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This website (BoatingPier.com or BoatingPier.com.au) is operated by LEAF SKY PTY LTD (ABN 84 116 301 903 ). Throughout the site, the terms “we”, “us” and “our” refer to LEAF SKY PTY LTD. LEAF SKY PTY LTD offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
BoatingPier.com is also referred to as "the Site" or BoatingPier or Boating Pier.
LEAF SKY PTY LTD is also referred to as ‘LEAF SKY’.
By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
LEAF SKY reserves all rights to alter the terms and conditions as set out below at its discretion. Each time you use the Site, it is your total responsibility to be aware of our current terms and conditions.
‘Seller’ means an individual person, an entity or a company that has products or services advertised on BoatingPier.
‘Private Seller’ means an individual person that has products or services advertised on BoatingPier.
‘Retailer Seller’ or means a Seller who chooses the retailer classified product within the Site. A retail Seller must be based in Australia, have an ABN, conduct a business of selling products or services operated from retail premises.
‘Merchant’ is otherwise known as BoatingPier.com.
A ‘buyer’ is a person who is seeking to purchase products (including services), or rent products (including services), from a private Seller or retailer who advertises on BoatingPier.
For the purposes of this Agreement, (a) a “Boat” is any type of recreational equipment or service made through BOATING PIER website (the “Site”); (b) the “Renter” is the person renting the Boat and any other equipment using an account created on the Site, and the “Lister” is the owner or authorized agent for the Boat made available for rent via the Site. This Boat rental agreement (“Agreement”) is a binding agreement between Renter and
Lister. LEAF SKY PTY LTD (“BOATING PIER”) 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.
BOATING PIER reserves the right to refuse service to anyone for any reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.
BOATING PIER is not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
Certain content, products and services available via our Service may include materials from third-parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.
We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.
You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.
You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case shall LEAF SKY PTY LTD, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
Lister enters into this Agreement and allows Renter to rent and use the Boat, along with any associated equipment (the “Rental”) only on the condition that Renter accepts all of the terms in this Agreement. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL NOT BE PERMITTED TO RENT THE Boat OR ANY OTHER EQUIPMENT.
By entering into this Agreement to rent and use the Boat, Renter acknowledges that:
he or she has read and understood this Agreement;
he or she agrees to be bound by all of the terms of this Agreement;
he or she is knowledgeable with respect to the type of equipment being rented and
adjustments required for safe operation and use; and
if Renter is not properly qualified with respect to Boat sports equipment, Renter is hereby advised to seek assistance of a qualified surfBoat or stand-up paddle Boat professional for proper use of equipment.
BOATING PIER Has Limited Liability to You:
In respect of any goods or services provided by BOATING PIER are HEREBY EXCLUDED Other than as set out in this clause, and to the full extent permitted by law, all rights, remedies, conditions, guarantees and implied and express warranties .
For the purpose of this liability and indemnity provision, the terms "we," "our," and "us" refer to BOATING PIER, its subsidiaries, and its affiliates, and the owners, shareholders, members, directors, shareholders, owners, managers, officers, employees, agents, licensors or licensees, service or content providers, and suppliers of BOATING PIER, or of its subsidiaries and affiliates. The terms "you" or "your" refer to any individuals who use or access this Website.
Release from Disputes with Third Parties.
BECAUSE THE WEBSITE IS A PLACE FOR USERS TO POST ADVERTISEMENTS AND LISTINGS OF GOODS AND SERVICES FOR SALE, YOU AGREE THAT THIS WEBSITE MERELY ACTS AS A CONDUIT FOR SELLERS TO CONDUCT SALES AND FOR BUYERS TO PURCHASE SELLERS' GOODS. WE HAVE NO CONTROL OVER THE QUALITY, SAFETY, LEGALITY, TRUTH, OR ACCURACY OF USER-POSTED SUBMISSIONS, OR THE ABILITY OF SELLERS TO SELL ITEMS OR BUYERS TO BUY ITEMS. WE CANNOT AND DO NOT CONTROL WHETHER OR NOT SELLERS WILL COMPLETE THE SALE OF GOODS OR SERVICES THEY OFFER OR IF BUYERS WILL COMPLETE THE PURCHASE. IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE BUYERS OR SELLERS, YOU HEREBY RELEASE US FROM ALL CLAIMS, DEMANDS, AND DAMAGES OF ANY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH CLAIM, DEMAND, OR DAMAGES. YOU AGREE THAT IF YOU ARE A RESIDENT IN A JURISDICTION WHICH RESTRICTS THE EFFECT OF THIS RELEASE OF LIABILITY FOR DISPUTES WITH THIRD PARTIES, YOU HEREBY CONSENT THAT THIS RELEASE OF LIABILITY FOR DISPUTES WITH THIRD PARTIES SHALL APPLY TO THESE TERMS TO THE FULLEST EXTENT LEGALLY POSSIBLE.
