driving Instructor shall be entitled to bring the Lesson to an end immediately in which circumstances the Fees paid shall be forfeit, unless Passfirstgo in its absolute discretion decides otherwise.
20.2 All warranties and conditions which may by law be excluded are expressly excluded. Without limiting the foregoing, you acknowledge and agree that Passfirstgo makes no representation or warranty about;
a) The Site, the Services and the Collective Content; or
b) Whether the Site, the Services and the Collective Content will meet your requirements or be available on a secure, interrupted and error-free basis.
20.3 You acknowledge and agree that, whilst Passfirstgo may choose to carry out background or screening checks, Passfirstgo has no obligation to conduct such checks of any Member, and you are responsible for reviewing the Site and selecting which other Member(s) to transact with as appropriate to your own needs.
20.4 You are solely responsible for all of your communications and interactions with Members and other third parties arising in connection with your use of the Site, Services and/or Collective Content. You agree to take all necessary precautions to ensure your safety and the safety of third parties.
20.5 Passfirstgo explicitly disclaims liability for any act or omission of any Member or other third party arising out of or in connection with the Site, Services and/or Collective Content.
- Member / Third Party Claims
21.2 You acknowledge that Passfirstgo shall have no liability in respect of same and you agree not to attempt to impose liability on, or seek any legal remedy from, Passfirstgo.
- Dispute Resolution
22.2 Passfirstgo may, but not shall be obliged to, investigate and attempt to resolve disputes between Members in relation to the provision of Lessons by a Driving Instructor to a Learner Driver. Passfirstgo shall be entitled to require you and the other Member(s) to provide documentation in support of your respective positions with regard to the dispute, and to then issue a determination with regard to the dispute.
22.3 In the event that any dispute arises between you and Passfirstgo, then you and we agree to take all reasonable steps to try and reach a resolution of the dispute directly. In the absence of any resolution then the parties agree to seek a mediation in accordance with the Mediation Rules of the Law Society of New South Wales Australia, and the President of that Law Society, or the President’s nominee, will select the mediator and determine the mediator’s hourly remuneration. Either party shall be entitled to approach the President for this purpose.
- Limitation of Liability
a) Your use of the Site, Services and/or Collective Content;
b) Any breach by Passfirstgo of its obligations under this Agreement;
c) Any breach by another Member or third party of their obligations in connection with the Site, Services and/or Collective Content;
d) Any negligent act or omission or willful misconduct on the part of Passfirstgo or another Member or third party; or
e)Any fault or delay arising out of or in connection with electronic delays, the Internet, the Site or the Services.
23.2 Where such liability cannot be excluded, Passfirstgo’s liability shall be limited to the total Fees paid by you in the twelve (12) month period prior to the event giving rise to the liability, or AUD $100, whichever is the greater.
24.2 You agree to fully and completely indemnify Passfirstgo against any loss or damage which Passfirstgo may incur, directly or indirectly, as a result of any breach by you of these Terms, and in respect of all costs and charges in connection therewith whether arising under statute or common law on an indemnity basis.
- Confidential Information
25.2 You agree, from the date of creation of your Passfirstgo Account and continuing thereafter;
a) To keep all Confidential Information secret and confidential;
b) To take all reasonable and necessary precautions to maintain the secrecy and prevent the disclosure of any Confidential Information;
c) Not to disclose any Confidential Information to any third party; and
d) Not to use any part of or make any note of or make copies of any Confidential Information;
except as reasonably required in the ordinary and proper course of you complying with these Terms, to the extent required by law, or with the prior written consent of Passfirstgo.
- Entire Agreement
These Terms constitute the entire agreement between you and Passfirstgo with respect to the Site, Services and Collective Content, and supersede all prior agreements, understandings, arrangements and negotiations in relation thereto.
27.1 Passfirstgo may transfer, assign and/or subcontract any of the rights and obligations conferred by these Terms.
27.2 You may transfer, assign and/or subcontract any of your rights and obligations conferred by these Terms only with the prior written consent of Passfirstgo.
28.1 Any notice required to be served by one party on another pursuant to these Terms shall be given by way of email, which will be deemed to have been received at the time and on the day shown in an electronic confirmation of delivery obtained by the sender.
28.2 Additionally or in the alternative to service by way of email, Passfirstgo shall be entitled to serve notice on you by posting to the Site, in which event the notice will be deemed to have been received 12 hours after posting.
- Governing Law
These Terms shall be deemed to have been made in New South Wales, Australia and shall be interpreted in accordance with the laws thereof. The parties submit to the jurisdiction of the courts of New South Wales and Australia.
If any provision of these Terms is contrary to, prohibited by, or held invalid under any applicable law or regulation of any jurisdiction in which it is sought to be enforced, that provision shall be considered inapplicable and omitted but shall not invalidate the remaining provisions.
Any failure by Passfirstgo to enforce any of the provisions of these Terms shall not be construed as a waiver of such provision or any other provision hereof unless expressly in writing and signed by an authorized representative of Passfirstgo.
- Third Party Beneficiary
32.1 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
32.2 Notwithstanding the foregoing, the parties agree that payment card networks are third party beneficiaries of these Terms for the sole purpose of enforcing provisions related to payments. No consent is required from those third party beneficiaries for any amendments or modifications to these Terms.
33.1 The Site may contain links to third party websites or resources.
33.2 You acknowledge and agree that Passfirstgo is not responsible or liable for the availability or accuracy of the same, or for the content, products or services available from such websites or resources.
33.3 You acknowledge that links to third party websites or resources do not constitute or imply any endorsement by Passfirstgo and you are solely responsible for choosing whether or not to engage with any third party.