Welcome to Daily Adventure Box, Inc. (“DAB,” “our,” “us,” or “we”). DAB owns and operates the website located at www.dailyadventurebox.com and the related mobile application (collectively, the “App”). We offer kayaks, paddle boards, bodyboards, skimboards, snorkels and fins, and other outdoor recreational equipment (collectively, the “Equipment”) which may be rented via the App and picked up and returned at our self-service lockers (the “Lockers”). These Terms and Conditions of Use and the Voluntary Waiver and Release of Liability below
(collectively, these “Terms”) govern your access and use of the App, and rental and use of the Equipment (“you,” means you personally, and if applicable, any other person for whom you rent the Equipment, including any Additional User added at checkout (collectively, “you”)).
THESE TERMS INCLUDE IMPORTANT RULES, POLICIES, AND WAIVERS OF YOUR RIGHTS WITH REGARDS TO YOUR USE OF THE EQUIPMENT. THESE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT MADE BETWEEN YOU AND DAB. PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING AND/OR USING THE APP, AND/OR RENTING THE EQUIPMENT, YOU AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE SO BOUND, YOU MAY NOT ACCESS OR USE THE APP OR RENT THE EQUIPMENT.
1. Eligibility.
To rent the Equipment, you represent that you and/or any other person for whom you are renting the Equipment are:
● At least 18 years of age and able to form legally binding contracts.
● Mentally and physically capable of using the Equipment in a safe and appropriate manner.
● Not currently under the influence of any drugs and/or alcohol that may impair your ability to maintain your awareness of your situation, surroundings, or personal safety, or the safety of others.
● Not going to become under the influence of any drugs and/or alcohol that so impairs your abilities or puts others at risk.
An adult parent or legal guardian (“Guardian”) of persons under 18 years of age (“Minor(s)”) may rent Equipment on behalf of such Minor(s), provided, that, that the Guardian will be fully responsible, at all times, for full compliance with these Terms on behalf of the Guardian and the Minor(s).
2. Accounts.
You must create an account through the App to rent the Equipment (and “Account”). In creating an Account, you must provide DAB with accurate and complete information. During your registration, you must select a password. You must keep your password confidential at all times. You will be solely responsible for all use of your Account, including, without limitation, any unauthorized use by third parties. DAB will never ask you for the password to your Account. Under no circumstances should you respond to a request for your password. You must notify DAB immediately if you have received any such request or believe there is or has been any unauthorized use of your account. The use of any false or fictitious identification to create an Account or otherwise to obtain the
Equipment, the failure to return the Equipment or the failure to pay for any Equipment, is a crime and may result in criminal prosecution in addition to civil penalties.
3. Equipment Rental.
Subject to your compliance with these Terms, you may rent the Equipment for the following durations (the “Rental Period”) and at the following rates (the “Rental Fees”):● 2-Hours: $(see rate in App)
● 4-Hours: $(see rate in App)
● 8-Hours: $(see rate in App)You agree to return the Equipment to the Locker where you originally rented it (unless DAB agrees to accept the Equipment return at another location). The Equipment shall be clean, free of all
regulated or hazardous substances (including without limitation, substances identified as “hazardous materials” under the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA) and/or any other federal, state or local laws, rules and/or regulations purporting to deal with toxic or hazardous substances), rental-ready, and otherwise in substantially the same condition as when you initially rented it. You agree that you may be charged a reasonable fee for Equipment returned in any other condition or in excess of Ordinary Wear and Tear (as defined in Section 8 below). Any Equipment not returned within 24-hours from your expected return time at the end of your Rental Period will be deemed Lost and your original payment method will be charged the Lost Equipment Fee in Section 11 below.
4. Rental Fees.
The Rental Fees listed in the App do not include any applicable state or local taxes or other required fees (collectively, the “Sales Taxes”), which will be included in the final amount due at checkout. All Rental Fees and Sale Taxes are due and payable at the time of rental. Note: Any Equipment that is returned after the end of the applicable Rental Period will incur a Late Rental Fee as described Section 10. Any Equipment that is returned damaged (excluding Ordinary Wear and Tear) will incur a Damaged Equipment Fee as described in Section 11. Any Equipment not returned within 24 hours after the end of applicable Rental Period will incur a Lost Equipment Fee as described in Section 11.