General Liability Release.
ANY AND ALL CONTENT CONTAINED ON THIS WEBSITE, INCLUDING BUT NOT LIMITED TO TEXT, GRAPHICS, IMAGES, SOFTWARE, CODE, PRODUCTS, APPLICATIONS, INFORMATION, AND CORRESPONDING SERVICES IS RELIED UPON AT YOUR OWN RISK AND IS PRESENTED "AS IS" OR "AS AVAILABLE." NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY, OR IMPLIED, ARE PROVIDED FOR OUR WEBSITE OR ITS CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. AS WAY OF EXAMPLE, NOT LIMITATION, WE PROVIDE NO WARRANTIES OR REPRESENTATIONS ABOUT SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, OR ACCURACY OF THE CONTENT ON THIS WEBSITE. WE PROVIDE NO WARRANTIES THAT OUR WEBSITE OR ITS CONTENT IS FREE FROM ERROR OR DEFECTS (LIKE VIRUSES OR MALICIOUS CODE), THAT USE OF OUR WEBSITE WILL BE FREE FROM INTERRUPTIONS, OR THAT OUR WEBSITE WILL NOT BE COMPROMISED BY A CYBERATTACK, HACK, OR OTHER SIMILAR EVENT. WE MAKE NO REPRESENTATIONS OR WARRANTIES TO ANY ACTUAL OR PROSPECTIVE PURCHASER OR OWNER OF ANY ITEM AS TO THE EXISTENCE, OWNERSHIP, OR CONDITION OF THE ITEM, OR AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ABOUT THE ITEM CONTAINED ON THIS WEBSITE. YOU EXPRESSLY ACKNOWLEDGE THAT ANY RELIANCE UPON ANY CONTENT ON THIS WEBSITE SHALL BE AT YOUR SOLE RISK, AND THAT WE WILL NOT BE LIABLE IN ANY WAY FOR CONTENT POSTED ON THIS WEBSITE OR OTHERWISE MADE AVAILABLE THROUGH USE OF THIS WEBSITE, INCLUDING BUT NOT LIMITED TO, THROUGH EMAIL OR TEXT NOTIFICATIONS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, INCLUDING ANY INJURY TO PERSON, PROPERTY, OR BODY, OR ANY KIND OF LOSS OR DAMAGE WHATSOEVER TO YOU OR ANY THIRD PARTY CONNECTED WITH THE USE OF OR INABILITY TO USE THIS WEBSITE, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES (COLLECTIVELY A "CLAIM"). THIS INCLUDES BUT IS NOT LIMITED TO DAMAGES ARISING FROM MISTAKES, OMISSIONS, DELAYS, INTERRUPTIONS, INSUFFICIENT, INCOMPLETE, MISSING OR DELETED CONTENT, DETERIORATION OR CORRUPTION OF FILES OR CONTENT, LOSS OF DATA, LOSS OF PROFITS, ERRORS, DEFECTS, VIRUSES, WORMS, TROJANS, MALWARE AND MALICIOUS CODE, OR INJURY TO PERSON, PROPERTY, OR BODY, OR ANY OTHER KIND OF LOSS OR DAMAGE WHATSOEVER, TO YOU OR ANY THIRD PARTY. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU, BUT YOU AGREE THAT OUR LIABILITY SHALL BE WAIVED TO THE MAXIMUM EXTENT PERMISSIBLE BY THE LAW OF YOUR STATE OR JURISDICTION. IF YOU ARE DISSATISFIED WITH OR DISAGREE WITH ANY PORTION OF THESE TERMS, INCLUDING, BUT NOT LIMITED TO, THIS LIABILITY AND INDEMNITY PROVISION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THIS WEBSITE.
