CabanUp Services Agreement & Waiver
CabanUp Service Agreement & Waiver
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE CONTRACTING WITH CABANUP GROUP, INC. OR ITS AFFILIATES REFERENCED HEREIN AS “OPERATOR”. BY CONTRACTING WITH THE OPERATOR, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, INCLUDING, BUT NOT LIMITED TO, THE WAIVERS, RELEASES AND LIMITATIONS OF LIABILITY SET FORTH HEREIN. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF USE, YOU ARE NOT PERMITTED TO CONTRACT FOR OR USE SERVICES FROM OPERATOR OR ITS AFFILIATES.
PARTIES, CONSIDERATION AND PROGRAM DESCRIPTION
These Service Terms and Conditions of Use (this “Agreement”) are between you (“You” or “User”) and Operator. In the event that User allow additional persons to use the Services (as defined below), the definitions of You and User shall include any additional persons using the Services under User’s account.
In consideration of Operator providing the Services to the User, User agrees to the terms and conditions of this Agreement.
Operator maintains an inventory of equipment (“Equipment”), including but not limited to 10×10 “pop-up” tents, weights, chairs, towels, battery chargers, power supplies, fans, wireless speakers, wifi hotspots, beach games, fishing nets, and lockable containers which the Operator delivers to set-up points (“Set-up Point”). All of the foregoing equipment and other equipment located at a Set-up Point, in whole or part, shall be referred to as “Operator Equipment” Certain combinations of equipment will be rented together as a rental package (“Base Package”). Certain Packages may allow for either additional items (“Additional Items”) for a fee, or selection between multiple items (“Variable Items”) for no charge (Taken together the Base Package, Additional Items, and Variable Items are the “Rental Package”; and the “Operator’s Services” or “Services” comprise the renting of the Rental Package from Operator combined with the set-up and take-down services provided by Operator). Not all Equipment will be available at all locations on all days. Not all Equipment will be available with each Rental Package. Certain types of equipment may be rented by User from a third party vendor who will deliver such equipment to the Set-Up Point and in any such circumstance Operator shall not be responsible for the equipment rented from a third party vendor.
1.3 HOW IT WORKS
(I) Reservations may be made via the web (cabanup.com), over the phone, or in person
(II) Select the desired Set-up Point.
(III) Choose the date(s) of service, the Base Package, Variable Items, and Additional Items desired. All services must be reserved at least two (2) calendar days in advance (“Lead-time Requirement”), with some services requiring additional lead time. The Services will not be available for reservation more than 90 days in advance.
(IV) Review and agree to the full terms of this Agreement and pay.
(V) On the day of your reservation (“Service Date”), the Operator will take all Operator Equipment included in your Rental Package to your chosen Set-up Point. The Operator will set-up the 10’x10′ tent and chairs and leave a Secure Locker with the smaller Operator Equipment locked inside. User’s name will be on both the tent and the Secure Locker. User will be provided a code to unlock the Secure locker via email or text prior to 10 a.m. that same day. At the end of the day User will return all Operator Equipment delivered via the Secure Locker back to the Secure Locker and lock it and the Secure Locker will be left under the 10′ x 10′ tent at the Set-up Point.
(VI) The rental period begins no later than 10 a.m. on the day of service, and ends no earlier than 4:30 p.m. that same day (the “Service Window”). On days with winds forecasted to be in excess of 14 mph the rental period begins no later than 10:30 a.m. on the day of service. The Service Window may begin earlier than 10 a.m. or end later than 4:30 p.m. depending on delivery sequencing. No usage of the Operator Equipment outside of the 10 a.m. to 4:30 p.m. window is guaranteed by the Operator unless expressly provided for in writing. User may be subject to an additional charge if User or any additional person(s) making use of the Operator’s Services that User has rented fails to turn-over all of Operator Equipment when asked to do so at or after 4:30 p.m. In the event the Operator Equipment remains in place after 4:30 p.m., User acknowledges and accepts that it can be removed at any time after 4:30 p.m. at the Operator’s sole discretion without prior notice.
(VII) Certain larger Additional Items and Variable Items may be delivered after 10 a.m. at the Operator’s discretion. Notifications of such later deliveries will generally be on Operator’s website (cabanup.com) or provided verbally when reservations are made over the phone or in person. Failure to provide notice of later delivery of Additional and Variable items on the website does not constitute a breach of this Agreement by the Operator.
(VIII) User acknowledges and agrees that (a) User shall be responsible for any Rental Package which User rents (b) User shall be responsible for ensuring that any person(s) making use of the Services shall comply with this Agreement, and (c) User is fully and completely responsible and liable for all Claims (as defined below) arising from or related to any other person(s)’s use of the Services rented by User and that User expressly indemnifies Operator, and holds it harmless, for any harm to any person or property resulting from the Services being used by the additional person(s).
