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Equipment Rental Agreement

IMPORTANT - READ THIS CAREFULLY BEFORE AGREEING TO RENT EQUIPMENT.

For the purposes of this Agreement, the “Renter” is the person renting the equipment and any other (“Equipment”) using an account created on the website (the “Site”), and the “Lister” is the owner of the Equipment who has made the Equipment available for rent via the Site. This equipment rental agreement (“Agreement”) is a binding agreement between Renter and Lister. StokeShare, LLC (“StokeShare”) is a party to this Agreement solely to the extent necessary to facilitate the rental transaction and collect and pay any fees that may be owed hereunder, and is otherwise a third party beneficiary of this Agreement.

Lister enters into this Agreement and allows Renter to rent and use the Equipment (the “Rental”) only on the condition that Renter accepts all of the terms in this Agreement. By entering into this Agreement to rent and use the Equipment, Renter acknowledges that he or she has read and understood this Agreement, and that Renter agrees to be bound by all of the terms of this Agreement.

IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL NOT BE PERMITTED TO RENT THE Equipment OR ANY OTHER EQUIPMENT.

This Agreement is effective on the date Renter agree to the terms and conditions as provided herein (“Effective Date”). Renter and Lister agree as follows:

  1. RENTAL 1.1 Agreement to Rent. By accepting this Agreement, Lister agrees to rent the Equipment to Renter, and Renter agrees to rent the Equipment from Lister, on the terms and subjects to the conditions set forth herein, and for the period agreed via the Site (the “Rental Period”).

1.2 Condition of Equipment. By making the Equipment available for rent hereunder, and agreeing to the terms of this Agreement, Lister represents and warrants that (a) he or she is the sole owner of the Equipment, or that he or she has full agency or other authority to enter into this Agreement and to rent the Equipment to Renter; (b) the Equipment has been accurately described on the Site, including any known faults or mechanical issues; (c) except as clearly set forth on the Site, the Equipment is in proper working condition, has been professionally maintained, and contains all functionality necessary for the Renter to attain his or expected use of the Equipment during the Rental Period. Unless expressly agreed, the Rental does not include additional equips.

1.3 Refunds and Cancellations. (a) In the event a Rental is cancelled by either party at least twenty-four (24) hours prior to commencement of the Rental Period, then all funds shall be returned to Renter, less an administrative fee of 10% of the applicable rental fee.

(b) In the event that the Rental is cancelled by Renter less than twenty-four (24) hours prior to commencement of the Rental Period, including after the beginning of the Rental Period or because Renter did not pick up the Equipment at the agreed time and place (but excluding any cancellation as set forth in 1.3(c)), then Renter shall be charged the full rental price for the Rental as previously agreed via the Site.

(c) If upon delivery of the Equipment or, within the first twenty-four (24) hours prior of the Rental Period, Renter reasonably determines that the Equipment does not materially conform to the Lister’s description of the Equipment, then Renter may notify StokeShare of the deficiency and request a refund. Further, if Lister does not deliver the Equipment at the place and time agreed, then Renter shall be entitled to a full refund, but Lister will be charged the full commission that would have been payable to StokeShare in connection with the Rental.

(d) Refunds shall only be granted after completion of the Rental Period in extraordinary circumstances.

(e) StokeShare shall determine all refunds in its reasonable discretion. In the event either Lister or Renter is not satisfied with StokeShare’s determination, their sole recourse shall be to seek payment or refund of fees from the Renter or Lister, as applicable.

(f) In the event of the failure of Lister or Renter to appear for scheduled delivery of the Equipment, the parties may choose to reschedule the Rental Period rather than accept the penalties or refunds set forth above. In such event the parties must arrange such rescheduled delivery through the Site, or otherwise notify StokeShare as soon as practicable.

(g) Each party should be aware that Renters and Listers are entitled to post reviews on the Site with respect to cancelled Rentals.

