ACTION SPORTS EQUIPMENT RENTAL/BORROWING AGREEMENT
PLEASE READ CAREFULLY BEFORE RENTING/BORROWING THE EQUIPMENT.
For the purposes of this Agreement, you are the person renting or borrowing the Action Sports Equipment and any other equipment ("Equipment") and the Renter/Borrower under the user account you created on the Swappow website ("Site"). You are renting or borrowing the Equipment from the owner of the Equipment ("Owner) identified in the Owner account on the Site.
THIS EQUIPMENT RENTAL/BORROWING AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN THE OWNER AND YOU, AS THE RENTER OR BORROWER AND USER OF THE EQUIPMENT. THE OWNER IS WILLING TO ALLOW YOU RENT OR BORROW AND USE THE EQUIPMENT ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS IN THIS AGREEMENT. IF YOU AGREE TO THE TERMS OF THIS AGREEMENT, SELECT THE "I AGREE", "I ACCEPT", OR "YES" BUTTON BENEATH THIS AGREEMENT TO COMPLETE YOUR AGREEMENT AND ACCEPTANCE. BY RENTING OR BORROWING AND USING THE EQUIPMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE OWNER IS UNWILLING TO ALLOW YOU TO RENT OR BORROW OR USE THE EQUIPMENT. IN SUCH CASE, DO NOT COMPLETE THE AGREEMENT PROCESS AND SELECT THE "I DO NOT AGREE", "I DO NOT ACCEPT", OR "NO" BUTTON BENEATH THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL NOT BE PERMITTED TO RENT OR BORROW THE EQUIPMENT OR ANY OTHER EQUIPMENT.
This Agreement is effective on the date you agree to the terms and conditions as provided herein ("Effective Date"). You and Owner agree as follows:
RISK AND LIABILITY TERMS
Acknowledgement of Risks.
You understand and acknowledge that action sports are hazardous entail known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to yourself, to property, or to third parties. You understand that such risks cannot be eliminated by Owner without jeopardizing the essential qualities of this activity.
Assumption of Risk.
YOU KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ASSUME ALL RISKS RELATED TO THE OPERATION AND POSSESSION OF THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION ANY BODILY INJURY OR DEATH TO ANY PERSON, OR PROPERTY DAMAGE TO ANY PROPERTY WHICH MAY RESULT FROM THE OPERATION OF THE EQUIPMENT OR YOUR POSSESSION OF THE EQUIPMENT DUE TO ANY NEGLIGENCE OF OWNER, SWAPPOW, THEIR AGENTS, EMPLOYEES, OFFICERS, PARTNERS, PARENT OWNER, SUCCESSORS AND/OR ASSIGNS. DESPITE KNOWING ALL ASSOCIATED RISKS, YOU FREELY ASSUME ALL RISKS OF PERSONAL INJURY AND/OR DAMAGE IN THE OPERATION OF THIS EQUIPMENT AND YOU AGREE TO HOLD OWNER AND SWAPPOW HARMLESS FROM ALL CLAIMS OF INJURY OR DAMAGE.
Waiver and Release.
In consideration of Owner renting or lending you the Equipment, you specifically release and forever discharge Owner, Swappow, and their affiliates, officers, agents, and employees from any and all liability or claims for injury, illness, death or loss of or damage to property which you may suffer while renting this Equipment and participating in action sports. This discharge specifically includes, but is not limited to, liability or claims for injury, illness, death or damage caused by the negligence of Owner, Swappow, or their affiliates, officers, agents, or employees. It is your express intent by this Agreement to release Owner and Swappow and hold them harmless from all liability for any such property loss or damage, personal injury or loss of life, whether caused by the negligence of Owner or Swappow or whether based upon breach of contract, breach of warranty, or any other legal theory. In agreeing to this Agreement, you fully recognize that if injury, illness, death or damage occurs to you while you are engaged in renting or borrowing this Equipment or participating in skateboarding, snowboarding, surfing, bicycling, wakeboarding, etc..etcâ¦ you will have no right to make a claim or file a lawsuit against Owner, Swappow or its or their affiliates, officers, agents or employees, even if they or any of them negligently cause my injury, illness, death or damage.
You agree to indemnify and hold harmless Owner and Swappow, Inc. ("Swappow") and their subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from, related to, or in any way connected with, or resulting from your participation in this activity or your use of the Equipment, including without limitation the possession, use, operation, or return of the Equipment, including any such claims which allege negligent acts or omissions on the part of Owner or Swappow. Should Owner or anyone acting on their behalf, be required to incur attorneyâs fees and costs to enforce this agreement, you agree to indemnify and hold them harmless for all such fees and costs.
Third Party Claims.
Owner is not responsible if you cause injury to another person or if you damage another Equipment, vehicle or personal property of another. You agree to protect, defend, indemnify, hold harmless Owner and pay any claim, including attorneysâ fees, brought by a third party arising out of your use of the Equipment and for any liability associated with any personal accident/injury as a result of your use of the Equipment.
You certify that you have adequate insurance to cover any injury or damage you may cause or suffer while participating in the activity, or else you agree to bear the costs of such injury or damage yourself. You understand and agree that any insurance coverage you maintain, whether liability, casualty, personal or health, shall constitute the primary coverage in the event of any loss, injury, death or damage to person or property while using or operating the Equipment.