BY USING THIS WEBSITE, YOU EXPRESSLY AGREE: (1) YOUR USE OF THIS WEBSITE IS AT YOUR OWN RISK; (2) YOU CONSENT TO AND ARE BOUND BY THE ABOVE LIABILITY WAIVER AND THIRD PARTY DISPUTE RELEASE; (3) YOU WILL INDEMNIFY AND HOLD US HARMLESS AGAINST ANY AND ALL LIABILITY AND WILL INDEMNIFY US FOR ANY CLAIM (INCLUDING, WITHOUT LIMITATION, THE COST OF INVESTIGATING ANY CLAIM, THE COST OF LITIGATION, AND ATTORNEYS' FEES, WHETHER OR NOT LEGAL PROCEEDINGS ARE INSTITUTED) ARISING FROM, ATTRIBUTABLE TO, OR IN CONNECTION WITH YOUR ACCESS TO OR USE OR MISUSE OF THIS WEBSITE, ITS CONTENT, OR ANY INFORMATION, GOODS, OR SERVICES PROVIDED THROUGH OR ON THIS WEBSITE, INCLUDING, BUT NOT LIMITED TO, ANY TRANSACTION ON, THROUGH, OR IN CONNECTION WITH THIS WEBSITE (INCLUDING BUT NOT LIMITED TO ANY INACCURACIES, MISREPRESENTATIONS, OR FRAUD IN ANY SALE OR PURCHASE THROUGH OR IN CONNECTION WITH THIS WEBSITE OR THE CONTENT OF OR REPRESENTATIONS MADE BY ANY ADVERTISEMENT OR LISTING ON THE WEBSITE), ANY SUBMISSIONS YOU POST ON THIS WEBSITE, YOUR BREACH OF ANY OBLIGATION, TERM, OR WARRANTY IN THESE TERMS, AND YOUR INFRINGEMENT OF THE INTELLECTUAL PROPERTY OR OTHER RIGHTS OF THIRD PARTIES, OR ANY ACT OR OMISSION BY YOU IN VIOLATION OF THESE TERMS, OR OF ANY APPLICABLE LAW OR REGULATION; AND (4) WE EXPRESSLY RESERVE THE RIGHT, AT OUR SOLE AND COMPLETE DISCRETION AND AT OUR OWN COST, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL FULLY COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
This Agreement is effective on the date Renter agrees to the terms and conditions as provided herein (“Effective Date”). Renter and Lister, intending to be legally bound, agree as follows:
1.1 Agreement to Rent. By accepting this Agreement, Lister agrees to rent the Boat to Renter, and Renter agrees to rent the Boat 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 Boat. By making the Boat 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 Boat, or that he or she has full agency or other authority to enter into this Agreement and to rent the Boat to Renter; (b) the Boat has been accurately described on the Site, including any known faults or
mechanical issues; (c) except as clearly set forth on the Site, the Boat is in proper working condition, has been professionally maintained, and contains all functionality necessary for the Renter to attain his or her expected use of the Boat during the Rental Period, other than adjustments necessary to properly fit the equipment to Renter’s height, weight and skill level. Unless expressly agreed otherwise, the Rental does not include additional equipment, such as locks, helmets, or Boat bags
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 Boat 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 Boat or, within the first twenty-four (24) hours of the Rental Period, Renter reasonably determines that the Boat does not materially conform to the Lister’s description of the Boat, then Renter may notify BOATING PIER of the deficiency and request a refund. Further, if Lister does not deliver the Boat at the place and time agreed, then Renter shall be entitled to a full refund. If Renter receives a refund under this paragraph 1.3(c), then Lister will in any event be charged the full commission that would have been payable to BOATING PIER in connection with the Rental. (e) BOATING PIER shall determine all refunds in its reasonable discretion. In the event either Lister or Renter is not satisfied with BOATING PIER’s determination, their sole recourse shall be to seek payment or refund of fees directly 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 Boat, the parties may choose to reschedule the Rental Period rather than accept the fees or refunds set forth above. In such event the parties must arrange such rescheduled delivery through the Site, or otherwise notify BOATING PIER as soon as practicable. (g) Each party acknowledges that Renters and Listers are entitled to post reviews on the Site with respect to cancelled Rentals.
