- The following words carry the following meanings:
- Agreement means this document as amended from time to time along with any documents referred to in this document;
- Driving Instructor means the person who has contracted with XDT Driving Instructors to become a Driving Instructor through the XDT Driving Instructors online website platform;
- XDT Driving Instructors, XDriverTesters and/or XDT means XDT Driving Instructors Pty Ltd;
- Learner Driver means a person who is at least 16 years old or older who has booked a driving lesson through XDT Driving Instructors (or their parent acting as the minors' agent);
- Party or Parties means XDT Driving Instructors and the Driving Instructor as the context requires;
- Payment Policy means the XDT Driving Instructors Payment Policy and as subsequently amended from time to time;
- Written Notice means notification given by email or SMS.
- In the interpretation of this Agreement:
- Every aspect of this document with the exception of the headings are substantive parts of this Agreement and are to be read accordingly;
- Headings are used for convenience, but are not to be interpreted as part of this Agreement;
- When the singular is mentioned, it also means the plural of that word, and vice versa;
- Words specifying one gender includes all other genders;
- When legislation is referred to, the legislation includes all rules, ordinances, by laws, orders, regulations, consolidations, rewrites, amendments, re-enactments and replacements of that same legislation;
Term of Agreement
- This Agreement commences on the day the last Party accepts this Agreement digitally and terminates when an Event of Termination takes place; and
- This Agreement may be amended from time to time by XDT Driving Instructors at its discretion. Any amendments form part of this Agreement and are considered binding by both Parties.
Relationship of the Parties
- It is agreed that the Driving Instructor is operating as an independent contractor and not as an employee or agent of XDT Driving Instructors.
Warranties by Instructor
- The Driving Instructor warrants that they have done all of the following:
- They have complied with all requirements in their state of operation to become a fully qualified driving instructor;
- They have no medical issues that prevent them from being fit to drive or instruct learner drivers;
- They have no police or criminal history and have no pending investigations or charges against them;
- They have successfully passed a National Police Criminal History Check; and
- They have passed a Working With Children Check and have provided the reference number to XDT Driving Instructors.
Driving Instructors' Use of XDT Driving Instructors Website
- The Driving Instructor agrees:
- They are required to have a username and password to access and use the XDT Driving Instructors calendar booking system;
- That they will not divulge their username or password to anyone or allow others to use it on their behalf;
- That they will only use the XDT Driving Instructors calendar booking system for its intended purpose, which is to connect Driving Instructors with learner drivers;
- That they will keep Learner Drivers' data secure;
- The information they have provided is current, true and correct;
- To amend their details whenever their circumstances change as a matter of priority;
- Not to use the XDT Driving Instructors platform for any illicit purposes including to disseminate hate speech or similar views;
- Not to use the XDT Driving Instructors platform to promote any third Parties.
- The Driving Instructor agrees not to encourage Learner Drivers who have booked a lesson through the XDT Driving Instructors website to use other services or book through facilities that are not the XDT Driving Instructors platform; and
- The Driving Instructor agrees not to do any acts or omit to do things that may damage the reputation of XDT Driving Instructors.
- The Driving Instructor warrants that they have read and understood the following documents:
- the XDT Driving Instructors Payment Policy;
- the XDT Driving Instructors Policies and Procedures; and
- The Driving Instructor further warrants that they agree to the Policies and agree to any amendments as made from time to time. The Parties agree that all Policies and subsequent amendments are binding on the Parties. Links to the Policies can be found in the Schedule to this document.
- The Driving Instructor agrees to:
- Be respectful to learner drivers and XDT Driving Instructors staff;
- Arrive promptly at lessons with learner drivers;
- Maintain a professional appearance while conducting lessons with learner drivers;
- Not to eat or drink (excluding water) while conducting driving lessons;
- Not to use a mobile phone or similar electronic device while conducting driving lessons; and
- Not to take money or other types of bribes from learner drivers.
- The Driving Instructor warrants that they:
- Hold the appropriate levels of public liability and personal indemnity insurance;
- Have current compulsory third party vehicle insurance;
- Hold the appropriate level of comprehensive car insurance that covers accidents that occur while the Driving Instructor is instructing a Learner Driver;
- Have informed their comprehensive car insurance provider that they are conducting driving lessons;
- Will inform XDT Driving Instructors when any form of insurance lapses;
- Have a vehicle that has a dual pedal control;
- Will not conduct a driving lesson in a vehicle that is:
- Not registered as a driving vehicle with XDT Driving Instructors;
- Not their own; or
- Is not fitted with dual pedal controls; and
- Will provide information to XDT Driving Instructors regarding the make, vehicle registration number, model and year of the vehicle. The Driving Instructor also agrees to provide a photo of the car to XDT Driving Instructors.