You understand you should be in good physical health to participate in any of the activities for which the rented or borrowed equipment is generally intended. You certify that you have no medical or physical conditions which could interfere with your safety in this activity, or else you are willing to assume all liability, damages or costs that may be created, directly or indirectly, by any such condition.
No other person may ride or otherwise operate the Equipment except you.
You agree to return the Equipment to Owner in the same condition as received, except for ordinary wear and tear, on the due date and time and at the location specified by Owner at time of rental/borrowing. You agree to return the Equipment sooner if so demanded by Owner. You understand that there may be rate or special charges if you return the Equipment at a different time, date, or location than indicated in this Agreement.
Owner may repossess the Equipment at any time if: (a) the Equipment is used in violation of law; (b) it appears the Equipment is abandoned, (c) the Equipment is used in violation of any term or condition in this Agreement, (d) you made a misrepresentation to Owner or (e) you fail to return the Equipment when due. Owner is not required to notify you in advance of repossession.
Prohibited Use of the Equipment.
Use of the Equipment is restricted to the general geographical area agreed upon by you and the Owner. You will not operate Equipment outside of this area and will not remove Equipment from this area.
Damage to Equipment.
You shall pay Owner for all losses and/or damage to the Equipment, regardless of fault (e.g. you agree to pay for the loss even though someone else caused the damage or is at fault). You are also responsible for all theft or vandalism losses, even if you are not at fault for making the theft or vandalism possible. If the Equipment is damaged, you agree to pay the reasonable costs of repair and diminution in value, if any. If the Equipment is damaged beyond reasonable repair (as determined by Owner), you shall be responsible for the retail fair market value of the Equipment, less any salvage value if applicable. In addition to the above, you shall also be responsible for the reasonable down time ("Loss of Use"), reasonable administrative fee as determined by Owner or specified by law, plus any towing, pick-up and/or storage charges. In the event of theft, you shall be responsible for paying Loss of Use at the daily rate for each 24 hours you delay in paying the total loss. You are also responsible for any loss if you: (a) abuse the Equipment or violate any prohibited use or operation as specified in this Agreement; (b) drive recklessly; (c) drive while under the influence of alcohol or a controlled substance; (d) fail to promptly report an accident to the police and Owner; (d) fails to complete an accident report; (e) obtain the Equipment through fraud or misrepresentation; or (f) uses the Equipment for an illegal purpose. You authorize Owner to collect from a responsible third party any applicable loss and/or damage. In the event Owner obtains a recovery from a third party after you have paid Owner for all or part of any loss, Owner will refund to you any excess above the amount of the loss plus administrative fees and other incurred collection and costs and attorneys' fees.
You agree to pay upon demand all rates, charges, (including those applicable to miscellaneous services and equipment), plus applicable taxes, fees, and surcharges (if applicable), which may apply to the Equipment rental/borrowing, including, without limitation, charges for loss and/or damage to the Equipment. You understand that all charges are not final and are subject to audit. You specifically agree and authorize Swappow or Owner to make any charges by the method of payment used by you at time of reservation and/or rental, including your credit card if that form of payment is utilized.
Credit Reserve and Payment.
You understand that if you are renting for a fee and not borrowing the equipment, you must deposit an amount (to be used against the final bill) equal to the estimated total charge for the Equipment rental/borrowing at the rates indicated in this Agreement. You authorize Swappow and Owner to place any amounts due from you as a result of the Equipment rental/borrowing on to your credit card, if that form of payment is utilized.
You agree that you will be responsible for any unauthorized repairs or modifications to the Equipment. You understand that Owner will not reimburse you for any authorized repairs without receipts. All repairs needed as a result of the use of the Equipment will be performed at the normal labor rates and the cost of such repairs, including all parts, shall be paid by you.
The Equipment, at all times, remains the exclusive property of Owner. You are responsible for damage to or loss of Equipment. If the Equipment is lost, destroyed or damaged beyond repair in the judgment of Owner, you agree to pay Owner the value of Equipment.
THE EQUIPMENT IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EQUIPMENT IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, OWNER DOES NOT WARRANT THAT THE EQUIPMENT OR ANY RENTAL WILL MEET YOUR REQUIREMENTS.
Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OWNER OR SWAPPOW, THEIR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE EQUIPMENT, INCLUDING WITHOUT LIMITATION ANY RENTAL.
(b) IF OWNER OR SWAPPOW, OR THEIR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, OR
SUPPLIERS BE LIABLE ARE FOUND TO BE LIABLE, SUCH LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (A) THE TOTAL FEES YOU PAID AND (B) $100.
(c) THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SWAPPOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you.
Third Party Beneficiary.
Swappow shall be an intended third party beneficiary of this Agreement with the full rights to enforce the provisions relating to Swappow herein.
This Agreement shall be governed by the internal substantive laws of the State of Arizona, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any claim or dispute between you and Owner that arises in whole or in part from the rental of the Equipment shall be decided exclusively by a court of competent jurisdiction closest to Ownerâs residence.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a partyâs failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
This Agreement shall constitute the entire agreement between you and Owner concerning the rental of the Equipment. If a court of competent jurisdiction deems any provision of this Agreement invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.