Effective date: 19th April, 2010

Important Notice

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. BY REGISTERING WITH US AND / OR USING THIS WEBSITE, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS SET OUT BELOW. PLEASE PRINT AND KEEP A PAPER COPY AND / OR RETAIN AN ELECTRONIC COPY OF THESE TERMS AND CONDITIONS FOR YOUR RECORDS.

1.Introduction

• 1.1

  The Whipcar service enables [Whipcar Members to make Bookings and hire Vehicles from each other.] Use of the Whipcar service is conditional upon full compliance with this Agreement. [Currently, Whipcar only facilitates Bookings and the hiring of Vehicles for use in [the United Kingdom].]

• 1.2

  This Website is owned and operated by Whipcar Limited, incorporated in the UK with company registration number 06934250 and a registered address of 41 Great Portland Street, London, W1W 7LA.

• 1.3

  This Agreement is made between: (1) Whipcar, and (2) you, in connection with your use of the Website and / or in your capacity as a Whipcar Member. Provisions in this Agreement that apply to Whipcar Members apply to everyone who has registered with Whipcar, whether or not they are registered as a Whipcar Driver and / or a Whipcar Owner. In addition:

  • 1.3.1

    provisions specifically applicable to Whipcar Owners will apply to you if you are a registered Whipcar Owner; and

  • 1.3.2

    provisions specifically applicable to Whipcar Drivers will apply to you if you are a registered Whipcar Driver.

• 1.4

  Capitalised terms used in this Agreement have the meanings set out in the Definitions Section set out at clause 2 below.

• 1.5

  Whipcar reserves the right to update this Agreement at any time. If Whipcar amends this Agreement, Whipcar will publish the amended version on the Website. The amended Agreement will take effect from the time it is first published on the Website, and from then on will govern the relationship between Whipcar and Whipcar Members and / or Website users. Unless expressly provided in writing, such amendments will not however apply to any Pre-Amendment Booking, which will remain binding and otherwise subject to the terms of this Agreement. Any user and / or Whipcar Member who does not agree with the amended Agreement, must not continue to use the Website after the time on which the amended Agreement is published on the Website, save that any such Member who has made or accepted a Pre-Amendment Booking(s) shall be entitled to use the Website solely for the purposes of and in connection with the making and fulfilment of such Pre-Amendment Booking(s) but for no other purpose.

• 1.6

  From time to time Whipcar may ask you to agree to further terms and conditions relating to additional services that Whipcar may make available through the Website, for example in relation to entering into competitions or purchasing items or new services from Whipcar. In such circumstances, this Agreement will continue to apply save that, in the event of any conflict between it and any terms and conditions relating to such additional services, the terms and conditions relating to the additional services shall prevail.

• 1.7

  If you have any questions, complaints or comments concerning the services provided on the Website, you can contact Whipcar at hi@whipcar.com.

2.Definitions

In this Agreement the following capitalised terms mean:

3.Registering Vehicles with Whipcar

• 3.1

  Any person with a car that meets the Vehicle Eligibility Criteria, and who otherwise complies with the terms of this Agreement, may become a Whipcar Owner by creating a Profile and registering the Vehicle(s) through the Vehicle Registration Process.

• 3.2

  A Whipcar Owner's Vehicle(s) must meet all the following Vehicle Eligibility Criteria on the date of registration and for the full period during which the Vehicle is registered with Whipcar. The Vehicle(s) must:

  • 3.2.1

    be a car as defined by the DVLA;

  • 3.2.2

    be owned (or leased) by the Whipcar Owner;

  • 3.2.3

    be no more than 8 years old;

  • 3.2.4

    have a valid MOT certificate and road tax;

  • 3.2.5

    be insured; and

  • 3.2.6

    meet the Basic Safety Requirements and otherwise be safe to drive, clean, in good condition, and suitable for use.

• 3.3

  By completing the Vehicle Registration Process each Whipcar Owner warrants to Whipcar and any Whipcar Drivers who make any Booking in respect of the Vehicle that the Vehicle meets and (save in respect of any failure which is beyond the control of the Whipcar Owner) will continue to meet during each and every Hire Period the Vehicle Eligibility Criteria.

• 3.4

  If after becoming registered as a WhipCar Owner any Vehicle(s) ceases to meet the Vehicle Eligibility Criteria, the WhipCar Owner must immediately remove the Vehicle from their Profile. As soon as a WhipCar Owner becomes aware that any Vehicle(s) no longer meets the Vehicle Eligibility Criteria the WhipCar Owner must not accept any Bookings for that Vehicle and must cancel any Booking where the Hire Period has not yet commenced. The WhipCar Owner will bear all the costs and liabilities (if any) associated with any such cancellation.

• 3.5

  Whipcar may refuse to register (or may cancel the registration of) any Vehicles if it considers or is aware they do not meet the Vehicle Eligibility Criteria.

• 3.6

  If a Vehicle that has been registered subsequently fails to meet the Vehicle Eligibility Criteria and the Whipcar Owner does not remove the Vehicle from the Whipcar Owner's Profile, Whipcar may if it is aware of the failure remove the Vehicle from the Whipcar Owner's Profile, but has no obligation to do so. Whipcar will incur no liability for any Bookings that can no longer be fulfilled [but clause 3.4 will apply to any Bookings cancelled where the Hire Period has not yet commenced].

• 3.7

  As part of the Vehicle Registration Process Whipcar will automatically search for the Vehicle against one or more third-party databases in order to check the Vehicle's age, model, registration, and accident history. The results of this check will be assessed by Whipcar and Whipcar may at its discretion refuse to register the Vehicle.

• 3.8

  [The Booking Procedure will require Whipcar Owners to confirm that the relevant Vehicle meets the Vehicle Eligibility Criteria each time they accept a booking request.] Whipcar Owners must keep their Profile details up to date, including updating details of their Vehicles when they change, and informing Whipcar immediately if the Whipcar Owner becomes aware that his / her Vehicle(s) no longer meet the Vehicle Eligibility Criteria.

