K-Dubs Beach Rental LLC: Rental Agreement, Release and Waiver (“Agreement”)
By clicking the “ACCEPT” box, YOU acknowledge that YOU have read the entire Agreement, that YOU agree to all of the terms and conditions which are legally binding, YOU certify that YOU are 18 years or older and otherwise legally competent to be bound by this Agreement and that YOU enter into this Agreement freely and voluntarily.
YOU rent from K-Dubs Beach Rental, hereafter referred to as “KDBR”, the Equipment (defined as whatever equipment YOU add to the shopping basket on the KDBR website) which is subject to the following terms and conditions:
TERM: This Agreement shall commence on the Effective Date (defined as the date YOU click “ACCEPT”) and remain in full force and effect until Equipment is returned to or picked up by KDBR (“Rental Period”), EXCEPT for the provisions which are intended to survive the expiration or termination of this Agreement.
PAYMENT: Payment for the entire Rental Period and deposit shall be provided by YOU and received by KDBR prior to YOUR receipt of Equipment. In cases of KDBR approved Rental Period extensions, YOU will pay the additional rental fees at time of extension. The types of payments accepted by KDBR and the non-negotiable price list, including applicable deposit amounts and any applicable taxes, are provided on the KDBR website.
USE: YOU acknowledge that YOU will inspect the Equipment to confirm it is in good condition and YOU agrees to return Equipment to KDBR in the same condition. Equipment can only be used in a careful and proper manner and YOU shall not remove, alter, disfigure or cover up any numbering, lettering, or insignia displayed upon Equipment.
RESTRICTIONS ON USE: YOU shall not:
- permit the Equipment to be used by any person who is not authorized under Agreement or a permissive user;
- operate or use the Equipment or permit it to be operated or used in violation of law;
- operate or use the Equipment or permit it to be operated or used to commit a violation of law; and/or
- operate, use, maintain or store the Equipment in a manner likely to cause damage to the Equipment.
DAMAGE: Equipment shall be returned in the same condition in which it was received by YOU. KDBR may decide in it’s sole discretion to retain any part or all of the deposit when Equipment is not returned in accordance with the terms of this Agreement. YOU are responsible for the theft or damage of Equipment until returned to or picked up by KDBR. In the event of stolen Equipment or Equipment returned broken, damaged or severely worn, YOU bear sole responsibility for any cost associated with replacing or repairing Equipment. YOU shall alert KDBR to any loss or damage to Equipment.
INDEMNIFICATION AND LIABILITY: YOU acknowledge and agree that the use of Equipment (including, but not limited to, surfboards, SUP’s, bicycles, beach chairs, umbrellas, volleyball nets, volleyball balls) has inherent risks. YOU are voluntarily using Equipment and assume all risks associated with use of Equipment, including malfunctions and/or or damage to Equipment during YOUR use, and understand that there are inherent dangers associated with normal use of Equipment that could result in injury or death and that neither KDBR or its officers, directors, employees, agents and/or servants has made any representation to YOU other than what is contained in this Agreement. YOU further acknowledges and agrees to waive and release any and all claims that YOU have or may have in the future against KDBR, including their owners, operators, employees, agents, affiliates, or representatives.
In consideration of YOUR use of Equipment, YOU agree to indemnify and hold harmless KDBR, its officers, agents, owners, and employees from any and all cause of action, claims, demands, losses or costs of any nature whatsoever arising out of or in any way relating to the use of Equipment, or any 3rd parties who may be injured on account of or in any way relating to Equipment, including malfunctions and/or or damage to Equipment during YOUR use.
Agreement shall be effective and binding upon YOUR heirs, next of kin, executors, administrator and assigns, in event of YOUR death. YOU waive YOUR right to bring a court action to recover compensation or obtain any other remedy for any injury, property or death, however caused, arising out of YOUR use of Equipment, now or any time in the future, whether caused by the KDBR negligence or that of its officers, agents, or employees.
The provisions of this INDEMNIFICATION AND LIABILITY paragraph, without limitation, shall survive the termination of Agreement with respect to any claims or liability accruing before such termination. IN NO EVENT SHALL KDBR BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES ARISING FROM YOUR USE OF EQUIPMENT, INCLUDING BUT NOT LIMITED TO LOSS PROFITS AND LOSS REVENUE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES
YOU EXPRESSLY AGREES THAT THE FOREGOING RELEASE, WAIVER AND INDEMNITY IS INTENDED TO EXEMPT AND RELIEVE KDUB FROM LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE OR WONGFUL DEATH CAUSED BY KDBR’S NEGLIGENCE BE AS BROAD AND INCLUSIVE AS THE STATE OF CALIFORNIA WILL ALLOW AND THAT IF ANY PORTION THEREOF IS HELD INVALID, IT IS AGREED THAT THAT THE BALANCE SHALL, NOTWITHSTANDING CONTINUE IN FULL LEGAL FORCE AND EFFECT.
Further, YOU acknowledge that YOU are aware of local helmet laws for applicable equipment and accepts any and all liability and risks related to the use or non-use of a helmet.
ATTORNEY’S FEES: The prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement.
WAIVER: No failure of KDBR to exercise or enforce any of its rights under Agreement shall act as a waiver of subsequent breaches; and the waiver of any breach shall not act as a waiver of subsequent breaches. KDBR’s acceptance of payment with knowledge of a default by YOU shall not constitute a waiver of any breach.
SEVERABILITY. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect.
ENTIRE AGREEMENT. Agreement represents the entire understanding relating to the subject matter hereof and prevails over any prior or contemporaneous, conflicting or additional communications.
INSURANCE: YOU certify that YOU have a policy of liability insurance for both bodily injury and property damage and YOU agree that such policy of insurance will be primary with respect to any personal injury, death and/or property damage which occurs as a result of the use of the Equipment by YOU or any permissive users of Equipment.
ASSIGNMENT: YOU may not transfer or assign this Agreement or any part thereof. Any attempt to do so shall be a material default of this Agreement and shall be void.
HEADINGS: Paragraph headings used in this Agreement are for reference only and shall not be used or relied upon in the interpretation of this Agreement.