Certification Verification Requirements
- XDT Driving Instructors requires that Driving Instructors produce a copy of their:
- Driving Instructor C Class Driver's Licence which is valid in the state the Driving Instructor operates in;
- A C Class Drivers' licence which is valid in Australia; and
- Working with children credentials;
- Driving Instructors agree to notify XDT Driving Instructors when these certifications lapse.
- Driving Instructors agree that their vehicle is to remain:
- well maintained; and
- registered at all times;
- Driving Instructors agree to notify XDT Driving Instructors immediately when they intend to use a different vehicle to conduct driving lessons. The Driving Instructor is unable to use this different vehicle to conduct driving lessons until they have notified XDT Driving Instructors;
- Driving lessons conducted in a vehicle provided by the Learner Driver are at the Driving Instructors discretion.
- Driving Instructors agree to comply with all Australian Tax Requirements including paying any applicable GST if transacting through XDT Driving Instructors or associated websites. In particular, Driving Instructors acknowledge that they will be required to charge and remit GST on taxable supplies if they are registered or required to be registered for GST in accordance with the A New Tax System (Goods and Services Tax Act) 1999 (Cth) as interpreted by the binding rulings published by the Federal Commissioner of Taxation from time to time. Driving Instructors are responsible for paying this.
Payment of Driving Instructors
- Driving Instructors agree that they have read and agree to the XDT Driving Instructors Payment Policy as amended from time to time at the discretion of XDT Driving Instructors and the Parties agree that the policy is binding. Any amendments to the XDT Driving Instructors Payment Policy form part of this Agreement and are considered binding;
- In particular Driving Instructors agree that they are invoiced weekly and that payments accrue each time a lesson is validated;
- Driving Instructors bear any risks associated for non-payments by Learner Drivers;
- Driving Instructors are required to inform XDT Driving Instructors immediately if they believe a Learner Driver is acting fraudulently in relation to payments.
Validation of Lessons
- In order to be paid for a lesson, the Driving Instructor agrees to the following:
- That when a Learner Driver books a lesson the lesson payment is allocated to the chosen Driving Instructor;
- The Driving Instructor agrees that they are to update and confirm the lesson through the XDT Driving Instructors calendar booking in order to be invoiced;
- Driving Instructors receive a notification at the completion of each invoice cycle that links directly to the lesson calendar booking system that confirms the Driving Instructor's payment during the next invoice cycle;
- Instructors can log in to the lesson calendar booking at any time and validate lessons that have not been validated.
- Driving Instructors will have their calendar booking updated by XDT Driving Instructors when notified of a Learner Driver booking through XDT Driving Instructors; and
- Driving Instructors agree to update the XDT Driving Instructors calendar portal when learner drivers book privately through the driving instructor so that XDT Driving Instructors lessons are not booked during this time.
Lesson Cancellation/Rescheduling Fee
- If a Learner Driver cancels or reschedules a lesson more than 24 hours before a lesson, Learner Drivers will be refunded 100% of their lesson fee, and the Driving Instructor will receive a 0% refund; and
- A Learner Driver cannot cancel or reschedule a lesson less than 24 hours before the lesson is due to start and the Driving Instructor has the sole discretion as to whether the Learner Driver is charged for the session.
Events of Termination
- XDT Driving Instructors may restrict, suspend or cancel a Driving Instructors' agreement immediately after providing Written Notice under the following circumstances:
- Where a Driving Instructor breaches this Agreement;
- Where a Driving Instructor has broken the law, including where the instructor has been charged with or has been convicted of a criminal offence;
- Where a Driving Instructors' working with children credentials have been falsified or have expired;
- Where a Driving Instructor is no longer a licenced driver or not otherwise permitted by law to be a licenced driving instructor; and
- Where a Driving Instructor is the subject of proceedings relating to a motor vehicle accident;
- Where a third party conducts a driving lesson on the Driving Instructors' behalf; and
- Where the Driving Instructor conducts a driving lesson in a vehicle other than any that which XDT Driving Instructors has been notified of;
- Where the Driving Instructor consistently receives poor Learner feedback or accumulates a poor rating as determined by XDT Driving Instructors.
