This Business Services Agreement is between MFA Motorway Holdings Pty Ltd t/as eFleetPass (ABN 87 639 253 857) (MFA, we, us, our) and you, a car rental provider (Rental Co, you, your). This Business Services Agreement and any completed Online Application Form accepted by MFA (collectively, Agreement) sets out the terms on which MFA offers and the Rental Co agrees to receive vehicle monitoring and associated services (Services).

To receive the Services, you must have a username and password. To obtain a username and password, you must complete and submit an application form available here. By submitting an Application Form, you acknowledge that you have read this Agreement and that you agree to be bound by this Agreement. If you continue to use the Services after we post any new or varied terms, this Agreement incorporates those new or varied terms.

Please be sure to check this Agreement regularly to keep up to date with any changes.

By submitting an Application Form and/or executing this Agreement on behalf of an organisation, you warrant to MFA that you are authorised by the organisation to bind it to this Agreement. In that case, the organisation is bound to this Agreement and ‘Rental Co’, ‘you’ and ‘your’ refer to the organisation.

1. Overview of Services
1. Subject to the Rental Co's compliance at all times with the terms of this Agreement, MFA will supply the Services to the Rental Co during the Initial Period.
2. Unless either party gives 30 days’ notice to the other party before the end of the Initial Period, this Agreement will automatically continue after the Initial Period for successive Renewal Periods.
3. During a Renewal Period, this Agreement may be terminated by either party as contemplated in the Application Form.
4. Unless otherwise specified in this Agreement, MFA may provide the Services from (and may store or access any data, including Rental Co Data, from) any location throughout the world.
2. Obligations on the Rental Co
1. The Rental Co must:
1. comply with the MFA Platform Terms of Use;
2. perform any tasks, activities or functions designated as 'Rental Co dependencies' in the Application Form in accordance with any timeframes specified;
3. provide MFA with access to all information that MFA reasonably requests in connection with the supply of the Services;
4. give access to the Rental Co's facilities as MFA may reasonably require to supply the Services;
5. not, and must ensure the Drivers do not, use any electronic toll tag on a Fleet Vehicle, or register for any other electronic or video tolling product in relation to a Fleet Vehicle, that is not an Tag; and
6. if required by MFA, provide a guarantee or other financial undertaking in favour of MFA in a form and on terms required by MFA (as determined in MFA’s absolute discretion) in respect of its obligations under this Agreement within 14 days of being requested to do so by MFA.
2. The Rental Co acknowledges and agrees that:
1. it is responsible for ongoing maintenance of the Hardware in accordance with the Support Documentation supplied by MFA from time to time;
2. MFA may, at any time:
1. update Software and firmware; and
2. change Software and Hardware settings,
   provided that such changes will not result in the Software or Hardware (as applicable) failing to comply with the Specifications;
3. if the Software or Hardware fails to materially comply with the Specifications, MFA will use commercially reasonable endeavours to resolve that failure through the supply of the Support Services, and to the extent permitted by applicable Laws;
4. it is responsible for taking steps to protect its environment from viruses, malicious code and other forms of interference which may damage its environment or devices;
5. if the Fleet Vehicles use any other tag or electronic or video tolling product, or any other global positioning system tracking device, the Rental Co will still be charged fees for the Services under this Agreement, as well as any other amounts it may be charged by the provider of the other tag or electronic or video tolling product or tracking device used by the Fleet Vehicles; and
6. MFA will not be held liable for MFA 's failure or delay in providing the Services to the extent that any such failure or delay is caused or contributed to by the Rental Co's breach of this clause 2.
3. MFA is and will remain the owner of each Tag and GPS Tracking Device unless the Application Form provides for its sale and MFA receives full payment for it. The Rental Co acknowledges that:
1. this Agreement creates a security interest in each Tag and GPS Tracking Device as security for the obligations of the Rental Co to MFA under this Agreement; and
2. MFA may take all steps to register, protect, perfect, record, or better secure MFA’s position in respect of this Agreement under the PPSA and regulations under it and any amendment made to any other legislation as a consequence of it.
4. Risk of loss of or damage to the Hardware passes to the Rental Co upon delivery to the Rental Co. The Rental Co must pay MFA for all loss of or damage to the Hardware, fair wear and tear excepted.
5. The Rental Co agrees to accept service of all legal documents on behalf of the Drivers.
3. Fees
1. MFA may invoice the Rental Co for the Fees calculated in accordance with, and at the times set out in, the Application Form.
2. The Rental Co must pay the Fees in the manner specified in the Application Form.
3. The Rental Co must, within five Business Days of entry into this Agreement, give MFA a completed direct debit authority in the form specified by MFA which allows MFA to debit the Fees from the Nominated Card or Charge Account (as applicable). The Rental Co must promptly give MFA an updated direct debit authority if the details of the Nominated Card or Charge Account change during the Service Period (including if a Nominated Card expires or is cancelled).
4. If the Fees are to be paid via Nominated Card, MFA may direct debit the Nominated Card five Business Days after issuing an invoice to the Rental Co.
5. If the Rental Co selects and MFA agrees to the Drive Now Pay Later (DNPL) payment option, the Fees that become owing after the date of selection will be split into eight equal monthly payments (unless altered by the Rental Co for a particular month through the MFA Platform, in which case the remaining Fees will be calculated on a pro rata basis for the remaining months) and charged to the Nominated Card on the commencement day selected by the Driver, no later than 7 days from the activation date that DNPL is selected.
6. If the Fees are to be paid via the Charge Account, MFA may debit the Charge Account 7 days after issuing an invoice to the Rental Co.
