Last Updated: February 16, 2020
Please read the following terms of service carefully. By accessing the Site, Applications or Services of Fretish, you agree to be bound by these Terms, as amended from time to time. If you do not agree to these Terms, you are prohibited from using or accessing the Site, Application, or Services.
You understand and agree that Fretish is not a party to any agreements entered into between Owners and Renters (defined below). Fretish is not a broker, agent, or insurer and has no control over the conduct of Owners, Renters, and other users of the Platform or any Equipment, and disclaims all liability in this regard.
- “Renter” means a Member who requests from an Owner a rental of Equipment via the Platform, or a Member who uses Equipment and is not the Owner of such Equipment.
- “Collective Content” means Member Content and Fretish Content.
- “Content” means text, graphics, images, music, software (excluding the Site and Application), audio, video, information, or other materials.
- “Listing” means Equipment that is listed by an Owner as available for rental via the Platform.
- “Member” means a person who completes Fretish's account registration process, including but not limited to Owners and Renters, as described under Section 4 (“Your Account”) below.
- “Member Content” means all Content that a Member posts, uploads, publishes, submits, or transmits to be made available through the Platform.
- “Owner” means a Member who creates a Listing via the Platform.
- “Fretish Content” means all Content that Fretish makes available through the Platform, including any Content licensed from a third party, but excluding Member Content.
- “Tax” or “Taxes” mean any sales taxes, value added taxes (VAT), goods and services taxes (GST), transient occupancy taxes, tourist or other visitor taxes, accommodation or lodging taxes, fees that equipment or accommodation providers may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal, and national indirect or other withholding taxes, and personal or corporate income taxes.
Fretish reserves the right, in our sole discretion, to modify the Platform or to modify these Terms, including the Service Fees (defined below), at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Application to provide you with notice of the modification or we will email you at the email address associated with your Fretish Account. We will also update the “Last Updated” date at the top of these Terms. By continuing to access or use the Platform after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Platform.
The Platform is intended for use solely by persons who are 18 years of age or older. Any access to or use of the Platform by anyone under 18 is expressly prohibited. By accessing or using the Platform you represent and warrant that you are 18 years of age or older.
As stated above, Fretish makes available an online platform or marketplace with related technology for Owners and Renters to meet online and arrange for the rental of Equipment directly with each other via the Platform. You may view Listings as an unregistered visitor to the Site; however, you must be a registered Member (defined below) to rent or create a Listing or to use the Application.
Fretish is not an owner of Equipment and does not own, sell, resell, furnish, provide, rent, re-rent, manage and/or control Equipment, including but not limited to real property, instruments, and transportation, delivery, or travel services. Fretish’s responsibilities are limited to: (i) facilitating the availability of the Site, Application, and Services; and (ii) serving as the limited agent of each Owner for the purposes of accepting payments from Renters on behalf of the Owner.
Fretish CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS AND THE CONDITION, LEGALITY, OR SUITABILITY OF ANY EQUIPMENT. Fretish IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND EQUIPMENT. ALL RESERVATIONS ARE MADE AT THE OWNER’S AND RENTER’S OWN RISK.
4. Your Account
In order to access certain features of the Platform and to create a Listing or submit a rental request, you must first become a Member by registering an account (“Account”), either by providing your email address and setting a password or through certain third party social networking sites (“SNS”), including, without limitation, Facebook, via the Site or application. As part of the functionality of the Platform, you may link your Account with your SNS accounts (each such SNS account, a “Third Party Account”), by either: (i) providing your Third Party Account login information to Fretish through the Platform; or (ii) allowing Fretish to access your Third Party Account as permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Fretish and/or grant Fretish access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Fretish to pay any fees or making Fretish subject to any usage limitations imposed by such third party service providers. By granting Fretish access to any Third Party Accounts, you understand that Fretish will access, make available and store (if applicable) any text, graphics, images, information and other materials you have provided to and stored in your Third Party Account, subject to your privacy settings in such Third Party Account, if any (“SNS Content”) so that it is available on and through the Platform via your Account and Account profile page. You have the ability to disable the connection between your Account and your Third Party Accounts, at any time, by firstname.lastname@example.org. Please note that your relationship with the SNS associated with your Third Party Accounts is governed solely by your agreement(s) with such SNS. Fretish makes no effort to review any SNS Content for any purposes, including, but not limited to, for accuracy, legality, or non-infringement, and Fretish is not responsible for any SNS Content.
We will create your Account and your Account profile page for your use of the Platform based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active Account. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete. Fretish reserves the right to suspend or terminate your Account and your access to the Platform if you create more than one (1) Fretish Account or if any information provided during the registration process or thereafter process to be inaccurate, not current, or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your Account.
As a Member, you may create Listings. To create a Listing, you will be asked a variety of questions about the Equipment to be listed, including but not limited to a description, the location, the condition, and availability of the Equipment, additional services or features that can be added to a reservation request at the Renter’s option (i.e., “add-ons”), and pricing and related rules and financial terms. Listings will be made publicly available via the Platform. Other Members will be able to rent your Listing via the Platform based upon the information provided in the Listing. You understand and agree that once a Renter requests a rental of your Listing, or once you offer a Renter custom pricing for a reservation, you may not request the Renter to pay a higher price than in the reservation request or invitation, as applicable.