1.5 Lister Obligations. If there is damage to a Boat during a Rental, the Lister must notify BOATING PIER 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 and BOATING PIER Guarantee shall not apply. Lister shall in all events be responsible for the cost of any diagnostic fees, estimates, tune-ups, adjustments, etc. If Renter does not return Boat at the conclusion of the Rental Period, and does not agree with Lister within twenty-four (24) hours to schedule a new return time, or does not return the Boat at such rescheduled return time, then Lister shall file a report with the applicable police department and provide a copy of such report to BOATING PIER. In fling the report, Lister is required to notify the police department of the BOATING PIER Guarantee, and that BOATING PIER may ultimately be subrogated to Lister’s right to recovery of the Boat. Lister must also authorize the police department to discuss and provide any information regarding the case with BOATING PIER.
2. RENTER OBLIGATIONS
2.1 Usage. No other person may ride or otherwise operate the Boat except Renter. Renter is prohibited from carrying any passengers on the Boat at any time. Renter may not add any kind of modification to allow someone to ride the Boat.
Renter is prohibited from pulling or towing any passenger or object with the Boat at any time. Renter should always be aware of surf and water conditions, as well as weather and other environmental factors which may affect safe operation of the Boat.
2.2 Return. Renter agrees to return the Boat to Lister in the same condition as received, except for ordinary wear and tear (which does not include ordinary pressure dings) on the due date and time and at the location specified by Lister at time of rental. Renter agrees to return the Boat sooner if so demanded by Lister. Renter understands that there will be additional charges if the Boat 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 Boat at the agreed date, time and location, and has not agreed with Lister or BOATING PIER on an alternate delivery time and location within 24 hours of the scheduled delivery time, or Renter fails to return the Boat at the rescheduled time and place, then (a) BOATING PIER shall determine that Renter does not intend to return the Boat; (b) BOATING PIER will
charge Renter’s payment method for the full retail value of the Boat, as determined in BOATING PIER’s reasonable discretion, along with any other fees due to BOATING PIER; (c) BOATING PIER or Lister may lawfully repossess the Boat; and (d) BOATING PIER and Lister may exercise any other rights or remedies, and take any other necessary measures, to repossess the Boat 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 Boat, Renter remains responsible for the safe keeping of the Boat. In such event Renter shall contact BOATING PIER to try to arrange alternate means of return of the Boat, which may be through a surf shop or other public facility at BOATING PIER’s direction. Lister shall be responsible for any fees incurred by BOATING PIER 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 Boat will not be released to Lister until payment arrangement satisfactory to BOATING PIER in its sole discretion have been made. BOATING PIER shall not be responsible for any delay or loss of use of the Boat due to Lister’s failure to appear as scheduled or to make alternate payment and return arrangements.
2.3 Repossession. Lister may repossess the Boat through lawful means at any time if: (a) the Boat is used in violation of any law; (b) it appears the Boat is abandoned, (c) the Boat 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 Boat when due. Lister is not required to notify Renter in advance of repossession.
2.4 Prohibited Use. Use of the Boat is restricted to the general geographical area agreed upon by Renter and Lister. Renter will not operate Boat outside of this area and will not remove Boat from this area. Renter agrees not to use or permit the Boat 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 Boat 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 Boat. Renter shall pay Lister for all loss of and/or damage to the Boat, 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 Boat, including any instructions or security devices provided by Lister. If the Boat is damaged, Renter agrees to pay the reasonable costs of repair and diminution in value, if any. If the Boat is lost or damaged beyond reasonable repair (as determined by Lister), Renter shall be responsible for the retail fair market value of the Boat, as determined by BOATING PIER in its reasonable discretion, less any salvage value if applicable. In addition to the above, Renter shall also be responsible for Lister’s reasonable loss of use of the Boat (“Loss of Use”), a reasonable administrative fee as determined by Lister or specified by law, plus any 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 Boat or uses or operates the Boat other than as specified in this Agreement; (b) rides or uses the Boat recklessly; (c) rides or uses the Boat 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 Boat
through Renter’s fraud or misrepresentation; or (f) uses the Boat 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 Rental, including, without limitation, charges for loss and/or damage to the Boat. Renter specifically agrees and authorizes BOATING PIER 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 Rental at the rates indicated in this Agreement. Renter authorizes BOATING PIER and Lister to charge any amounts due as a result of the Rental to Renter’s credit card or other payment method provided. Charges for upcoming rentals will be processed at the time Lister accepts the Rental. BOATING PIER may 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 Boat without damage or delay.