7. If MFA does not receive payment of the Fees in accordance with clause 3(d) or 3(f) (including where the Rental Co has insufficient funds available in the Nominated Card or a transaction on the Nominated Card is declined for any reason), MFA may do one or more of the following:
1. charge the Rental Co a 'dishonour fee' for each unsuccessful attempt to take payment, except where such non-payment is due to:
1. the negligence of, or Wilful Misconduct by, MFA or any of its Personnel;
2. an MFA systems error;
2. suspend the provision of the Services until the amount due is credited to MFA's account;
3. report the Rental Co to a credit reporting agency; and/or
4. terminate this Agreement in accordance with clause 16(a).
8. The Rental Co acknowledges and agrees that the accuracy of the invoices provided by MFA under this Agreement are dependent on the accuracy of the data provided to MFA by the operators of toll roads and other third parties, and MFA is not responsible for any errors in the accuracy of the invoices to the extent that such errors are outside of MFA's reasonable control.
9. Accordingly:
1. the Rental Co acknowledges that the existence of any such errors will not constitute a breach of this Agreement;
2. if MFA incorrectly credits the Rental Co with, or pays to the Rental Co, an amount in connection with this Agreement, MFA may recover that amount provided that MFA has given the Rental Co 14 days' prior written notice; and
3. if MFA incorrectly debits the Rental Co in connection with this Agreement, it will pay the Rental Co, by a method chosen at MFA's discretion, such amount within a reasonable period after MFA becomes aware of such error.
4. Goods and Services Tax (GST)
1. Words or expressions used in this clause that are defined in A New Tax System (Goods and Services Tax) Act 1999 have the same meaning given to them in that Act.
2. Unless otherwise stated, any amount specified in this Agreement as the consideration payable for any taxable supply includes any GST payable in respect of that supply.
3. Each party agrees to do all things, including providing valid tax invoices and other documentation that may be necessary or desirable to enable or assist the other party to claim any input tax credit, adjustment or refund in relation to any amount of GST paid or payable in respect of any supply made under or in connection with this Agreement.
4. If a third party makes a taxable supply and this Agreement requires a party to this Agreement (the payer) to pay for, reimburse or contribute to (pay) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the payer must pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.
5. If an adjustment event arises in relation to a taxable supply made by a party under this Agreement (Supplier), the amount paid or payable by the party to whom the taxable supply is made (Recipient) pursuant to clause 4(d) will be amended to reflect this and a payment will be made by the Recipient to the Supplier or vice versa as the case may be.
6. This clause does not merge on completion and will continue to apply after expiration or termination of this Agreement.
5. MFA Driver Agreement and MFA Corporate Account Agreement
1. The Rental Co must, and MFA appoints the Rental Co as its agent to, enter into:
1. MFA Driver Agreements (available here) with Drivers; and
2. MFA Corporate Account Agreements with Corporate Account Holders (available here),
for and on behalf of MFA in the manner contemplated by this Agreement.
2. MFA and the Rental Co agree that the Rental Co is authorised only to, and must only, carry out the action which is expressly set out in clause 5(a) and that no implied authority in relation to that authority is to be read into clause 5(a).
3. The Rental Co accepts the appointment under clause 5(a) and agrees to act as MFA's unpaid agent to enter into MFA Driver Agreements with Drivers and MFA Corporate Account Agreements with Corporate Account Holders for and on behalf of MFA.
4. Subject to clause 5(g), the Rental Co must ensure that with effect from the date of this Agreement:
1. each Driver signs a document in the form of the MFA Driver Agreement at the time of hiring a Fleet Vehicle so as to create a legally binding agreement between MFA and the relevant Driver; and
2. each person that becomes a Corporate Account Holder signs a document in the form of the MFA Corporate Account Agreement so as to create a legally binding agreement between MFA and the relevant Corporate Account Holder.
5. MFA may from time to time request a copy of:
1. the MFA Driver Agreement executed by a Driver;
2. the agreement between the Rental Co and a Driver for the rental of a Fleet Vehicle; and
3. the MFA Corporate Account Agreement executed by a Corporate Account Holder.
6. If MFA requests that the Rental Co provide the documentation under clause 5(e), the Rental Co must provide MFA with this documentation as soon as practicable (and, in any event, within five Business Days).
7. MFA may from time to time by written notice to the Rental Co replace the MFA Driver Agreement and the Rental Co must ensure that such replacement document is adopted and used by the Rental Co for the purposes of clause 5(d).
8. MFA may from time to time by written notice to the Rental Co replace the MFA Corporate Account Agreement and the Rental Co must ensure that such replacement document is adopted and used by the Fleet manager for the purposes of clause 5(d).
6. Obligation to pay Tolls
1. MFA will provide to the Rental Co (or a nominated third party platform provider) an application programming interface and related software (MFA API).
2. The MFA API is designed to enable the transfer to MFA of data on Tolls incurred by Fleet Vehicles, including:
1. the name, address and, where available, the phone number of the Driver responsible for hiring the relevant Fleet Vehicle at the time the relevant Toll was incurred;
2. any other information reasonably requested by MFA or which would otherwise assist MFA in collecting Tolls from the Driver;
3. the Driver's method and details of payment (Driver Billing Information); and
4. for Drivers paying for the rental of a vehicle by way of a Corporate Account, valid Corporate Account Details in circumstances where the relevant Driver is authorised to incur charges to the Corporate Account (Corporate Account Billing Information).
3. Within a reasonable time after receiving:
1. access to the MFA API; and
2. adequate documentation surrounding the use and functionality of the MFA API, the Rental Co must:
3. utilise the MFA API as documented to facilitate the accurate and timely data transfer referred to in clause 6(b); and
4. otherwise do all things reasonably necessary to ensure the accurate and timely data transfer referred to in clause 6(b).