4.Registering Drivers with Whipcar

• 4.1

  Any person who meets the Driver Eligibility Criteria, and otherwise complies with the terms of this Agreement, may become a Whipcar Driver by registering with Whipcar through the Driver Registration Process.

• 4.2

  Individuals wanting to become Whipcar Drivers must be able to meet the following criteria on the date of registration and for the full period during which they are registered as a Whipcar Driver. The Driver Eligibility Criteria are that the person must:

  • 4.2.1

    be a private individual not less than 21 and not more than 70 years of age;

  • 4.2.2

    have held a valid, full (not provisional) UK driving licence for at least the 12 months immediately prior to registration, and remain in possession of such licence throughout the period that the Whipcar Driver remains registered with Whipcar;

  • 4.2.3

    have no more than 6 penalty points on their driving licence;

  • 4.2.4

    have no drink driving convictions (excluding any which were incurred more than 5 years prior to the date of registration with Whipcar);

  • 4.2.5

    have no convictions relating to driving dangerously and/or without insurance;

  • 4.2.6

    have had no more than two accidents in the past 3 years (calculated initially from the date of registration and then subsequently from the date of each booking request).

• 4.3

  By completing the Driver Registration Process each Whipcar Driver warrants to Whipcar and any Whipcar Owners who accept any booking requests for their Vehicles from the Whipcar Driver that the Whipcar Driver meets the Driver Eligibility Criteria.

• 4.4

  If after becoming registered as a Whipcar Driver a Whipcar Driver ceases for any reason to meet the Driver Eligibility Criteria the Whipcar Driver must immediately remove his / her Profile from the Website. As soon as a Whipcar Driver becomes aware that he / she cannot meet the Driver Eligibility Criteria the Whipcar Driver must not make or attempt to make any Bookings and must cancel any where the Hire Period has not yet commenced.

• 4.5

  Whipcar may refuse to register (or may cancel the registration of) any individuals as Whipcar Drivers if it considers or is aware they do not meet the Driver Eligibility Criteria.

• 4.6

  If a Whipcar Driver who has registered subsequently fails to meet the Driver Eligibility Criteria, and the Whipcar Driver does not remove his / her Profile from the Website, Whipcar may if it is aware of the failure remove the Whipcar Driver's Profile, but has no obligation to do so. Whipcar will incur no liability for any Bookings that can no longer be fulfilled but clause 4.4 will apply to any Bookings cancelled where the Hire Period Has not yet commenced.

• 4.7

  [The Booking Procedure will require Whipcar Drivers to confirm that they meet the Driver Eligibility Criteria each time they make a booking request.] However, Whipcar Drivers must keep their Profile details up to date, and must inform Whipcar immediately if a Whipcar Driver becomes aware that it no longer meets the Driver Eligibility Criteria.

5.Booking a Whipcar

• 5.1

  All Bookings for Vehicles must be made through, and every Whipcar Driver and Whipcar Owner must comply with, the Booking Procedure.

• 5.2

  Whipcar Owners have absolute discretion to accept or decline any booking request.

• 5.3

  Once any request has been accepted by a Whipcar Owner through the Booking Procedure, the Booking will be binding on both the Whipcar Owner and Whipcar Driver in accordance with this Agreement, and both Members agree to be bound by and comply with the terms of the Insurance Policy.

• 5.4

  If a Whipcar Owner does not respond to any booking request within 24 hours of it being placed, Whipcar will send an automatic decline response to the Whipcar Driver who placed the request. Any attempt by the Whipcar Owner to accept the booking request after 24 hours will be invalid.

• 5.5

  Bookings may be made to commence up to 30 days after the acceptance of the booking request.

6.Vehicle Booking Shortlists

• 6.1

  The Booking Procedure allows Whipcar Drivers to make simultaneous booking requests for several Vehicles in respect of the same proposed Hire Period, intending only to conclude a Booking in respect of one of the Vehicles on the Vehicle Booking Shortlist they have created.

• 6.2

  When the first Whipcar Owner of any Vehicle on a Vehicle Booking Shortlist accepts a booking request in accordance with the Booking Procedure, that Booking will be binding on both the Whipcar Owner and Whipcar Driver in accordance with this Agreement and the specific terms agreed.

• 6.3

  Any attempts by any Whipcar Owner to accept any booking request that has already been accepted, or at any time 24 hours after the booking request was placed, will be invalid.

7.Hire Period

• 7.1

  Initial Hire Periods must be for a specific duration, of at least 3 hours and not more than 1 calendar month.

• 7.2

  Any time spent inspecting the Vehicle at collection and return will be included in the Hire Period.

• 7.3

  Initial Hire Periods may be extended by the Whipcar Driver agreeing an Extension Period with the Whipcar Owner through the Booking Procedure. Whipcar Owners have absolute discretion as to whether to agree to any extension request, and have no obligation to monitor their Profile [or phone] to be responsive to extension requests. If the Driver is late returning the Vehicle, they will automatically be charged additional pro rata Rental Fees and Insurance Premium for the extension to the Hire Period.

• 7.4

  If the Whipcar Owner does not respond to an extension request within 15 minutes of it being [placed on the Whipcar Owner's Profile], Whipcar will send an automatic decline response. Any attempts by any Whipcar Owner to accept any extension request that has been automatically declined, will be invalid.

• 7.5

  If a Whipcar Driver fails to return a Vehicle by the end of the Hire Period the Whipcar Driver will be liable in accordance with the Members' Penalties and Compensation Policy.