5. Additional Users.
Any other person(s) who will use the Equipment during your Rental Period (whether or not such person is over 18 years of age) must be added as an “Additional User” at the bottom of this document. All Additional users who are over 18 years of age must also sign these Terms. The Guardian of any Minor who will use the Equipment must sign these Terms on behalf of such Minor.
6. Equipment Inspection.
You agree that, immediately upon rental of the Equipment, you will inspect, examine and accept the Equipment in the condition when rented, and that, as delivered to you, the Equipment is safe and in good operating condition and repair and otherwise in all ways acceptable to you. If, following such inspection and examination, you do not accept the Equipment for use in the condition available, you will not use the Equipment, will immediately return the Equipment, and will immediately notify DAB through the App or email support as to the reason for non-acceptance. You will not be charged the Rental Fees or Sales Taxes if you do not accept the Equipment.
7. Equipment Use and Care.
Only you and any Authorized Users added at checkout may use the Equipment, each of whom must be skilled, experienced, trained and authorized in use of the Equipment in its normal and intended use. You must protect the Equipment against misuse, exposure to adverse conditions and any other abuse or neglect, ensure that it remains in good operating condition and is returned to DAB at the end of your Rental Period in substantially the same condition in which you rented it (Ordinary Wear and Tear excepted). You agree to comply fully with all laws and regulations applicable to the access, storage, use, and transportation of the Equipment.
8. Ordinary Wear and Tear.
“Ordinary Wear and Tear” means normal deterioration resulting from the proper and intended use of the Equipment in accordance with these Terms, and will not be considered damage for which you will incur additional fees or charges. Damage which is not “Ordinary Wear and Tear” (and for which you will be solely responsible) includes without limitation, damage due to overloading or exceeding rated capacities, non-standard use, operation without proper supports and/or safety equipment, improper use, misuse, abuse, neglect, accidents, intentional damage, and any other damage resulting from your negligence or willful misconduct.
9. Cancellations.
You may cancel your rental 2 hours or more in advance of your Rental Period and no cancellation fee will apply. If you cancel less than 2 hours in advance of your Rental Period, you will be charged 100% of the applicable Rental Fee.
10. Late Rental Fees.
If you fail to return the Equipment at the end of the applicable Rental Period, your payment method will be charged a late fee (“Late Rental Fee”) as follows:
● 2-Hour Rental Fee - returned late: If returned within a 4-Hour time frame, you will be charged the 4-Hour Rental Fee.
● 4-Hour Rental Fee returned late: If returned within a 8-Hour time frame, you will be charged the 8-Hour Rental Fee.
● 8-Hour Rental Free returned late: You will be charged $15 per hour until the Equipment is returned to the appropriate Locker, up to 24 hours. If the Equipment is not returned to the Locker within 24 hours after it was due to be returned, you will instead be charged the Lost Equipment Fee described in Section 11.
11. Damaged or Lost Equipment.
You are the insurer of the Equipment during the Rental Term. You bear all risk of loss, theft, damage or destruction to the Equipment, regardless of cause or fault (not including Ordinary Wear & Tear). If the Equipment is lost, stolen, damaged or destroyed during the Rental Term, regardless of cause or fault, you will notify DAB immediately, and your payment method will be charged 2x the retail value of the Equipment if it is lost, stolen, or damaged beyond repair (the “Lost Equipment Fee”), or if damaged, 2x the retail cost to replace the damaged part (if replaceable) (the “Damaged Equipment Fee”); and in either case, all packing, shipping, handling, storage, taxes, and other associated
costs. Rental Fees previously paid for the Equipment will not be applied to the above-referenced charges.
12. Payment Authorization.
Subject to any limitations under applicable law, you irrevocably and unconditionally authorize DAB to immediately charge the credit card or other payment method you have provided to DAB for theapplicable Rental Fees and Sale Taxes due under these Terms, and, if applicable, any Late Rental Fee or Lost Equipment Fee due and payable under these Terms. You further agree to indemnify, defend and hold harmless DAB with respect to all such payments, processing fees, and related charges.
13. Possession/Title.
DAB owns all right and title in and to the Equipment, and such title and ownership will remain with DAB at all times. Subject to your compliance with these Terms and payment of the Rental Fees and Sales Taxes, DAB grants to you a limited, irrevocable, non-transferrable, temporary license to use the Equipment for the purposes set forth in these Terms during the Rental Period.