4. The Rental Co must pay to MFA all Tolls incurred by a Driver immediately upon the incurrence of the Tolls, as well as all associated fees in accordance with the terms of the relevant MFA Driver Agreement and clause 3 and the Application Form.
5. Subject to clause 6(f), the Rental Co will be released from its liability to pay a Toll incurred by a Driver to MFA under clause 6(d) if the Rental Co provides Driver Information and Driver Billing Information or Corporate Account Billing Information (as applicable) which is correct, complete and timely in accordance with clause 6(c).
6. The Rental Co will not be released from its liability to pay a Toll incurred by a Driver if:
1. MFA does not receive Driver Information, Driver Billing Information or Corporate Account Billing Information (as applicable) in respect of that Toll or details of the relevant Toll (No Response);
2. the data provided to MFA contains Driver Information, Driver Billing Information or Corporate Account Billing Information (as applicable) which is partially incorrect or incomplete in a material fashion (for example, if the Rental Co provides incorrect credit or debit card details for a Driver) (Partial Response);
3. the Driver who incurred the Toll has not entered into an MFA Driver Agreement;
4. where applicable, the Corporate Account Holder nominated in the Information has not entered into, or is no longer a party to, a valid MFA Corporate Account Agreement;
5. the Rental Co fails to comply with its obligation under clause 5(f) in respect of that Driver; or
6. where a driver is considered a Blacklisted Driver by MFA.
7. If the Rental Co is released from its liability to pay Tolls under clause 6(e), MFA will recover the relevant Tolls and associated fees from:
1. the Driver in accordance with the terms of the relevant MFA Driver Agreement; or
2. the Corporate Account Holder in accordance with the terms of the relevant MFA Corporate Account Agreement.
8. Without limiting clause 6(d) , if:
1. the Rental Co has been released from liability to pay a Toll to MFA under clause 6(e) by providing correct and complete Driver Information and Driver Billing Information or Corporate Account Billing Information (as applicable); and
2. MFA has, based on the Driver Information, Driver Billing Information or the Corporate Account Billing Information (as applicable) provided by the Rental Co, undertaken three failed banking attempts and issued two letters of demand for the correct Toll to the relevant Driver or Corporate Account Holder (as applicable) but has not received payment of the Toll incurred by that Driver or Corporate Account Holder (as applicable) within seven days of MFA providing the second letter of demand to which the Toll relates,
   the Rental Co will become liable to, and must pay to MFA:
3. the Toll; and
4. all associated fees which would have been payable by the Driver or Corporate Account Holder (as applicable) to MFA in respect of the Toll and in accordance with the MFA Driver Agreement or the MFA Corporate Account Agreement.
9. If MFA subsequently receives the payment of the Toll and the associated fees payable by the Driver or Corporate Account Holder (as applicable) to MFA in respect of the Toll in accordance with the MFA Driver Agreement from a Driver or in accordance with the MFA Corporate Account Agreement from a Corporate Account Holder (or any person on their behalf) which has been paid by the Rental Co under clause 6(h), the Rental Co will be:
1. released from its liability to pay the Toll and the applicable associated fees to MFA; and
2. entitled to a rebate of the Toll and the applicable associated fees payable by the Driver or Corporate Account Holder to MFA if those amounts have been paid by the Rental Co (with the amount to be reconciled and set off from amounts owed to MFA by the Rental Co under this Agreement).
10. The Rental Co may not dispute the existence of any Toll that has been reported to MFA through the MFA API.
11. If the Rental Co:
1. considers that a Toll recorded in data transferred to MFA via the MFA API has been incorrectly allocated to a Fleet Vehicle; and
2. has paid MFA that Toll in accordance with clause 3 and the Application Form,
   the Rental Co may provide written notice to MFA setting out the reasons it considers the Fleet Vehicle has been incorrectly allocated that Toll along with supporting documentation.
12. If MFA (acting reasonably) agrees that a Toll has been incorrectly allocated to a Fleet Vehicle, such that a higher Toll has been paid by the Rental Co than that which should have been properly paid, the Rental Co will be entitled to a rebate of the difference between:
1. the Toll paid by the Rental Co; and
2. the amount which should have been properly paid,
   such amount to be reconciled and set off from amounts owed to MFA by the Rental Co.
13. MFA acknowledges and agrees that the Rental Co may appoint an independent contractor to exercise and carry out functions of the Rental Co under this Agreement in relation to the receipt of data via the MFA API and the transfer of other information to and from the Rental Co under this Agreement.
14. The Rental Co must notify MFA in writing if an independent contractor is appointed by the Rental Co as contemplated by clause 6(m).
15. For the avoidance of doubt, the Rental Co acknowledges and agrees that it is responsible for the acts or omissions of its contractors.
7. Rental Co Service Charge
1. For the fees collected by MFA from a Driver in accordance with an MFA Driver Agreement, MFA agrees to pay to the Rental Co the Rental Co Service Charge.
2. The Rental Co Service Charge will be paid to the Rental Co by crediting their Charge Account or Nominated Card, as specified in the Application Form.
3. The Rental Co must, within five days of execution of this Agreement, provide MFA with any additional details required to allow MFA to credit their Charge Account or Nominated Card with the Rental Co Service Charge as specified in 7(b). The Rental Co must promptly provide MFA with updated details if there is any change to their Charge Account or Nominated Card during the Service Period.
4. The Rental Co must ensure that the payment of a Rental Co Service Charge by MFA to the Rental Co is disclosed to all Drivers.
5. The Rental Co acknowledges and agrees that the payment by MFA of the Rental Co Service Charge to the Rental Co in accordance with clauses 7(a) to (c) will be the Rental Co's sole entitlement to payment or indemnity from MFA in connection with the appointment of the Rental Co as an agent of MFA under clause 5(a) and the Rental Co acting in that capacity.
