Terms & Conditions
Please be aware that this Agreement is not a Rental Agreement (as defined below). Entering into this Agreement does not grant Applicant access to or use of any Vehicle (as defined below). Applicant must also enter into a Rental Agreement with an Owner (as defined below) in order to access and use any Vehicle.
- “Applicant” means the individual who accepts this Agreement by clicking “Accept” on the Website (as defined below) displaying this Agreement.
- “Authorized Driver” means, (i) Subscriber (as defined below), and (ii) with Subscriber’s permission, Subscriber’s spouse or domestic partner (same or opposite sex) who: (A) permanently resides with Subscriber; and (B) meets the minimum age, license, and other Eligibility Criteria (as defined below) specified in this Agreement and the Rental Agreement.
- “carclub rental” means CarClub LLC.
- “Fees” means any and all amounts that Subscriber owes to carclub rental under this Agreement, including, without limitation, the Enrollment Fee (as defined below), the Subscription Fee (as defined below), excess mileage fees, applicable taxes, Vehicle license fees, other fees and charges as set forth in the applicable Rental Agreement, and Violations.
- “Owner” means one of the participating entities (i) from which Subscriber may rent a Vehicle pursuant to a Rental Agreement, or (ii) which may provide certain aspects of the Subscription Service (as defined below), in either case as further set forth on Schedule 1, attached hereto, which may be updated from time to time as determined by carclub rental in its sole discretion.
- “Participating Home State” means, subject to the terms set forth herein, including, without limitation, Section 2(b)(iii), the participating states in which Subscriber may rent a Vehicle as part of the Subscription Service, as further set forth on Schedule 4, attached hereto, which may be updated from time to time as determined by carclub rental in its sole discretion.
- “Pro-Rated” means the following pro-rata calculation applied for the actual number of days elapsed in a given period: (Subscription Fee and taxes related thereto x 12) / 365.
- “Rental Agreement” means each fully-executed Vehicle rental agreement that Subscriber enters into with an Owner, which agreement may have jurisdiction-specific terms that differ from state to state, and that Subscriber must execute prior to use of each Vehicle.
- “Subscriber” means Applicant, only if accepted by carclub rental as eligible to receive the Subscription Service in accordance with and subject to the terms herein, including, without limitation, the Subscription Service Eligibility Criteria set forth in Section 3(b).
- “Subscription Enrollment Application” means the enrollment application that Applicant must complete and submit to carclub rental as part of the Subscription Service application process, as may be revised by carclub rental from time to time in its sole discretion.
- “Subscription Fee” means the monthly fee charged for the Subscription Service, regardless of whether Subscriber rents a Vehicle, as further set forth on Schedule 2, attached hereto; provided, that the specific Subscription Fee owed by Subscriber to carclub rental may occasionally differ from the amount set forth on Schedule 2 (for instance, as set forth in Section 5(c) herein).
- “Subscription Service” means the Vehicle rental subscription service described in this Agreement, including, without limitation, the ability to rent Vehicles during the Term (as defined below), the ability to swap Vehicles up to four (4) times per month during the Term, Vehicle insurance coverage and protections, Vehicle maintenance services, and roadside assistance, all as further described herein, and as may be modified by carclub rental from time to time, in carclub rental’s sole discretion.
- “Vehicle” means the vehicle that may be reserved or operated by Subscriber (or operated by another Authorized Driver) that is made available subject to the terms of this Agreement and only upon the execution of a Rental Agreement pertaining to that Vehicle.
- “Vehicle Bands” mean the tiers of Vehicles made available as part of the Subscription Service, as further described on Schedule 3, attached hereto, which carclub rental may update from time to time in its sole discretion.
- “Violations” means any fees, penalties, fines, tickets, citations, violations, tolls and other costs, including, without limitation, parking, speeding, or other violations, incurred in connection with a Vehicle, and any related fines, fees, expenses, penalties or other amounts due in connection therewith.
- “Website” means the Subscription Service’s website, currently available at https://www.carclub rental.com/en/car-rental-by-month-subscription.html.
- Subscription Service Overview
- Overview. This Agreement governs the Applicant’s application to and, if accepted as a Subscriber, participation in the Subscription Service during the Term. If Applicant successfully completes the Subscription Enrollment Application, satisfies the Eligibility Criteria, and is accepted as a member of the Subscription Service by carclub rental, as determined in carclub rental’s sole and absolute discretion (at which point, Applicant will be deemed a Subscriber), then Subscriber must execute a Rental Agreement with an Owner located in Subscriber’s applicable Participating Home State in order for Subscriber (or another Authorized Driver) to access and use a Vehicle during the Term. carclub rental does not own, control, monitor, or maintain the Vehicles rented to Subscriber by or on behalf of an Owner under a Rental Agreement, nor does carclub rental provide the Vehicle insurance coverage and protections, Vehicle maintenance services, and roadside assistance, which an Owner may provide or facilitate as part of the Subscription Service. carclub rental simply facilitates payment for and communications regarding the Subscription Service. ANY QUESTIONS, COMMENTS, OR CLAIMS ABOUT ANY VEHICLE OR ANY RENTAL AGREEMENT SHOULD BE DIRECTED AT THE OWNER(S) WITH WHICH SUBSCRIBER RENTS A VEHICLE AND EXECUTES AN APPLICABLE RENTAL AGREEMENT OR FROM WHICH Subscriber RECEIVES CERTAIN SUBSCRIPTION SERVICES.
