Terms and Conditions
- GENERAL TERMS
- TERMS OF SERVICE
1. Effect of Terms
1.1 Open Shed Pty Ltd (“Operator”) is the operator of the service provided at www.openshed.com.au (the “Site”, references to which include the mobile friendly version of the Site created by the Operator) which enables persons who register as a member on the Site (“Member”) to rent certain items for use by other Members (such service, and any other services provided via the Site, being described here as “Open Shed”).
1.3 You acknowledge that the Operator provides Open Shed solely in accordance with the Agreement and that you have read and understood the Agreement.
1.4 You acknowledge that if there is any conflict between these General Terms and the Terms of Service, the latter shall prevail.
1.5 For the avoidance of doubt, these are the General Terms as referred to in the Terms of Service.
1.8 You acknowledge and accept that nothing in this Agreement shall be deemed to constitute, create, give effect to or otherwise recognise a partnership, agency or joint venture of any kind, or create a fiduciary relationship, between you and the Operator.
2. Membership & Use
2.1 You agree that for you to access and use Open Shed, you must register as a Member by establishing an Account on the Site. By registering as a Member, and using Open Shed, you agree to abide by the terms and conditions of the Agreement.
2.2 In registering an Account with the Operator, you warrant, represent and undertake that:
b) you are at least 18 years old and normally reside in Australia, and there is no reason you are aware of in law that prevents you from accepting the Agreement;
c) all information you provide in establishing an Account or in updating your Account is accurate and complete and you must ensure that your Account is up-to-date at all times whilst you are a Member;
d) you must not register an Account in a name other than a name legally recognised as being your real name and you must not provide information which is not correct or is misleading or deceptive or which could otherwise prejudice the Operator or another Member;
e) you will not adopt a username that is offensive, obscene, defamatory or is otherwise determined, at the sole and absolute discretion of the Operator, to be unacceptable for use on the Site, and agree that the Operator reserves the right to remove any such username, and to cancel your Account, in such circumstances, and you accept that you will be liable for any losses and damages suffered by the Operator as a result of the use or display of any such username on the Site;
f) you assume full responsibility for maintaining the confidentiality of your Account name and password, and any other content you make available to the Site and Service;
g) you will register a valid financial account (Credit Card to make payment, or Bank Account to recieve payment), to enable the Operator to process payments in accordance with the Terms of Service and the terms set out in section 6 below (all such payments being made in Australian dollars);
h) the Operator is not responsible for any losses you incur due to informational or technical errors in the Account registration process, and will not be liable for any loss or damage you incur as a result of an unauthorised person using your Account, including the use of any personal details you provide in the Account registration process;
i) the Operator reserves the right to edit or delete any material related or uploaded to your Account, without notice and liability to you, in the event that any such material, as determined by the Operator in its sole and absolute discretion, violates the Agreement, or if the Operator deems it is appropriate to edit or delete such material pending investigation of any such violation; and
j) the Operator reserves the right to suspend or terminate any Account and/or use of Open Shed, without notice and liability to you, in the event that you violate the Agreement in any respect, as determined by the Operator, at its sole and absolute discretion, or if the Operator deems it appropriate pending investigation of any such violation.