14. Right to Refuse Rental.
All Equipment rental reservations and transactions made through the App are subject to DAB’s acceptance, which is in our sole and absolute discretion. Without limitation, we reserve the right to refuse to accept or cancel any rental reservation or transaction, whether or not the rental reservation has been confirmed, for any reason or for no reason, in our sole and absolute discretion, and without any liability to you or any other third party.
15. Use of App and Locker.
In your use of the App and the Locker, you may not: (a) disrupt or interfere with the security of the App or the Locker; (b) interfere with or damage the App or the Locker or the underlying software code, 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 electric mail address information, or similar methods or technologies; (c) attempt to obtain unauthorized access to the App, any other Account, or the Locker; (d) access the App or Locker in order to build a competitive product or service; (d) decompile, disassemble, or reverse engineer the App or Locker; or (e) harvest or collect information or data regarding other users of the App or the Locker.
16. Intellectual Property.
DAB owns and retains all right, title, and interest in and to the App and the Locker, including, without limitation, all content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the App and the Locker, and all of the trademarks, service marks, and logos, utility patents or design patents contained therein (“DAB Content”). No right to any DAB Content is granted to you or any rights therein by virtue of these Terms or your use of the App or the Locker or otherwise, except as expressly set forth in these Terms.
17. Warranty Waiver.
All Equipment is provided “as-is” and “with all faults.” We make no warranty, express or implied (including without limitation, any and all warranties of suitability, merchantability and/or fitness for any particular purpose), nor do we make any warranty against interference, infringement, that the Equipment is fit for your intended use, application or environment, or that it is free from defects (latent or patent). No warranties shall be deemed to exist with respect to the equipment. Your sole and exclusive remedy for any failure of or defect in or with respect to any of the Equipment is the return of the Rental Fees associated with the defective Equipment at the time of failure.
18. LIABILITY LIMITATION.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) DAB WILL NOT BE LIABLE TO YOU, ANY ADDITIONAL USER, OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST DATA, OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH YOUR USE OF THE APP OR EQUIPMENT, REGARDLESS OF THE CAUSE OF ACTION ON WHICH ANY SUCH CLAIM ISBASED, EVEN IF DAB WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING; AND (B) IN NO EVENT SHALL DAB’S LIABILITY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THESE TERMS EXCEED THE AMOUNT THAT YOU ACTUALLY PAID TO DAB TO RENT THE EQUIPMENT, AND IF NO SUCH PAYMENT HAS BEEN MADE, THEN THE MAXIMUM AMOUNT SHALL BE $100.
19. Assumption of Risk.
You acknowledge that the possession, use, transportation and/or storage of the Equipment may give rise to the risk of personal injury and/or property damage. You voluntarily assume and all such risks and forever release and discharge DAB from any and all liens, liabilities, and claims arising in connection with the same, including without limitation, any and all claims arising from or in connection with your use of the Equipment, the Lockers, the App and any associated services (collectively, the “DAB Products”). Such release covers you, any Additional Users, and any unauthorized users who use the DAB Products through your Account, regardless of their age or relationship to you.
20. Indemnification.
You assume all risks associated with the rental, possession, use, transportation and storage of the Equipment on your own behalf, and on behalf of anyone else who uses the Equipment, during the Rental Period, and any additional time if the Equipment is not returned at the end of your Rental Period. Accordingly, You hereby agree to indemnify, defend and hold harmless DAB, and our directors, officers, employees, contractors, agents, representatives, affiliates, subsidiaries, successors and assigns (collectively, the “DAB Parties”), from and against any and all liabilities, claims, damages, losses, costs and expenses (including without limitation, attorneys’ fees, claims for bodily injuries (including deaths), property damage, loss of time/and or inconvenience) resulting
from, arising out of, or in connection with such possession, use, transportation and/or storage of the Equipment, regardless of the claim or cause of action and including any injuries and/or damages suffered by you, the Additional Users, and any third parties (collectively, a “Claim”). In the event that you are obligated to provide indemnification to any of the Indemnified Parties pursuant to this provision, DAB may, in its sole and absolute discretion, control the disposition of any such Claim at your sole cost and expense. Without limitation, you may not settle, compromise, or in any other manner dispose of any such Claim without DAB’s prior written consent.
