Please note that by using this Application you agree to be bound by the Terms of Service set out below. Ignorance to the Terms of Service stated herein shall not be a defence in case of breach of any of the Terms of Service in this or any of the other supplementing terms of service or agreements on this Application.
Please read the following Terms of Service carefully. These Terms of Service, along with any other supplementing documents (incorporated herein by this reference and collectively referred to as the “Terms of Service”), govern your access to and use of this Application (the “Application”), including the use of any content, information, products and/or services (the “Services”) therein. This is a legal agreement between you and GEAR MOBILE (the “Platform”).
Capitalized terms used herein without definition have their respective meanings as in the English vocabulary and in the context of their use in this Terms of Service.
By using thisApplication, subscribing to Services and/or placing an Order/Request/Offer or uploading/downloading any information or any other content, you agree to be bound by the Terms of Service set out below. If you do not agree to be bound by these Terms of Service below, please do not use or access this Application. These Terms of Service constitute the entire Terms of Service upon which GEAR MOBILE provides the Service and upon which the Supplier & Renter agree to contract for the use of the Service except where specifically varied by written agreement by GEAR MOBILE. This supersedes any written or oral representations, statements, understandings or agreements.
1.2 From time to time, it will be necessary to update the Terms of Service. In circumstances where these changes are significant, we may inform you via email or through notifications on the GEAR MOBILEApplication. Should you wish to terminate your agreement with GEAR MOBILE at that time you can do so by contacting GEAR MOBILE by providing a notice through herein mentioned means.
1.3 To access the Services of GEAR MOBILE Application, you must sign up for an account with us and verify your yourself, by either providing us your email address and creating a password or connecting through an account with a third-party site or service (including Facebook and Google).
1.5 Renter and Supplier acknowledge and agree that GEAR MOBILE's sole responsibility is to collect the rent payable from Renter and to pass payment through to Supplier, after deduction of the applicable Administrative fee, in accordance with the terms of the Purchase Order. GEAR MOBILE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE EQUPIMENT WHATSOEVER.
2. RENTAL AGREEMENT
The Supplier hereby agrees to rent the Equipment to the Renter and the Renter agrees to rent the Equipment from the Supplier on the terms and conditions of this Terms of Service. This Terms of Service constitutes a legal agreement in form of an electronic document described on the page of the GEAR MOBILE application containing the terms of the Rental agreed to by Supplier and Renter. The Agreement is made available to Renter and the Supplier through the Application. Renter and the Supplier understand and agree that this Terms of Service will become effective and binding on both the parties for any aspect related to their rental transaction.
The initial term (“Term”) of the Agreement shall start from the date of entering into the rental Agreement between the Supplier and the Renter upon acceptance of the last party of the first party’s proposal. The end date of the Term shall be decided by the parties mutually and the rent shall be receivable on a daily rate.
The Renter shall be responsible for both pick-up and return delivery of the rented item to the Supplier unless otherwise agreed by both the partied in writing.
Daily Rates. The rent for the renting Term shall be decided as quoted on the Application on a per day basis and shall be payable on the Application in advance.
Administrative Fee. GEAR MOBILE shall deduct a part of the payment made to the Supplier as the Administrative Fee. The extent of such an Administrative Fee shall be clearly mentioned on the Application’s payments-page before the transaction and as a percentage of the amount paid as Rent. The same Administrative Fee shall be applied to all kinds of Rental transactions at a uniform percentage of the total amount.
Late Fee.In case of a delay in return of the equipment an additional penalty shall be payable to the Supplier along with the daily rent for each day of delay and as long as the Equipment is out of the possession of the Supplier.
Shipping. Any applicable shipping charges while bringing the Equipment to the Renter’s location or returning it to the Supplier’s location shall be payable by the Renter unless otherwise agreed upon by mutual consent and in writing between the Renter and the Supplier.
