Avancar Membership Contract
Contract Last Revised: August, 2012.
This Contract is a vehicle-sharing service subscription contract between Catalunya Carsharing S.A. (hereinafter "Avancar") and the Member. All Members are required to accept and comply with the terms and conditions set forth herein. By accepting the terms and conditions of this Contract and using Avancar's services you accept and agree to comply with the terms and conditions of this Contract, as it may be amended from time to time as provided herein.
IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS CONTRACT, THEN YOU ARE NOT AUTHORISED TO USE ANY OF ZIPCAR'S VEHICLES OR SERVICES.
Avancar is part of the Zipcar group of companies. If you have any questions regarding this Contract, please contact us via email at firstname.lastname@example.org or by telephone at 900 818 070.
Avancar reserves the right to change the terms of this Contract, including the associated Schedules, from time to time and shall give notice of such changes to the Member in a timely manner. Notice to Members shall be considered given when such notice is indicated and accessible from the first page accessed after the Member log-on to the Avancar websites, is sent by email to the Member address provided to Avancar in the Member's application or most recently provided to Avancar or is provided via our newsletter. If you are a Member, and you so request (via an email to us at the address provided above), we will email you a notice of the amended terms and conditions. You agree that the amended terms and conditions of this Contract shall be effective and binding on you upon the effective date indicated in such notice or on the date posted on Avancar's websites unless you terminate your Avancar membership within fourteen (14) days of receipt of notice from Avancar, in which case Avancar will refund a prorated portion of the Member's annual membership fee for such year.
If you reserve a vehicle in another jurisdiction from another member of the Zipcar group of companies (Zipcar, Inc., Zipcar (UK) Ltd. or Zipcar Canada Inc.), those jurisdictions may have different terms or provisions related to your use of the vehicles. For example, the insurance provided may vary based upon the country (or, if applicable, by province or state) in which you are utilising the vehicle and certain different or additional fees and policies may apply. The terms and conditions applicable to all jurisdictions in which Zipcar group vehicles may be reserved are available through the applicable websites of the Zipcar group company.
In this Contract, the following definitions apply:
Member or "you": The person registered as the First Member and, unless specifically indicated otherwise in this Contract, each Associate Member.
First Member: The person designated to receive and pay all fees, charges and other costs associated with membership, including application fees, membership fees, driving charges and other costs or fees as indicated in the Rules and Schedules described below.
Associate Member: Any approved Avancar Member who is authorised by the First Member to use Avancar service under the terms of this Contract. Additional application and/or membership fees may apply for Associate Members.
Contract: This Membership Contract and its Schedules, whether made available in print or electronically through Avancar's websites. The Schedules are an integral part of this Contract.
Rules: All the rules, guidelines or policies of Avancar related to a Member's use of the Avancar service, whether set forth in this Contract, appearing elsewhere on Avancar's websites or otherwise issued from time to time by Avancar, including specifically and without limitation those set forth in Schedule 1: Rules for Vehicle Use.
Schedules: All the schedules and polices referenced in or incorporated into this Contract.
This Contract is a vehicle-sharing service subscription contract offered by Avancar but does not in itself confer any right to use any Avancar vehicles. A Member may only use Avancar's vehicles, to the extent available, in accordance with the terms of this Contract and subject to paying all applicable fees and charges.
Avancar is the owner of any item it provides to or puts at the Member's disposal during the term of this Contract, including specifically and without limitation, all Avancar vehicles and the Member's access card ("Zipcard"). The Member's use of and rights in relation to any Avancar vehicle or item provided by Avancar under this Contract are limited to those rights of use stated in this Contract.
To be eligible for our service, the applicant or Member must:
Be at least 21 years of age;
Have held a full driving licence (not provisional) for a minimum of 12 months;
Have at least 6 points remaining on on driving licence;
Have no drink driving convictions in the last 5 years;
Have no convictions relating to driving without insurance;
Have had no more than two accidents in the last 3 years; and
Accurately, truthfully and fully complete the application process with Avancar and deliver all information and documents requested in the application.
Satisfying the foregoing criteria does not automatically give an applicant the right to become an Avancar Member. Acceptance of the applicant's membership is subject to approval by Avancar in its sole discretion. In addition, even if approved for membership, a Member may be restricted from driving certain Avancar vehicles based upon the Member's driving history and experience.