(IX) Users may only rent one Rental Package per day per transaction. If User rents a Rental Package for someone other than the User, the User acknowledges and agrees that (a) User shall be responsible for the Rental Package which User rents on behalf of others (b) User shall be responsible for ensuring that any person(s) making use of the Services shall comply with this Agreement, and (c) User is fully and completely responsible and liable for all Claims (as defined below) arising from or related to any other person(s)’s use of the Services which were rented by User on behalf of such other person(s) and that User expressly indemnifies Operator, and hold it harmless, for any harm to any person or property resulting from the Services used by the additional person(s).
2 RENTAL PLANS AND FEES
User may rent for one or more days subject to Equipment availability and Lead-time Requirements. Each Base Package has a fee which User will be charged at the time of reservation. Depending on the Base Package selected, User may be able to rent Additional Items for a fee, and/or select between Variable Items at no charge. User will be charged for Additional Items at the time of the reservation.
See CabanUp’s fliers or website (cabanup.com) for the Base Packages, Additional Items, Variable Items offered, and the rental prices for each. The Equipment offered, included within Base Packages, or offered as Additional Items or Variable Items, as well as their pricing, is subject to change without notice. Reservations made prior to changes to Equipment offered or to changes in prices will generally not be impacted by such changes.
User may be charged a deposit at the time of reservation, the amount of which will be dependent on the Rental Package. This amount will be itemized for User’s review prior to finalizing the reservation and being charged.
2.3 USAGE NOT REQUIRED FOR CHARGES
User will be charged the full amount for User’s reserved Services whether User makes use of the Services or not. Exceptions to this will be cancellations made within the Notice Period and for No Service Weather.
2.4 NO SERVICE WEATHER
One or more of the conditions below will constitute a “No Service Weather” condition. When No Service Weather conditions exist or are forecasted on the Service Date, Operator will not provide Service and User will receive a refund of all fees and deposits. Operator will notify User via email, text, or phone call in the event of No Service Weather. Any such determination of No Service Weather shall be in the sole and exclusive discretion of Operator.
*Lightning between the hours of 7 a.m. and 10 a.m.
*Significant lightning forecasted between 10 a.m. and 4 p.m.
*Significant lightning forecasted between 5 p.m. and 8 p.m.
No claim, beyond the fees and deposits already paid, shall arise as a result of actual weather being different from the forecast on the reservation day or from Operator’s failure to notify User of No Service Weather.
Notwithstanding the foregoing, if on the Service Date, any weather condition arises which poses a risk to User of any kind, User shall be solely responsible for exiting the Set-Up Point and seeking shelter during any such weather condition. Operator shall not be liable for any injuries suffered by User as related to a weather condition or a weather condition’s impact on Rental Packages under any circumstance.
Additionally, should actual or forecasted weather conditions change on the Service Date, Operator may decide to remove Rental Packages early and without prior notice at Operator’s sole discretion. Whole or partial refunds may or may not be issued in the case of early removal of Rental Packages due to weather.
Cancellations outside of 30 days prior the first day of the rental will be given a full refund. Cancellations within 15-29 days of the first day of the rental will be given a 50% refund. Any cancellations within 14 days of the first day of the rental will not be given a refund. If CabanUp must cancel a day of your reservation due to weather conditions, you will be given the option to reschedule (based on availability) or a full refund for the cancelled day.
Operator may cancel service at any time for any reason, including within the Cancellation Window and on the Service Date. In the event Operator cancels service, Operator will refund all fees and deposits related to the cancellation and make best efforts to notify User in advance.
2.6 RENTAL PACKAGE INVENTORY
User is responsible for notifying Operator immediately if any Operator Equipment included in a Rental Package is either not at the Set-up Point or is damaged to the point it no longer functions. If User fails to notify the Operator of such missing or damaged Operator Equipment, a portion of User’s deposit may be withheld.
2.7 FEE FOR LOST EQUIPMENT OR DAMAGED EQUIPMENT.
Upon completion of the Services, all or a portion of User’s deposit may be withheld for lost or damaged Operator Equipment. Normal wear and tear is expected and will not result in loss of deposit. The Operator will determine in its sole discretion whether or not Operator Equipment was lost or damaged, and whether Operator will withhold all or a portion of User’s deposit. Failure to return the Secure Locker underneath the 10′ x 10′ tent at the Set-up Point may result in loss of deposit.
2.8 STOLEN EQUIPMENT FEE
User acknowledges that User is responsible for all Operator Equipment delivered to the Set-up Point(s) for any and all Rental Packages rented under User’s name. In the event any Operator Equipment is lost while User is away from the Set-up Point, either during the Service Window or after the Service Window, a portion of User’s deposit may be withheld.