• 7.6

  [If no Extension Period is agreed the Insurance Policy will not apply beyond the end of the Initial Hire Period. The Whipcar Driver shall be liable for all damage caused to the Vehicle and any other vehicles or property, or injury to persons, while the Vehicle is uninsured and for any applicable criminal penalties.]

8.Cancelling a Booking

• 8.1

  Bookings may only be cancelled in accordance with this Agreement.

• 8.2

  Whipcar Drivers may without penalty cancel any booking request before it has been accepted by a Whipcar Owner through the Booking Procedure.

• 8.3

  Whipcar Owners must refuse to allow a Whipcar Driver to take control of a Vehicle if, in the Whipcar Owner's reasonable opinion, the Whipcar Driver is unfit to drive, does not meet the Driver Eligibility Criteria, appears to be intending to use the Vehicle in a way contrary to this Agreement, or in the circumstances set out in clause 9.7. The Whipcar Owner will incur no penalties for this cancellation and will not be required to refund the Rental Fee.

• 8.4

  Whipcar Drivers must refuse to take control of any Vehicle if they reasonably consider that the Vehicle does not meet the Vehicle Eligibility Criteria and may do so in the circumstances set out in clause 9.6]. Any decision by a Whipcar Driver to take control of a Vehicle which is damaged (other than where such damage is purely cosmetic) shall be at the Whipcar Driver's risk. The Whipcar Driver will be refunded for this booking in line with the fines and cancellation policy.

• 8.5

  Members are otherwise free to cancel any Booking at any time and the Members' Penalties and Compensation Policy will apply accordingly.

9.Vehicle Collection

• 9.1

  The Whipcar Driver and Whipcar Owner must meet at the time and location agreed in accordance with the Booking Procedure.

• 9.2

  The Whipcar Owner must ensure that the Vehicle is provided in accordance with the Vehicle Eligibility Criteria and in the condition shown in the Vehicle Condition Log.

• 9.3

  The Whipcar Driver is responsible for inspecting the Vehicle (both interior and exterior) and requiring the Whipcar Owner to record any discrepancies in the Vehicle Condition Log.

• 9.4

  In UK law the driver of the vehicle is responsible for the roadworthiness of the vehicle he / she is driving, and as such it is essential that the Whipcar Driver inspects the Vehicle and in particular confirms that the Vehicle meets the following basic safety requirements. The Basic Safety Requirements are as follows:

  • 9.4.1

    all warning lights go off automatically immediately after the ignition is engaged;

  • 9.4.2

    there is no indication of leaking fluids near the vehicle;

  • 9.4.3

    no part of the car, except the tyres, is in contact with the ground;

  • 9.4.4

    windscreens and windows are free from cracks and chips;

  • 9.4.5

    all panels, bumpers, mirrors and mouldings are secure;

  • 9.4.6

    front and rear light lenses are undamaged;

  • 9.4.7

    tyre treads are at least 2mm deep and the tyres are free from deformities and damage; and

  • 9.4.8

    all necessary peripheral items are with the Vehicle including user manual, wheel jack, spare tyre, and locking wheel nuts.

• 9.5

  In the event that any of the items of damage or problems listed in clause 9.4 above are present in the Vehicle, the Whipcar Driver may cancel the Booking on the basis that the Vehicle is not fit for purpose at pickup, and the Members' Penalties and Compensation Policy will apply.

• 9.6

  Other damage must be recorded (marked, signed, and dated) in the Vehicle Condition Log by the Whipcar Owner. Refusal to do so will entitle the Whipcar Driver to cancel the booking, and the Members' Penalties and Compensation Policy will apply.

• 9.7

  The Whipcar Driver must show to the Whipcar Owner the booking reference number provided by Whipcar for the Booking, and provide his / her driving licence. Failure to do so will entitle the Whipcar Owner to retain control of the Vehicle and cancel the Booking, and the Members' Penalties and Compensation Policy will apply.

• 9.8

  Whipcar Owners should ensure that they have not left any belongings in the Vehicle prior to the Whipcar Driver taking control of the Vehicle. If any belongings are left, they are left entirely at the Whipcar Owner's risk and Whipcar shall incur no liability in respect of any loss or damage to them.

• 9.9

  Whipcar Drivers must call Whipcar immediately on 0844 544 2010. if during the Hire Period (or any period outside of the Hire Period during which a Whipcar Driver remains in possession of or responsible for the Vehicle) they discover damage or any fault not recorded during the collection inspection, or if any damage is caused to or any fault occurs with the Vehicle.

10.Conditions of Vehicle Use

• 10.1

  The Vehicle must be driven only by the Whipcar Driver named in the Booking and the following conditions apply to the use of any Vehicle during the Hire Period (or any period outside of the Hire Period during which a Whipcar Driver remains in possession or responsible for the Vehicle). The Whipcar Driver:

  • 10.1.1

    must not use the Vehicle for hire or reward;

  • 10.1.2

    must not use the Vehicle for any illegal purpose;

  • 10.1.3

    must not use the Vehicle off-road, or for racing, pace making, testing the Vehicle's reliability and speed, or teaching someone to drive;

  • 10.1.4

    must not use the Vehicle when under the influence of alcohol or drugs;

  • 10.1.5

    must not carry a number of passengers which exceeds the designed seating capacity of the Vehicle;

  • 10.1.6

    must not carry baggage which would cause the Vehicle to be overloaded;

  • 10.1.7

    must not carry any hazardous, toxic or flammable materials in the Vehicle;

  • 10.1.8

    must not drive the Vehicle in or take the Vehicle to countries other than England, Scotland and Wales;

  • 10.1.9

    must always use the Vehicle in accordance with all highway and other applicable laws and regulations which may be in force at any time;

  • 10.1.10

    must ensure that the Vehicle is locked when not using it;

  • 10.1.11

    must make sure that the correct fuel is used when refuelling the Vehicle (and in the event of fuel contamination the Whipcar Driver will be liable for all costs relating to recovery, decontamination, repair or replacement of any parts, as a result of that failure to add the correct fuel);