Security Deposit. A fixed refundable security deposit shall be payable by the Renter before the hand-over of the possession of the Equipment and at the time of the payment of the advance Rent. This security deposit shall be held by GEAR MOBILE and released back to the Renter at the end of the term of this Agreement and after the Equipment has been returned back to the Supplier in a satisfactory condition. When the Supplier communicates his satisfaction, or if there is no communication from the Supplier on the condition of the Equipment, GEAR MOBILE shall not hold the security deposit for a period longer than thirty (30) days. If, however, any default by Renter under this Agreement has occurred, including any damage to the Equipment upon return to Supplier, GEAR MOBILE may withhold that portion of the security deposit necessary to cover damages suffered by Supplier. No interest will be paid or accrue on the security deposit, and it may be commingled with other funds.
Payments Policy. All specific rates, fees, fines, deposits, penalties and modes of payment related to the financial transactions on the Application shall be governed by the Payment Policy available and specified on the Application.
Taxes.All taxes shall be inclusive in the prices provided on the Application. Renter shall pay any and all sales, use, property, and other taxes, fees, and other assessments and governmental charges, together with any penalties or interest thereon, levied on or associated with its rental of the Equipment, which will be invoiced as part of the rental payment to be made by Renter.
Mode of Payment. All payments hereunder shall be paid by providing credit/debit card information or the PayPal account of Renter to GEAR MOBILE. Renter hereby authorizes GEAR MOBILE to charge Renter's credit card for all charges due under the terms of this Agreement. Renter understands and agrees that GEAR MOBILE is only providing billing and collection services to Supplier, and is not a party to this Agreement nor responsible for any obligations of Supplier or Renter under this Agreement.
Cancellation.If Renter cancels a rental prior to the End date or end of the agreed upon Term, Renter shall pay a cancellation fee equal to the cancellation fee specified in the Payment Policyon the Application.
The Renter owes GEAR MOBILE and will immediately pay GEAR MOBILE the amount of any Chargeback and any associated fees, fines, or penalties listed on the Website or assessed by our assessor, processing financial institutions, or MasterCard, Visa, American Express, Discover, and other payment card networks, associations, or companies. You agree to assist us and provide us with any required proofs or documents to contest chargebacks when requested, at your expense, and to investigate any of your transactions through cards or otherwise. The Chargeback Fee to be paid to GEAR MOBILE shall be Twenty-Five US Dollars ($25) on each chargeback.
6. OBLIGATIONS OF RENTER
6.1 Renter shall positively return the Equipment to the Supplier within reasonable time upon the completion of the Term of this Agreement or in case of default by the Renter or in any other case where the Supplier is entitled to take back the possession of the Equipment from the Renter. In case of any refusal by the Renter to return the Equipment to Supplier’s possession, where it is due under this Agreement, the Supplier shall be entitled to any penalties and fines under this Agreement and may take any necessary legal action against the Renter under any relevant law. The Supplier shall also be entitled to be compensated by the Renter for the attorney’s fee required to bring such legal action against the Renter.
6.2 Renter agrees to use the Equipment solely for the purpose for which it is supplied, in a careful and proper manner and will comply with the laws, rules, ordinances, statutes and orders regarding the use, maintenance and storage of the Equipment.
6.3 Unless Renter notifies Supplier of any defects in the Equipment within twenty-four (24) hours of taking the possession, the Equipment shall be deemed to be in good working order upon receipt by Renter. Renter shall, at Renter's sole expense, keep and maintain the Equipment in clean and good working order and repair during the term of the rental. Renter agrees to notify Supplier of any damage to the Equipment as soon as practicable and no later than 24 hours after taking the possession or after the cause of damage, and to be responsible for the cost to repair all damage caused to the Equipment while in use by Renter (other than damage caused by normal and proper use in accordance with the intended purpose of the Equipment) and, if Renter is responsible for transit of equipment, while in transit to or from Renter. Such repair cost is not to exceed the replacement cost of the Equipment as specified in the Rental. In the event the Equipment is lost or damaged beyond repair, Renter shall pay to Supplier the replacement cost of the Equipment as specified in the Rental, and, in addition, the obligations of this Agreement shall continue in full force and effect through the end of the term. Renter shall promptly pay Supplier the cost to repair or replace the Equipment.