2.9 CREDIT CARD OR DEBIT CARD
User must provide Operator a valid credit or debit card number and expiration date before completing a reservation (“User’s Payment Card”). User represents and warrants to Operator that User is authorized to use the credit or debit card information provided. User authorizes Operator to charge User’s Payment Card for all fees incurred by User under this Agreement, and all fees are subject to applicable sales taxes and other local government charges, which may be charged and collected by Operator. In the event User’s Payment Card is declined for any reason, User’s reservation will not be confirmed. Operator’s contracts with a third party payment processor for processing the payment of all fees and deposits related to the Service. All of User’s credit or debit card information shall be stored with the third party payment processor and Operator shall not be liable to User for the breach of any of User’s credit or debit card information held by the third party payment processor.
3 RESTRICTIONS AND OTHER TERMS AND CONDITIONS OF USE
3.1. REPRESENTATIONS AND WARRANTIES.
As a condition precedent to Operator’s agreement to allow User to make use of the Operator’s Services, User represents and warrants to Operator that:* User meets the minimum age requirements of being 18 years of age or older to reserve Services with a credit card * User is experienced and familiar with the safe and competent operation of Operator Equipment included in Rental Package, and that User is physically and mentally fit to use the Operator Equipment included in the Rental Package.* User is familiar with and agrees to comply with all applicable local, state, and county rules, regulations, codes, ordinances and laws that will be in effect while using Operator’s Services.
3.2. ACKNOWLEDGEMENTS AND AGREEMENTS.
As a condition precedent to Operator’s agreement to allow User to participate in the Operator’s Services, User acknowledges and agrees as follows:
* User is fully aware that being at the beach poses risks related to exposure to intense sunlight including but not limited to sunburn, heat stroke, and dehydration. User is further aware that injuries and irritations can arise from walking, running, or participating in athletic and leisure activities in or around sand.
* User is aware that being in the water, without or without a life jacket, while using a kayak or paddle board or not, includes risk of injury or death.
*User acknowledges that remaining outside during storms or high winds, regardless of duration and whether or not such conditions were forecast, includes the risk of injury or death related but not limited to lightning strikes and blowing equipment or debris.
*User acknowledge that “pool noodles” are provided by the Operator for entertainment purposes only, and should not be considered or used as a life-saving device.
*User acknowledge that power supplies and chargers are for the convenience of operating small electronics only, and are not sufficient to power medical or other critical items.
* Failure to use life jackets provided with kayaks and paddle boards could result in injury or death.
* User is solely responsible for operating all Operator Equipment in a careful and reasonably competent manner, and ensuring any other person(s) using Operator Equipment rented in User’s name do the same.
* Even when properly using the Operator Equipment provided, the risk of bodily injury remains in the event of an accident.
* Unless otherwise noted, all Operator Equipment shall remain the exclusive property of Operator at all times.
* User is solely responsible for violations and/or fines incurred by User or any person(s) using Operator Equipment in User’s name.
* Operator is not obligated to provide insurance of any kind related to User or person(s) using Operator Equipment in User’s name, and in the event that Operator, at its option, carries insurance, User shall remain liable for any liability, property damage, personal injury, injury to others, damages, penalties, fines, losses, and/or expenses of any kind whatsoever.
* If User or person(s) using Equipment in User’s name causes damage to property or injury to another party while using Operator’s Equipment, User is solely liable for such damage or injury and User expressly agrees to indemnify Operator pursuant to Section 8.
* User is liable for any and all damages resulting from improper use or abuse of the Operator Equipment and the cost of such damages.
* Operator provides Operator Equipment as a convenience, and such rental Operator Equipment is intended to be used only by those persons who are able and qualified to use the Operator Equipment and who have agreed to all terms and conditions of this Agreement.
3.3. REQUIREMENTS. As a condition precedent to Operator’s agreement to allow You to use the Services, User shall do the following (“Use Requirements”):
- Carefully inspect the Operator Equipment at the Set-up Point prior to use to ensure the it is in good condition.
- Promptly notify Operator customer service of any defect, malfunction or needed repair to the Operator Equipment.
- Contact Operator immediately in the event of theft of any of the Operator Equipment.
3.4. RESTRICTED USES. User shall not do any of the following acts (“Restricted Uses”):
- Allow use of Operator Equipment by person(s) younger than 18 years of age without adult supervision.
- Use of Operator Equipment by User or any persons(s) with existing physical or mental condition that would prohibit You or them from safely doing so.
- Allow unauthorized person(s) to use the Operator Equipment.
- Violate any applicable federal, state, local, and county rules, regulations, codes, ordinances and laws.
- Use of Operator Equipment during adverse weather conditions, including but not limited to: hail, high winds, storms, heavy rains, or lightning storms.
- Use Operator Equipment that has any defect that is in need of repair.
- Continue using Operator Equipment if it, or any component of it, should become defective or malfunction.
- Move or otherwise adjust tents or weights in anyway.