  • 10.1.12

    is responsible for the Vehicle, and anything that happens to it, from the moment they take control of the Vehicle until either the later of the end of the Hire Period or the time they return control of the Vehicle to the Whipcar Owner, including any consequential costs incurred due to the state, location and security of the Vehicle at the end of use;

  • 10.1.13

    must not sell, rent or dispose of any Vehicle or any of its parts, or purport to give anyone any legal rights over the Vehicle;

  • 10.1.14

    must not smoke or allow others to smoke in, or allow any animals into, the Vehicle without written permission from the Whipcar Owner;

  • 10.1.15

    must not use or permit the Vehicle to be used to jump start any other vehicle; and

  • 10.1.16

    must not use or permit others to use the Vehicle to tow any other vehicle without written permission from the Whipcar Owner.

11.Vehicle Return

• 11.1

  By the end of the Hire Period, the Whipcar Driver must return the Vehicle to the location agreed through the Booking Procedure into the control of the Whipcar Owner. If this is not done the Members' Penalties and Compensation Policy will apply.

• 11.2

  For the avoidance of doubt, after taking possession of a Vehicle, Whipcar Drivers remain responsible for the Vehicle until it has been returned to the possession of the Whipcar Owner in accordance with this Agreement, regardless of whether it is returned during, at the end of, or after the expiry of, the relevant Hire Period.

• 11.3

  Whipcar Drivers should not return Vehicles to Whipcar Owners before the end of the Hire Period unless agreed otherwise with the Whipcar Owner. If a Vehicle is returned early, the full Rental Fee for the Booking will still be payable.

• 11.4

  The Vehicle (with its keys and all peripheral items, including manuals, wheel locking nuts etc) must be returned to the Whipcar Owner in the same condition as it was at the beginning of the Hire Period.

• 11.5

  The Whipcar Owner and the Whipcar Driver must inspect the Vehicle (interior and exterior), and record its fuel level on its return. If there is new damage to the Vehicle the Whipcar Driver will be liable under the Members' Penalties and Compensation Policy, and all new damage (not recorded prior to the commencement of the Hire Period in the Vehicle Condition Log) must be recorded in the Vehicle Condition Log and in a Whipcar Owners Excess Claims Form and must be reported to Whipcar within 48 hours of the Whipcar Owner becoming aware of the damage.

• 11.6

  Significant new damage (damage which would cost more than the excess on the Insurance Policy) caused to the Vehicle during the Hire Period will be covered by the Insurance Policy, subject to the terms of the policy, and provided that such damage is reported to Whipcar promptly. Members must provide accurate statements and co-operate with the Insurance Policy provider in any way as required by it and provide all information requested by Whipcar or its insurers, if a claim needs to be made.

• 11.7

  Damage caused to the Vehicle outside of the Hire Period, or any damage expressly stated to be not covered by the Insurance Policy, will not be covered by the Insurance Policy, and Whipcar Drivers will be liable for all such damage. For the avoidance of doubt, liability for any damage caused to any Vehicle during any time that a Whipcar Driver has responsibility for or is in possession of the Vehicle (whether during a Hire Period or otherwise), and which is not covered by the Insurance Policy for any reason, shall lie with the Whipcar Driver.

• 11.8

  Whipcar Drivers should ensure that they have not left any belongings in the Vehicle prior to the Whipcar Owner taking control of the Vehicle. If any belongings are left, they are left entirely at the Whipcar Driver's risk and Whipcar shall incur no liability in respect of any loss or damage to them.

12.Fuel Policy Refuelling and Incidental Expenses

• 12.1

  Whipcar Owners should provide Vehicles to Whipcar Drivers at the start of each Hire Period with at least a quarter tank of fuel.

• 12.2

  Whipcar Drivers should check and record the fuel level before taking control of the Vehicle and should return the Vehicle with at least the same amount of fuel as at the commencement of the Hire Period. Whipcar Owners should check the fuel level when the Vehicle is returned.

• 12.3

  Where there is a disagreement over fuel levels at the collection or return of any Vehicle the Members should attempt to resolve this between themselves. Neither Member, nor Whipcar, shall be liable under this Agreement in respect of any disagreement about fuel levels. For the avoidance of doubt, no penalties will be incurred under the Members' Penalties and Compensation Policy in respect of fuel provision, except that where a Whipcar Owner provides a Vehicle with no fuel it shall be deemed not fit for purpose at pick up and the Members' Penalties and Compensation Policy will apply.

• 12.4

  If a Whipcar Driver has to incur any incidental expenses (each item under £10) for essential routine maintenance that becomes necessary during the Hire Period (such as oil, or screen fluid), the Whipcar Driver and Whipcar Owner shall agree between themselves how to deal with this. Whipcar or Whipcar Owners shall have no obligation to reimburse Whipcar Drivers for incidental expenses.

• 12.5

  Whipcar Drivers should not incur any major expenses in respect of a Vehicle. In the event of accident or breakdown clause 21 will apply.

13.Whipcar's Responsibilities and Liability

• 13.1

  Whipcar has the right to enforce this Agreement (and the specific terms of any Booking) against Members for any failure(s) to comply with this Agreement.

• 13.2

  Where this Agreement or any other part of the Website states that Whipcar will do something, Whipcar will use reasonable endeavours to do that thing, or will use reasonable endeavours to procure that the Website provides that function (for example sending text and email reminders in respect of bookings).

• 13.3

  Whipcar will use reasonable endeavours to maintain and operate the Website but accepts no liability in respect of any part of the Website being unavailable for any period of time. [Whipcar will use reasonable endeavours to maintain and operate its phone contact but accepts no liability in respect of this being unavailable for any period of time.]