8. Obligation to pay Fines
1. Fines and all related infringements incurred by Drivers in connection with this Agreement and any related documents are the responsibility of the Rental Co and will not be paid by MFA.
2. The Rental Co indemnifies and covenants to keep indemnified MFA from and against all such Fines and related infringements.
9. Debt Recovery Services
   If the Services include Debt Recovery Services:
1. such Services will only apply in relation to amounts owed by Drivers to the Rental Co for:
1. loss of or damage to vehicles rented by the Rental Co, including the excess payable under an insurance policy covering such loss or damage;
2. charges for fuel used in rented vehicles;
3. excess kilometres travelled by the Driver in rented vehicles;
4. unpaid Tolls; and/or
5. legal, recovery and enforcement costs and disbursements incurred in relation to the above, as well as related interests, fees and charges, (collectively, Driver Debts);
2. MFA will not perform the Debt Recovery Services in relation to a Driver Debt unless the Rental Co has delivered to MFA an electronic file (Debt Request) containing full details of:
1. the amount of the Driver Debt and the legal basis upon which the Rental Co claims the Driver Debt is owed to it, including the Debt Documentation; and
2. the name, address and, where available phone number, of the relevant Driver;
3. the Rental Co appoints MFA as the agent of the Rental Co to take the action specified in the Application Form to collect the Driver Debt from the relevant Driver, and indemnifies MFA against any claims and losses suffered or incurred by MFA relating to such action except to the extent the claims or losses are caused by the Wilful Misconduct of MFA;
4. the Rental Co warrants to MFA that:
1. all information it supplies to MFA for or in connection with the Debt Recovery Services, including details contained in each Debt Request, will be accurate and complete; and
2. the Recoverable Debts are valid and enforceable; and
5. MFA gives no guarantee, and makes no warranty or representation, that any Driver Debt will be recovered in whole or in part.
10. Driver information
1. The Rental Co must provide the Driver Information to MFA within one day of that Driver entering into an agreement with the Rental Co, as required by MFA.
2. If any of the information provided by the Rental Co to MFA under clause 10(a) changes, including changes to the relevant Fleet Vehicle(s) operated by that Driver, the Rental Co must notify MFA in writing of that change and provide updated details to MFA within one day of the change occurring, as required by MFA.
3. Rental Co acknowledges and agrees that unless the information provided by the Rental Co under clause 10(a) is correct and complete and the Rental Co complies with the requirements of clauses 10(a) and (b):
1. MFA will not be able to fulfil any of MFA's obligations under this Agreement in respect of a Driver;
2. MFA will not be in breach of any term of this Agreement in respect of a Driver; and
3. the Rental Co will be responsible for payment of toll notices, late toll invoices or similar claims for payment from Australian toll road operators in respect of Tolls incurred by the relevant Fleet Vehicle.
11. Confidentiality and privacy
1. Each party (Recipient) must keep confidential, and not use or disclose, other than as permitted by this Agreement, any Confidential Information of the other party (Disclosing Party).
2. The obligation of confidence in clause 11(a) extends to Confidential Information provided to or obtained by a party before entering into this Agreement.
3. The Recipient must take all steps and do all such things as may be reasonably necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the Disclosing Party.
4. Subject to complying with any other applicable obligations under this Agreement relating to Confidential Information, the Recipient may disclose Confidential Information of the Disclosing Party to those of its Personnel:
1. that need to know for the Recipient to exercise any of its rights or perform any of its obligations under this Agreement (and only to the extent that they need to know); and
2. that have entered into a confidentiality agreement with the Recipient containing terms protecting the Confidential Information of the Disclosing Party which are no less onerous than this clause 11.
5. The Recipient must ensure that the Confidential Information of the Disclosing Party is kept confidential by any person to whom it discloses that information.
6. The obligations in clause 11(a) to (c) do not apply to Confidential Information that is:
1. required to be disclosed by applicable Laws or the rules of any stock exchange upon which the Recipient's securities are listed, provided that the Recipient:
2. discloses the minimum amount of Confidential Information required to satisfy the Laws or rules; and
3. before disclosing any information, provides a reasonable amount of notice to the Disclosing Party (to the extent permitted by those Laws or rules) and exhausts all reasonable steps to maintain such Confidential Information in confidence;
4. in the public domain otherwise than as a result of a breach of this Agreement or another obligation of confidence;
5. created by the Recipient (whether alone or jointly with any person) independently of the Disclosing Party's Confidential Information (if the Recipient has evidence in writing that the information falls within this exception); or
6. already known by the Recipient independently of its involvement in this Agreement or its interaction with the Disclosing Party and free of any obligation of confidence.
7. The Rental Co is the owner of the data, and any Intellectual Property Rights in the data:
1. provided by the Rental Co to MFA; or
2. generated by MFA using the Rental Co Data in the course of supplying the Services, including the location of the Fleet Vehicles, the direction of travel of the Fleet Vehicles and video and camera surveillance on Toll roads,
   (Rental Co Data).
8. MFA will ensure that the Rental Co Data is accessible continuously, whilst services are being provided.
12. Privacy
    Each party must comply with its obligations (if any) under the Privacy Legislation to the extent relevant to the supply or receipt of the Services. Without limiting the foregoing:
1. if the Rental Co supplies any Personal Information to MFA, the Rental Co warrants that it has obtained all necessary consents and made all necessary disclosures (including from the Drivers) for such disclosure and for MFA to store, disclose and use that Personal Information in connection with the supply of the Services;
2. the Rental Co consents to and authorises, and must ensure each Driver consents to and authorises, the collection of information, including Personal Information, by MFA in the supply of the Services, including information obtained from toll road operators and video surveillance of Toll roads, and information obtained from global positioning systems (GPS) which track the geographic location of tags, vehicle or mobile applications; and
3. MFA agrees to comply with the Privacy Policy in relation to any Rental Co Data which is Personal Information.
13. Intellectual Property Rights
1. Each party acknowledges and agrees that except as expressly set out, this Agreement does not have the effect of transferring the ownership of any Intellectual Property Rights of a party.