- Remove or modify any accessories, parts or components of any piece of the Operator Equipment.
4 SERVICE LIMITATIONS
User acknowledges and agrees that from and after the date that Operator makes Equipment available to the public for rental, Operator may suspend all or part of the Services at any time, may relocate geographic locations serviced, modify Set-up Points available, reduce the count and types of Equipment available for rent and otherwise operate the Services in its sole discretion. User further acknowledges that Operator will suspend the availability of Equipment during adverse weather conditions, or may be required to suspend the rental of Equipment in the city in which the Equipment is being rented. Operator does not represent or warrant that any or all Equipment will be available for rental at any location at any time. Operator may require the return of its Equipment at any time.
5 RELEASE AND LIMITATION OF LIABILITY
FOR AND IN CONSIDERATION OF RENTAL AND USE OF THE OPERATOR EQUIPMENT, USER FOR ITSELF AND ON BEHALF OF USER’S HEIRS, EXECUTORS, ADMINISTRATORS AND ASSIGN, FOREVER RELEASES ,ACQUITS, RELINQUISHES AND DISCHARGES (i) OPERATOR AND OPERATOR’S OFFICERS, BOARDS AND COMMISSIONS, MEMBERS, MANAGERS, EMPLOYEES, CONTRACTORS, SUPPLIERS, AGENTS, REPRESENTATIVES (COLLECTIVELY, THE “OPERATOR PARTIES”) FROM ANY AND ALL CLAIMS, DEMANDS, FINES, FEES, JUDGEMENTS, DISPUTES, LOSSES, LIABILITIES, DEBTS, LIENS, CHARGES, PENALTIES, PROCEEDINGS, CAUSES OF ACTION AND DAMAGES INCLUDING FOR PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, AND INJURY TO USER OR TO THIRD PARTIES (COLLECTIVELY, “CLAIMS”), INCLUDING UNKNOWN OR UNANTICIPATED CLAIMS, WHETHER OR NOT A LAWSUIT IT FILED, WHICH ARISE OUT OF OR IN CONNECTION, DIRECTLY OR INDIRECTLY, TO THIS AGREEMENT OR THE RENTAL, MAINTENANCE, DESIGN, USE AND/OR OPERATION OF THE OPERATOR EQUIPMENT, INCLUDING THE OPERATOR WEBSITE, INCLUDING ANY AND ALL CLAIMS RELATED TO THE SOLE OR PARTIAL NEGLIGENCE OF OPERATOR, THE OPERATOR PARTIES OR ANY OTHER PARTY. USER HEREBY EXPRESSLY WAIVES ANY CLAIMS AGAINST THE OPERATOR PARTIES WHICH USER DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF RENTING OPERATOR EQUIPMENT, AND EXPRESSLY WAIVE USER’S RIGHTS UNDER ANY STATUTES THAT PURPORT TO PRESERVE USER’S UNKNOWN CLAIMS.
IN NO EVENT WILL OPERATOR OR THE OPERATOR PARTIES BE LIABLE FOR EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT OR THE RENTAL, MAINTENANCE, DESIGN, USE AND/OR OPERATION OF THE OPERATOR EQUIPMENT OR THE OPERATOR WEBSITE, INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, LOSS OF USE, LOSS OF SAVINGS, OR LOSS OF REVENUE, WHETHER OR NOT OPERATOR OR THE OPERATOR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY. IF OPERATOR OR THE OPERATOR PARTIES ARE DEEMED TO HAVE ANY LIABILITY UNDER THIS AGREEMENT OR ARISING OUT OF USER’S USE OF THE OPERATOR EQUIPMENT OR THE OPERATOR’S WEBSITE, SUCH LIABILITY SHALL NOT EXCEED THE AMOUNT OF THE RENTAL PAID TO OPERATOR BY USER.
IN NO EVENT WILL USER CLAIM THAT OPERATOR PARTIES INDIVIDUALLY OR COLLECTIVELY DID NOT ADEQUATELY TRAIN USER, OR PROVIDE USER WITH ADEQUATE INSTRUCTIONS NECESSARY, TO USE THE OPERATOR EQUIPMENT IN THE SAME MANNER AS A PERSON WHO IS AN EXPERIENCED OPERATOR EQUIPMENT USER WHO HAS BEEN TRAINED TO USE THE OPERATOR EQUIPMENT IN A SAFE AND CAREFUL MANNER.