• 13.4

  Whipcar does not guarantee that the Website or Whipcar's service will be error-free, uninterrupted or that it will provide specific results. The Website is provided on an "as-is" and "as-available" basis. Except as expressly set out in this Agreement, Whipcar expressly disclaims any further warranties, conditions, or other terms, either express or implied by statute or otherwise including the implied warranties of merchantability, satisfactory quality or fitness for purpose.

• 13.5

  Whipcar accepts no liability in respect of the accuracy of any information or data received from third parties, including the results of Whipcar vetting any Members or carrying out checks on Vehicles.

• 13.6

  Whipcar accepts no liability in respect of and shall not be responsible for:

  • 13.6.1

    the condition of any Vehicle;

  • 13.6.2

    any information or content provided by Members on their Profiles or elsewhere on the Website or in connection with the hiring of any Vehicle;

  • 13.6.3

    death or personal injury except where resulting from Whipcar's negligence;

  • 13.6.4

    any damage to any property, or damage to or loss of any Vehicle;

  • 13.6.5

    any damage or loss of any belongings left in any Vehicle;

  • 13.6.6

    any fuel costs;

  • 13.6.7

    any incidental expenses;

  • 13.6.8

    any charges or fines mentioned in clause 17;

  • 13.6.9

    any theft or breakdown of any Vehicle;

  • 13.6.10

    (subject to making payments when received under the Members' Penalties and Compensation Policy) any cancellation, or failure to honour the terms of, any Booking by any Member; or

  • 13.6.11

    any cancellation of any booking, or removal of any Member Profiles, Vehicles, or other content, from the Website, if done in accordance with this Agreement.

• 13.7

  Subject to clauses 13.8 and 13.9 below, Whipcar is not liable to any Member under or in connection with this Agreement whether for negligence, breach of contract, misrepresentation or otherwise, for:

  • 13.7.1

    loss or damage incurred by any Member in connection with any claims made by a third party;

  • 13.7.2

    loss of profit, goodwill, business opportunity or anticipated saving suffered by the Member; or

  • 13.7.3

    any indirect or consequential loss or damage suffered by any Member.

• 13.8

  Subject to clauses 13.9, 13.10, and 13.11, the entire liability of Whipcar to any Member under or in connection with this Agreement whether for negligence, breach of contract, misrepresentation or otherwise, is limited to the amount of the Rental Fee for each Booking made by such Member plus any compensation payable under the Members' Penalties and Compensation Policy, and the amount of any sums which would be payable under the Insurance Policy but for Whipcar's failure to comply with this Agreement.

• 13.9

  Where Whipcar's total financial liability cannot be calculated in accordance with clause 13.7 (because the liability has arisen otherwise than in relation to a Booking), Whipcar's entire liability to any Member or any other person under or in connection with this Agreement whether for negligence, breach of contract, misrepresentation or otherwise, is limited to £100.

• 13.10

  Whipcar shall only be liable to pay Rental Fees to Whipcar Owners and compensation to Members to the extent that Whipcar has received these amounts from the relevant Member(s). [Payments made under the Insurance Policy will be managed by WhipCar's Insurance partners].

• 13.11

  Nothing in this Agreement will operate to exclude or restrict Whipcar's liability for:

  • 13.11.1

    death or personal injury resulting from negligence;

  • 13.11.2

    Whipcar's fraud or negligence.

14.Pricing and Payments

• 14.1

  [All Members must provide Whipcar with their bank account details into and from which Whipcar can make payments as authorised under this Agreement.]

• 14.2

  Each Whipcar Owner must set and display on his / her Profile a price for the hire of the relevant Vehicle(s), expressed as an hourly and / or daily rate. Whipcar Owners are free to change their rates at their discretion from time to time though any agreed Rental Fee for a Booking may not be changed, [without the [written] agreement of the Whipcar Driver].

• 14.3

  Whipcar's Rental Pricing Guidance is provided for guidance only and is not binding on Members.

• 14.4

  The actual Rental Fee payable in respect of each Booking shall be agreed between the Whipcar Owner and Whipcar Driver through the Booking Procedure.

• 14.5

  By placing a booking request Whipcar Drivers agree that the Rental Fee, the Booking Fee, the Insurance Fee (including, as applicable, agreed or automatic extensions), and any and all of the following potential additional payments will be charged to the debit or credit card used by the Whipcar Driver to secure the Booking. The potential additional payments that may be charged to the debit or credit card of the Whipcar Driver are payments required:

  • 14.5.1

    to meet the excess on the Insurance Policy;

  • 14.5.2

    because the Whipcar Driver has incurred a penalty and/or must pay compensation under the Members' Penalties and Compensation Policy;

  • 14.5.3

    in respect of loss or damage resulting from a failure by the Whipcar Driver to comply with or breach of this Agreement;

  • 14.5.4

    in respect of all fines and court costs for parking, traffic or other offences (including any costs which arise if the Vehicle is clamped or towed) incurred by the Whipcar Driver during his / her Vehicle use or as a direct result of such use;

  • 14.5.5

    in respect of any other fines and penalties incurred by the Whipcar Driver as a result of failure to comply with this Agreement or in connection with their hiring or use of any Vehicle;

  • 14.5.6

    in respect of Whipcar's costs, including, but not limited to, reasonable legal fees and any debt recovery or court fees incurred in collecting payments overdue from a Whipcar Driver;

  • 14.5.7

    in respect of value added tax and all other taxes and levies on any of the charges listed in this clause, as applicable from time to time; and

  • 14.5.8

    in respect of any other money due to Whipcar from a Whipcar Driver under this Agreement.

• 14.6

  Conclusion of any Booking in accordance with the Booking Procedure shall constitute authority for Whipcar to debit all monies due against the Member's nominated credit or debit card at the times specified in clause 14.7 and 14.8 below, including any of the items listed in clause 14.5 (Whipcar Drivers) above and in clause 14.9 below (Whipcar Owners).