2. Subject to clause 11(g), the Rental Co acknowledges and agrees that the Intellectual Property Rights comprised in and associated with the MFA Platform and Materials which are made available by MFA under this Agreement or which arise as a result of the supply of the Services (MFA IP) are (as between the parties) owned by MFA, and that the Rental Co has no right or entitlement to access, use or deal with the MFA IP except as otherwise expressly provided for in this Agreement or the MFA Platform Terms of Use.
3. Any rights that the Rental Co may otherwise possess in the MFA IP (including all Intellectual Property Rights) will be deemed automatically assigned and transferred by the Rental Co to MFA by this Agreement. The Rental Co agrees to execute any documents reasonably necessary to confirm this fact, including to confirm any waiver of moral rights.
4. The Rental Co must not, and must ensure its Personnel do not, do any act or thing or omit to do any act or thing which may prejudice, compromise or derogate from MFA's rights in the MFA IP.
5. Subject to the MFA Platform Terms of Use, MFA grants to the Rental Co a limited, non-exclusive, royalty-free licence during the Service Period to access and use the MFA Platform and other Materials to the extent that such a licence is necessary for the Rental Co to receive the benefit of the Services in accordance with this Agreement.
6. The Rental Co grants to MFA a non-exclusive, royalty-free, perpetual, irrevocable and transferable licence to store, access, modify and otherwise use the Rental Co Data for any purpose in connection with this Agreement.
14. Warranties
1. MFA warrants that:
1. it will perform the Services with all due care and skill and in a competent and professional manner which may be expected of a professional organisation experienced in performing services of the scope, type and complexity of the Services; and
2. the receipt of the Services and the use by the Rental Co of the MFA IP as contemplated by, and in accordance with, this Agreement will not infringe the Intellectual Property Rights of any third party.
2. The Rental Co warrants that:
1. it has satisfied itself as to the suitability of the MFA Platform; and
2. it is authorised to give MFA the right to use the Nominated Card or Charge Account (as applicable) to meet its payment obligations under this Agreement.
3. it has the unrestricted right to have the GPS Tracking Device installed at the locations and vehicles contemplated by this Agreement.
4. it has obtained all necessary consent and permissions to use the GPS Tracking System and the GPS Tracking Services and to record locations, events, information and other data by way of the GPS Tracking Services and/or using the GPS Tracking System and that it will comply with all applicable laws and regulations in this regard; and
5. its recording of locations, events, information or data by way of the GPS Tracking Services and/or using the GPS Tracking System will not infringe upon the rights of any third party and that it will comply with all applicable laws and regulations in this regard.
3. The Rental Co acknowledges that the MFA Platform cannot be guaranteed to be error free and further acknowledges that the existence of any such errors will not constitute a breach of this document.
15. Liability
1. The Rental Co acknowledges and agrees that MFA provides a system for the monitoring and payment of driving and road related costs. For clarity, nothing in this Agreement transfers liability for such costs, including Fines, Driver Debts and fees relating to such amounts to MFA. The Rental Co indemnifies MFA in relation to any claim against MFA in relation to the Tolls, Fines and Driver Debts.
2. To the extent permitted by applicable law, MFA excludes all implied warranties and guarantees. If MFA breaches any warranty or guarantee that is implied by Law and which is not capable of being excluded, MFA's liability will be limited to, at MFA's discretion:
1. resupply of the relevant non-conforming Services;
2. paying the cost of such resupply; or
3. refunding to the Rental Co the Fees paid for the relevant non-conforming Services.
3. Subject to clauses 15(a), (b) and (d), to the extent permitted by law:
1. the total aggregate liability of each party to the other for any claims arising out of or related to this Agreement, regardless of the form of the action, will be limited to $10,000; and
2. neither party will be liable for any Loss which cannot be fairly and reasonably considered to arise naturally, in the usual course of things, from the breach or other act, omission or circumstance giving rise to the Loss suffered by the other party.
4. Clause 15(c)(i) does not apply to the extent that such Loss arises as a result of:
1. a contravention of a Law by a party or any of its Personnel:
2. any Wilful Misconduct or fraudulent act or omission by a party or its Personnel in connection with this Agreement;
3. any act or omission of a party of its Personnel resulting in or contributing to injury to or death of any person, loss of or damage to property;
4. a breach of clauses 5 or 13; or
5. the Rental Co's liability under clause 15(a) or liability to pay the Fees and any Tolls or Fines under this Agreement..
5. Each party's liability to the other party will be reduced to the extent that the relevant Loss was caused or contributed to by the other party and its Personnel.
6. Notwithstanding anything to the contrary in this Agreement, MFA will not be liable for any failure or delay in the supply of the Services to the extent it is caused by circumstances beyond its reasonable control, including acts of God, war, riot, terrorist attacks, embargoes, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or shortages of fuel or energy. In the event of any such delay, MFA will receive an automatic extension of time for performance of any obligation equal to the period of the delay.
16. Termination
1. MFA may terminate this Agreement with immediate effect by giving the Rental Co notice if the Rental Co has not paid any amount in accordance with clause 3(g)(iv) (which amount is not the subject of a bona fide dispute) and has failed to remedy that non-payment within five Business Days after receiving a notice from MFA requiring payment of that amount.