21. Applicable Law/Venue.
These Terms, and any disputes arising hereunder or in any way related hereto, shall be construed in accordance with and governed by the laws of the State of Florida as applied to contracts that are executed and performed entirely in Florida. In the event that the mandatory arbitration agreement below is found not to apply to a given claim, or in the event that DAB seeks a claim for injunctive relief, you agree that any judicial proceeding will be brought in the state courts of Florida located in Bay County, Florida and hereby irrevocably consent to venue and personal jurisdiction of such courts.
22. MANDATORY ARBITRATION.
You acknowledge and agree that all disputes arising out of or relating to these Terms (including its formation, performance or alleged breach) and your use of the DAV Products will be exclusively resolved under confidential binding arbitration held in Bay County, Florida before and in accordance with JAMS Streamlined Arbitration Rules (the “Rules”) and the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness, which will prevail over any inconsistent term in these Terms. More information regarding the Rules and procedures on the JAMS website located at: https://www.jamsadr.com/consumer-minimum-standards/. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permittedby applicable law, no arbitration under these Terms will be joined to an arbitration involving any other party subject to these Terms, whether through class arbitration proceedings or otherwise.
Notwithstanding the foregoing, DAB may seek injunctive or other equitable relief in a state or federal court located in Bay County, Florida to enforce these Terms or prevent an infringement of its intellectual property rights. In the event equitable relief is sought, each party hereby irrevocably submits to the personal jurisdiction of such court.
23. RIGHT TO OPT-OUT OF ARBITRATION.
IF YOU ARE CREATING A NEW ACCOUNT, YOU CAN CHOOSE TO REJECT THE AGREEMENT TO ARBITRATE PROVISION ABOVE (“OPT-OUT) BY EMAILING DAB AT hellp@dailyadventurebox.com (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE RECEIVED NO LATER THAN 24 HOURS AFTER YOU CREATE YOUR ACCOUNT OR PRIOR TO YOUR RENTAL PERIOD, WHICHEVER COMES FIRST. IN YOUR OPT-OUT NOTICE, YOU MUST INCLUDE YOUR FULL LEGAL NAME, EMAIL ADDRESS, AND MAILING ADDRESS. THIS
PROCEDURE IS THE ONLY WAY WE CAN PROPERLY IDENTIFY INDIVIDUALS WHO HAVE OPTED-OUT OF THIS AGREEMENT TO ARBITRATE. ALL OTHER PROVISIONS OF THESE TERMS WILL CONTINUE TO APPLY TO YOU. AN OPT-OUT OF THIS AGREEMENT TO ARBITRATE HAS NO EFFECT ON ANY PREVIOUS, OTHER, OR FUTURE ARBITRATION AGREEMENTS THAT YOU MAY HAVE WITH DAB.
24. Waiver of Jury Trial.
You hereby waive all rights to a jury trial of any claim or cause of action based on or arising out of these Terms or the subject matter hereof. This waiver pertains to all disputes that may be related to the subject matter hereof, including, without limitation, contract, tort, breach of duty, and all other common law and statutory claims, and will not be subject to any exceptions. You understand and agree that this is a waiver of important legal rights and acknowledge and agree that You may discuss this waiver and its effects with legal counsel. Accordingly, You knowingly, voluntarily, irrevocably and unconditionally waive any jury trial rights.
25. WAIVER OF CLASS ACTIONS.
BY ENTERING INTO THESE TERMS, YOU HEREBY AGREE TO WAIVE ANY RIGHT TO JOIN CLAIMS WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION OR SIMILAR PROCEDURAL DEVICE. ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THESE TERMS MUST BE ASSERTED INDIVIDUALLY.
26. Limitation of Actions.
You acknowledge and agree that regarding of any statute or law to the contrary, any claim or cause of action you may have against DAB arising out of, relating to, or connected with these Terms, including your use of the App and Equipment, must be filed within 12 months from the date on which the event giving rise to such claim or cause occurred or be forever barred.
27. Entire Agreement.
These Terms and Conditions of Use and the Voluntary Waiver and Release of Liability constitute the entire agreement between you and DAB with respect to the subject matter contained herein and therein and supersede all prior or contemporaneous agreements, communications, and proposals, whether written or oral, between you and DAB.