• 14.7

  Payments for the Rental Fee, Insurance Fee and Booking Fee will be charged to the Whipcar Driver's debit or credit card at the moment a booking is accepted by the Owner.

• 14.8

  All other payments due in accordance with this Agreement will be charged to the Whipcar Driver's debit or credit card on demand as they fall due.

• 14.9

  Whipcar Owners must provide a debit or credit card for Whipcar to take payments required under this Agreement. By accepting a booking request through the Website Whipcar Owners authorise Whipcar to take the following payments as and when they fall due:

  • 14.9.1

    any payments due because the Whipcar Owner has incurred a penalty and/or must pay compensation under the Members' Penalties and Compensation Policy;

  • 14.9.2

    any payments due in respect of loss or damage resulting from a failure to comply with this Agreement;

  • 14.9.3

    any payments due in respect of Whipcar's costs, including, but not limited to, reasonable legal fees and any debt recovery or court fees incurred in collecting payments overdue from a Whipcar Owner;

  • 14.9.4

    any payments due in respect of value added tax and all other taxes and levies on any of the charges listed in this clause, as applicable from time to time; and

  • 14.9.5

    any payments due in respect of any other money due to Whipcar from a Whipcar Owner under this Agreement.

• 14.10

  If a debit card or credit card is declined by the card issuer, leaving any Member with an outstanding balance, then if the Member is a Whipcar Owner he / she must not accept any booking requests, and if the Member is a Whipcar Driver he / she must not make or attempt to make any booking requests, until full payment of the outstanding balance is received by Whipcar.

• 14.11

  Where a Member's credit history has not been established to Whipcar's satisfaction or becomes questionable in Whipcar's opinion, the Member must provide Whipcar on demand a copy of his / her passport and two proofs of address (not more than 2 months old). Whipcar may request these at any time while the Member is registered on the Website.

• 14.12

  Members whose payments fail will accrue penalties in accordance with the Members' Penalties and Compensation Policy.

• 14.13

  Whipcar will pay all Rental Fees received on completed bookings in respect of a Whipcar Owner's Vehicle in each month, to the Whipcar Owner on the 15th day of the following month.

• 14.14

  Whipcar may be entitled to keep for itself as payment for providing the Whipcar service, all Booking and Success Fees. [WhipCar's partners may keep all Insurance Fees (subject to Whipcar maintaining the Insurance Policy)].

15.Members' General Responsibilities and Indemnity

• 15.1

  Members must provide Whipcar with correct information when registering on the Website (including, and without limitation, the Member's name, address, age, and driving history). It is the Member's responsibility to update Whipcar and the relevant sections of the Website, including the Member's Profile, with any changes to this information during their Membership.

• 15.2

  Members must comply with Whipcar's Code of Conduct.

• 15.3

  Each Member hereby indemnifies and agrees to keep Whipcar indemnified against all losses, liabilities, claims or demands arising out of:

  • 15.3.1

    any failure by the Member to comply with, or any breach by the Member of the terms of, this Agreement (including the terms of any Booking, and any failure to pay any money due);

  • 15.3.2

    any breach of warranty given as to either the Vehicle Eligibility Criteria in respect of any Vehicle, or the Driver Eligibility Criteria in respect of any Whipcar Driver;

  • 15.3.3

    any claim by a third party (or another Member) that any content posted by the Member on the Website breaches the intellectual property rights of the third party or any of the warranties given in clause 23;

  • 15.3.4

    any death or personal injury other than that resulting from Whipcar's negligence.

• 15.4

  If you are renting out your car with us, you are responsible both for determining whether any VAT is chargeable and for collecting that VAT - this means in general that you should include any VAT in the price you list with us for use of your car. WhipCar are responsible only for any VAT payable on the 15% commission we charge. WhipCar does not pay any taxes on behalf of the users of the service. Users are solely liable for any taxes resulting from and rental agreement or use of our services or site. Whether you are a business entity or an individual you agree that you are solely responsible to determine what taxes, if any, apply to you and to pay such taxes. WhipCar recommends that you seek advice from a tax professional.

16.Penalties and Compensation

• 16.1

  By registering on the Website Members agree to pay Whipcar the amounts specified for the relevant penalties as set out in the Members' Penalties and Compensation Policy in the circumstances set out in this Agreement and / or the Cancellation and Fines Policy.

• 16.2

  Whipcar agrees to procure the payment to Members of the amounts specified for the relevant compensation set out in the Members' Penalties and Compensation Policy in the circumstances set out in this Agreement and / or the Members' Penalties and Compensation Policy.

17.Traffic Offences and Fines / Congestion Charging

• 17.1

  Whipcar Drivers are liable for any costs incurred as a result of any and all traffic offence penalties which relate to a Hire Period (or any period outside of the Hire Period during which a Whipcar Driver remains in possession of or responsible for the Vehicle) including parking tickets, speeding fines, clamping fines, bus lane fines and compound charges, and for any further penalties specified in the Members' Penalties and Compensation Policy.

• 17.2

  Whipcar Drivers are responsible for paying any tolls, fees or charges which they may incur during a Hire Period (or any period outside of the Hire Period during which a Whipcar Driver remains in possession of or responsible for the Vehicle), including the Dartford crossing toll and Toll Road fees, and the London Congestion Charge.

• 17.3

  Wherever possible it is the Whipcar Driver's responsibility to pay the relevant authorities directly. Whipcar Drivers must provide a written report of any offences committed to Whipcar and the Whipcar Owner on return of the Vehicle.

• 17.4

  In the case of speeding notices Whipcar Owners are obliged by law to pass on the offending Whipcar Driver's details to the Police who will then contact the Whipcar Driver directly.