- Basic Terms of the Subscription Service. Subject to the terms and conditions set forth herein, the following terms shall apply if Applicant submits a Subscription Enrollment Application and is accepted by carclub rental as a Subscriber:
- Use of Vehicles; No Guarantees. During the Term, Subscriber and any other Authorized Driver may collectively rent one (1) Vehicle at a time from a participating Owner in the Participating Home State that Subscriber designated in his or her Subscription Enrollment Application. Authorized Drivers may access and operate Vehicles only pursuant to the terms of this Agreement and the applicable Rental Agreement, and no Authorized Driver shall acquire any other right, title, or interest in or to any Vehicle. Applicant’s acceptance as a Subscriber does not guarantee that Subscriber (or any other Authorized Driver) will be able to access or use any specific Vehicle, and the Vehicles made available by an Owner are subject to change without notice.
- Swapping Vehicles. During the Term, Subscriber may swap a Vehicle within the same Vehicle Band up to four (4) times per calendar month. To pick up a new Vehicle, Subscriber must contact the Dedicated Subscription Line (as defined below) and provide at least three (3) business days’ advance notice. In addition, unless otherwise specified in the applicable Rental Agreement, Subscriber must return each Vehicle to the location specified by the Owner from which Subscriber rented the Vehicle. Subject to the terms herein, Subscriber may return each Vehicle at any time during the applicable Owner’s business hours.
iii. Authorized Locations. In order to submit a Subscription Enrollment Application, Applicant must select the Participating Home State in which Subscriber permanently resides. Applicant must be able to support this selection with documentary evidence, as carclub rental may reasonably request from time to time. All Vehicle pick-ups, swaps, returns, and other deliveries must occur within the Participating Home State, unless carclub rental expressly authorizes otherwise in writing. Subscriber is responsible for ensuring that each Vehicle is returned at the time, to the specific location within the Participating Home State, and in accordance with any other instructions provided by the applicable Owner. Subject to the terms and conditions set forth herein, including, without limitation, this Section 2(b)(iii), Authorized Drivers may drive Vehicles throughout the United States and Canada, only.
- Mileage Limitations. During the Term, the Subscriber and any Authorized Driver can drive up to three thousand (3,000) miles per month, in aggregate, across all Vehicles used that month (the “Mileage Cap”). Unused miles will roll over each month of the Term; provided, however, that at the end of each calendar year during the Term, Subscriber’s (including any Authorized Driver’s) unused miles will expire, and Subscriber will be billed an excess usage fee of $0.40 per mile for each mile exceeding the Mileage Cap.
- Roadside Assistance. During the Term, Subscriber will receive access to certain roadside assistance as part of the Subscription Service, including basic roadside Vehicle support services such as replacement of lost keys (including remote entry devices), flat tire service (if no inflated spare is available, the Vehicle will be towed; provided, however, that the cost of a replacement tire is not covered), lock-out service (if the keys are locked inside the Vehicle), jump-starts, and fuel delivery service for up to three (3) gallons (or equivalent liters) of fuel if Vehicle is out of fuel. Roadside assistance is available only in the United States and Canada. Please note that additional Fees may apply if an Authorized Driver requests roadside assistance that is not covered under this Agreement or a Vehicle requires additional repair or maintenance outside the scope outlined above. In that case, Subscriber will be liable for such Fees, which will be billed in accordance with Section 6, below. To request roadside assistance, an Authorized Driver must call the Dedicated Subscription Line, which will be connected to a third-party roadside assistance provider that, depending on the Authorized Driver’s location and circumstances, may be able to dispatch personnel capable of performing roadside assistance at the Authorized Driver’s location.
- Liability Protection.
- Coverage. Subject to the terms of this Agreement, the Rental Agreement, and the insurance policy which provides coverage, each Vehicle, only while Subscriber is renting such Vehicle pursuant to this Agreement and an active Rental Agreement, will be insured for third-party liability with split limits of: (A) $100,000 liability coverage per accident for bodily injury to or death of one individual; (B) $300,000 liability coverage per accident for bodily injury to or death of more than one individual; and (C) $50,000 per accident for injury to or destruction of property. Unless required by law, liability insurance excludes any protection afforded under: (a) first party benefits; (b) personal injury protection; (c) medical payments; (d) no-fault; and (e) uninsured or underinsured (“UM/UIM”) motorist. If an Owner is required by law to provide personal injury protection, no-fault or UM/UIM motorist benefits, Subscriber expressly selects such protections in the minimum limits with the maximum deductible and expressly waives and rejects personal injury protection, no-fault and UM/UIM motorist benefits in excess of the minimum limits required by law. This liability insurance provides no coverage for physical damage to, or theft of, any Vehicle. For the terms of physical damage protection provided under this Agreement, see Section 2(b)(vii), below.