6.4 Renter shall keep the Equipment free and clear of any liens or other encumbrances, and shall not permit any act where Supplier's title or rights may be negatively affected. Renter shall be responsible for complying with and conforming to all laws and regulations relating to the possession, use, or maintenance of the Equipment.
6.5 Renter shall not alter the Equipment in any way without the prior written permission of the Supplier.
6.6 Renter agrees that the Equipment provided by Supplier shall only be operated by competent personnel, familiar with the operation of such equipment. No person operating or using the Equipment will be under the influence of any substance, including alcohol or drugs.
6.7 Renter agrees to provide an on-site environment that meets the requirements for proper operational performance of the Equipment. Renter agrees to provide reasonable security at the site of use, to minimize the exposure of the Equipment to loss and/or damage.
6.8 Renter shall not move the Equipment from the location which has been mutually agreed upon by the Renter and the Supplier, if applicable, without first receiving Supplier's prior written approval.
6.9 Renter bears the entire risk and responsibility of loss, theft, damage or destruction of Equipment in whole or in part from any reason whatsoever. No loss or damage to Equipment shall relieve Renter from the obligation to pay the payments or from any other obligation under this Agreement. In the event of loss or damage to any Equipment, Renter shall immediately notify the Supplier and GEAR MOBILE of the same and the Renter shall, if so directed by the Supplier, immediately repair the same. If we determine that any Equipment has suffered damage or loss beyond repair, then the Renter, at the option of the Supplier, shall: (1) upon receipt of any insurance proceeds for the loss or damage, replace the damaged or lost Equipment with similar equipment in good repair, condition and working order free and clear of any Liens and deliver to the Supplier a bill of sale covering the replacement equipment, in which event such replacement equipment shall automatically be Equipment under this Agreement; or (2) upon receipt of any insurance proceeds for the loss or damage, but no more than 180 days after the date of suchloss or damage, pay to us all amounts then due and payable by the Renter under this Agreement for the loss or damage plus the remaining principal balance for such Equipment as of the date of the loss or damage as determined by supplier’s records.
6.10 In case there is no insurance coverage on the Equipment or the insurance does not cover all the damage or loss, the Renter agrees and authorises GEAR MOBILE to charge the Renter’s credit/debit card or any other applicable payment methods to recoup the amount to recover expenses or cost/s related any loss, theft, damage or destruction of Equipment under Section 6.9. of which any left-over amount shall be refunded to the Renter after all related repair or replacement costs have been covered.
The Renter may obtain general liability insurance and/or property insurance against all liabilities and damages with respect to Renter's use of the Equipment during the rental period, name Supplier as an Additional Insured under Renter's insurance policy, and provide to Supplier a Certificate of Insurance, which Renter may send to Supplier through the GEAR MOBILE Application. Renter hereby agrees that ifhe/she chooses to forego the requirement of insurance they shall be liable to pay any and all costs related to any damages or loss suffered by the Supplier due to any damage, harm, or fault caused in the Equipment during the Renter’s possession of the same.
