Zipcar Liability?

[tryn]

Jurisdiction/Place: USA - New York

Hello,

I know very little about law, but perhaps someone can help enlighten me on this issue with a recent accident of a zipcar.

Since I rarely drive and am nervous about driving in NYC, a business associate of mine is the registered member of an account with Zipcar, a car-sharing / rental company, so that he can drive me when the occasion arises. In any case, although he is the member, it is registered under my credit card.

Recently, we rented the car to run some errands. The car was parked legally in the vicinity. When we came back, to our horror, we discovered a surface level scratch that went from one end of the car to the other. The scratch was bright yellow, which brings to mind a taxi cab. We did not witness the accident, but we reported it to the local authorities and took photos.

Now we are told we are liable for it, but we would like to try to see if Visa, my credit card company, would cover the damage. The tricky part is, since the registered member is not myself, but my business associate, is there any way I can still file a claim, legally, and have any hope of it going through? Another issue is, from what I've read, Visa doesn't consider Zipcar a car rental company, even though Mastercard and American Express do. It seems like a matter of semantics, but is there any way I can fight them on that as well?

Please advise. Thank you so much!

 

[tryn]

Oh, and for reference, here is the membership contract agreement policy. And btw, I'm not even an Associate Member:

This Contract is a vehicle-sharing service subscription contract between Zipcar, Inc. ("Zipcar") and the Member. In this Contract, the following definitions apply:

1. Definitions

a.
Member: the person registered as the First Member and, unless specifically indicated otherwise in this Contract, each Associate Member.

b.
First Member: The person designated to receive and pay all costs associated with membership, including application fees, membership fees, driving charges and costs and penalties as indicated in the Rules and Schedules described below.

c.
Associate Member: The Zipcar members using Zipcar service under the terms of this specific Contract residing in the household of the approved Member.

d.
Contract: this Membership Contract and its Schedules, whether made available in print or electronically through Zipcar's web site, which schedules constitute an integral part of this Contract.

e.
Rules: all the rules of operation contained in Schedule 1: Rules for Vehicle Use and its schedules, as well as any other guidelines issued from time to time by Zipcar.

f.
Schedules: all the schedules to this Contract.

2. Basic Terms of Use of the Service

2.1
This Contract is a vehicle-sharing service subscription contract offered by Zipcar, Inc. ("Zipcar"), but does not in itself confer any right of use of Zipcar's vehicles. The Member may use Zipcar's vehicles, to the extent available, in accordance with the terms of this Contract and subject to paying the corresponding fees.

2.2
Zipcar shall be the owner of the Member's card and of any other item it puts at the Member's disposal during the term of this Contract.


3. Eligibility; Representations and Warranties

3.1
To be eligible for Zipcar's vehicle-sharing service, the Member must:

• Be at least 21 years old and hold a valid driver's license; provided, however, that if Member is a student of a college or university that has separately contracted with Zipcar for services, such Member must be at least 18 years old.

• Deliver to Zipcar an executed application, together with the documents requested in the application, which shall be complete, accurate and truthful in all respects.

3.2
Satisfying the eligibility criteria mentioned in Section 3.1 does not automatically give an applicant the right to become a Zipcar Member. Acceptance of the applicant's membership is subject to approval by Zipcar in its sole discretion.

3.3
The Member represents and warrants to Zipcar that it has received all reasonable explanations concerning the content of this Contract, including all Schedules currently in force, and that it carefully reviewed its commitments and obligations hereunder.

4. Fees and Responsibilities of Member

4.1
The Member promises to pay Zipcar any applicable membership fee as listed in the rate schedule. Application fees are not refundable. Membership fees are refundable during the first 30 days only. Certain restrictions apply.

4.2
The Member shall pay all costs incurred by themselves or their Associate Members when due, including application fees, membership fees, driving charges and penalties and other costs as provided in the Rules and Schedules. Any Member account which is delinquent will be suspended until such a time as all charges are paid in full, and Zipcar reserves the right to change how credit is offered to the Member and/or terminate the Member's account should the delinquency not be
immediately rectified. In addition, Zipcar reserves the right to charge Member in advance if Member's account has been delinquent in the past.

4.3
For those Members with deposits, no interest is paid on any Member deposit, and these deposits are not held in a separate account and are used by Zipcar as capital to operate the business.