6 ASSUMPTIONS OF RISKS; DISCLAIMER.
USER EXPRESSLY ACKNOWLEDGES AND ACCEPTS THAT USER’S RENTAL AND USE OF THE OPERRATOR EQUIPMENT IS AT USER’S OWN RISK. USER ACCEPTS THE OPERATOR EQUIPMENT FOR USE AFTER EXERCISING USER’S OWN FREE CHOICE TO PARTICIPATE VOLUNTARILY IN THIS ACTIVITY AND AFTER HAVING INSPECTED THE OPERATOR EQUIPMENT AND CERTIFYING THAT IS IN GOOD OPERATING CONDITION. USER UNDERSTANDS THAT USER IS ENGAGING WHAT MAY BE A HAZARDOUS ACTIVITY. USER ACKNOWLEDGES, UNDERSTANDS AND ASSUMES ALL RISK RELATING TO THE RENTAL, MAINTENANCE, DESIGN, USE AND/OR OPERATION OF THE OPERATOR EQUIPMENT, AND THE OPERATOR WEBSITE AND UNDERSTANDS THAT USING OPERATOR EQUIPMENT AT THE BEACH INVOLVES RISK TO THE USER AND OTHERS INCLUDING DAMAGES, BODILY INJURY, PARTIAL OR TOTAL DISABILITY, PARALYSIS AND DEATH TO USER OR OTHERS, AND THAT USER HAS FULL KNOWLEDGE OF SAID RISKS AND DANGERS, INCLUDING SUCH RISKS, DAMAGES AND INJURIES THAT MAY ARISE FROM THE NEGLIGENCE OF OTHERS OR AS A RESULT OF OUTDOOR CONDITIONS. ALL OPERATOR EQUIPMENT IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. OPERATOR AND THE OPERATOR PARTIES HEREBY DISCLAIM ANY CLAIM IN TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY).
7 DISPUTE RESOLUTION.
Prior to filing any cause of action, or arbitration, with the requisite court of law or arbitrator, the Operator and User agree that they will first be required to attend in-person mediation in Tampa, Florida. Both Parties agree that they will send a representative with full settlement authority to the mediation. The cost of the in-person mediation shall be split amongst the parties but shall not include travel costs of either party associated with attending the in-person mediation.
User agrees that Operator, at its sole discretion, may submit any disputes whatsoever arising out of, resulting from, and/or relating to this Agreement, User’s use of Operator Equipment and/or the Operator website, to final and binding arbitration under the Rules of the American Arbitration Association, by one or more arbitrators appointed in accordance with the said rules. In the event that Operator submits such dispute to arbitration, then such arbitration shall be mandatory and binding on the parties. Such proceeding shall be held in the Tampa, Florida. All arbitration proceedings will be conducted in the English language. SHOULD OPERATOR ELECT TO SUBMIT ANY DISPUTE OR CLAIM TO ARBITRATION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, OPERATOR AND USER EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LITIGATION OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT OR USER’S USE OF OPERATOR EQUIPMENT INCLUDING THE OPERATOR WEBSITE.
User shall indemnify, defend at its expense and hold harmless Operator and the Operator Parties for, from and against any and all Claims related to, arising out of or in connection with this Agreement, including, but not limited to User’s breach of any representations, warranties or covenants set forth in this Agreement, and the rental, maintenance, design, use or operation of the Operator Equipment and/or the Operator website, even where caused in whole or in part by Operator Parties’ negligence, and/or the negligence of others, whether presently known or unknown. At Operator’s option, User will assume control of the defense and settlement of any Claim subject to indemnification by User (provided that, in such event, Operator may at any time elect to take over control of the defense and settlement of any such Claim). In no event may User settle any Claim without Operator’s prior written consent.
Operator may assign its rights and duties under this Agreement to any party at any time without notice to User.
10 NO WAIVER.
Operator’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any part of this Agreement. No waiver by Operator shall be construed as a waiver of any proceeding or succeeding breach of any provision in this Agreement.
11 TERMINATION OF AGREEMENT.
Operator may terminate this Agreement at any time, without cause, legal process, or notice to the User and User’s use of the System is “at the will” of Operator. User waives all claims, causes of actions, expenses, and/or damages connected and/or related to any such termination..
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Agreement shall remain in full force and effect.
All provisions of this Agreement relating to limitation and exclusion of liability, waivers, assumption of risk, warranties and indemnification obligations shall survive the termination of this Agreement, and all amounts unpaid at the time of termination or expiration of this Agreement shall remain due and payable.
15 ENTIRE AGREEMENT.
CABANUP TERMS OF SERVICE
Acceptance of Terms
IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU SHOULD NOT USE OUR WEBSITE OR SERVICE IN ANY WAY. THE USE OF OUR WEBSITE OR SERVICE IS OFFERED TO YOU CONDITIONED ON YOUR ACCEPTANCE WITHOUT MODIFICATION OF THIS AGREEMENT.
Modification of Agreement
We reserve the right to change or modify any of the terms and conditions contained in this Agreement at any time, in our sole discretion, by posting changes on the Website (or such other URL that we may provide from time to time). Your continued use of any part of the Service following the posting of such changes or modifications will constitute your acceptance of such changes or modifications. IT IS THEREFORE IMPORTANT THAT YOU REVIEW THIS AGREEMENT REGULARLY.