2.8 Repairs. If Renter experiences any malfunctions with the Boat during the Rental period, Renter should immediately notify BOATING PIER and Lister to obtain authorization for repairs. All unauthorized repairs shall be at Renter’s sole cost and expense. 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 Boat (reasonable wear and tear excepted) 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 Boat, at all times, remains the exclusive property of Lister.
3. RISK AND LIABILITY TERMS
3.1 Acknowledgement of Risks. Renter understands and acknowledges that water sports are hazardous activities that entail 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, drowning, collision with a Boat or Boat fins, collision with the sea floor, striking obstructions or other person, unsafe usage for conditions, equipment failure, and contact with marine life. Renter acknowledges all the risks of operating a Boat in the water, on the road, and any other environment where the Boat might be used, including but not limited to the risks of serious bodily injury or death from drowning, falling off the Boat, colliding with other boats or people, kayakers, fishing lines, jetties, rocks, boulders, the sea floor or other objects, and hazards relating to ocean and weather conditions. Renter understands that protective gear
such as life jackets 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 Boat, 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 Boat OR POSSESSION OF THE Boat EVEN IF SUCH LOSS OR DAMAGE IS DUE TO ANY NEGLIGENCE OF LISTER, BOATING PIER, 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 Boat AND RENTER AGREES TO HOLD LISTER AND BOATING PIER HARMLESS FROM ALL CLAIMSOF INJURY OR DAMAGE.
3.3 Waiver and Release. In consideration of Lister renting the Boat, Renter specifically releases and forever discharges Lister, BOATING PIER, 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 Boat and participating in associated activities. This discharge specifically includes, but is not limited to, liability or claims for injury, illness, death or damage caused by the negligence of Lister, BOATING PIER, or their affiliates, officers, members, managers, agents, or employees. It is the express intent of this Agreement that Renter release Lister and BOATING PIER 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 BOATING PIER 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 Boat or participating in surfing, water sports or any other activity associated with the Boat, Renter will have no right to make a claim or file a lawsuit against Lister, BOATING PIER or their affiliates, officers, members, agents or employees, even if any of them negligently cause any injury, illness, death or damage.
3.4 Indemnifcation. Renter agrees to indemnify and hold harmless Lister and BOATING PIER and their subsidiaries, agents, licensors, members, managers, officers 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 Boat, including the possession, use, operation, or return of the Boat, and including any such claims which allege negligent acts or omissions on the part of Lister or BOATING PIER. Should Lister, BOATING PIER 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.
3.5 Goods and Services Provided By BOATING PIER
If BOATING PIER offers goods or services to you, including advertising any item for sale on the BOATING PIER, the services are subject to additional terms and conditions. To the extent of any inconsistency between these terms and conditions and the additional terms and conditions, the additional terms will prevail to the extent of the inconsistency.
3.7. Goods and Services Provided By Third Parties
If goods and services are sold on or through the BOATING PIER by third parties (sellers):
Product prices exclude government and statutory charges (unless otherwise stated);
You are responsible for making all relevant searches, enquiries and investigations in relation to any listed Product including, any written off Product register or register of security interests (including the Personal Property Securities Register or otherwise);
BOATING PIER does not act as any persons agent or broker; arrange any contract between you and any person or; provide any warranty in relation to any persons goods or services;
BOATING PIER will not be responsible for the terms of any transaction between you and any person; any goods or services purchased by you from any person or; resolving any dispute between you and any person.
BOATING PIER may augment information supplied by sellers. This information is supplied by third parties and in the case of motor Products is based on model and year. Whilst BOATING PIER requests sellers check this information, it may be possible for information to be inaccurate. BOATING PIER strongly recommends that you check with the seller that all information in relation to their goods and service is accurate.
4. Third Party Claims.
Neither Lister nor BOATING PIER shall be responsible if Renter causes injury to another person or if Renter damages another Boat, personal property of another. Renter agrees to protect, defend, indemnify and hold Lister and BOATING PIER harmless and pay any claim, including attorneys’ fees, brought by a third party arising out of Renter’s use of the Boat and for any liability associated with any personal accident/injury as a result of Renter’s use of the Boat.