4.4
For Member accounts with no activity for 12 consecutive months, Zipcar will notify the Member of pending inactivation. Any member deposits for such accounts may be applied to the outstanding balances owed by the Member, including membership fees. If the Member has a deposit with Zipcar and Member does not respond to an inactivation notification, Zipcar will assess a $20 service charge per month on any remaining Member deposit amounts held until depleted. If the Member does not have a deposit with Zipcar, Zipcar reserves the right to close the Member's account.

4.5
The Member deposit (less any unpaid costs, fees or charges) is refundable upon termination of membership by the Member in accordance with Article 6. The Member deposit will only be refunded to the issuing Member.

4.6
Because driving a Zipcar vehicle requires maintaining a good driving record, if the Member's license is suspended or revoked or if the Member is convicted of driving under the influence of drugs or alcohol or while intoxicated, of reckless driving, or of driving more than 20 miles per hour over the speed limit, the Member agrees to report
such suspension, revocation or conviction to Zipcar promptly. Zipcar will, from time to time, check Members' driver's licenses and reserves the right, in its sole discretion, to suspend or terminate the Membership of any Member who does not meet Zipcar's driving record requirements.

5. Waiver


5.1
Zipcar may not be held responsible for any loss of, or damage to, any goods in or on the vehicle, nor shall it be responsible for any loss, damage or injury resulting to third parties from the use of a Zipcar vehicle.

5.2
Zipcar shall not be responsible for any direct, indirect, incidental or consequential damages or injuries arising from the reservation, non-availability, supply, operation or use of a vehicle, even if it has been advised of the possibility of such damages.

5.3
Zipcar shall not be responsible for direct, indirect incidental or consequential damage or injuries arising from the use of any vehicle accessories, whether supplied by Zipcar or by a Member (luggage racks, bicycle racks, baby seats, etc.). The Member is responsible for the safe installation of such accessories and must check the condition
of such accessories before each use.

6. Term and Termination of the Contract

6.1
This Contract shall commence upon the acceptance by Zipcar of the Member's completed membership application and the payment of any applicable fees. This contract term shall continue until such time as membership is cancelled in accordance with this Article 6. Membership fees are prepaid and are refundable only within the first 30 days. Certain restrictions apply.

6.2
Subject to all its other rights and recourses, Zipcar may, at any time, upon five (5) days' notice, cancel the Contract if the Member fails to pay any sum due under this Contract or comply with any term or condition specified in the Contract or the Rules or if any Associate Member does not comply with any term or condition specified in
the Contract or the Rules. The Member may terminate this Contract and all associated memberships at any time upon five (5) days prior written notice to Zipcar, but shall remain responsible for any fees, costs or expenses incurred prior to termination of this Contract.

6.3
This Contract shall be automatically and immediately terminated upon written notice by Zipcar to the Member if the Member (i) is not paying its debts as such debts generally become due, (ii) becomes insolvent, (iii) files or has filed against it a petition (or other document) under any bankruptcy law or similar law that is unresolved within sixty (60) days of the filing of such petition (or document), (iv) proposes any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, (v) makes a general assignment or trust mortgage for the benefit of creditors, or (vi) if a receiver, trustee, custodian or similar agent is appointed or takes possession of any of its property or business.

6.4
Upon termination, all of the Member's and Associate Members rights to use Zipcar's services and vehicles shall immediately terminate. The Member agrees to return immediately to Zipcar all access card(s) if requested and shall return any vehicle or any other property of Zipcar it might have in its possession. 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 Zipcar).


7. Miscellaneous Provisions

7.1
The rights granted to the Member or Associate Members under this Contract are not assignable or transferable to third parties, in whole or in part. Any attempt to transfer this Contract without the written consent of Zipcar shall be void and of no force and effect.

7.2
No delay or omission by Zipcar 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 Zipcar 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.

7.3
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.

7.4
This Contract is governed by the laws in force in Massachusetts and shall be interpreted according to the internal laws of such state, without reference to its conflicts of laws or choice of law rules. All disputes hereunder shall be resolved solely in the applicable state or federal courts of Massachusetts. The parties hereby consent to the sole jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.

 

[tryn]

7.5
Zipcar reserves the right to change the terms of this Contract and associated Schedules from time to time and shall forward 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 or by e-mail to the Member address available to Zipcar. If a Members fails to object to such changes within seven (7) days of notification of such new terms, this Contract shall be deemed to be amended to include such additional or altered terms.