To create and register for an account with CGI, you must complete the registration process on the Website (or such other URL that CGI may provide or that an Operator may provide for the Service run by such Operator in your area) by providing us with current, complete, and accurate information. Upon registration for an account with CGI through our Website (thereinafter, a “Member” and collectively with other CGI account holders, “Members”), you will be required to provide us with your email address and select a password. You must update your account information so that it remains current, complete, and accurate at all times. You acknowledge and agree that we may share your registration information with Operators in connection with our Service. You understand that you are solely responsible for maintaining the confidentiality of your password and that you shall be solely and fully responsible for all activities that occur under your username and password. CGI recommends that you change your password every ninety (90) days. CGI shall not be responsible for any loss, claim, or other liability that may arise from the unauthorized use of any password. You agree to immediately notify us of any unauthorized use of your password or username or any other breach of security by emailing us at firstname.lastname@example.org. If a password is lost or stolen, it is your responsibility to change the password, and immediately notify us, so that your account remains both secure and functional.
Equipment Rental Agreement
If you wish to rent Operator Equipment through our Service, you are required to review and accept the Rental Agreement and Liability, Waiver, and Release (collectively, the “Equipment Rental Agreement”) applicable to such Operator.
The use of the Website is free of charge. We reserve the right to introduce a fee for the use of the Website. If we decide to introduce such a fee, we shall inform you accordingly and allow you to either continue or terminate your account with us.
The rates that apply for the Rental Packages provided by the Operator can be found on the Website. These rates may be modified or updated by the Operator from time to time. It is your own responsibility to remain informed about the current rates for the Rental Packages.
We shall charge you for the rental of the Operator Equipment provided to you. You agree that you will pay for all Rental Packages you purchase from the Operator, and that we may charge your credit card account as provided by you when registering for the Service (including any taxes and late fees, as applicable) that may be accrued by or in connection with your account. You are responsible for the timely payment of all fees and for providing us with a valid credit card account for payment of all fees at all times. Payments made are only refundable at the sole discretion of CGI.
We use a third-party payment processor (the “Payment Processor”) to link your credit card account to the Website and processing your payment for the Service. The processing of payments or credits, as applicable, in connection with your use of the Services will be subject to the terms, conditions, and privacy policies of the Payment Processor and your credit card issuer in addition to this Agreement. We are not responsible for any errors by the Payment Processor. In connection with your use of the Website and the Services provided by the Operator, we will obtain certain transaction details which we will use solely in accordance with the Rental Agreement.
The Website may not be used in connection with any commercial purposes, except with the express written consent of CGI. You may link to the home page of our Website, but any unauthorized framing of or linking to our Website, or any Content (as defined below) therein, is prohibited.
Placement of commercial advertisements, affiliate links, and other forms of solicitation by you are prohibited and may be removed from your user profile without notice and may result in termination of your account.
You shall not, directly or indirectly, take or authorize or encourage any third party to take any fraudulent action in the use of the Website or the Service, nor shall you engage in any activity that interferes with, disrupts, or interacts in an unauthorized manner with the Website or Service. Without limiting the generality of the foregoing, you may not attempt to override or circumvent any security components and usage rules of the Website. You are prohibited from engaging in any hacking, cracking, or other means of obtaining access to any other customer’s information or other data or communications not intended for you. We may terminate your account at any time for any reason, including without limitation, such fraudulent or unauthorized activity, in our sole discretion.
You further agree not to use the Website to:
- solicit personally identifiable information from anyone under the age of eighteen (18);
- solicit passwords or personally identifying information for commercial or unlawful purposes from other Members;
- provide any telephone numbers, street addresses, last names or email addresses of anyone other than your own (and we strongly advise you not to post your own and to communicate such information in private messages to other Members only at your own risk);
- transmit “junk mail,” “chain letters,” unsolicited mass mailing, instant messaging, “spimming,” or “spamming”; or
- post or otherwise transmit Prohibited Content (as defined below).
You are solely responsible for any Content that you may upload, post, transmit or otherwise make available via the Website. CGI does not control the Content posted via the Website and, as such, we do not guarantee the accuracy, integrity, or quality of such Content. You understand that by using the Website, you may be exposed to Content that you deem offensive or objectionable. Under no circumstances will we be liable in any way for any Content, 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 any Content posted, emailed, transmitted, or otherwise made available via the Website.