The Member promises to pay Avancar all applicable application and membership fees associated with the Member's driving plan as listed for such plan in the Membership and Driving Rates Schedule. Application fees (if applicable) are not refundable. A Member's initial membership fee (for the Member’s initial membership period) is only refundable if a Member terminates membership within the first thirty (30) days of membership. To cancel Avancar membership, send us an email at email@example.com
Where applicable, an application fee may be payable if a new membership application is resubmitted more than 30 days after a Member's account with Avancar is closed. Certain restrictions apply.
Members with an Extra Value Plan ("EVP") have selected a driving plan which renews every month. Following approval of the Member by Avancar, these members' credit cards will be automatically charged or their bank accounts automatically debited every month on their renewal date, even if the Member's Zipcard is not activated. EVP plans are optional and may be changed/opted-out of at any time from the Member's account page or by sending an email to firstname.lastname@example.org.
The Member shall pay all fees and costs incurred (including costs incurred by Associate Members) when due, including application fees, membership fees (which are automatically charged when due), driving charges (including but not limited to mileage overage and surcharge and/or toll fees except in circumstances where specifically agreed to in writing between Avancar and the Member) and other costs and fees as provided in the Rules and Schedules. Members shall also pay value added tax and all other taxes and levies on any of the fees, costs and charges listed above, as applicable from time to time. Members are billed for vehicle usage fees, costs incurred, for any additional charges incurred, for applicable taxes and for all other amounts due via direct debit, credit or debit card or other means as established by Avancar. Any Member account which is past due will be suspended; however, any reservations booked in advance shall still be charged to the Member if not cancelled by the Member. Any credit or debit card provided by the Member to Avancar for billing which is rejected or any bank account details that do not permit Avancar to debit the amounts due may result in suspension or termination of the Member's membership. Members are responsible for providing and maintaining current bank details or credit card or debit card information on file with Avancar. Ongoing issues with bank accounts or credit or debit card billings may result in termination of membership. Under no circumstances will Avancar be responsible for any overdraft or other fees charged by a Member's credit card company or bank. For past due accounts, Avancar may also change how credit is offered to the Member and/or terminate the Member's account. In addition, Avancar may utilize third parties to collect amounts owed to Avancar by a Member and the Member will also pay for any collection or similar fees associated with collection activities. Avancar also reserves the right to charge interest on overdue charges at any amount permitted by law.
Members are responsible for providing and maintaining current email, mobile phone, preferred search address, mailing address and other account information. Telephone calls and email correspondence with Avancar may be recorded or monitored. By using these communication methods you are consenting to the recording or monitoring of your calls and emails.
By applying for membership, each applicant authorizes Avancar to obtain his/her driver's records from the jurisdiction in which the applicant is licenced. Members who do not have a Spanish driving licence must comply with the legal requirements for driving in Spain on a foreign licence. Avancar reserves the right to request additional information, such as a copy of a passport or proof of address at any time. Because driving a Avancar vehicle requires maintaining a good driver's record, Avancar may, from time to time, check Members' driving records and reserves the right, at its sole discretion, to suspend or terminate the Membership of any Member who does not meet Avancar's driving eligibility requirements. If the Member's licence is suspended or revoked, if the Member has any further endorsements or accidents on their driving record, or if the Member is convicted of driving under the influence of alcohol or drugs, dangerous driving or exceeding the relevant speed limit, the Member agrees to report such suspension, revocation, changes or conviction to Avancar promptly. Failure to notify Avancar of any such events may lead to the Member not being covered by Avancar's insurance policy when driving an Avancar vehicle.
Damages Generally: A Member is responsible for any and all damage that occurs to a Avancar vehicle while in the Member's possession or control (including the entire time the vehicle is reserved under the Member's account) even if damage is weather-related, caused by a third party or arises from similar causes and is responsible for the full value of any damages caused to the property of third parties. However, as described in Section 6 below, Avancar provides insurance that, in general, covers most damages arising from a Member's use of Avancar vehicles and the Member's liability for damages will generally be limited to the Damage Fee described in Section 5.2 below. If, however, a Member fails to abide by the terms and conditions of this Contract, the insurance coverage Avancar provides may not apply, which may make the Member responsible for the full cost of any accident or incident and any damage arising from such accident or incident. For example, a Member permitting or enabling a non-Member to drive an Avancar vehicle will be charged for all damage and costs incurred as a result of the non-Member's use.
Damage Fee: A Member is responsible for paying a damage fee ("Damage Fee"), the maximum amount of which is determined by the Member's driving plan, for damages and related costs caused either to a Avancar vehicle or to third parties' or their property during a reservation, including but not limited to: injury or damages to third parties or their property, the estimated repair cost of the Avancar vehicle, and the recovery or loss of use of the Avancar vehicle. Members will be responsible for the Damage Fee for actual or estimated expenses, whether or not an actual claim is made or processed, unless the Member has purchased a Damage Fee Waiver.