- Exclusions. In addition to the exclusions contained in the insurance policy which provides the liability coverage described in Section 2(b)(vi)(1), liability coverage shall not apply under the following circumstances: (A) loss arising out of an accident which occurs while Subscriber or another Authorized Driver under this Agreement is under the influence of alcohol or drugs; (B) loss arising out of bodily injury, death, or property damage sustained by Subscriber, another Authorized Driver, or any relative or family member of Subscriber who resides in the same household; (C) loss arising out of the operation of Vehicle by any driver other than an Authorized Driver; (D) bodily injury, death to an employee or the spouse, child, parent, brother, or sister of that employee, arising out of and in the course of employment by Subscriber or an Authorized Driver; (E) property damage to property transported or in the care, custody, or control of Subscriber or another Authorized Driver; (F) liability arising out of the use of Vehicle, which was obtained based on false, misleading, or fraudulent information; (G) loss arising while Vehicle is being utilized to transport persons or property for a fee; and (H) loss arising out of the use of Vehicle when such use is otherwise in violation of the terms and conditions of this Agreement (including the terms and conditions of any Rental Agreement).
vii. Physical Damage Protection. Except for the exclusions from liability coverage under Sections 2(b)(vi)(2)(A), 2(b)(vi)(2)(C), and 2(b)(vi)(2)(G), carclub rental waives Subscriber’s responsibility for any physical damage to, loss or theft of a Vehicle in excess of $1,000 per incident for damage to, loss, or theft of Vehicle or any part or accessory and related costs. Subscriber shall remain responsible for all costs up to $1,000 per incident, regardless of whether caused by Subscriber, another Authorized Driver, a third party, an act of God, or any other cause. Notwithstanding anything to the contrary herein, Subscriber shall be fully responsible for the actual cash value of a Vehicle due to a theft of the Vehicle, unless: (a) Subscriber or another Authorized Driver has possession of the ignition keys, (b) an Authorized Driver files an official report of the theft with the applicable law enforcement agency within twenty-four (24) hours of learning of the theft, and (c) Subscriber and any other applicable Authorized Driver cooperate with Owner and law enforcement in providing all relevant information concerning the theft.
viii. Vehicle Maintenance.
- Mandatory Monthly Check-In. Subscriber shall make the Vehicle available upon request, subject to reasonable advance notice, so that an Owner or another third party designated by such Owner may inspect Vehicle and ensure regular maintenance services, such as oil checks, tire rotations, and other manufacturer-recommended maintenance are scheduled and performed. If necessary, as determined in the Owner’s sole discretion, such Owner will make a replacement Vehicle available for Subscriber to use while such inspection and maintenance occurs.
- Other Maintenance Obligations. Subscriber shall notify the applicable Owner immediately of any Vehicle accidents, losses, breakdown, or maintenance needs, and other similar events. An Owner may request that Subscriber return or otherwise make available a Vehicle, in such Owner’s sole discretion; provided that the Owner will provide Subscriber with reasonable advance notice. Subscriber shall immediately return the Vehicle to the Owner upon any of the following circumstances: (i) if Subscriber encounters difficulties with the operation or performance with the Vehicle (and the Vehicle is safely drivable); (ii) upon notification that the Vehicle is the subject of a recall (and the Vehicle is safely drivable); or (iii) upon termination of this Agreement for any reason (and the Vehicle is safely drivable); provided that, if the Vehicle is not safely drivable under subsections (i), (ii), or (iii), Subscriber must immediately notify Owner and make the Vehicle available for the Owner to retrieve at the time reasonably designated by Owner.
- Liability for Maintenance Fees. Subscriber acknowledges and agrees that Subscriber will be responsible for any amounts that an Owner or any other party incurs to maintain, retrieve, and/or repair a Vehicle as a result of Subscriber’s failure to maintain the Vehicle in accordance with the terms set forth herein, including, without limitation, Section 2(b)(viii)(1)-(2), to the extent not covered by the physical damage protection offered under Section 2(b)(vii).
- Returns upon Termination. Unless requested earlier by an Owner, Subscriber must return the Vehicle to an Owner, during normal business hours of the applicable Owner, subject to and in accordance with the terms herein, including, without limitation, the timeframes set forth in Section 5. In addition to any other Fees that Subscriber may owe, Subscriber will be liable for paying an amount equal to the next month’s Subscription Fee and estimated taxes related thereto (and any other month(s)’ Subscription Fee and estimated taxes related thereto so long as the Vehicle remains outstanding) if Subscriber does not return the Vehicle by such deadline.
- General Customer Support. As part of the Subscription Service, Subscriber will have access to certain dedicated support services made available through the Dedicated Subscription Line.
- Authorized Drivers. Subscriber shall be responsible and liable for all acts and omissions of any other Authorized Driver to the same extent as if such acts or omissions were by Subscriber. Authorized Drivers other than Subscriber have no right to execute a Rental Agreement; such Authorized Drivers may only operate the Vehicle rented by Subscriber pursuant to the terms and conditions of this Agreement and the applicable Rental Agreement.
- Subscription Service Application Process
- Subscription Enrollment Application.Applicant may apply for enrollment in the Subscription Service by completing the Subscription Enrollment Application, which includes, without limitation, the following steps:
- Enter the information requested on the Subscription Enrollment Form provided on the Website, including, without limitation, Subscriber’s contact information, including Subscriber’s current physical and e-mail address, Subscriber’s U.S. Driver’s license information, and payment information, which carclub rental may revise from time to time in its sole discretion;
- Read and accept this Agreement; and
iii. Once Applicant completes the steps set forth in Sections 3(a)(i) and 3(a)(ii), Applicant must click “Submit,” and Applicant’s Subscription Enrollment Application will be sent to carclub rental for review. Applicant authorizes carclub rental to verify and/or obtain Applicant’s personal information associated with his or her Subscription Enrollment Application. Applicant will receive a confirmation email that carclub rental has received Applicant’s Subscription Enrollment Application, along with a copy of or link to the terms of this Agreement.