You are strictly prohibited from posting or otherwise transmitting information, data, text, software, music, sound, photographs, graphics, videos, messages, tags, or other materials (“Content”) that is Prohibited Content. “Prohibited Content” includes Content that:
- is insulting, harassing, abusive, bullying, threatening, demeaning, or otherwise promotes violence against an individual, organization, or particular group, including, without limitation, individuals or groups identified by their race, sex, creed, age, color, national origin, religious affiliation, marital status, gender identity, language, sexual orientation, or handicap;
- contains profanity, adult content, nudity, or sexually suggestive text, images, activities, or situations;
- is obscene, shocking, sensational, disrespectful or receives significant amount of negative user feedback, or otherwise violates our community standards, in our sole discretion;
- promotes or facilitates the sale or consumption of illegal or recreational drugs or drug paraphernalia, firearms, or ammunitions;
- furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, without limitation, making or buying illegal or counterfeit products, violating someone’s privacy, or providing or creating computer viruses;
- infringes upon or violates the rights of any third party, including without limitation, copyright, trademark, privacy, publicity, or other personal or proprietary rights;
- is or promotes information that you know is false, misleading, defamatory, slanderous, or libelous;
- contains restricted or password-only access pages or hidden pages or images (those not linked to or from another accessible page);
- involves commercial activities and/or sales without our prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or
- contains a virus or other harmful component.
License to Your Content
By posting, displaying, publishing, transmitting, or otherwise making available (individually and collectively, “posting”) any Content on or through our Website, you hereby grant to CGI a non-exclusive, fully-paid, perpetual, royalty-free, irrevocable, sub-licensable, worldwide license for the duration of copyright in your Content, to use, copy, modify, adapt, translate, create derivative works, publicly perform, publicly display, store, reproduce, transmit, distribute, and otherwise make available such Content on and through our Website, in print, or in any other format or media now known or hereafter invented, without any obligation of notification, compensation, attribution, or consent. If you wish to remove any Content from the Website, your ability to do so may depend on the type of Content, the location and manner of posting, and other factors. You may contact us at email@example.com to request the removal of certain Content you have posted. However, you acknowledge and agree that we have no obligation to remove any such Content, we may choose whether or not to do so in our sole discretion, and we make no guarantee as to the complete deletion of any such Content and copies thereof. In any case, a back-up or residual copy of any Content posted by you may remain on our servers after the Content appears to have been removed from our Websites, and we retain all rights granted in this paragraph to all such remaining copies.
We do not claim ownership rights in any Content you post on or transmit through the Website. Subject to the license above, as between CGI and you, you will retain all intellectual property rights that you may have in any Content that you post on or transmit through the Website. You represent and warrant that: (i) you own all right, title, and interest in all Content posted by you on or through our Website, or otherwise have the right to grant the license set forth in this section, and (ii) the posting of your Content on or through our Website does not violate the privacy rights, publicity rights, copyrights, trademarks, patents, trade secrets, contract rights, confidentiality, any other rights of any third party, or any terms of this Agreement.
Review of Content
You acknowledge that we do not generally pre-screen or review profiles of Members or other Content posted on our Website. However, CGI will have the right, but not the obligation, in our sole discretion to pre-screen, edit, refuse, or remove any Content or portion thereof that is available via the Website, in our sole discretion, for any reason.
If you become aware of misuse of the Website by any person, if you find any Content on the Website that you feel is objectionable, or if you feel that any customer has violated the terms of this Agreement in any manner, please email us at firstname.lastname@example.org and include a description of the misuse of the Website or the objectionable Content or activity (along with the URL or a copy of the Content if possible) in your email. Please also refer to our Copyright Policy below. While we will use commercially reasonable efforts to review such notice, we have no obligation to take any action whatsoever in response to any such notice, and the receipt of any such notice will not be deemed to create any duty or liability on the part of CGI.
Our Website contains Content of CGI (“CGI Content”), and may contain Content of Operators or third party licensors to CGI (including Content provided by you and other users of our Website, as described above), which is protected by copyright, trademark, patent, trade secret, and other laws. We own and retain all rights, title, and interest in the CGI Content. We hereby grant to you a non-exclusive, limited, revocable, non-sub licensable license to reproduce and display a single copy of the CGI Content (excluding any software code therein) solely for your personal, non-commercial use in connection with viewing our Website and using the features that appear on the Website. Except for Content posted by you, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, make available, or sell any Content appearing on or through our Website. Any use of the CGI Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark and other intellectual property laws.
Our policy is to investigate any allegations of copyright infringement brought to our attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want us to delete, edit, or disable the Content in question, you must provide us with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to CGI either by e-mail at: email@example.com, or by U.S. mail to our designated agent for notification of infringement, CabanUp Group, Inc., 7901 4th Street N
St. Petersburg, FL 33702.
Due to the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data or personal information exported from the United States or the country in which you reside.
Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE WEBSITE AND SERVICE IS AT YOUR SOLE RISK. THE WEBSITE AND SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CGI AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, OPERATORS, PARTNERS, AND LICENSORS (COLLECTIVELY, THE “CGI PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH RESPECT TO OUR WEBSITE AND SERVICE, AND ANY THIRD PARTY WEBSITES WITH WHICH THEY ARE LINKED. THE CGI PARTIES MAKE NO WARRANTY: (I) THAT THE WEBSITE OR SERVICES OR THE FEATURES OFFERED ON THE WEBSITE OR SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES); (II) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE, SERVICES, OR CUSTOMER STATISTICS WILL MEET ANY EXPECTED, IMPLIED, OR STATED SERVICE LEVEL OR AVAILABILITY; AND (III) THAT THE QUALITY OF THE OPERATOR EQUIPMENT, CONTENT, PRODUCTS, SERVICES, INFORMATION, OR ANY MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE OR SERVICES WILL MEET YOUR EXPECTATIONS. WE DO NOT PROVIDE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY, OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR WEBSITE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
IN NO EVENT WILL THE CGI PARTIES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, LOST INCOME, REVENUE, OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE USE OF THE WEBSITE, THE SERVICE, OR ANY WEBSITE WITH WHICH THEY ARE LINKED, EVEN IF CGI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE CGI PARTIES’ AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO CGI FOR THE SERVICES IN THE TWELVE MONTHS PRIOR TO THE CLAIM. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, IN CERTAIN JURISDICTIONS, SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU; ALL OTHER PROVISIONS OF THIS AGREEMENT REMAIN IN FULL FORCE AND EFFECT.
You agree to indemnify, defend, and hold harmless CGI, its subsidiaries, affiliates, officers, employees, directors, agents, and Operators from and against any and all claims, liabilities, penalties, settlements, judgments, and fees (including reasonable attorneys’ fees) arising from (a) any information that you or anyone using your account may submit or access in the course of using the Website or Services; (b) your breach of any representation or warranty in, or violation of, the terms of this Agreement or any agreement or other instrument with a third party applicable to you; and (c) any disputes between you and any other Member.
Modification and Discontinuation
We reserve the right at any time to modify, edit, delete, suspend, or discontinue, temporarily or permanently, our Website or Service (or any portion thereof) with or without notice. You agree that we will not be liable to you or to any third party for any such modification, editing, deletion, suspension, or discontinuance of the Website or Service. If you are dissatisfied with any aspect of the Website or Service at any time, your sole and exclusive remedy is to cease using it.
Termination of Account
We have the right in our sole discretion to restrict, suspend, or terminate your account, or your access to all or any part of the Website and/or Service at any time, for any or no reason, with or without prior notice, and without liability. You may choose to terminate your membership at any time by notifying us by email at firstname.lastname@example.org.
Please allow us sufficient time to process termination requests. You understand that termination of your membership is your sole right and remedy with respect to any dispute with CGI. Following the cancellation or termination of your account by you or by CGI for any reason, CGI will have no further obligation to save your user profile, communications via the Website, or any of your settings, information, or Content you have posted on or transmitted through the Website. You acknowledge and agree that we have the right, but not the obligation, to delete any of your account information or other Content following termination.
Waiver and Severability
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. Our acquiescence in the breach of a provision of this Agreement or failure to act upon such breach does not waive our right to act with respect to subsequent or similar breaches. Likewise, our delay or failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
Choice of Law and Forum
This Agreement and the relationship between you and CGI shall be interpreted in accordance with the laws of the State of Florida without regard to conflict of laws principles. Subject to the arbitration provisions below, you and CGI hereby agree to submit exclusively to the personal jurisdiction of the state and federal courts with jurisdiction over Tampa, FL.
Certain portions of this section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and CGI agree that CGI intends that this section satisfies the “writing” requirement of the Federal Arbitration Act.
You MUST elect and CGI MAY elect to have any controversy, allegation, or claim arising out of or relating to this Agreement or the Service, including but not limited to claims for indemnification, contribution, or cross-claims in a pending action involving one or more third parties (collectively, a “Dispute”) submitted to final and binding arbitration under the Rules of the American Arbitration Association, by one or more arbitrators appointed in accordance with the said rules. Such proceeding shall be held in Tampa, Florida. All arbitration proceedings will be conducted in the English language.
All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. The parties will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require us to pay a greater portion or all of such fees and costs in order for this section to be enforceable, then we will have the right to elect to pay the fees and costs and proceed to arbitration.
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT (I) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; (II) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND (III) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.
YOU AGREE TO WAIVE YOUR RIGHT TO A JURY TRIAL AND UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF USER WANTS TO ASSERT A DISPUTE AGAINST OPERATOR, THEN USER MUST COMMENCE SUCH DISPUTE WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.
The terms and conditions contained in this Agreement that by their sense and context are intended to survive the performance hereof by the parties hereunder, including but not limited to the provisions relating to Indemnity, Disclaimer of Warranties, and Limitation of Liability, shall so survive the completion of the performance, cancellation, or termination August 18, 2019