- If a failure of a Driving Instructor to perform their obligations under this Agreement is not rectified within 7 days, XDT Driving Instructors may restrict, suspend or cancel a Driving Instructors' agreement on the XDT Driving Instructors website without giving notice to the Driving Instructor;
- XDT Driving Instructors removes the ability for Learner Drivers to book lessons with Driving Instructors immediately when any form of documentation or insurance that XDT Driving Instructors has in its records expires;
- A Driving Instructor may terminate this Agreement by de-registering their account on the XDT Driving Instructors website and by notifying XDT Driving Instructors in writing of their intention to terminate this Agreement;
- The Driving Instructor agrees that historical Driving Instructor details will be retained by XDT Driving Instructors; and
- The Driving Instructor agrees to XDT Driving Instructors retaining this information for an indefinite period.
- Driving Instructors are not to use Learner Driver information except for the express purpose of providing driving lessons.
- Driving Instructors agree to indemnify and protect XDT Driving Instructors against any actions, damages, claims, demands, prosecutions, fines and penalties including through negligence which occur as a result or in relation to your actions as a Driving Instructor;
- This Clause survives the termination of the contract.
- XDT Driving Instructors and Driving Instructors agree to adhere to the Australian Privacy Principles (if applicable);
- Driving Instructors agree to XDT Driving Instructors using Driving Instructor information and personal data for marketing purposes; and
- The Driving Instructor agrees that all intellectual property and copyright rights over XDT Driving Instructors products and resources are owned by XDT Driving Instructors exclusively.
- Neither XDT Driving Instructors or Driving Instructors are liable to the other or considered to be in default under this Agreement if and to the extent that such Party’s performance of these Term and Conditions is delayed or prevented by reason of Force Majeure, which is defined for this Agreement to mean an event that is beyond the reasonable control of the Party affected and occurs without such Party’s fault or negligence.
- If any dispute arises between a Driving Instructor and XDT Driving Instructors, the following procedures apply:
- If the dispute is not resolved within 14 days, the Parties agree to refer the matter to a mediator in accordance with the following procedure:
- The Parties agree to hire a mediator to mediate over the dispute;
- The mediation will take place via Skype;
- The mediator will follow the mediation procedure set out by the Resolution Institute. A copy of the mediation rules may be accessed at this website https://www.resolution.institute/documents/item/1897;
- If the mediation process fails, the Parties agree to refer the matter to an arbitrator in accordance with the following procedures:
- The arbitration is to be conducted by a single arbitrator who is to be agreed by the Parties;
- If the Parties are unable to agree on the arbitrator within 14 days, the arbitrator is to be appointed by the President of the Institute of Arbitrators Australia;
- The arbitration will be conducted in accordance with the Rules of Conduct of Commercial Arbitrators and any guidelines issued by the Institute of Arbitrators; and
- The Parties agree that the decision of the arbitrator is binding on the Parties;
- The costs of a mediation or arbitration are to be shared equally between the Parties.
- A failure or delay by XDT Driving Instructors in exercising a right does not constitute a waiver of XDT Driving Instructors rights to pursue an action.
No Assignment of Agreement
- The Driving Instructor is not allowed to sell, assign, sub-lease or transfer this Agreement to anyone else.
Modification of Agreement
- XDT Driving Instructors may change this Agreement at any time without notice. A Driving Instructor who continues to use the XDT Driving Instructors calendar booking system and instruct students is considered to accept the new terms as updated from time to time. It is the responsibility of the Driving Instructor to read through the amended Terms and Conditions as required from time to time.
- Notices provided under this Agreement may be provided by:
- any other form of electronic communication, including via the XDT Driving Instructors website; or
- by any other means used on a regular basis by both Parties.
- This Agreement is to be interpreted in a way that renders the provisions valid and enforceable to the maximum extent possible.
- This Agreement is governed by the laws of New South Wales, Australia. The Parties submit to the exclusive jurisdiction to the Courts of Australia.
- This Agreement represents the entire agreement between the Parties, along with any documents referred to herein. This Agreement supersedes any previous understandings or agreements, whether oral or written.