- Eligibility Criteria. In addition to submitting the Subscription Enrollment Application, Applicant must also satisfy (in carclub rental’s sole and absolute discretion) the following eligibility criteria (collectively, as follows, the “Eligibility Criteria”) when Applicant submits the Subscription Enrollment Application and at all times thereafter during the Term in order to be deemed eligible to enroll in the Subscription Service:
- Be at least twenty-five (25) years old, unless otherwise required by law;
- Possess a valid U.S. Driver’s License issued in their name, displaying their appearance, and that is not suspended, confiscated, revoked, or expired;
iii. Possess and use for payment of any Fees owed hereunder a valid bank-issued credit or debit card (no pre-paid debit cards) issued in their name; and
- Possess a verifiable current email and physical address.
In order to operate any Vehicle, an Authorized Driver other than Subscriber must: (A) currently meet the Eligibility Criteria, except for Section 3(b)(iii), (B) have acknowledged this Agreement, (C) have been requested to become an Authorized Driver by Subscriber, and (D) be able to provide documentary evidence of its satisfaction of the Eligibility Criteria upon carclub rental’s or any Owner’s reasonable request.
If, at any time during the Term, any Authorized Driver fails to satisfy any of the Eligibility Criteria, including, without limitation, if an Authorized Driver’s license is suspended, confiscated, revoked, or expires, such Authorized Driver will immediately become unauthorized to rent or use any Vehicle, and Applicant must immediately notify carclub rental of such change.
- Review Process. carclub rental will review Applicant’s Subscription Enrollment Application and confirm or reject the application within three (3) business days. Applicant will be notified of carclub rental’s decision via email.
- Steps after Acceptance. If carclub rental accepts Applicant as a Subscriber, then:
- carclub rental will charge Subscriber a non-refundable (subject to Section 3(d)(iii)) enrollment fee of $250 (the “Enrollment Fee”), the Subscription Fee for the first full calendar month of the Initial Term, and estimated taxes based on the first full calendar month’s Subscription Fee, all in accordance with Section 6 herein (collectively, the “Initial Payment”).
- Upon collection of the Initial Payment, carclub rental will send Subscriber a welcome email that includes, without limitation: (A) Subscriber’s unique Subscription Service identification number (the “Subscriber ID”); (B) a summary of the Initial Payment, including the amount of the Initial Payment; and (C) instructions, including a dedicated Subscription Service toll-free phone number (the “Dedicated Subscription Line”), that Subscriber must use to schedule a time to visit an Owner to execute a Rental Agreement and access the first Vehicle. The Dedicated Subscription Line is available Monday – Friday during our hours of service 7am – 6pm CST (excluding holidays). Subscriber must confirm his or her Subscriber ID when reserving a Vehicle, and Subscriber must book the reservation at least three (3) business days in advance.
iii. Subscriber must execute a Rental Agreement with an Owner in order for any Authorized Driver to access and use a Vehicle. If, upon Subscriber’s first review of the terms of a Rental Agreement, Subscriber does not wish to accept the terms of the Rental Agreement, then Subscriber may elect to terminate this Agreement (subject to the terms of Section 5(c)) and will receive a refund of all Fees already paid by Subscriber (including the Enrollment Fee). In all other circumstances, the Enrollment Fee is non-refundable. For avoidance of doubt, the limited right to terminate and receive a refund set forth in this Section 3(d)(iii) shall not apply to future Rental Agreements that Subscriber executes.
- Notwithstanding anything to the contrary herein, carclub rental’s approval of Applicant as a Subscriber is subject to Subscriber’s continuing satisfaction of the Eligibility Criteria, timely payment of any applicable Fees and/or other charges, and compliance with all other terms and conditions set forth in this Agreement, including, without limitation, the terms and conditions of any Rental Agreement.
- Privacy and Communications
- Consent to Electronic Transactions and Communications.
- Electronic Communications, Generally. To the fullest extent permitted by applicable law, this Agreement and any notices or other communications (including, without limitation, by e-mail) regarding access to and/or use of the Subscription Service (“Communications”), may be provided to Applicant electronically, and Applicant hereby agrees to receive Communications from carclub rental and Owners in an electronic form. Electronic Communications may be delivered to the email address that Applicant provides to carclub rental in the Subscription Enrollment Application or that Applicant otherwise provides to carclub rental or Owners. All Communications in either electronic or paper format will be considered to be in “writing.” All Communications will be considered to have been received no later than five (5) business days after dissemination, whether or not Applicant has received or retrieved the Communications. Although carclub rental and Owners reserve the right to provide Communications in paper format to Applicant using Applicant’s postal address set forth in the Subscription Enrollment Application, Applicant expressly agrees that any notice or other Communications due under this Agreement may be given in email form to the email address that Applicant provides to carclub rental or Owners. In addition, Applicant expressly agrees that it is his or her sole responsibility to keep Applicant’s email and postal addresses accurate and up-to-date by providing carclub rental and the applicable Owners with written notice of any changes to the same, and that carclub rental and Owners may reasonably assume that any Communications sent by carclub rental or Owners to the addresses provided by Applicant will be received by Applicant. Applicant’s consent to receive Communications electronically is valid until Applicant revokes his or her consent.