2. Either party (Terminating Party) may terminate this Agreement immediately by notice in writing if:
1. the other party is the subject of an Insolvency Event or otherwise ceases to carry on business; or
2. the other party breaches a material term of this Agreement and:
1. the breach is not capable of remedy; or
2. the other party fails to rectify the breach within 30 days after receiving a notice from the Terminating Party requiring the breach to be rectified.
3. Any expiry or termination of this Agreement is without prejudice to the rights and remedies of either party against the other in respect of any antecedent claim or breach of any of the provisions of this Agreement.
4. Upon the termination or expiry of this Agreement:
1. the Rental Co must immediately cease using the MFA Platform;
2. the Rental Co must, and must procure that the Drivers, promptly (and in any event within five Business Days) return to MFA all Hardware including all Tags and GPS Tracking Devices;
3. all Fees the Rental Co owes to MFA up to the date of termination or expiry become immediately due and payable; and
4. each party must promptly (and in any event within 10 Business Days), return or destroy (as required by the other party) all Confidential Information (including all copies) of the other party in its possession or control (and, in the case of the Rental Co, Confidential Information in the possession or control of the Drivers).
5. Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the termination or expiry of this Agreement, clauses 3, 5, 13, 15, 16 and 18, survive the termination or expiry of this Agreement for whatever reason.
6. Without limiting clause 16(e), the respective rights and obligations of the parties under clauses 4, 6, 7, 8 and 9 will continue to apply in respect of any Tolls and Fees incurred by Drivers pursuant to the terms of any MFA Driver Agreement or incurred by Corporate Account Holders pursuant to the terms of any MFA Corporate Account Agreement which was entered into on or before the date of termination of this document, but which continues after the date of termination of this document.
7. Each indemnity contained in this Agreement is a continuing obligation, independent from the other obligations of the parties and survives the termination or expiry of this Agreement. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this Agreement.
17. Security Interests
1. The Rental Co must not create or permit to exist a security interest over any Hardware or MFA IP. For the purposes of the foregoing, "security interest" means a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which in substance secures the payment of money or the performance of any obligation, or that gives a creditor priority over unsecured creditors.
18. Disputes
1. Subject to clause 18(b), before court or arbitration proceedings are commenced, the parties must endeavour to settle any dispute that arises out of or in connection with this Agreement (including as to its existence, validity, breach or termination) in accordance with this clause.
2. A party may seek interim or urgent interlocutory relief at any time.
3. A party claiming that a dispute has arisen must give a notice in writing to the other party setting out the nature of the dispute (Dispute Notice).
4. Within three Business Days after receipt of the Dispute Notice (or such other period agreed by the parties to the dispute), the dispute must be referred to the senior executives nominated by each of the parties, who must meet and use their reasonable endeavours to resolve the dispute.
5. If the dispute is not resolved within 15 Business Days after receipt of the Dispute Notice (or such other period agreed by the parties to the dispute), the parties must refer the dispute to the Resolution Institute for mediation in accordance with the then-current edition of the Rules of the Resolution Institute (Rules).
6. The terms of the Rules are deemed to be incorporated into this Agreement.
7. If the dispute is not resolved by the mediation within 30 Business Days after receipt of the Dispute Notice, either party may commence court or arbitration proceedings as the case may be.
19. Notices
1. Any notice, demand, approval, consent or other communication under this Agreement (Notice) must be in writing in English or accompanied by a certified translation into English and must be:
1. delivered personally;
2. sent by facsimile;
3. sent by email; or
4. sent by regular post (or airmail if posted to or from a place outside Australia), to a party at:
5. the address of the party set out in the Application Form (Nominated Contact Details); or
6. such other contact details as the party may from time to time notify to the other party for the purposes of, and in accordance with, this clause.
2. A Notice given in accordance with clause 19(a) takes effect when received (or such later time as specified in it), and is taken to be received:
1. if hand delivered, on delivery;
2. if sent from and to a place within Australia by regular post, at 9:00 am on the sixth Business Day after the date of posting;
3. if sent from a place within Australia to a place outside Australia by airmail, at 9.00 am on the tenth Business Day after the date of posting;
4. if sent from a place outside Australia by airmail, at 9.00 am on the twelfth Business Day after the date of posting;
5. if sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the total number of pages of the Notice, unless within four business hours (being a period of time between 9.00 am and 5.00 pm on a Business Day) after the transmission, the recipient informs the sender that it has not received the entire Notice; or
6. if sent by email an hour after the time the sender's information system (as that term is defined in the Electronic Transactions Act 2000 (NSW)) recorded that email left the sender's information system unless, within eight Business Hours, the sender is informed (by automatic notice or otherwise) that the email has not been received by the recipient,
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00 pm on a Business Day, the Notice is taken to be received at 9.00 am on the next Business Day after that delivery, receipt or transmission.
20. General
1. The parties are not and are not to be taken to be in a partnership, joint venture, employment or fiduciary relationship.
2. Except where expressly stated, nothing in this Agreement gives a party authority to bind any other party in any way.
3. This agreement states all of the express terms of the agreement between the parties in respect of its subject matter. It supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter. The Rental Co acknowledges and represents that it has not relied on any statement by MFA which has not been expressly included in this Agreement.
4. Each party must, at its own expense, do all things and execute all further documents necessary to give full effect to this Agreement and the transactions contemplated by it.
5. Each party must pay its own costs (including legal costs) and expenses in connection with the negotiation, preparation, execution and delivery of this Agreement.
6. This agreement may be executed in any number of counterparts, each signed by one or more parties. Each counterpart when so executed is deemed to be an original and all such counterparts taken together constitute one document.