28. Severability; Waiver.
If any provision of these Terms is held to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion of the provision shall be deemed severed from these Terms, and such such severance shall not affect the validity or enforceability of any other provision herein. DAB’s failure to exercise any right or provision of these Terms shall not be construed as a waiver of such right unless expressly agreed to by DAB in writing.29. Integration. These Terms represent the complete and final agreement between you and DAB and cannot be modified through any other agreement or without the express written consent of DAB. There are no oral or other representations, warranties or agreements not included in these Terms or the App. You acknowledge that these Terms may be amended or updated from time to time by DAB.
By signing below, you represent to DAB that:
● You understand these Terms are legally binding upon you.
● You have fully read and understand these Terms.
● You are aware of your obligations under these Terms.
● You agree to comply with all of these Terms.X: ____________________________________scroll >>>>>
Date:__________________________________
VOLUNTARY WAIVER AND RELEASE OF LIABILITY
Please read this Voluntary Waiver and Release of Liability (this “Waiver”) carefully before signing.
WAIVER AND RELEASE OF LIABILITY.
DAB is not and will not be held liable for any injury (whether personal injury, death or otherwise), or any loss of or damage to property suffered while renting, using, transporting, or storing the Equipment or participating in any activities on or around the Equipment, for any reason whatsoever, whether resulting from the negligence of DAB or its directors, officers, employees, contractors, agents, or representatives, or any other person or entity (collectively, the “DAB Parties”). In consideration for the rental and use of the Equipment, you, on behalf of yourself, any Additional Users, and any person who uses, transports, or stores, or comes into contact with the Equipment during your Rental Period and while the Equipment has not been returned to DAB, hereby COVENANT NOT TO SUE DAB OR ANY DAB PARTIES, AND WAIVE, RELEASE, DISCHARGE DAB FROM ANY AND ALL CLAIMS which may be brought by you, your family, estate, heirs, and/or assigns, against DAB or any DAB Parties, including, but not limited to, any and all present or future claims for loss, theft of property, injury or damages to your person or property or your death, or any injury or damage to any other person or death or the property of any third parties, arising from the use, transportation, storage, and/or contact with the Equipment during your Rental Period and any
time thereafter during which the Equipment has not been returned to DAB (whether still in your possession or not).
This Waiver includes, without limitation, injuries or death which may occur as a result of: (a) your use, transportation, or storage of the Equipment; (b) any person or property with whom the Equipment comes into contact; (c) claims of negligence; (d) claims of intentional or wrongful conduct.
If you are a Guardian signing on behalf of a Minor, you agree to waive and release any claims against DAB as allowed under Florida Statute 744,301(3), or any other relevant law. ASSUMPTION OF RISK.YOU UNDERSTAND THAT USING THE EQUIPMENT ENTAILS INHERENT RISKS OF PHYSICAL INJURY, INCLUDING, BUT NOT LIMITED TO DEATH AND YOU HEREBY VOLUNTARILY ELECT TO RENT AND USE THE EQUIPMENT.
IN CONSIDERATION OF YOUR RENTAL AND USE OF THE EQUIPMENT, YOU ASSUME FULL AND COMPLETE RISK AND RESPONSIBILITY FOR ANY INJURY, ACCIDENT, DEATH WHICH MAY OCCUR. ADDITIONALLY, YOU AGREE NOT TO USE THE EQUIPMENT IN THE OCEAN DURING ANY TIMES IN WHICH THE APPLICABLE STATE/LOCAL AUTHORITIES, ON DUTY LIFEGUARDS, OR APPLICABLE AUTHORITY HAS ADVISED AGAINST SWIMMING IN THE AREA OR ISSUED A ‘NO SWIM’ OR SIMILAR WARNING DUE TO A HIGH-TIDE, RED TIDE, OR ANY OTHER DANGEROUS OR HAZARDOUS CONDITION. ACKNOWLEDGEMENT OF UNDERSTANDING.
You, as the renter, or as the Guardian of a Minor, acknowledge and represent that you have read this Waiver, fully understand the terms herein, and sign it voluntarily as your own free act and deed; that no oral representation, statements or inducements, apart from the foregoing written agreement, have been made; that you are at least 18 years of age and fully competent; and that you execute this Waiver for full, adequate and complete consideration fully intending to be bound by the same.
X: _______________________
Date:_____________________Additional Users:
Name of user if under 18+ years of age:
x____________________________________
x____________________________________
x____________________________________
x____________________________________
Parent/Guardian signature:
x____________________________________