You acknowledge and agree that you are responsible for any and all Listings you post. Accordingly, you represent and warrant that any Listing you post and the renting of, or a Renter’s use of, Equipment in a Listing you post: (i) will not breach any agreements you have entered into with any third parties, such as ownership, lease or rental agreements; and (ii) will (a) be in compliance with all applicable laws, Tax requirements, and rules and regulations that may apply to any Equipment included in a Listing you post and (b) not conflict with the rights of third parties. Please note that Fretish assumes no responsibility for an Owner’s compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. Fretish reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that Fretish, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Platform.
If you are an Owner, you understand and agree that Fretish does not act as an insurer or as your contracting agent. If a Renter requests a rental of your Equipment and uses your Equipment, any agreement you enter into with such Renter is between you and the Renter and Fretish is not a party thereto. Notwithstanding the foregoing, Fretish services as the limited authorized payment collection agent of the Owner for the purposes of accepting, on behalf of the Owner, payments from Renters of such amounts stipulated by the Owner (including delivery or other fees and/or Taxes).
If you are an Owner, Fretish makes certain tools available to you to help you make informed decisions about which Members you choose to approve for renting your Equipment. You acknowledge and agree that, as an Owner, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who may have access to the Equipment at your request or invitation, excluding the Renter.
Fretish recommends that Owners obtain appropriate insurance for their Equipment. Please review any insurance policy that you may have for your Equipment carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not you insurance policy will cover the actions or inactions of third parties while renting and/or using your Equipment.
6. No Endorsement .
Fretish does not endorse any Member or any Equipment. Members are required by these Terms to provide accurate information, and although Fretish may undertake additional checks and processes designed to help verify or check the identities or backgrounds of users, we do not make any representations about, confirm, or endorse any Member or the Member’s purported identity or background.
Any references in the Platform to a Member being “verified” or “connected” (or similar language) only indicate that the Member has completed a relevant verification process and do not represent anything else. Any such description is not an endorsement, certification or guarantee by Fretish about any Member, including of the Member’s identity and whether the Member is trustworthy, safe, or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Platform. We recommend that you always exercise due diligence and care when deciding whether to rent from an Owner or accept a rental request from a Renter, or to have any other interaction with any other Member. We are not responsible for any damage or harm resulting from your interactions with other Members.
By using the Platform, you agree that any legal remedy or liability that you seek to obtain for actions and omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from Fretish with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Members on the Platform regarding any rentals or Listings made by you. This limitation shall not apply to any claim by an Owner against Fretish regarding the remittance of payments received from a Renter by Fretish on behalf of an Owner, which instead shall be subject to the limitations described in Section 18 below (“Limitation of Liability”).
7. Bookings and Financial Terms
- “Equipment Fees” means the amounts that are due and payable by a Renter in exchange for that Renter’s rental of Equipment, inclusive of any and all “add-ons” (such as delivery or additional items or services) selected by the Renter. The Owner alone, and not Fretish, determines these amounts. The Owner may in his or her sole discretion decide to include Taxes that the Owner determines that he or she has to collect in connection with the rental.
- “Renter Fees” means the fee that Fretish charges a Renter for the use of its online platform, which is calculated as a percentage of the applicable Equipment Fees. The Renter Fees will be displayed to the Renter when the Renter is asked whether to send a reservation request to an Owner.
- “Owner Fees” means the fee that Fretish charges an Owner for the use of its online platform, which is calculated as a percentage of the applicable Equipment Fees. The Owner Fees will be displayed to the Owner when the Owner is asked whether to approve or reject a reservation request from a prospective Renter.
- “Service Fees” means collectively the Renter Fees and Owner Fees.
- “Total Fees” means collectively the Equipment Fees and the Renter Fees (plus any Taxes in respect of Renter Fees).
Booking and Financial Terms for Owners
If you are an Owner and a reservation is requested for your Equipment via the Platform, you will be required to either approve or reject the reservation within 24 hours of when the reservation is requested (as determined by Fretish in its sole discretion) (the “Reservation Request Period”) or the reservation request will be automatically cancelled. During the Reservation Request Period, until the Owner either approves or rejects the reservation, the Listing will be in a reserved state and no other Member may make a reservation request for the same days and times, until the Owner either approves or rejects the pending reservation request or the Reservation Request Period has expired. When a reservation for your Equipment is requested via the Platform, we will share with you (i) the first and last name of the Renter who has requested the reservation, (ii) a link to the Renter’s Account profile page, and (iv) if the Renter has requested delivery of the Equipment, the address where the Equipment is requested to be delivered by the Owner, so that you can view such information before approving or rejecting the reservation. If you are unable to approve or decide to reject a reservation request of your Equipment within the Reservation Request Period, any amounts collected by Fretish for the requested reservation will be refunded to the applicable Renter’s credit card and any pre-authorization of such credit card will be released. When you approve a reservation requested by a Renter, the reservation is deemed confirmed, and Fretish will send you an email confirming such reservation.