8. RELEASE AND INDEMNITY OF GEAR MOBILE
Each party agrees and acknowledges that it is using the services and Application provided by GEAR MOBILEto facilitate the rental transaction between Renter and Supplier and at that party's own risk, that GEAR MOBILE is not an agent for either party, that the GEAR MOBILE services and Application are provided on an "AS IS" and "AS AVAILABLE" basis, and to the extent permitted by applicable law, GEAR MOBILE excludes all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. With respect to any dispute each party has with one or more users of GEAR MOBILE's services or Application, that party releases GEAR MOBILE (and its affiliates and subsidiaries, and their respective shareholders, officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release each party expressly waives any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which that party may know or suspect to exist in its favour at the time of agreeing to this release. Each party further agrees to indemnify and defend GEAR MOBILE and its affiliates and their respective shareholders, directors, officers, employees, attorneys and agents (the "GEAR MOBILE Indemnified Parties"), and hold each of them harmless from and against any and all losses, damages, claims, demands, expenses, fines, penalties, suits and liabilities, including without limitation, reasonable attorneys' fees ("Losses") that the GEAR MOBILE Indemnified Parties shall incur or suffer arising out of, relating to, or resulting from (a) this Agreement, (b) the ownership/rental of the Equipment, as applicable, (c) a breach of this Agreement by such party, (d) the gross negligence, wilful misconduct, fraud, or misrepresentation of such party or of persons acting for or on behalf of such party pursuant to this Agreement, including without limitation, officers, directors, employees, agents and contractors of such party, (e) such party's improper use of GEAR MOBILE's services or the Application, or (f) such party's breach of any law or the rights of a third party.
9. LIMITED WARRANTY BY, AND LIMITATION OF LIABILITY OF SUPPLIER
Supplier represents that Renter shall be entitled to quietly hold and possess the Equipment during the rental term and will not interfere with that right as long as Renter is in compliance with this Agreement.
Supplier expressly disclaims any liability in the event that any mechanical breakdown or failure of the Equipment should result in damage, loss, delay or any other interference in Renter's work product. Supplier's exclusive obligation and liability to Renter shall be to repair the equipment or provide Renter with the same or similar equipment, if the need for such repair or replacement arises from the normal and proper use of the Equipment in accordance with its intended purpose, in order to accomplish the same work, and to credit Renter for any rental payments made during such breakdown or failure due to normal and proper use, or to terminate this Agreement. The parties agree that the term shall be extended for any time lost due to breakdown or failure of the Equipment due to normal and proper use, unless Supplier elects to terminate the Agreement. SUPPLIER SHALL NOT BE LIABLE FOR ANY LIABILITY, LOSS, OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED BY THE EQUIPMENT OR ANY DEFECT OR INADEQUACY THEREOF. IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT.
Supplier shall not be responsible for any of Renter's material remaining in Supplier's Equipment upon its return.
SUPPLIER WARRANTS TO RENTER THAT THE EQUIPMENT WILL BE FULLY OPERATIONAL AND FREE FROM DEFECTS IN MATERIAL OR WORKMANSHIP UNDER NORMAL USE AND SERVICE FOR THE PERIOD OF THE RENTAL. OTHER THAN THE FOREGOING LIMITED WARRANTY, SUPPLIER MAKES NO (AND SHALL NOT BE DEEMED TO HAVE MADE ANY) WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN, OPERATION OR CONDITION OF, OR THE QUALITY OF THE EQUIPMENT OR THE MATERIAL OR WORKMANSHIP IN THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE STATE OF TITLE THERETO OR ANY COMPONENT THERETO, THE ABSENCE OF LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AND SUPPLIER HEREBY DISCLAIMS THE SAME; IT BEING UNDERSTOOD THAT (OTHER THAN THE FOREGOING LIMITED WARRANT) THE EQUIPMENT IS RENTED TO RENTER "AS IS" AND ALL SUCH RISKS, IF ANY, ARE TO BE BORNE BY RENTER. RENTER HAS MADE THE SELECTION OF THE EQUIPMENT FROM THE SUPPLIER BASED ON ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE UPON ANY STATEMENTS OR REPRESENTATIONS MADE BY SUPPLIER. RENTER FURTHER REPRESENTS THAT ALL ITEMS OF EQUIPMENT ARE OF SIZE, CAPACITY AND DESIGN SELECTED BY RENTER. EXCEPT AS PROVIDED IN THIS AGREEMENT, SUPPLIER IS NOT RESPONSIBLE FOR ANY REPAIRS, SERVICE, MAINTENANCE OR DEFECT IN THE EQUIPMENT OR ITS OPERATION.