1.4 Lister Obligations. If there is damage to a Equipment during a Rental, the Lister must notify StokeShare within two (2) weeks of completion of the Rental Period or prior to any subsequent rental, whichever occurs first. If any damage is not reported during such period, then the damage shall be presumed to have occurred subsequent to the Rental. Lister shall be responsible for the cost of any diagnostic fees, estimates, etc.

If Renter does not return Equipment at the conclusion of the Rental Period, and does not agree within twenty-four (24) hours to schedule a new return time, or does not return the Equipment at such reschedule return time, then Lister agrees to file a report with the applicable police department and provide a copy of such report to StokeShare. In filing the report, Lister must authorize the police department to discuss and provide any information regarding the case with StokeShare.

  1. RENTER OBLIGATIONS 2.1 Equipment Usage. No other person may use the Equipment except Renter.

2.2 Equipment Return. Renter agrees to return the Equipment to Lister in the same condition as received, except for ordinary wear and tear (which does not include dings to surfboards), on the due date and time and at the location specified by Lister at time of rental. Renter agrees to return the Equipment sooner if so demanded by Lister. Renter understands that there will be additional charges if the Equipment is returned at a different time, date, or location than indicated in this Agreement, including late charges and additional rental charges at no less than the daily or hourly rate applicable to the Rental.

If Renter fails to return the Equipment at the agreed date, time and location, and has not agreed with Lister or StokeShare on an alternate delivery time and location within 24 hours of the scheduled delivery time, or Renter fails to return the Equipment at the rescheduled time and place, then (a) StokeShare shall determine that Renter does not intend to return the Equipment; (b) StokeShare will charge Renter’s payment method for the full retail value of the Equipment, along with any other fees due to StokeShare; (c) StokeShare or Lister may lawfully repossess the Equipment; and (d) StokeShare and Lister may exercise any other rights or remedies, and take any other necessary measures, to repossess the Equipment and/or collect the full amount owed by Renter hereunder.

If Lister fails to appear at the scheduled time and place for return of the Equipment, Renter remains responsible for the safe keeping of the Equipment. In such event Renter should contact StokeShare to try to arrange alternate means of return of the Equipment, which may be through a public facility at StokeShare’s direction. Lister shall be responsible for any fees incurred by StokeShare in connection with such alternate return method, and understands and acknowledges that, if the such fees exceed the amount of the rental fee due Lister, or any other credit amounts in Lister’s account, then the Equipment will not be released to Lister until payment arrangement satisfactory to StokeShare have been made. StokeShare shall not be responsible for any delay or loss of use of the Equipment due to Lister’s failure to appear as scheduled or to make alternate payment and return arrangements.

2.3 Repossession. Lister 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) Renter made a misrepresentation to Lister or (e) Renter fails to return the Equipment when due. Lister is not required to notify Renter in advance of repossession.

2.4 Prohibited Use of the Equipment. Use of the Equipment is restricted to the general geographical area agreed upon by Renter and Lister. Renter will not operate Equipment outside of this area and will not remove Equipment from this area. Renter agrees not to use or permit the Equipment to be used for hire or in any location that operation would be illegal or a nuisance to others. Renter will not use or permit the Equipment to be used for an illegal purpose, including the transportation of a controlled substance or contraband. A violation of this paragraph automatically terminates the rental and makes Renter liable to Lister for any penalties, fines, forfeitures, liens, recovery and storage costs, and any related legal expenses associated with a violation of this paragraph.