Fretish will collect the Total Fees at the time of reservation confirmation (i.e., when the Owner approves the reservation request) and will initiate payment of the Equipment Fees (less Fretish’s Owner Fees and any Taxes in respect of the Owner Fees) to the Owner approximately 24 hours after the reservation commences (except to the extent that a refund is due to the Renter). The time it takes for the Owner to receive payouts may depend upon the method for receiving payouts chosen by the Owner. Some methods involve the use of third-party payment processors, who may impose their own additional charges for the use of their services on the Owner, including by deducting their charges from the payout amount.
If you owe or agree to pay any amount to Fretish (whether as a result of your rentals or actions as a Renter or otherwise), then Fretish may (but is not obligated to) withhold the amount owing to Fretish from any payout amounts due to you as an Owner and use the withheld amount to setoff the amount owed by you to Fretish. If Fretish does so, then your obligation to pay Fretish will be extinguished to the extent of the amount withheld by Fretish, and Fretish will cease to owe you any obligations, including, but not limited to, any obligation to pay you, with respect to the amount withheld.
Appointment of Fretish as Limited Payment Collection Agent for Owner
Each Owner hereby appoints Fretish as the Owner’s limited payment collection agent solely for the purposes of accepting the Equipment Fees from Renters.
Each Owner agrees that payment made by a Renter through Fretish shall be considered the same as a payment made directly to the Owner, and the Owner will make the Equipment available to the Renter in the agreed-upon manner as if the Owner has received the Equipment Fees. Each Owner agrees that Fretish may, in accordance with the Fretish cancellation policy set forth below (“Cancellation and Refunds”), (i) permit the Renter to cancel the reservation and (ii) refund to the Renter that portion of the Equipment Fees specified in the applicable cancellation policy. Each Owner understands that as Fretish accepts payments from Renters as the Owner’s limited payment collection agent, Fretish’s obligation to pay the Owner is subject to and conditional upon Fretish successfully receiving the payments from Renters. Fretish does not guarantee payments to Owners for amounts that have not been successfully received from Renters. In accepting appointment as the limited authorized agent of the Owner, Fretish assumes no liability for any acts or omissions of the Owner.
If you are an Owner, and as a condition of your appointment of Fretish as your limited payment collection agent, you understand that you may be deemed a sub-merchant of Fretish under its agreement with its third party payment service provider and that you may be subject to terms and conditions governing use of that third party’s service and that third-party’s personal information collection practices.
Please note that Fretish does not currently charge fees for the creation of Listings or to be a Member. However, you as an Owner acknowledge and agree that Fretish reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of Listings or for being a Member. Please note that Fretish will provide notice of any Listing fee collection via the Platform prior to implementing such a Listing fee feature.
Bookings and Financial Terms for Renters
The Owners, not Fretish, are solely responsible for honoring any confirmed reservations and making available any Equipment rented through the Platform. If you, as a Renter, choose to enter into a transaction with an Owner for the rental of Equipment, you agree and understand that you will be required to enter into an agreement with the Owner and you agree to accept any terms, conditions, rules and restrictions associated with such Equipment imposed by the Owner. You acknowledge and agree that you, and not Fretish, will be responsible for performing the obligations of any such agreements, that Fretish is not a party to such agreements, and that, with the exception of its payment obligations hereunder, Fretish disclaims all liability arising from or related to any such agreements. You further acknowledge and agree that, notwithstanding the fact that Fretish is not a party to the agreement between you and the Owner, Fretish acts as the Owner’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Owner. Upon your payment of the Total Fees to Fretish, your payment obligation to the Owner for the Equipment Fees is extinguished, and Fretish is responsible for remitting the Equipment Fees (less Fretish’s Owner Fees and any Taxes in respect of the Owner Fees), in the manner described in these Terms. In the event that Fretish does not remit any such amounts as described in these Terms, such Owner will have recourse only against Fretish.
The Total Fees payable will be displayed to a Renter before the Renter sends a reservation request to an Owner. As noted above, the Owner is required to either approve or reject the reservation request within the Reservation Request Period, otherwise the reservation request will be automatically cancelled. If a reservation request is cancelled (i.e., not approved by the applicable Owner), any amounts collected by Fretish will be refunded to such Renter, depending on the selections the Renter makes via the Site and/or Application, and any pre-authorization of such Renter’s credit card will be released, if applicable
You, as a Renter, agree to pay Fretish for the Total Fees for all reservations requested in connection with your Fretish Account if such requested reservations are approved by the applicable Owner. In order to establish a reservation pending the applicable Owner’s confirmation of your requested reservation, you understand and agree that Fretish, on behalf of the Owner, reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the Total Fees or (ii) charge your card a nominal amount, not to exceed one ($1) dollar, or a similar sum in the currency in which you are transacting (e.g., one euro or one British pound), to verify your credit card. Once Fretish receives approval of your reservation from the applicable Owner, Fretish will collect the Total Fees in accordance with these Terms and the pricing terms set forth in the applicable Listing. At this time Fretish may also collect the Security Deposit (defined below) or a portion thereof, in its sole discretion. Please note that Fretish cannot control any fees that may be charged to a Renter by his or her bank related to Fretish’s collection of the Total Fees, and Fretish disclaims all liability in this regard.