Damage Fee Waivers: Avancar offers for purchase, at the option of the Member, Damage Fee Waivers or DFWs.
For an additional charge, Avancar Members age 21 or over who have not had an accident in an Avancar vehicle involving property damage or any third party during the past 12 months, have the option to purchase a DFW to cover your financial responsibility – the Damage Fee – for damage to a Avancar vehicle. Before purchasing a DFW, you should check to see if you already have rental vehicle collision coverage through your credit card or personal automobile insurance policy. The purchase of a DFW is optional and may be declined. A DFW is not insurance and does not provide or alter insurance coverage.
By purchasing an optional DFW, you can reduce or eliminate your Damage Fee. If you purchase a DFW, Avancar will waive your responsibility for all or a portion of the Damage Fee, based upon the buy down amount (all or partial) of the DFW you purchase. A purchase of a DFW is non-refundable.
The cost of the DFW will vary based upon, among other things, the term/type of the waiver (annual, monthly or per reservation), Damage Fee reduction amount (all or partial) and/or membership location. For annual or monthly waivers, the DFW is limited to the period stated at the time of purchase, after which, if you elect not to renew or repurchase or cancel the annual or monthly DFW, you will be once again responsible for the full Damage Fee. Per reservation DFWs apply only to the specific reservation for which it is purchased and are not transferable in any manner.
DFWs will not apply, and can be terminated by Avancar, if the Member (1) uses the vehicle in violation of this Contract, including engaging in any prohibited use of a Avancar vehicle or purposely or through negligence (e.g., by putting the wrong type of fuel in a vehicle) damaging a vehicle; (2) has been suspended and/or had two at fault incidents in a Avancar vehicle involving property damage or any third party during the waiver period; (3) fails to close and lock all windows, doors and boot and the vehicle is stolen or vandalized; (4) fails to notify Avancar immediately after an accident or loss; or (5) fails to pay any other amount due under this Contract.
Annual and monthly DFWs typically renew automatically. A Member's bank account will be debited or his/her credit card will be automatically charged monthly or annually, depending upon the DFW selected, on the Member's DFW renewal date. Annual and monthly DFWs are optional and may be opted-out of at any time from a Member's account page or by sending an email to email@example.com. In order to change the type of DFW purchased (for example, to change from a monthly DFW to an annual DFW), Members must send an email to firstname.lastname@example.org.
Any active Avancar Member in good standing will be provided all risk insurance that provides the Member customary cover in case of accidents, which includes civil responsibility, supplementary civil responsibility, personal damage and damage to the vehicle. All such coverage is subject to the Member fulfilling their obligations as set out in this Contract. This insurance provides coverage for the Member of up to a maximum of 30,000 € (in case of death) or 24,500 € (in case of permanent disability), and up to 30,500 € in medical assistance. In addition, the insurance provides obligatory third party civil responsibility and supplementary civil responsibility cover of up to 50,000,000 €. For additional details, you may request a copy of the insurance policy by contacting Avancar at email@example.com.
This Contract shall commence upon the acceptance by Avancar of the Member's completed membership application and the payment by the Member of any applicable fees. This contract term shall continue until such time as membership is cancelled in accordance with this Section 7. A Member may terminate membership and all associate memberships upon one day prior notice by sending us an email at firstname.lastname@example.org. Avancar may terminate this Contract at any time upon no less than thirty (30) days’ notice to the Member, in which event Avancar will refund a prorated portion of the Member's annual membership fee for such year. With respect to any termination or cancellation of this Contract, the Member shall remain responsible for any fees, costs or expenses incurred prior to termination of this Contract.
In addition, Avancar may upon notice to the Member or any Associate Member, immediately terminate this Contract if the Member or any Associate Member (a) fails to pay any sum due under this Contract, (b) fails to comply with any term or condition specified in the Contract or any Rules, (c) is involved in an incident with a Avancar vehicle that, in Avancar's reasonable discretion, renders the Member or Associate Member ineligible or inappropriate for continued membership, (d) engages in any activities or conduct that Avancar, in its reasonable discretion, determines to be inappropriate, abusive or otherwise unacceptable; or (e) the Member is unable to pay his/her debts or fails or admits in writing his/her inability generally to pay his/her debts as they become due or is deemed to or declared to be unable to pay his/her debts under applicable law, suspends or threatens to suspend making payments on any of his/her debts, or, for reasons of actual or anticipated financial difficulties, commences negotiations with one or more of his/her creditors with a view to rescheduling any of his/her indebtedness, or makes a general assignment, arrangement or composition with or for the benefit of his/her creditors. No membership or other fees will be refunded in the event of termination pursuant to this Section 7.2.