2.5 Damage to Equipment. Renter shall pay Lister for all losses and/or damage to the Equipment, regardless of fault (e.g. Renter agrees to pay for the loss even though someone else caused the damage or is at fault). Renter is also responsible for all theft or vandalism losses, even if Renter is not at fault for making the theft or vandalism possible, and regardless of any measures Renter may have taken to secure or protect the Equipment, including any instructions or security devices provided by Lister. If the Equipment is damaged, Renter agrees to pay the reasonable costs of repair and diminution in value, if any. If the Equipment is damaged beyond reasonable repair (as determined by Lister), Renter shall be responsible for the retail fair market value of the Equipment, less any salvage value if applicable. In addition to the above, Renter shall also be responsible for the reasonable down time (“Loss of Use”), reasonable administrative fee as determined by Lister or specified by law, plus any towing, pick-up and/or storage charges. In the event of theft, Renter shall be responsible for paying Loss of Use at the daily rate for each 24 hours Renter delays in paying the total loss. Renter is also responsible for any loss if Renter: (a) abuses the Equipment or uses or operates the Equipment other than as specified in this Agreement; (b) operates recklessly; (c) uses while under the influence of alcohol or a controlled substance; (d) fails to promptly report an accident to the police and Lister; (d) fails to complete an accident report; (e) obtains the Equipment through fraud or misrepresentation; or (f) uses the Equipment for an illegal purpose. Renter authorizes Lister to collect from a responsible third party any applicable loss and/or damage. In the event Lister obtains a recovery from a third party after Renter has paid Lister for all or part of any loss, Lister will refund to Renter any excess above the amount of the loss plus administrative fees and other collection costs and attorneys' fees incurred.

2.6 Payment. Renter agrees 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, including, without limitation, charges for loss and/or damage to the Equipment. Renter specifically agrees and authorizes StokeShare to apply any charges to the method of payment used by Renter at the time of rental.

2.7 Credit Reserve and Payment. Renter understands that he or she must deposit an amount (to be used against the final bill) equal to the estimated total charge for the Equipment rental at the rates indicated in this Agreement. Renter authorizes StokeShare and Lister to charge any amounts due as a result of the Equipment rental on to Renter’s credit card or other payment method provided. Charges for upcoming rentals will be processed within (a) two (2) business days after Lister confirms the Renter’s request for booking. StokeShare will cause an additional charge authorization to be processed against Renter’s credit card or other payment method as a security deposit, which will be credited back to Renter’s payment method upon satisfactory return of the Equipment without damage or delay.

2.8 Repairs. If Renter experiences any malfunctions with the Equipment during the Rental period, Renter should immediately notify StokeShare and Lister to obtain authorization for repairs. Renter agrees that he or she will be responsible for any unauthorized repairs or modifications to the Equipment. Renter understands that Lister will not reimburse Renter 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 Renter.

2.9 Ownership. The Equipment, at all times, remains the exclusive property of Lister. Renter is responsible for damage to or loss of Equipment. If the Equipment is lost, destroyed or damaged beyond repair in the judgment of Lister, Renter agrees to pay Lister the value of Equipment.

  1. RISK AND LIABILITY TERMS 3.1 Acknowledgement of Risks. Renter understands and acknowledge that use of equipment available on the Site is a hazardous activity and entails known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to self, to property, or to third parties. Renter understands that such risks cannot be eliminated by Lister without jeopardizing the essential qualities of this activity. The risks include, without limitation, falling, collision, striking obstructions or other person, unsafe speed of travel for conditions, equipment failure, and weather conditions including temperature exposure (hypothermia, sunstroke, sunburn, heat exhaustion and dehydration). Renter acknowledges all the risks of operating Equipment, including but not limited to the risks of serious bodily injury or death. Renter understands that Equipment protective gear are recommended, but they do not eliminate the risk and may not reduce the risk of injury in the event of an accident.

3.2 Assumption of Risk. RENTER 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 POSSESSION OF THE EQUIPMENT EVEN IF SUCH LOSS OR DAMAGE IS DUE TO ANY NEGLIGENCE OF LISTER, STOKESHARE, THEIR AGENTS, EMPLOYEES, OFFICERS, PARTNERS, MEMBERS, SUCCESSORS AND/OR ASSIGNS. DESPITE KNOWING ALL ASSOCIATED RISKS, RENTER FREELY ASSUMES ALL RISKS OF PERSONAL INJURY AND/OR DAMAGE IN THE OPERATION OF THIS EQUIPMENT AND RENTER AGREES TO HOLD LISTER AND STOKESHARE HARMLESS FROM ALL CLAIMS OF INJURY OR DAMAGE.