- Transactional and Marketing Communications. By accepting this Agreement, Applicant acknowledges that he or she will receive transactional communications related to the Subscription Service from carclub rental, any Owner, and/or their respective representative(s) (“Transactional Communications”). Transactional Communications may include confirmations of Vehicle reservation requests for reservation requests that will be sent out following the placement of a reservation request. Transactional Communications may also include, but are not limited to, the following: (A) reservation request reminders for Vehicle reservation requests, (B) a monthly statement detailing Subscriber’s rental activity under Rental Agreements, as applicable, (C) Vehicle arrival alerts containing directions and pertinent information, (D) return alerts confirming Vehicle return time and providing pertinent information regarding Vehicle return location, (E) Fees, and (F) notification of an expired driver’s license or credit card. In addition, with Applicant’s consent (where required by law), carclub rental and Owners may provide to Applicant certain marketing Communications. To receive marketing Communications, Applicant is required to provide an explicit opt-in on the Email Specials Page or in the Subscription Enrollment Application process. Applicant can choose to opt out of certain or all of these marketing Communications at any time via the Email Specials Page.
iii. Texting & Calling. By executing this Agreement, Applicant hereby consents to carclub rental, any Owner, and/or their respective representative(s) to contact Subscriber at the phone number(s) provided in connection with this Agreement to deliver, or cause to be delivered, informational or transactional outreach, including, without limitation, customer surveys, via live, pre-recorded, or autodialed calls or texts. Subscriber’s consent to receiving these calls or texts is not a condition of any Rental Agreement or other agreement with carclub rental or any Owner. For questions about privacy, please see Section 4(a), above.
- Term and Termination
- Term. This Agreement will commence upon Applicant’s acceptance of this Agreement and will continue in full force and effect until the end of two (2) full calendar months (the “Initial Term”).
- AUTO-RENEWAL. Following the Initial Term, this Agreement shall automatically renew for additional, successive one (1) calendar month terms (each, a “Renewal Term”) unless terminated in accordance with the terms of Section 5(c) herein. The Initial Term and any Renewal Term shall be collectively referred to herein as the “Term” of this Agreement.
- Applicant Termination. If carclub rental, in its sole and absolute discretion, rejects Applicant’s Subscription Enrollment Application, this Agreement will terminate immediately upon delivery to Applicant of notice of such rejection.
- By Subscriber. Subscriber may not terminate this Agreement prior to the expiration of the Initial Term. Subscriber may terminate this Agreement by providing written notice of his or her intent not to renew this Agreement at least fifteen (15) days’ in advance of the expiration of the Initial Term or the then-current Renewal Term (as applicable) by emailing carclub rental at Subscribe@erac.com, and including, at a minimum, Subscriber’s requested date of termination, Subscriber ID, and contact information (“Notice of Termination”), subject to the following:
- If Subscriber provides Notice of Termination at least fifteen (15) days before the then-current Term expires and returns the Vehicle to the applicable Owner by the last day of that same then-current Term, then the Agreement will terminate as of the first day of the following calendar month (subject to Section 11(c)) and Subscriber will not be charged a Subscription Fee (or taxes related thereto) for the following calendar month.
- If Subscriber provides Notice of Termination at least fifteen (15) days before the then-current Term expires but does not return the Vehicle during the then-current Term, then this Agreement will remain in effect until such Vehicle is returned to the applicable Owner. Subscriber will immediately be charged for the following month’s Subscription Fee and estimated taxes related thereto. All other Fees incurred in connection with the Vehicle (including Subscription Fees for any other months in which the Vehicle has not yet been returned) will be charged in accordance with the billing terms set forth in Section 6, below; provided that, once Subscriber returns the Vehicle, Subscriber will be refunded a Pro-Rated portion of the Subscription Fee and taxes related thereto for that final month based on the number of days the Vehicle is outstanding during that final month.
- If Subscriber provides Notice of Termination less than fifteen (15) days before the then-current Term expires, Subscriber will be obligated to pay the Subscription Fee and estimated taxes related thereto for the following calendar month, along with any other Fees incurred hereunder, in accordance with the billing terms set forth in Section 6, and this Agreement will remain in effect until the longer of (A) the end of the following calendar month, or (B) the date when Subscriber returns such Vehicle. If Subscriber fails to return the Vehicle at the end of that following calendar month, then Subscriber will immediately be charged for the following month’s Subscription Fee and estimated taxes related thereto. All other Fees incurred in connection with the Vehicle (including Subscription Fees for any other months in which the Vehicle has not yet been returned) will be charged in accordance with the billing terms set forth in Section 6; provided that, once Subscriber returns the Vehicle, Subscriber will be refunded a Pro-Rated portion of the Subscription Fee and taxes related thereto for that final month based on the number of days the Vehicle is outstanding during that final month.
iii. By carclub rental. carclub rental may terminate this Agreement with or without cause upon no less than thirty (30) days’ advance written notice to Subscriber. However, carclub rental may, in its sole discretion, terminate this Agreement immediately upon written notice to Subscriber if: (1) Subscriber fails to continue satisfying the Eligibility Criteria, or (2) Subscriber materially breaches this Agreement (including, without limitation, any material breach by an Authorized Driver) and fails to cure such breach, if curable, within ten (10) days.