Renter Insurance & Security Deposits
Renters may submit to Fretish a Certificate of Insurance (“COI”) or other satisfactory evidence, in Fretish’s sole discretion, of a current, eligible insurance policy with coverage sufficient to cover the value of the Equipment rented by the Renter on Fretish (“Insurance”). The COI shall name Fretish and the applicable Owner as loss payee. Fretish may contact the applicable insurance provider to verify the Insurance policy details. Acceptance by Fretish of Insurance in lieu of a Security Deposit (defined below) shall be in its sole discretion. Fretish is not an insurance provider, broker, or agent and is not licensed in any state as an insurance provider, broker, or agent. Fretish does not provide, sell, or resell insurance policies of any kind. Fretish may, in its sole discretion, assist with Owner’s requests and claims related to Insurance, but Fretish is not responsible for administering or accepting any claims by Owners related to Insurance and disclaims any and all liability in this regard.
If a Renter does not provide satisfactory evidence of eligible insurance coverage, in Fretish’s sole discretion, Fretish may charge a security deposit for rented Equipment (“Security Deposits”), up to the actual replacement value of the Equipment rented by the Renter for the applicable reservation. The Security Deposit amount will be shown to the Renter on the rental request page as a line item in the reservation. Fretish will, in its capacity as the payment collection agent of the Owner, use its commercially reasonable efforts to either: (i) charge the Renter’s credit card at the time of reservation confirmation the Security Deposit or (ii) obtain a pre-authorization of the Renter’s credit card in the amount of the Security Deposit, or a portion thereof, at the time of reservation confirmation or within a reasonable time prior to the Renter’s use of the Owner’s Equipment. Fretish will also use its commercially reasonable efforts to address Owner’s requests and claims related to Security Deposits, but Fretish is not responsible for administering or accepting any claims by Owners related to Security Deposits and disclaims any and all liability in this regard.
In consideration for the use of Fretish’s online marketplace and Platform, Fretish charges Services Fees. Where applicable, Taxes may also be charged in respect of the Owner Fees and Renter Fees. Fretish deducts the Owner Fees from the Equipment Fees before remitting the balance to the Owner as described in these Terms. Renter Fees are, as noted above, included in the Total Fees.
Balances will be remitted by Fretish to Owners via direct deposit or other payment methods described on the Site or via the Application, in the currency and manner selected by the Owner via the Platform. Amounts may be rounded up or down as described in the “Rounding Off “ section below.
Please note that Fretish may impose or deduct foreign currency processing costs on or from any remittances by Fretish in currencies other than U.S. dollars. Except as otherwise provided herein, Service Fees are non-refundable.
Equipment Damage, Theft or Loss
You acknowledge and agree that, as a Renter, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals whom you allow to use, invite to, or otherwise provide access to the Equipment. As a Renter, you are responsible for returning or leaving the Equipment, as applicable, in the condition it was in when you arrived and/or received it, as applicable. In the event that an Owner claims otherwise and provides evidence of damage, loss, or theft, including but not limited to photographs, you agree to either (i) pay the cost of repairing damaged Equipment or replacing the damaged, lost, or stolen Equipment with equivalent items or (ii) assist the Owner and Fretish, if applicable, with making a claim to the applicable Insurance provider. You, as a Renter, agree to reimburse Fretish for any and all sums, including amounts up to any applicable Insurance deductible, incurred by Fretish in connection with an Owner claim, to the extent that the applicable Insurance provider, if any, does not reimburse Fretish. After being notified of the claim and given forty-eight (48) hours to respond, the payment (in addition to any third party transaction fees incurred by Fretish in connection therewith) will be deducted from the Security Deposit held by Fretish, if any, and the balance due, if any, will be charged to and taken from the credit card on file in your Fretish Account. Fretish also reserves the right to charge the credit card on file in your Fretish Account, or otherwise collect payment from you and pursue any avenues available to Fretish in this regard, including Security Deposits, in situations in which you have been determined, in Fretish’s sole discretion, to have damaged, lost, or misappropriated any Equipment, in relation to any payments made by Fretish to Owners, plus any third party payment transaction fees incurred in connection therewith. If we are unable to charge the credit card on file or otherwise collect payment from you, you agree to remit payment for any damage to or theft of the Equipment to the applicable Owner or to Fretish, if applicable.
Both Renters and Owners agree to cooperate with and assist Fretish in good faith and to provide Fretish with such information and take such actions as may be reasonably requested by Fretish, in connection with any complaints or claims made by Members relating to the Equipment or any personal or other property used or available in connection with the Equipment or with respect to any investigation undertaken by Fretish or a representative of Fretish regarding use or abuse of the Platform. If you are a Renter, upon Fretish’s reasonable request, and to the extent you are reasonably able to do so, you agree to participate in mediation or similar resolution process with an Owner, at no cost to you, which process will be conducted by Fretish or a third party selected by Fretish, with respect to losses for which the Owner is requesting payment from Fretish in connection with your rental of Equipment or use of the Platform.