3.3 Waiver and Release. In consideration of Lister renting the Equipment, Renter specifically releases and forever discharges Lister, StokeShare, 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 Renter may suffer while renting this Equipment. This discharge specifically includes, but is not limited to, liability or claims for injury, illness, death or damage caused by the negligence of Lister, StokeShare, or their affiliates, officers, agents, or employees. It is the express intent of this Agreement that Renter release Lister and StokeShare 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 Lister or StokeShare or whether based upon breach of contract, breach of warranty, or any other legal theory. In agreeing to this Agreement, Renter fully recognizes that if injury, illness, death or damage occurs while engaged in renting this Equipment, Renter will have no right to make a claim or file a lawsuit against Lister, StokeShare or their affiliates, officers, members, agents or employees, even if any of them negligently cause any injury, illness, death or damage.

3.4 Indemnification. Renter agrees to indemnify and hold harmless Lister and StokeShare 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 and expenses (including attorney's fees) arising from, related to, or in any way connected with, or resulting from Renter’s participation in this activity or use of the Equipment, including the possession, use, operation, or return of the Equipment, and including any such claims which allege negligent acts or omissions on the part of Lister or StokeShare. Should Lister, StokeShare or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, Renter agrees to indemnify and hold them harmless for all such fees and costs.

  1. Third Party Claims. Neither Lister nor StokeShare shall be responsible if Renter causes injury to another person or if Renter damages another Equipment, vehicle or personal property of another. Renter agrees to protect, defend, indemnify and hold Lister and StokeShare harmless and pay any claim, including attorneys’ fees, brought by a third party arising out of Renter’s use of the Equipment and for any liability associated with any personal accident/injury as a result of Renter’s use of the Equipment.

4.1 Insurance. Renter certifies that he or she has adequate insurance to cover any injury or damage Renter may cause or suffer while participating in the activity, or else Renter agrees to bear the costs of such injury or damage. Renter understands and agrees that Lister and/or StokeShare may make a claim against any insurance coverage Renter maintains, whether liability, casualty, personal or health insurance, in the event of any loss, injury, death or damage to person or property while using or operating the Equipment. Neither the maintenance of, or failure to maintain, adequate insurance shall relieve Renter of any liability hereunder.

4.2 Physical Condition. Renter understands the he or she should be in good physical health to participate in use of Equipment. Renter certifies that Renter has no medical or physical conditions which could interfere with Renter’s safety in this activity, or else Renter is willing to assume all liability, damages or costs that may be created, directly or indirectly, by any such condition.

  1. GENERAL PROVISIONS 5.1 No Warranty. THE EQUIPMENT IS PROVIDED TO RENTER 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, LISTER DOES NOT WARRANT THAT THE EQUIPMENT OR ANY RENTAL WILL MEET RENTER’S REQUIREMENTS.

5.2 Limitation of Liability. (a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LISTER OR STOKESHARE, 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 LISTER OR STOKESHARE, OR THEIR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, OR SUPPLIERS BE LIABLE ARE FOUND TO BE LIABLE, SUCH LIABILITY TO RENTER OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (A) THE TOTAL FEES PAID HEREUNDER 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 STOKESHARE 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.

5.3 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by either Lister or Renter.

5.4 Third Party Beneficiary. StokeShare shall be an intended third party beneficiary of this Agreement with the full rights to enforce the provisions relating to StokeShare herein.

5.5 Governing Law. This Agreement shall be governed by the internal substantive laws of the State of California, 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 Renter and Lister 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 Lister’s residence.

5.6 No Waiver. 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 party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

5.7 Entire Agreement/Severability. This Agreement shall constitute the entire agreement between Renter and Lister concerning the rental of the Equipment. If a court of competently 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.