- Effect of Termination. Upon termination of this Agreement, all rights granted to Subscriber (including rights granted to any Authorized Driver) hereunder shall terminate, and, if not already returned, Subscriber shall immediately return to the applicable Owner the Vehicle in Subscriber’s (or an Authorized Driver’s) custody or control and any other property or materials belonging to the Owner or carclub rental. Notwithstanding any termination of this Agreement or anything to the contrary herein, Subscriber shall remain liable for any Fees, including, without limitation, any parking citations, damages not covered by the Subscription Service, tickets, tolls, and/or any other Violations incurred prior to or as of the effective date of termination (even if not discovered by carclub rental or the Owner until after the effective date of termination).
- Billing Schedule.
- Generally. Except for the Initial Payment, which is billed immediately upon acceptance as a Subscriber, Subscriber will be charged the following Fees on the twentieth (20th) day of each calendar month during the Term:
- During the first full calendar month of the Term, Subscriber will be charged the following: (A) the Subscription Fee for the next calendar month (i.e., the second full month of the Initial Term); (B) estimated taxes based on the next month’s Subscription Fee; (C) a Pro-Rated Subscription Fee and related taxes for the first partial month of the Subscription, if Subscriber used a Vehicle during that initial partial month; and (D) miscellaneous Fees, including, without limitation, a true-up of estimated taxes charged as part of the Initial Payment, and any Violations issued to the Vehicle (e.g., bridge tolls, speeding tickets, etc.); and
- During each subsequent calendar month during the remainder of the Term, Subscriber will be charged the following: (A) the Subscription Fee for the next calendar month; (B) estimated taxes based on the next calendar month’s Subscription Fee; and (C) miscellaneous Fees, including, without limitation, a true-up of estimated taxes charged the previous month, and any Violations issued to the Vehicle (e.g., bridge tolls, speeding tickets, etc.).
- Even if this Agreement terminates, Subscriber will be responsible for paying any Fees incurred prior to or as of the effective date of such termination.
- Taxes. Subscriber will be charged taxes for the Subscription Service based on factors such as Subscriber activity and the tax jurisdiction in which the Vehicle was made available to Subscriber during each calendar month of the Term.
- Acceptable Forms of Payment. Subscriber must provide carclub rental with an acceptable form of payment (as set forth in Section 3(b)(iii)) and keep that form of payment updated and accurate throughout the Term.
- How to Update Payment Methods. Subscriber must contact the Dedicated Subscription Line and select the option for “billing” in order to update Subscriber’s payment method. Payment method changes occur during Monday through Friday 8:00 am – 5:00 pm CST.
- Payment Defaults. carclub rental will notify Subscriber if Subscriber defaults in payment of any Fees owed hereunder. In the event of default of payment, Subscriber must remedy the default and provide adequate payment within seven (7) days of receipt of that notice of default. If Subscriber fails to provide adequate payment within those seven (7) days, (i) Subscriber must immediately return any outstanding Vehicle to the applicable Owner, or, if requested by Owner, make any outstanding Vehicle available for pick-up; and (ii) carclub rental may, in its sole and absolute discretion, terminate this Agreement, effective upon written notice to Subscriber.
- Daily Rental Rate. If Subscriber executes a Rental Agreement, Owner may generate a rental ticket that summarizes the terms of that specific Vehicle rental and that includes a daily rental rate. This daily rental rate is based on an annualized fee structure and is used for internal accounting purposes only; it is not an invoice and is not intended to represent the Fees that Subscriber owes under this Agreement. Instead, Subscriber is responsible for paying the Fees billed to Subscriber in accordance with and subject to the terms of this Agreement. However, any Pro-Rated amounts owed by carclub rental or Owner to Subscriber under this Agreement may be based on that annualized fee structure.
- Representations and Warranties
- Mutual Representations, Warranties, and Covenants. Each Party hereby represents, warrants and covenants to the other Party that: (i) each Party has the full right, power, authority and capacity to enter into this Agreement and perform its obligations hereunder; (ii) when executed and delivered, this Agreement shall constitute a legal, valid, and binding obligation of each Party, enforceable against such Party in accordance with its terms and conditions; and (iii) each Party has obtained and shall maintain all rights, approvals and consents necessary to exercise its rights and perform its obligations under this Agreement.
- Subscriber Representations and Warranties. In addition, Applicant represents, warrants and covenants that:
- Any and all information that Applicant or any Authorized Driver provides or otherwise makes available to carclub rental is and throughout the Term shall remain true, correct, and complete (including, without limitation, payment card and billing address information);
- Subscriber and any Authorized Driver meet and shall continue to meet all Eligibility Criteria during the Term; and
iii. Applicant and any Authorized Driver shall comply with all applicable laws in applying for and using the Subscription Service, as applicable, and Applicant shall not perform or fail to perform any act that Applicant knows or reasonably should know would place carclub rental and/or any Owner in violation of any applicable laws.
- Disclaimers and Limitation of Liability
- Disclaimer. The subscription service IS provided on an “as is” and “as available” basis. Except as expressly set forth herein, carclub rental expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. carclub rental makes no warranty that the subscription service will meet APPLICANT’S requirements or will be uninterrupted, timely, unfailingly secure, error-free, or that the subscription service will meet APPLICANT’s expectations. Applicant expressly acknowledges and agrees that no advice or information, whether oral or written, obtained by Subscriber from carclub rental or through or from the Subscription service shall create any warranty not expressly stated herein. carclub rental also disclaims any and all liability for OR IN CONNECTION WITH (i) the acts, omissions and conduct of (a) any third parties in connection with or related to APPLICANT’S use of the subscription service; OR (b) any owner; AND (ii) ANY VEHICLE ACCESS OR USE. APPLICANT’S sole remedy against carclub rental for dissatisfaction with the subscription servicE provided or made available to APPLICANT is to stop using THE subscription service and terminate this Agreement. the foregoing limitation of relief is an essential part of the bargain between the Parties under these terms. Please note that some jurisdictions do not allow limitations of an implied warranty, so the above limitations or exclusions may not apply.