7. A party that has executed a counterpart of this Agreement may exchange that counterpart with another party by faxing or emailing it to the other party or the other party’s legal representative and, if that other party requests it, promptly delivering that executed counterpart by hand or post to the other party or the other party’s legal representative. However, the validity of this Agreement is not affected if the party who has faxed or emailed the counterpart delays in delivering or does not deliver it by hand or by post.
8. Unless expressly required by the terms of this Agreement, a party is not required to act reasonably in giving or withholding any consent or approval or exercising any other right, power, authority, discretion or remedy, under or in connection with this Agreement.
9. A party may (without any requirement to act reasonably) impose conditions on the grant by it of any consent or approval, or any waiver of any right, power, authority, discretion or remedy, under or in connection with this Agreement. Any conditions must be complied with by the party relying on the consent, approval or waiver.
10. Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this Agreement.
11. A variation of any term of this Agreement will be of no force or effect unless it is in writing and signed by each of the parties.
12. A waiver of a right, remedy or power must be in writing and signed by the party giving the waiver.
13. A party does not waive a right, remedy or power if it delays in exercising, fails to exercise or only partially exercises that right, remedy or power.
14. A waiver given by a party in accordance with clause 20(l):
1. is only effective in relation to the particular obligation or breach in respect of which it is given and is not to be construed as a waiver of that obligation or breach on any other occasion; and
2. does not preclude that party from enforcing or exercising any other right, remedy or power under this Agreement nor is it to be construed as a waiver of any other obligation or breach.
15. If a provision in this Agreement is wholly or partly void, illegal or unenforceable in any relevant jurisdiction that provision or part must, to that extent, be treated as deleted from this Agreement for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of this Agreement.
16. This agreement is governed by and is to be construed under the Laws in force in New South Wales, Australia.
17. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.
21. Definitions and interpretation
21.1 Definitions
In this Agreement:
Blacklisted Driver means a Driver who has had legal proceedings commenced against them within the past two years.
Business Day means a day on which banks are open for business in Sydney, Australia, excluding a Saturday, Sunday or public holiday in that city.
Charge Account means the charge account established by the Rental Co for payment of the Fees or other charges in connection with this Agreement and for the receipt of the Rental Co Service Charge, as specified in the Application Form.
Confidential Information of a person, means all information (regardless of the form of disclosure or the medium used to store it):
1. treated by that person as confidential; or
2. which the person to whom it is disclosed ought to reasonably know is confidential,
and, in the case of the Rental Co, includes all Rental Co Data.
Corporate Account means a post-paid account established by a person resident in Australia and operated by the Rental Co for a Corporate Account Holder pursuant to a MFA Corporate Account Agreement between the Rental Co and the Corporate Account Holder. Corporate Account Details means, in respect of a Corporate Account Holder, their:
1. name, address and, where available, phone number;
2. Australian Business Number; and
3. unique trading account number.
Corporate Account Holder means the holder of a Corporate Account.
Corporations Act means the Corporations Act 2001 (Cth).
Debt Documentation means, in respect of a Driver Debt:
1. any agreement(s) or document(s) made with the relevant Driver in respect of the Driver Debt; and
2. receipts, notices, acknowledgements or other documentation which evidence or record (or claim to evidence or record) the amount of any paid or unpaid Driver Debt.
Debt Recovery Services means the services described as ‘debt recovery services’ in the Application Form.
Debt Request has the meaning given in clause 9(b).
Driver means the driver of a Fleet Vehicle.
Drive Now Pay Later or DNPL means the drive now pay later method of payment which may be selected by the Rental Co through the MFA Platform for the payment of specific Fees.
Driver Debt has the meaning given in clause 9(a).
Driver Information means the name, address, phone number, driver license details of the Driver responsible for hiring the relevant Fleet Vehicle, as well as details of the relevant Fleet Vehicle(s) operated by that Driver.
Fees means the fees for the Services which are calculated and payable in accordance with clause 3 and the Application Form, but does not include the Rental Co Service Charge.
Fines means speeding, traffic and parking related fines and includes any related fees.
Fines Management Services means the services described as ‘fines management services’ in the Application Form.
Fleet Vehicle means a vehicle for which MFA supplies a Tag under this Agreement. GPS Tracking Device means a device that plugs or is hard-wired into or otherwise attaches to a vehicle or other asset and may provide access to a self-diagnostic and reporting system and to the location of the vehicle or other asset and may also provide information such as (but not limited to) the status of the various vehicle subsystems.
GPS Tracking System means the hardware and software required to provide the GPS Tracking Services to the Rental Co and other authorised parties.
GPS Tracking Services means the services described as ‘GPS tracking services' in the Application Form.
Hardware means any hardware provided by MFA to the Rental Co under or in connection with this Agreement and includes any replacements of them, including each Tag and GPS Tracking Device.
Identity Management Services means the services described as ‘identity management services’ in the Application Form.
Initial Period means the period described as the 'initial period' in the Application Form.
Insolvency Event in relation to a person means:

1. it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act);
2. it has had a controller (as defined in section 9 of the Corporations Act) appointed, or is in liquidation, in provisional liquidation, under administration or wound up or has had a receiver (as defined in section 9 of the Corporations Act) appointed to any part of its property;
3. it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other party);
4. an application or order has been made, resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above;
5. it is taken (under section 459(F)(1) of the Corporations Act) to have failed to comply with a statutory demand;
6. it is the subject of an event described in section 459(C)(2)(b) or section 585 of the Corporations Act (or it makes a statement from which a party reasonably deduces it is so subject);
7. it is otherwise unable to pay its debts when they fall due; or
8. something having a substantially similar effect to any or all of (a) to (g) happens in connection with that person under the law of any jurisdiction.