Renter agrees to indemnify and defend Supplier and its shareholders, directors, officers, employees, attorneys and agents (the "Supplier Indemnified Parties"), and hold each of them harmless from and against any and all Losses that the Supplier Indemnified Parties shall incur or suffer arising out of, relating to, or resulting from (a) this Agreement, (b) Renter's use of the Equipment, (c) a breach of this Agreement by Renter, or (d) the gross negligence, wilful misconduct, fraud, or misrepresentation of Renter or of persons acting for or on behalf of Renter pursuant to this Agreement, including without limitation, officers, directors, employees, agents and contractors of such party.
Renter, upon execution of this Agreement, and during all times that the Equipment is in Renter's possession, grants Supplier an irrevocable right of entry to Renter's premises for the sole and limited purpose of Supplier's reclamation of its Equipment in the event that Renter defaults under this Agreement.
If Renter fails to perform or fulfil any obligation under this Agreement, Renter shall be in default of this Agreement. Subject to any statute, ordinance or law to the contrary, Renter shall have seven (7) days from the date of notice of default by Supplier to cure the default. If Renter does not cure a default in such time frame, Supplier may at Supplier's option (a) cure such default and the cost of such action may be added to Renter's financial obligations under this Agreement; or (b) declare Renter in default of this Agreement. In the event of default, Supplier may, at its option, hold the Renter liable for any difference between the rent that would have been payable under this Agreement during the balance of the unexpired term and any rent paid by any successive renter if the Equipment is re-let minus the cost and expenses of re-letting and taking possession of the Equipment, if applicable. If Supplier is unable to re-let the Equipment during the remaining term of this Agreement, after default by Renter, Supplier may at its option hold Renter liable for the balance of the unpaid rent under this Agreement if this Agreement had continued in force.
Any controversies or disputes arising out of or to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party shall select an arbitrator and the two arbitrators, in turn, shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is within the United States of America and, where one of the parties is GEAR MOBILE – at the city of GEAR MOBILE headquarters, or where it is among the Supplier and Renter at a place reasonably centrally located between the parties or as otherwise mutually agreed upon by the parties.
The documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served.
The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and the judgement may be entered in conformity with the decision in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.
Both Supplier and Renter acknowledge that during the course of this Agreement, each may obtain confidential information regarding the other party or its business. Both parties agree to treat all such information and the terms of this Agreement as confidential and to take all reasonable precautions against disclosure of such information to unauthorised third parties during and after the term of this Agreement. Upon request by either party, all documents or intellectual property relating to the confidential information will be returned to the owner of such material and will be safely erased and/discarded from the possession of the other party.
Any notice or other communication to be given hereunder will be in writing and given (i) by GEAR MOBILE via email (in each case to Your email address of record), (ii) a posting on the Application, (iii) sent postage prepaid, certified or registered mail, return receipt requested to a postage address provided by You in writing or (iv) by You via email to the provided email address on theGEAR MOBILE APPLICATION, or sent postage prepaid, certified or registered mail, return receipt requested to such other address as GEAR MOBILE may specify in writing, or (v) by either the Renter or the Supplier, to the other, via email or chat option on the Application, to the provided email address, or the profile on the GEAR MOBILE APPLICATION, or sent postage prepaid, certified or registered mail, return receipt requested to such other address as provided by the receiving party. The date of receipt shall be deemed the date on which such notice is transmitted.
Neither party may assign or transfer this Agreement without the prior written consent of the other party.
This Agreement contains the entire agreement of the parties regarding the subject matter of this Agreement and there are no other promises or conditions in any other agreement whether written or oral. This Agreement supersedes any prior written or oral agreements between the parties.
This Agreement may be modified or amended if the amendment is made in writing and signed by both parties.
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforceable as so limited.
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
This Agreement shall be governed by the laws of the State of Georgia.