If you are a Renter, you understand and agree that Fretish reserves the right, in its sole discretion, to make a claim under your renter’s, homeowner’s, or other insurance policy, including without limitation any Insurance policy submitted by you to Fretish, related to any damage or loss that you may have caused or been responsible for to Equipment or any personal or other property used or available in connection with the Equipment. You agree to cooperate with and assist Fretish in good faith, and to provide Fretish with such information as may be reasonably requested by Fretish, in order to make a claim under any such insurance policy, including, but not limited to, executing documents and taking such further acts as Fretish may reasonably request to assist Fretish in accomplishing the foregoing.
If you are a Renter and you do not return the Equipment to the Owner at the conclusion of the reservation and you do not agree within twenty-four (24) hours to schedule a new return time, or do not return the Equipment at such rescheduled return time, then Owner agrees to file a report with the applicable police department and provide a copy of such report to Fretish. In filing the report, Owner is required to notify the police department of the Security Deposit and that Fretish may ultimately be subrogated to Owner’s right to recovery of the Equipment. The Owner must also authorize the police department to discuss and provide any information regarding the case with Fretish.
General Booking and Financial Terms
Cancellations and Refunds
If, as a Renter, you cancel your requested reservation before the requested reservation is confirmed by an Owner, Fretish will cancel any pre-authorization to your credit card and/or refund any nominal amounts charged to your credit card in connection with the requested reservation within a commercially reasonable time. If, as a Renter, you wish to cancel a confirmed reservation made via the Platform either prior to or after the reservation commences, the Fretish cancellation policy, as described in the Site and Application will apply to such cancellation unless the Owner has selected an alterative cancellation policy, as described in the applicable listing. Details regarding refunds and cancellation policies are available via the Site and Application.
If an Owner cancels a confirmed reservation made via the Platform, (i) Fretish will refund the Total Fees for such reservation to the applicable Renter within a commercially reasonable time of the cancellation and (ii) the Renter may receive an email or other communication from Fretish containing alternative Listings and other related information. If the Renter requests a reservation from one of the alternative Listings and the Owner associated with such alternative Listing confirms the Renter’s requested reservation, then the Renter agrees to pay Fretish the Total Fees relating to the confirmed reservation for the Equipment in the alternative Listing, in accordance with these terms. If an Owner cancelled a confirmed reservation and you, as a Renter, have not received an email or other communication from Fretish, please contact Fretish at email@example.com.
If, as an Owner, you cancel a confirmed reservation, Fretish may apply penalties or consequences to you or your Listing, including (i) publishing an automated review on your Listing indicating that a reservation was cancelled, (ii) keeping the calendar for your Listing unavailable or blocked for the dates of the cancelled reservation, or (iii) imposing a cancellation fee (to be withheld from your future payouts). You will be notified of the situations in which a cancellation fee applies before you decide to cancel.
If, as a Renter, you want to cancel a reservation due to an Equipment Issue (defined below), within twenty-four hours after the start of your reservation, we agree, at our discretion, to either (i) reimburse you up to the amount paid by you through the Site, as determined by Fretish in our discretion, depending on the nature of the Equipment Issue suffered or (ii) use our reasonable efforts to find and rent other Equipment for the time left in your reservation which in our determination is reasonably comparable to the Equipment described in your original reservation in terms of type, features, and quality. All determinations of Fretish with respect to refunds requested related to Equipment Issues, including without limitation the size of any refund, shall be final and binding on the Renters and Owners. An “Equipment Issue” means any one of the following: (a) the Owner of the Equipment (i) cancels a reservation shortly before the scheduled start of the reservation, or (ii) fails to provide the Renter with the reasonable ability to access the Equipment; or (b) the description of the Equipment in the Listing on the Site is materially inaccurate with respect to: (i) the make and/or model of the Equipment, (ii) the condition of the Equipment, to the extent it affects the Renter’s ability to utilize the Equipment as intended, (iii) special amenities or features represented in the Listing description are not provided or do not function, or (iv) the physical location of the Equipment (proximity). Only a Renter may submit a claim for an Equipment Issue. To submit a claim: (a) You must bring the Equipment Issue to our attention in writing to firstname.lastname@example.org and provide us with information, including photographs or other evidence, about the Equipment and the circumstances of the Equipment Issue, within twenty-four (24) hours after the start of your reservation, and must respond to any requests by us for additional information or cooperation on the Equipment Issue; (b) you must not have directly or indirectly caused the Equipment Issue (through your action, omission, or negligence); and (c) you must have used reasonable efforts to try and remedy the circumstances of the Equipment Issue with the Owner prior to making a claim for an Equipment Issue.