- limitation of liability. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENTs UNDER THIS AGREEMENT or LIABILITY FOR INDEMNIFICATION, IN NO EVENT SHALL carclub rental, OR ANY OF ITS REPRESENTATIVES, BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT carclub rental WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. NOTWITHSTANDING ANYTHING TO THE CONTRARY, carclub rental AND/OR OWNER SHALL MAINTAIN THE RIGHT TO PURSUE APPLICANT FOR LOSS Of USE, DIMINISHMENT OF VALUE AND ADMINISTRATIVE fees.
- Exceptions. nOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, nothing in this Agreement LIMITS OR disclaims any warranty OR liability that cannot be limited or disclaimed pursuant to applicable Law.
- Indemnification. Applicant shall indemnify, defend and hold harmless carclub rental and its officers, managers, members, employees, agents, affiliates, successors and assigns from and against any and all losses, liabilities, costs and expenses (including, but not limited to, attorneys’ fees), damages, claims, actions, suits, demands, proceedings, settlements, judgments, and causes of action of any nature (collectively, “Losses”), whether such Losses are alleged, threatened, settled or finally adjudicated, arising from or as a result of: (i) any intentional, reckless, or negligent act of Applicant or an Authorized Driver relating to this Agreement; (ii) any material breach of this Agreement by Applicant or an Authorized Driver; or (iii) the use of any Vehicle by any person. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR IN THE RENTAL AGREEMENT, APPLICANT’S INDEMNIFICATION OBLIGATIONS IN THIS SECTION 9 SHALL BE IN ADDITION TO ANY OTHER INDEMNIFICATION OBLIGATIONS SET FORTH IN ANY RENTAL AGREEMENT.
- Dispute Resolution
- Governing Law. With respect to any Claims (as defined below) arising exclusively under this Agreement (and not any applicable Rental Agreement), all terms and conditions of this Agreement shall be interpreted, construed and enforced pursuant to the laws of the State of Missouri without giving effect to the conflict of laws and/or provisions of such State.
- Mandatory Arbitration Agreement. APPLICANT AND carclub rental EACH WAIVE THEIR RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION PURSUANT TO THE FOLLOWING TERMS. APPLICANT AND carclub rental AGREE TO ARBITRATE ANY AND ALL CLAIMS, CONTROVERSIES OR DISPUTES OF ANY KIND (“CLAIMS”) AGAINST EACH OTHER ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, CLAIMS RELATING TO carclub rental’S PRODUCTS AND SERVICES, CHARGES, ADVERTISINGS, OR VEHICLES. FOR THE PURPOSES OF THIS DISPUTE RESOLUTION PROVISION, “APPLICANT” ALSO INCLUDES ANY AUTHORIZED DRIVER UNDER THE AGREEMENT, AND ANY OF APPLICANT’S AGENTS, BENEFICIARIES OR ASSIGNS, OR ANYONE ACTING ON BEHALF OF THE FOREGOING, AND “carclub rental” ALSO INCLUDES ANY OF ITS EMPLOYEES, AGENTS, AFFILIATES, PARENTS, SUBSIDIARIES, BENEFICIARIES, ASSIGNS, AND VENDORS, INCLUDING BUT NOT LIMITED TO ITS SERVICE PROVIDERS AND MARKETING PARTNERS. APPLICANT AND carclub rental AGREE THAT NO CLAIMS WILL BE PURSUED OR RESOLVED AS PART OF A CLASS ACTION, PRIVATE ATTORNEY GENERAL OR OTHER REPRESENTATIVE ACTION OR PROCEEDING, THAT NO ARBITRATION FORUM WILL HAVE JURISDICTION TO DECIDE ANY CLAIMS ON A CLASS-WIDE, COLLECTIVE, OR CONSOLIDATED BASIS, AND THAT NO RULES OR OTHER PROCEDURES FOR CLASS-WIDE OR COLLECTIVE ARBITRATION WILL APPLY. This Section 10(b) is to be broadly interpreted and applies to all Claims based in contract, tort, statute, or any other legal theory, and all Claims that arose prior to or after termination of this Agreement. However, the Parties agree that either Party may bring an individual action in a small claims court with valid jurisdiction, provided that the action remains in that court (other than any appeal of the small claims court ruling), is made on behalf of or against Applicant only and is not made part of a class action, private attorney general action or other representative or collective action. The Parties also agree that Claims against or by a third-party insurance company ostensibly providing coverage to Applicant or any other Authorized Driver or the application of carclub rental’s financial responsibility relating to the use or operation of Vehicles may be brought in a court with valid jurisdiction.