Intellectual Property Rights includes all rights throughout the world in relation to patents, copyright (including moral rights), designs, registered and unregistered trade marks, trade secrets, know-how, confidential information and all other intellectual property and any right to register those rights, whether created before or after the date of this Agreement, and in all cases for the duration of those rights and any renewal.
Laws means any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in any relevant jurisdiction and includes any codes of conduct.
Loss means all liability, loss, damage, cost and expense suffered or incurred by any person whether arising in contract or tort (including negligence) or under any statute or under any other cause of action.
Materials means any materials supplied by MFA to the Rental Co in connection with this Agreement together with any materials created by MFA or the MFA Platform in the supply of the Services, other than the Rental Co Data.
MFA Corporate Account Agreement means an agreement between MFA and a Corporate Account Holder established on the terms which may be accessed using the following link [here].
MFA Driver Agreement means an agreement between MFA and a Driver for the payment of Tolls and other fees which may be accessed using the following link [here].
MFA IP has the meaning given in clause 13(b).
MFA Platform means the 'MFA platform' specified in the Application Form.
MFA Platform Terms of Use means the terms of use set out on the eFleetPass website at www.efleetpass.com.au from time to time which govern access to and use of the MFA Platform.
Monitoring Services means the services described as the 'monitoring services' in the Application Form.
Nominated Card means a valid credit card or debit card nominated by the Rental Co, for payment of the Fees, or any other charges payable by the Rental Co in connection with this Agreement, or to receive the Rental Co Service Charge, as specified in the Application Form.
Nominated Contact Details has the meaning given in clause 19(a)(v). Personal Information means 'personal information' as defined in the Privacy Legislation.
Personnel of a person means the officers, employees, contractors (including subcontractors) and agents of that person.
PPSA means the Personal Property Securities Act 2009 (Cth.) (as amended) and includes instruments made under that Act.
Privacy Legislation means the Privacy Act 1988 (Cth) and the 'Australian Privacy Principles' in that Act.
Privacy Policy means the MFA privacy policy which is set out at http://www.efleetpass.com.au/privacy/index.html, as updated from time to time. PPSR Services means the services described as ‘PPSR services’ in the Application Form.
Renewal Period means a period of the length described as a 'renewal period' in the Application Form.
Rental Co Data has the meaning given in clause 11(g).
Rental Co Service Charge means $3.00 (exclusive of GST) per day on any Toll trip. Services means the services selected by the Rental Co in the Application Form, which may include:
1. the Monitoring Services;
2. the Toll Facility Services;
3. the Support Services;
4. the GPS Tracking Services;
5. the Debt Recovery and Referral Services;
6. the Fines Management Services;
7. Identity Management Services; and
8. PPSR Services.
Service Period means the Initial Period and any Renewal Period.
Software means any software licensed or otherwise provided by MFA to the Rental Co under or in connection with this Agreement.
Specifications means the agreed functional or technical specifications of the Services as set out in the Application Form.
Support Documentation means any documentation supplied by MFA as part of the Support Services, including that described in the Application Form.
Support Services means the services described as 'support services' in the Application Form.
Tag means any tag provided by MFA to the Rental Co for distribution to a Driver and installation in vehicles, and includes a "Tag" or other term for such a device that is used in any MFA Driver Agreement.
Tolls means all toll charges or other fees and charges imposed by the operator of a toll road for, or taxes payable in respect of, a trip by a Fleet Vehicle. Toll Facility Services means the services described as 'toll facility services' in the Application Form.
Wilful Misconduct means any act or omission where the person knows they are committing a wrongful act or omission or the person is recklessly indifferent as to whether the act or omission is wrongful.
21.2 Interpretation In this Agreement unless a contrary intention is expressed:
1. headings and italicised, highlighted or bold type do not affect the interpretation of this Agreement;
2. the singular includes the plural and the plural includes the singular;
3. a gender includes all other genders;
4. other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
5. a reference to a 'person' includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any Government Agency (whether or not having a separate legal personality);
6. a reference to any thing (including any right) includes a part of that thing, but nothing in this clause 21.2(f) implies that performance of part of an obligation constitutes performance of the obligation;
7. a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to, this Agreement and a reference to this Agreement includes any clause, annexure, exhibit and schedule;
8. a reference to a document (including this Agreement) includes all amendments or supplements to, or replacements or novations of, that document;
9. a reference to a party to any document includes that party's successors and permitted assigns;
10. a reference to time is to Sydney, New South Wales time;
11. a reference to any legislation includes all delegated legislation made under it and includes all amendments, consolidations, replacements or re enactments of any of them, from time to time;
12. a reference to an agreement other than this Agreement includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing;
13. a reference to a document includes any agreement or contract in writing, or any certificate, notice, deed, instrument or other document of any kind;
14. a promise, agreement, representation or warranty by two or more persons binds them jointly and severally;
15. a provision of this Agreement may not be construed adversely to a party solely on the ground that the party (or that party's representative) was responsible for the preparation of this Agreement or the preparation or proposal of that provision;
16. a reference to a body, other than a party to this Agreement (including an institute, association or authority), whether statutory or not, which ceases to exist or whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions;
17. the words 'include', 'including', 'for example', 'such as' or any form of those words or similar expressions in this Agreement do not limit what else is included and must be construed as if they are followed by the words 'without limitation', unless there is express wording to the contrary;
18. a reference to a day is to the period of time commencing at midnight and ending 24 hours later;
19. if a period of time is specified and dates from a day or the day of an act, event or circumstance, that period is to be determined exclusive of that day;
20. if an act or event must occur or be performed on or by a specified day and occurs or is performed after 5.00 pm on that day, it is taken to have occurred or been done on the next day; and
21. a reference to '$', 'A$', 'AUD', 'dollars' or 'Dollars' is a reference to the lawful currency of the Commonwealth of Australia.