If you are an Owner, you are responsible for ensuring that the Equipment you list on the Site meets minimum quality standards regarding access, adequacy of the description on the Site, and does not present a Renter with Equipment Issues. During the 24-hour period after the start of a reservation, Owners should be available, or make a third-party available, in order to try, in good faith, to resolve Equipment Issues. If you are an Owner, and if (i) Fretish determines that a Renter has suffered an Equipment Issue related to Equipment listed by you and (ii) Fretish either reimburses that Renter any amount up to the amount paid by the Renter through the Platform for the Equipment or provides alternative Equipment to the Renter, you agree to reimburse Fretish up to the amount paid by Fretish within thirty (30) days of Fretish’s request. You also agree that in order for you to reimburse Fretish up to the amount paid by Fretish, Fretish may off-set or reduce any amounts owed by Fretish to you by this amount. If the Renter uses the Equipment for part or all of the reservation despite the Equipment Issue, the Renter may receive a refund that will reduce the amount of the Equipment Fees ultimately paid to you. If the Renter uses alternative Equipment, you may lose part or all of the Equipment Fee payment for the reservation and you may be responsible for reasonable additional costs incurred in order for the Renter to use the alternate Equipment. The rights of the Renters relating to Equipment Issues supersedes the Fretish cancellation policy or the cancellation policy set by the Owner, if any. If you dispute the Equipment Issue, you may notify us in writing to email@example.com and provide us with information, including photographs or other evidence, disputing the claims regarding the Equipment Issue, provided you must have used reasonable and good faith efforts to try to remedy the Equipment Issue with the Renter prior to disputing the Equipment Issue claim. In the event of one or more Equipment Issues, Fretish, in its discretion, may elect to take additional actions, including, without limitation, negatively affecting your listing ranking, automated reviews indicating Equipment Issues, cancelling future reservations, suspending or removing the Listing of the Equipment or imposing penalties or fees for the administrative burden associated with the Equipment Issue. All determinations of Fretish with respect to Equipment Issue claims, including without limitation the size of any refund to the Renter, shall be final and binding on the Renters and Owners.
In certain circumstances, Fretish may decide, in its sole discretion, that it is necessary or desirable to cancel a confirmed reservation made via the Platform and override the cancellation policy applicable to such reservation, in whole or in part. Such circumstances include death in the Owner’s or Renter’s family, serious illness of the Renter or Renter’s family member, natural disaster in the country where the Equipment is located, political unrest in the country where the Equipment is located, jury duty other similar civil obligations, or for any other reason, contingent in all cases on proper documentation, where valid.
Fretish may, in its sole discretion, round up or round down amounts that are payable from or to Renters or Owners to the nearest whole functional base unit in which the currency is denominated (e.g., to the nearest dollar, euro, or other supported currency); for example, Fretish may round up an amount of $101.50 to $102.00, and $101.49 to $101.00.
Some currencies are denominated in large numbers. In those cases, Fretish may determine the functional base unit in which those currencies are denominated to be 10, 100, or 1,000 of the currency; the corresponding examples for such currencies would be for Fretish to round up an amount of 2,025 up to 2,030 and 2,024 down to 2,020, or 48,750 to you 48,700 and 48,749 down to 48,700, or 675,500 up to 676,000 and 675,499 down to 675,000.
Some Owners may pledge to donate a portion of the funds they receive from confirmed reservations made via the Platform to a particular cause or charity. Fretish does not control, and will not take any responsibility or liability for, whether the Owner does in fact make the donation he or she pledged to make.
Tax regulations may require us to collect appropriate tax information from our Owners, or to withhold taxes from payouts to Owners, or both. For instance, IRS regulations may stipulate that Fretish must collect IRS Form W-9 from US Owners or an appropriate IRS Form W-8 from non-US Owners with at least one Listing in the US. You as an Owner are solely responsible for keeping the information in your tax forms current, complete, and accurate. If you as an Owner fail to provide us with documentation that we determine to be sufficient to alleviate our obligation (if any) to withhold payments to you (e.g., where you are a US Owner and you fail to provide us with a completed IRS Form W-9), we reserve the right in our sole discretion to freeze all payouts to you until resolution, to withhold such amounts as required by law, or to do both.
You as an Owner understand and agree that you are solely responsible for determining (i) your applicable Tax reporting requirements, and (ii) the Taxes that should be included, and for including Taxes to be collected or obligations relating to applicable Taxes in Listings. You are also solely responsible for remitting to the relevant authority any Taxes included or received by you. Fretish cannot and does not offer Tax-related advice to any Members.
8. User Conduct
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Platform and Collective Content. In connection with your use of the Platform and Collective Content, you may not and you agree that you will not:
● violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, Tax regulations;
● use manual or automated software, devices, scripts, robots, or other means or processes to access, “scrape,” “crawl,” or “spider” any web pages or other services contained in the Platform or Collective Content ;
● use the Platform or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms;
● copy, store, or otherwise access any information contained on the Platform or Collective Content for purposes not expressly permitted by these Terms;
● infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity, or contractual rights;
● interfere with or damage our Platform, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing, or electronic mail address information or similar methods or technology;
● use the Platform to transmit, distribute, post, or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information, or credit, debit, or account numbers;
● use the Platform or Collective Content in connection with the distribution of unsolicited commercial email (“spam”) or advertisements unrelated to renting artistic tools, equipment, and space.