4.1 Insurance. Renter represents and warrants that he or she has adequate insurance to cover any injury or damage Renter may cause or suffer while participating in the activity, and in all events Renter agrees to bear the costs of such injury or damage. Renter understands and agrees that Lister and/or BOATING PIER 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 Boat. Neither the maintenance of, or failure to maintain, adequate insurance shall relieve Renter of any liability hereunder.
4.2 Physical Condition. Renter represents and warrants the he or she should be in good physical health to participate in Boating. 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.
5. GENERAL PROVISIONS
5.1 No Warranty. THE Boat IS PROVIDED TO RENTER ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Boat IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, LISTER DOES NOT WARRANT THAT THE Boat 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 BOATING PIER, THEIR SUBSIDIARIES, AFFILIATES, AGENTS, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, 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 ANY RENTAL OR THE USE OF, OR INABILITY TO USE, THE Boat.
( b ) IF LISTER OR BOATING PIER, 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 ACTUALLY PAID HEREUNDER OR (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 BOATING PIER 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 Benefciary. BOATING PIER shall be an intended third party beneficiary of this Agreement with the full rights to enforce the provisions relating to BOATING PIER herein.
5.5 Governing Law. This Agreement shall be governed by the internal substantive laws of NSW, Australia, 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 Boat 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 Boat. 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.
6 You are Responsible for the use of the BOATING PIER
The services and Material made available on the BOATING PIER are provided as general information only. The services and Material are not professional, expert or other advice and are not a substitute for such advice; may not be appropriate, correct or sufficient for your circumstances; should not be relied on as the only reason you do or don't do anything; and may not be continually accessible or free from errors or viruses.
BOATING PIER takes care to ensure that the Material on the BOATING PIER is correct, current and free from errors, BOATING PIER does not warrant the accuracy or completeness of or the representations made in the Material on the BOATING PIER or any web site that links from the BOATING PIER or any information received as a result of using the BOATING PIER. You are responsible for assessing the accuracy of the Material and rely on it at your own risk.
You agree to indemnify BOATING PIER against any liability, loss, claim or demand if BOATING PIER (or any of its officers, representatives, employees or agents) suffers any loss or damage or incurs any cost in connection with a breach by you (or any of its officers, representatives, employees or agents) of these terms and conditions.
You must keep your username and password to access the BOATING PIER secure and confidential and not provide those details to any third party under any circumstance. You represent and warrant to BOATING PIER that you accept all liability for any unauthorised use of any username and password issued to you.
Rights of Content
The users themselves retain the right to all text, pictures and other content that they create in the service. The users allow others to utilize the content in accordance with the nature of the service and furthermore allow the service provider to file information and data and make changes that are necessary for the service or the study, however other rights are not transferred from the users, unless specifically otherwise agreed. The responsibility of the content lies with the user, who has produced it to the service. The service provider has the right to remove any material when it deems it necessary.
No guarantees of the functioning of the service are given. The users are themselves responsible for their actions in the service and they should estimate the reliability of other users before dealing with them. The service provider can under no circumstances be liable for damage that is caused to the user. The user may not store any information or data in the service, and expect it to remain there.
The Removal of a User
The service provider has the right to remove any users from Boating Pier and terminate their right of use of the service without any specific reason and without being liable for compensation.
Use of personal details (purpose of register)
Personal details are collected to make communication and use of service possible. Details can be used for communication between service providers and users and also for direct communication between users. Some personal details are visible on the profile page of the user, but those details are voluntary (except name).
The handling of personal details is not outsourced, but the register data is stored on a server that is rented from a third party company.
Information content of the register
The following information may be stored in the register:
- Personal details: Name, email address, phone number, street address
- Account details: username, password (stored in encrypted format)
- The description text that the user may write about him/herself
- The offers and requests the user has posted to the service
- The given and received feedback and badges
- Statistical data about service usage, e.g. number times the user has logged in
Regular sources of information
Personal details are given by the user on registration to the service or when using it later.
Regular handovers of the information
Information considering users of a single Boating Pier community may be handed over to the client who has founded that community or to the community administrators appointed by that client.
Transfers of the information outside the EU and the European Economic Area
Information may be stored to a server that may be located inside or outside of the EU and the European Economic Area
Register protection principles
The information is stored on computers. The access to the information is restricted with passwords and physical access to the computers is restricted by the server hosting company.