Upon termination, all of the Member's and Associate Member's rights to use Avancar's services and vehicles shall immediately terminate. The Member agrees to return immediately to Avancar any vehicle or any other property of Avancar that the Member has in the Member's possession, including, if requested, all Zipcards. Additionally, the Member shall be responsible for and agrees to pay any legal fees, court costs or expenses associated with enforcing the terms of this Contract, whether upon termination or otherwise (including, without limitation, any costs relating to recovering any of the foregoing property or any amounts due and owing to Avancar).
Subject to clause 8.5 below, Avancar (and the members of the Zipcar group of companies) shall not be responsible for any loss of, or damage to, any goods in or on the vehicle or in or on any third party vehicle (unless any loss or damage is due to our negligence or failure to carry out our responsibility).
Subject to 8.5 below, Avancar shall not be responsible for any personal injury or death in relation to you or any third party arising from the use of a Avancar vehicle.
Subject to clause 8.5 below, Avancar is not liable to a Member under or in connection with this Agreement whether for tort (including negligence), breach of contract, misrepresentation or otherwise, for:
Loss or damage incurred by the Member as a result of any claims made by a third party, unless such loss or damage incurred due to our negligence or failure to carry out our responsibility;
Loss or damage incurred by the Member arising from or in relation to either (i) the reservation, non-availability, supply, operation or use of a Avancar vehicle or (ii) any vehicle accessories whether supplied by Avancar or by a Member (luggage racks, bicycle racks, baby seats and the like – the Member is responsible for the safe installation of such accessories and must check the condition of such accessories before each use), unless such loss or damage incurred due to our negligence or failure to carry out our responsibility;
Loss of profit, revenue, goodwill, business opportunity or anticipated saving suffered by the Member, unless such loss is incurred due to Avancar’s negligence or failure to carry out its responsibilities; or
Any indirect loss or damage suffered by the Member (even if foreseeable or if Avancar has been advised of the possibility of such losses).
Subject to 8.5 below, in no event shall Avancar's total aggregate liability under or in connection with this Agreement, whether for tort (including negligence), breach of contract, misrepresentation or otherwise:
for third party property damage, exceed the amount of €1,000,000; and
for all other loss or damage, exceed an amount equal to the aggregate membership and vehicle usage fees paid and payable by the Member during the 12 month period prior to the first date on which an event giving rise to the liability occurred.
Nothing in this Agreement shall limit or exclude Avancar's liability for personal injury or death arising out of its negligence, breach of the obligations arising from applicable Spanish regulations, or Avancar's fraud (whether such liability arises from Avancar’s direct action or from its failure to act).
The rights granted to the Member or Associate Members under this Contract are not assignable or transferable, in whole or in part. Any attempt to transfer this Contract without the written consent of Avancar shall be void and of no force and effect.
No delay or omission by Avancar to exercise any right or power occurring upon any noncompliance or default by the Member with respect to any of the terms of this Contract shall impair any such right or power or be construed to be a waiver thereof. Any waiver by Avancar of any covenant, condition, or agreement to be performed by the Member shall not be deemed to be a waiver of any prior or subsequent breach of the same, or of any other covenant, condition, or agreement hereunder. Unless stated otherwise, all remedies provided for in this Contract shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
If any term, provision, covenant or condition of this Contract is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Contract had been executed with the invalid portion eliminated. The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.
This Contract is governed by the laws of Spain applicable therein. All disputes hereunder shall be resolved solely in the Spanish courts located in Barcelona, Spain. The parties hereby consent to the exclusive jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defences otherwise available.
Any notices or communication required or permitted to be given to the Member shall be in writing and shall be sufficiently given if delivered by email or mailed to the Member at the email or postage address provided to Avancar in the Member's completed application.
Any notices or communication required or permitted to be given to Avancar shall be in writing and shall be sufficiently given if delivered via email or sent by registered post as follows:
Catalunya Carsharing, S.A. (Avancar)
Travessera de Gràcia 342
08025, Barcelona, Spain
Email Address: email@example.com
Any notice delivered via email shall be deemed to have been received on the first business day after which it was sent, unless the sending party is notified that the email address is invalid. Any notice sent by letter shall be deemed to have been received on the fourth business day after it was posted. Either party may change its or their address for service from time to time by notice given to the other party in accordance with this provision.