● “stalk” or harass any other user of the Platform or Collective Content, or collect or store any personally identifiable information about any other user other than for purposes of transacting as a Fretish Renter or Owner;
● offer, as an Owner, any Equipment, that you do not yourself own or have permission to rent (without limiting the foregoing, you will not list Equipment as an Owner if you are serving in the capacity as an agent for a third party);
● offer, as an Owner, any Equipment that may not be rented or subleased pursuant to the terms and conditions of an agreement with a third party, including, but not limited to, a property rental agreement;
● register for more than one Fretish Account or register for a Fretish Account on behalf of an individual other than yourself;
● unless Fretish explicitly permits otherwise, request to rent or rent Equipment if you will not actually be the one using the Equipment yourself;
● contact an Owner for any purpose other than asking a question related to a rental or such Owner’s Equipment or Listings;
● contact a Renter for any purpose other than asking a question related to a rental or such Renter’s use of the Platform;
● recruit or otherwise solicit any Owner or other Member to join third-party services or websites that are competitive to Fretish, without Fretish’s prior written approval;
● impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
● use automated scripts to collect information from or otherwise interact with the Platform or Collective Content;
● use the Platform or Collective Content to find an Owner or Renter and then complete a rental of Equipment independent of the Platform, in order to circumvent the obligation to pay any Service Fees related to Fretish’s provision of the Services or for any other reasons;
● as an Owner, submit any Listing with false or misleading price information or submit any Listing with a price that you do not intend to honor;
● post, upload, publish, submit, or transmit any Content that: (i) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading, or deceptive; (iv) is defamatory, obscene, pornographic, vulgar, or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
● systematically retrieve data or other content from our Platform to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory, or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
● use, display, mirror, or frame the Platform or Collective Content, or any individual element within the Platform or Collective Content, Fretish’s name, any trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page in the Platform, without Fretish’s express written consent;
● access, tamper with, or use non-public areas of the Platform, Fretish’s computer systems, or the technical delivery systems of Fretish’s providers;
● attempt to probe, scan, or test the vulnerability of any Fretish system or network or breach any security or authentication measures;
● avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Fretish or any of Fretish’s providers or any other third party (including another user) to protect the Platform or Collective Content;
● force any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Platform or Collective Content to send altered, deceptive or false source-identifying information;
● attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Platform or Collective Content; or
● advocate, encourage, or assist any third party in doing any of the foregoing.
Fretish has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.
Fretish may access, preserve, and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to: (i) respond to claims asserted against Fretish or to comply with legal process (for example, subpoenas or warrants); (ii) enforce or administer our agreements with users, such as these Terms); (iii) for fraud prevention, risk assessment, investigation, customer support, product development, and de-bugging purposes; or (iv) protect the rights, property, or safety of Fretish, its users, or members of the public. You acknowledge that Fretish has no obligation to monitor your access to or use of the Platform or Collective Content or to review or edit any Member Content, but has the right to do so for the purposes of operating and improving the Platform (including without limitation for fraud prevention, risk assessment, investigation, and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the requirement of a court, administrative agency, or other governmental body, to respond to content that it determines is otherwise objectionable, or as set forth in these Terms. Fretish reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Fretish, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms, or otherwise harmful to the Platform.
10. Proprietary Rights
The Platform and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Platform and Collective Content, including all associated intellectual property rights, are the exclusive property of Fretish and its licensors. You will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Platform or Collective Content.
All trademarks, service marks, logos, trade names, and any proprietary designations of Fretish used herein are trademarks or registered trademarks of Fretish. Any other trademarks, service marks, logos, trade names, and other proprietary designations are the trademarks or registered trademarks of their respective parties.
11. Fretish Content
Subject to your compliance with these Terms, Fretish grants you a limited, non-exclusive, non-transferable license to (i) access and view any Fretish Content solely for your personal and non-commercial purposes and (ii) access and view any Member Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no rights to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Platform or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Fretish or its licensors, except for the licenses and rights expressly granted in these Terms.
12. Member Content
We may, in our sole discretion, permit you to post, upload, publish, submit, or transmit Member Content. By making available any Member Content on or through the Platform, you hereby grant to Fretish a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, by means of, or to promote or market the Platform. Fretish does not claim any ownership rights in such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Platform or you have all rights, licenses, consents, and releases that are necessary to grant to Fretish the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission, or transmittal of the Member Content or Fretish’s use of the Member Content (or any portion thereof) on, through, or by means of the Platform will infringe, misappropriate, or violate a third party’s patent, copyright, trademark, trade secret, moral rights, or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
The Platform may contain links to third-party websites or resources. You acknowledge and agree that Fretish is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Fretish of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products, or services on or available from such websites or resources.
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Platform (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org or through a contact form on the Platform, if any. You acknowledge and agree that all Feedback will be the sole and exclusive property of Fretish and you hereby irrevocably assign to Fretish all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral, and other proprietary or intellectual property rights therein. At Fretish’s request and expense, you will execute documents and take such further acts as Fretish may reasonably request to assist Fretish to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
15. Copyright Policy
Fretish respects copyright law and expects its users to do the same. It is Fretish’s policy to terminate, in appropriate circumstances, the Fretish Accounts of Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Fretish’s Copyright Policy, at www.fretish.com/copyright, for further information.