• 17.5

  If a Whipcar Driver decides to appeal any tickets, fines or other charges, the Whipcar Driver shall do so at its own cost, and shall remain liable both for the relevant amount and under the Members' Penalties and Compensation Policy pending the outcome of the appeal.

18. Insurance Cover

• 18.1

  All Vehicles registered with Whipcar are automatically covered for the duration of any Hire Period by the Insurance Policy. Whipcar will maintain the Insurance Policy.

• 18.2

  The insurance policy arranged by WhipCar is designed to not prejudice or otherwise affect the Whipcar Owner's or Whipcar Driver's existing insurance. However, we recommend that all members verify this with their existing insurers. The Vehicle will be covered by the insurance arranged by WhipCar throughout the hire period.

• 18.3

  Whipcar Drivers are liable to pay the excess on the Insurance Policy.

• 18.4

  Members are advised to read the "key facts" summary of the Insurance Policy, and the full terms of the Insurance Policy.

• 18.5

  There are a number of conditions which must be satisfied before the insurance policy is taken out. Members should check that they are complying with these as the insurance policy may not cover them if they are not met. Members should note that the Insurer has the right to take action against a WhipCar Driver in the event of a claim, where the WhipCar Driver is (partially or completely) at fault or acts or fails to act in a manner that contributes to the loss.

• 18.6

  Please make sure you have read and familiarised yourself with our Status Disclosure Document before participating in the service. This document can be downloaded here.

19.Collision Damage Waiver

• 19.1

  All bookings automatically include Collision Damage. Collision Damage Waiver will waive WhipCar Drivers' liability to pay for any damage caused to the Vehicle during the Hire Period, subject to the exclusions listed below. The WhipCar Driver's liability is waived subject to he or she paying a charge, referred to as an "excess", which limits the damage liability to the cost of the excess only.

• 19.2

  Collision Damage Waiver covers most circumstances, where damage has been caused to the Vehicle during the Hire Period. However it is subject to certain exclusions which include where:

  • 19.2.1

    damage is caused to windows/windscreen, interior, wheels, tyres, underside or roof of the Vehicle;

  • 19.2.2

    any Vehicle has been driven off-road and or has been driven on un-tarmacked roads and or has been driven without due care and attention and or has been driven negligently;

  • 19.2.3

    the WhipCar Driver is under the influence of alcohol or drugs;

  • 19.2.4

    the driver of the Vehicle has not been named on the Booking; and

  • 19.2.5

    damage is caused by the Vehicle being towed away by any unauthorised third party.

20.Damage Excess Waiver

• 20.1

  Whipcar Drivers may purchase from Whipcar a Damage Excess Waiver which offers reimbursement for any excess paid as a result of accidental damage during the Hire Period. Whipcar Drivers with a Damage Excess Waiver remain liable for the excess on the Insurance Policy but are entitled to claim under the Damage Excess Waiver, subject to its terms, for reimbursement of the amount paid against the excess.

• 20.2

  Claims must be made against the Damage Excess Waiver within 28 days of the relevant incident. Exclusions to this policy apply where:

  • 20.2.1

    the Vehicle has been driven off-road or on non-tarmac roads;

  • 20.2.2

    the Vehicle has been driven without due care or attention, or negligently;

  • 20.2.3

    the Whipcar Driver was under the influence of alcohol or drugs;

  • 20.2.4

    the Whipcar Driver has not been named in the Booking;

  • 20.2.5

    damage is caused by the Vehicle being towed by any third party; and

  • 20.2.6

    [any contravention of any of the Vehicle Eligibility Criteria or the Conditions of Vehicle Use in clause 9 may also invalidate the Damage Excess Waiver.]

21.Accident Theft or Breakdown

• 21.1

  If a Whipcar Driver is involved in an accident he / she must not admit responsibility but must immediately:

  • 21.1.1

    contact Whipcar by phone;

  • 21.1.2

    take the names addresses and contact details of everyone involved;

  • 21.1.3

    make the Vehicle secure to the extent possible and phone the Police.

• 21.2

  If a Vehicle is stolen during a Hire Period (or any period outside of the Hire Period during which a Whipcar Driver remains in possession or responsible for the Vehicle) the Whipcar Driver must as soon as becoming aware of the theft contact Whipcar by phone and phone the Police.

• 21.3

  If a Whipcar Owner becomes aware that his / her Vehicle(s) has been damaged or stolen the Whipcar Owner must contact Whipcar by phone within 48 hours of becoming aware.

• 21.4

  Whipcar has no liability in respect of damage to or theft or breakdown of any Vehicle, or any related costs whether directly or indirectly incurred, [except to the extent recovery of any loss is not possible under the Insurance Policy due to Whipcar's failure to maintain the Insurance Policy in accordance with this Agreement.]

• 21.5

  Any breakdown involving a Vehicle must be reported to Whipcar by phone at the earliest opportunity.

• 21.6

  During the Hire Period (or any period outside of the Hire Period during which a Whipcar Driver remains in possession or responsible for the Vehicle), if a problem arises that prevents or limits the use of the Vehicle or that may compromise peoples' safety, the Whipcar Driver must immediately contact Whipcar and park the Vehicle in accordance with Whipcar's instructions.

• 21.7

  Whipcar will use reasonable endeavours to assist Members in dealing with the consequences of any damage theft or breakdown, but has no obligation to incur any costs or expenditure when doing so.

• 21.8

  Members must provide accurate statements and co-operate with the Insurance Policy provider in any way as required by them. Members who fail to provide requested information may be held liable for the full repair costs and other direct costs incurred.

• 21.9

  Whipcar Drivers must not arrange to, or themselves, carry out any repair work without the Whipcar Owner's prior written permission and Whipcar Owners must not, if they intend to claim against the Insurance Policy, arrange to, or themselves, carry out any repair work without Whipcar's (and its insurer's) prior written permission.