- Procedure. A Party must send a written Notice of Dispute (“Notice”) describing: (A) the nature and basis of the Claim; and (B) the relief sought, to the other Party. The Notice to carclub rental should be addressed to: CT Corporation, 208 S LaSalle, Suite 814, Chicago, IL 60604. If carclub rental and Applicant do not resolve the Claim within thirty (30) days after the Notice is received, a Party may commence an arbitration by filing a demand for arbitration with the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules. Claims will be resolved pursuant to the AAA’s Consumer Arbitration Rules in effect at the time of the demand, as modified by this Agreement. However, a single arbitrator will be selected according to AAA’s Commercial Arbitration Rules. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by Subscriber or by carclub rental that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both Parties with due consideration of their ability to travel and other pertinent circumstances. If the Parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The AAA rules are available online at www.adr.org. Except as required by law, neither a Party nor an arbitrator may disclose the existence, content or results of any dispute or arbitration hereunder without the prior written consent of both Parties.
- Arbitrator’s Authority. The arbitrator is bound by this Agreement, the Federal Arbitration Act (“FAA”) and AAA’s Consumer Arbitration Rules. The arbitrator has no authority to join or consolidate Claims, or adjudicate joined and consolidated Claims. The arbitrator has exclusive authority to resolve any dispute relating to the scope, interpretation, applicability, enforceability or formation of this Agreement, including whether it is void. The Parties agree that the arbitrator’s decision and award will be final and binding and may be confirmed or challenged in any court with jurisdiction as permitted under the FAA. The arbitrator can award the same damages and relief as a court, but only in favor of an individual Party and for a Party’s individual Claim.
iii. Arbitration Costs. Subscriber will be responsible for his/her share of any administrative arbitration fees (e.g., filing, administrative, etc.), but only up to the amount of filing fees Applicant would incur if the Claim were filed in court. carclub rental will be responsible for all additional administrative arbitration fees. Applicant is responsible for all other costs/fees that it incurs in arbitration (e.g., fees for attorneys, expert witnesses, etc.). Applicant will not be required to reimburse carclub rental for any fees unless the arbitrator finds that the substance of Applicant’s Claim(s) or the relief sought is frivolous. If the arbitrator makes such a finding, AAA Rules will govern the payment of all fees, and carclub rental may seek reasonable attorney’s fees. carclub rental will pay all fees and costs it is required by law to pay.
- Governing Law and Enforcement. Notwithstanding anything in Section 10(a), this Section 10(b) is made pursuant to a transaction involving interstate commerce, and shall be governed by the FAA, 9 U.S.C. §§ 1-16. Notwithstanding anything to the contrary herein, if any portion of this Section 10(b) is deemed to be invalid or unenforceable or is found not to apply to a Claim, the remainder of Section 10(b) shall remain in full force and effect; provided, that, if the class-arbitration waiver provision is deemed unenforceable, any class action Claim(s) must proceed in a court of competent jurisdiction.
- Headings; Construction. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. The Parties acknowledge and agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of an agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.
- Independent Contractors. Applicant and carclub rental are independent contracting parties and nothing herein shall make either Party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either Party any authority to assume or create any obligation on behalf of or in the name of the other Party.
- Severability; Survival. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, such provision shall be amended and interpreted to accomplish the objectives of such provision to the greatest extent possible, and the remaining provisions of this Agreement shall continue in full force and effect. Any provision of this Agreement that contemplates performance or observance subsequent to any expiration or termination of this Agreement, or which is otherwise necessary to interpret the respective rights and obligations of the Parties hereunder, shall survive any expiration or termination of this Agreement and continue in full force and effect, including, without limitation, Sections 1, 2(a), 2(b)(xi), 4, 5(c), 6, 7, 8, 9, 10, and 11.
- No Assignment; No Third-Party Beneficiaries. Applicant shall not assign or otherwise delegate this Agreement without carclub rental’s prior written consent, and any attempt by Applicant to assign rights or duties without such written consent shall be null and void. carclub rental may freely assign this Agreement, including the assignment of any of its rights or delegation of any of its obligations hereunder. Subject to the foregoing, this Agreement shall inure to the benefit of, and shall be binding upon, the Parties and their respective successors and permitted assigns. This Agreement is not intended, and shall not be construed, to create any rights in any other person or entity other than the Parties and their respective permitted successors, heirs and assigns, and no other person or entity shall have any rights as a third-party beneficiary hereunder.
- By carclub rental. carclub rental may, from time to time, amend this Agreement; provided that carclub rental must provide Applicant with: (A) advance written or electronic notice of such amendments to this Agreement; or (B) an Internet website address where the revised version of this Agreement can be found. Applicant may decline such changes by terminating this Agreement, subject to the terms set forth herein, including, without limitation, Section 5(c)(iv). Any amendments to this Agreement shall be applicable when published by carclub rental or at the date specified by carclub rental in its notice of such amendments.
- Other Modifications. Except as set forth in Section 11(e)(i), this Agreement may be amended only pursuant to a writing executed by authorized representatives of both Parties.
- Waiver. The Parties expressly disclaim the right to claim the enforceability of any oral modifications to this Agreement or any amendments based on course of dealing, waiver, reliance, estoppel or other similar legal theory. No delay or omission by either Party to exercise any right occurring upon any non-compliance or default of the other Party with respect to any of the terms of this Agreement shall impair any such right or be construed to be a waiver thereof.
- Notices. Any notice or other communication required or permitted by this Agreement to be given to a Party shall be in writing and shall be deemed given: (i) if delivered personally or by commercial messenger or courier service, then when actually delivered; (ii) if sent by certified or registered mail, return receipt requested, then upon verification of receipt; or (iii) if sent via email or facsimile transmission, then upon acknowledgment of receipt. Notice shall be sent to the address that either Party provides in writing.