16. Suspension, Termination, and Fretish Account Cancellation
We may, in our discretion and without liability to you, with or without cause, with or without prior notice, and at any time, decide to limit, suspend, deactivate, or cancel your Fretish Account. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your Fretish Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Platform, your Fretish Account, or your Member Content or receive assistance from Fretish Customer Service; (b) any pending or accepted future reservations as either Owner or Renter will be immediately terminated; (c) we may communicate to your Renters or Owners that a potential or confirmed reservation has been cancelled; (d) we may refund your Renters in full for any and all confirmed reservations, irrespective of preexisting cancellation policies; (e) we may contact your Renters to inform them about potential alternate Equipment with other Owners that may be available on the Platform; and (f) you will not be entitled to any compensation for reservations (even if confirmed) that were cancelled as a result of a suspension, deactivation, or termination of your Fretish Account. You may cancel your Fretish Account at any time by emailing us at email@example.com. Please note that if your Fretish Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted on the Platform, including but not limited to, any reviews or Feedback.
IF YOU CHOOSE TO USE THE PLATFORM OR COLLECTIVE CONTENT, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT Fretish DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, BORROWERS AND OWNERS, BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. THE PLATFORM AND COLLECTIVE CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, Fretish EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Fretish MAKES NO WARRANTY THAT THE PLATFORM OR COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY EQUIPMENT, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. Fretish MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, EQUIPMENT, THE SERVICES, OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE PLATFORM.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Fretish OR THROUGH THE PLATFORM OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY OWNERS OR BORROWERS. YOU UNDERSTAND THAT Fretish DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLATFORM OR TO REVIEW ANY EQUIPMENT. Fretish MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE PLATFORM OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, BORROWERS AND OWNERS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON, REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY Fretish. NOTWITHSTANDING Fretish’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF THE OWNERS FOR THE PURPOSE OF ACCEPTING PAYMENTS FROM BORROWERS ON BEHALF OF THE OWNERS, Fretish EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY BORROWER OR OTHER THIRD PARTY.
18. Limitation of Liability .
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM AND COLLECTIVE CONTENT, YOUR LISTING OR RESERVATION OF ANY EQUIPMENT VIA THE PLATFORM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF Fretish WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER Fretish NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OR INABILITY TO USE THE PLATFORM OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM OR FROM YOUR LISTING OR RESERVATION OF ANY EQUIPMENT VIA THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Fretish HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE OWNERS PURSUANT TO THESE TERMS, IN NO EVENT WILL Fretish’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING OR RESERVATION OF ANY EQUIPMENT VIA THE PLATFORM, FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR COLLECTIVE CONTENT, AND IN CONNECTION WITH ANY EQUIPMENT OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR RESERVATIONS VIA THE PLATFORM AS A BORROWER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE AN OWNER, THE AMOUNTS PAID BY Fretish TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Fretish AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
19. Indemnification .
You agree to release, defend, indemnify and hold Fretish and its affiliates and subsidiaries, and their officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Platform or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) renting of Equipment, or (iii) creation of a Listing; and (d) the use, condition, or rental of Equipment by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential, or otherwise) of any kind arising in connection with or as a result of a rental or use of Equipment.
20. Reporting Misconduct .
If you interact with a Member, Renter or Owner, whether via the Platform, offline, or in person, in connection with a rental of a Listing or Equipment, who you feel is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent, or sexually inappropriate behavior; (ii) you suspect of stealing from you; or (iii) engages in other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Fretish by contacting us with your police station and report number at firstname.lastname@example.org; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
These Terms constitute the entire and exclusive understanding and agreement between Fretish and you regarding the Platform and Collective Content, and any rentals or Listings of Equipment made via the Platform, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Fretish and you regarding rentals or Listings of Equipment, the Platform, and Collective Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without Fretish’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Fretish may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Fretish (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of New York and the United States of America, without regard to its conflict of law provisions. You and we submit to the personal jurisdiction of a state or federal court in New York County, New York for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision below.
You and Fretish agree that any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof, or to the use of the Platform (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and Fretish are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Fretish otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution section. The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitrator will be either a retired judge or attorney licensed to practice law in the State of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within (7) days of delivery of a demand for arbitration (as specified in the AAA Rules), then the AAA will appoint the arbitrator in accordance with the AAA Rules. Unless you and Fretish otherwise agree, the arbitration will be conducted in New York County. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Fretish submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA rules. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Notwithstanding the provisions of the “Modification” section above, if Fretish changes this “Dispute Resolution” section after the date you first accept these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Fretish’s email to you notifying you of such change. By rejecting any change in accordance with the foregoing sentence, you are agreeing that you will arbitrate any Dispute between you and Fretish in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The provisions and terms of these Terms that by their nature should survive termination of these Terms, including, without limitation, the “Dispute Resolution” section and Section 18 (“Limitation of Liability”), shall survive any termination or expiration of these Terms.
The failure of Fretish to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Fretish. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
If you have any questions about these Terms, please contact Fretish at firstname.lastname@example.org.