22.Data Protection

• 22.1

  For the purposes of the Data Protection Act 1998, Whipcar will act as a data controller in relation to Member information provided to Whipcar. By registering with Whipcar, Members consent to Whipcar processing, as defined under the Data Protection Act and set out in this Agreement and the Privacy Policy, any personal information that a Member provides to Whipcar.

23.Member Communication and Forums

• 23.1

  Members may contact Whipcar [at any time by email] and by phone on 0844 544 2010.

• 23.2

  Members may contact each other via the messaging button on one another's profile page, through the Booking Procedure, and any other way particular Members may agree.

• 23.3

  Members may not publish content on the Website that:

  • 23.3.1

    infringes the intellectual property rights of any third party or that is defamatory, offensive, discriminatory or otherwise unlawful;

  • 23.3.2

    is fraudulent or otherwise misleading;

  • 23.3.3

    invades any person's privacy;

  • 23.3.4

    contains any virus or other malware designed to or which might interfere with Whipcar's or any third party's systems or data;

  • 23.3.5

    contains political campaigning, commercial solicitation, mass marketing or any form of spam; or

  • 23.3.6

    is unfair, deceitful or harmful.

• 23.4

  Whipcar reserves the right to remove from the Website any content published by Members at any time. Whipcar has no obligation to do so, but will use reasonable endeavours to remove any content from the Website when contacted by any Member or third party and asked to do so if the content is or appears to have been posted in breach of this Agreement.

• 23.5

  By contributing any content or information to the Website, Members grant to Whipcar a perpetual, a non-exclusive, royalty-free right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media, and grant Whipcar the right to use the Member's name in connection with such content.

• 23.6

  Members agree that these rights are irrevocable during the entire period of protection of the intellectual property rights associated with such content. Members agree to waive any right to be identified as the author of such content and any right to object to derogatory treatment of such content. Members agree to perform all further acts necessary to perfect any of the above rights granted at Member's own cost, including the execution of deeds and documents, at the request of Whipcar.

• 23.7

  Members represent and warrant that they own or otherwise control all of the rights to the content that they contribute.

• 23.8

  Whipcar will communicate with Members by [phone, e-mail and text message]. Where the communication is for the purposes of marketing or sales, communication will be restricted to e-mail and text message and an opt-out mechanism will be provided in accordance with the Privacy Policy.

• 23.9

  Whipcar will use e-mail to convey important operational information and changes to this Agreement, and it is the Member's responsibility to keep their contact details up-to-date.

• 23.10

  Telephone calls and other correspondence with Whipcar may be recorded or monitored. By using these communication methods Members consent to the recording or monitoring of their communications.

• 23.11

  Use of the Website is subject to the Privacy policy

24. Dispute Resolution

• 24.1

  If any dispute arises between Members relating to the Whipcar service, including any Booking, Members must resolve it between themselves. If requested in writing by all Members involved in a dispute, Whipcar will at its discretion assess any information provided by Members relating to the dispute and make an indicative resolution. The Members do not have to accept Whipcar's indicative resolution.

• 24.2

  Without prejudice to his/ her legal rights, if any Member wishes to challenge any penalty charged by Whipcar under the Members' Penalties and Compensation Policy, Whipcar will consider the Member's challenge and any information provided relevant to it, but will not be bound to accept the Member’s challenge.

25. Termination of Membership

• 25.1

  Subject to clause 25.2, Whipcar may without liability remove any Member’s Profile from the Website, and terminate its relationship with the Member, at any time and for any (lawful) reason. Whipcar may refuse to allow any Member to re-register with Whipcar for any (lawful) reason.

• 25.2

  Where any Member has outstanding Bookings which it is yet to fulfil, Whipcar may only exercise its right in clause 25.1 where the Member has acted unlawfully and / or breached the terms of this Agreement (or any Booking). The breach does not have to be material.

• 25.3

  If Whipcar exercises its rights under clause 25.1, it will not affect Whipcar's right to receive any money owed to it or arrange for the payment of any money owed by the Member to any other Member under this Agreement. Any money owed to Whipcar at the time of termination will become immediately due and payable and Members grant Whipcar the right to set off any amounts owing against any money Whipcar is holding on behalf of the Member.

• 25.4

  If a Member acts unlawfully and / or in breach of this Agreement, Whipcar may where it considers appropriate give such Member's personal details to credit reference agencies, HM Revenue & Customs, the Police and other law enforcement agencies, debt collectors, or any other relevant organisation.

• 25.5

  Except in certain circumstances where a Member has acted unlawfully or in breach of this Agreement, Members may remove their Profile from the Website at any time. This will not affect Whipcar’s right to receive any money owed to it under this Agreement.

26. Events Beyond the Reasonable Control of Whipcar and / or Members

• 26.1

  Whipcar shall not be liable for either a failure to perform or delay in performing any of its obligations if, and in so far as, performance is delayed, hindered or prevented by any event beyond the reasonable control of Whipcar.

• 26.2

  [Members shall not be liable to each other for either a failure to perform or delay in performing any of their obligations if, and in so far as, performance is delayed, hindered or prevented by any event beyond the reasonable control of the relevant Member.]

27. Severance

If any provision of this Agreement (including any Booking) is, or becomes invalid, or unenforceable, the remaining provisions shall be interpreted in such a way so as to remain in effect.

28. Third Party Rights

A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

29. Governing Law

This Agreement and all matters arising from or connected with it are governed by and shall be construed in accordance with English Law.

30. Jurisdiction

The courts of England have exclusive jurisdiction to settle any dispute arising from or connected with this Agreement, including, but not limited to, a dispute regarding the existence, validity or termination of this Agreement or the consequences of its nullity. Members irrevocably submit to the jurisdiction of such courts and agree that the courts of England are the most appropriate and convenient courts to settle any dispute and, accordingly, they will not argue to the contrary.