2.3 In using Open Shed and operating an Account, you warrant, represent and undertake that:
a) you will be the only person who will use Open Shed using your Account, and that you will not allow any other person, whether or not acting under your instructions, to use your Account for any reason, and will actively takes steps to prevent any other person to do such, and that in the event any other person uses your Account, you are to be held responsible for any losses and damages caused as a result of that use;
b) you will not use the Account of any other person for any purpose;
c) you will not use a Transaction Account in relation to Open Shed that you are not legally entitled to use;
d) you will not request that the Operator process a transaction on a Transaction Account if you know or have reason to suspect that it will be declined by the issuer of the Transaction Account;
e) you will notify the Operator immediately by email (email@example.com) if you become aware of any unauthorised use of your Account;
f) you will enter into transactions for the use of Open Shed strictly via the stipulated procedures outlined on the Site and in accordance with the Agreement, and not otherwise;
g) you will not cause or allow your Account to be leased, sold, transferred to or operated by another party, whether for money or other valuable consideration or gratuitously;
h) you will not use Open Shed for any purposes other than those clearly contemplated by the Operator in accordance with the information on the Site;
i) you will keep confidential any information you obtain that relates to any other Member, including actual names and addresses of other Members, and will not publish or reproduce such information in any form, including without limitation on the Site, or on any external websites unaffiliated with the Operator or in any print medium, without the prior written permission of the relevant Member and the Operator;
j) you will not use Open Shed in a manner which will or which may compromise its security or normal operation, including the doing of any acts in the nature of “spamming”, “flooding”, “crashing”, “hacking”, “bypassing”, “phishing”, “decrypting” or any other act that the Operator deems, in its sole and absolute discretion, “harmful” to the Site, and in the event you do such acts, or aid, abet, encourage, or facilitate another person to do such acts, you are liable to the Operator for all losses and damages incurred by the Operator and its officers, employees, agents, partners and other third parties who could be reasonably expected to suffer loss and damage as a result of such acts;
k) you will not list Items that are “Prohibited Items” as defined in the Terms of Service;
l) you acknowledge that the Operator has not and will not verify information provided by other Members on the Site or in relation to transactions carried out by means of the Site and that the Operator does not guarantee that other Members will comply with the Agreement or, in particular, with an Item Hire Contract;
m) you acknowledge that the Operator is not liable for any breach of the Agreement by any other Member or in relation to any breach of any “Item Hire Contract” (as described in the Terms of Service) or otherwise in relation to transactions carried out by means of the Site; and
n) it is your responsibility to ensure your own compliance with all applicable laws when using Open Shed, including any applicable tax laws in any jurisdiction and laws governing consumer transactions whether peculiar to a particular Item or generally relating to transactions of the type you are engaged in as a result of using Open Shed, and the Operator disclaims any responsibility and liability for this to the full extent permitted by law.
3. Use of the Site
3.1 In using Open Shed, you irrevocably and unconditionally acknowledge and accept the following:
a) the Operator makes no warranties or representations as to the accuracy of the information of any kind displayed on the Site, including the Content, any User Content or any other information which is available to anyone using the Site, and you bear all losses and damages suffered as a result of acting in reliance on that information;
b) the Operator is not obliged to and makes no undertaking whatsoever to check or otherwise verify that any information provided by any of its Members is not in breach of this Agreement or any other applicable law;
c) the Operator does not warrant that Open Shed and, in particular but without limitation, the Site, will be available for use free of technical or functional errors, including the presence of “viruses” “Trojans” “spyware” “adware” “bots” and other similarly harmful computer effects, and any losses or damages you suffer as a result thereof, or because the Operator has chosen to temporarily or permanently suspend operation of the Site, is a risk borne by you for which you cannot make a claim against the Operator;
d) you are prohibited from violating or attempting to violate any security features of the Site, including, without limitation, a) accessing content or data not intended for you, or logging onto a server or account that you are not authorised to access; b) attempting to probe, scan, or test the vulnerability of the Site or any associated system or network, or to breach security or authentication measures without proper authorization; c) interfering or attempting to interfere with service to any user, host or network, including, without limitation, by means of submitting a virus to the Site, overloading, “flooding,” “spamming,” “mail bombing,” “hacking,” or “crashing”; d) using the Site to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; e) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting in using Open Shed; or f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Operator in operating the Site;
e) any violation of system or network security by you may subject you to civil and/or criminal liability;
f) you agree you will not use or attempt to use Open Shed for any activity that violates local, state or federal law, and that should you commit any acts or omissions that may result in attracting criminal penalties or civil liabilities, you hereby indemnify the Operator to the full extent for any losses or damages suffered by it as a result of such acts and omissions;
g) you agree that you will not use or attempt to use the Site for advertising or promotional purposes related to any business you conduct commercially, nor shall you solicit, invite or accept any commercial offers made available via the Site (other than Rental Requests made in accordance with the Agreement), and in the event you engage in such activities, the Operator reserves the right to suspend or terminate your Account and use of Open Shed and the Site;
h) the Operator has no control over and does not warrant the accuracy of any third party content (including without limitation of any of the Operator’s partners, affiliates or sponsors), including websites that may be linked to or from the Site and has no control over the content and performance of such third party sites;
i) the Operator makes no guarantees about the accuracy, currency, content or quality of the information provided by any such third party websites, and the Operator assumes no responsibility for unintended, objectionable, inaccurate, misleading or unlawful content that may reside on those sites and accepts no liability for any such third party content;
j) you bear any losses or damage however incurred in reliance on third party content on the Site or available from the Site and the Operator shall not, to the maximum extent permitted by law, be liable in any circumstances for any loss or damage howsoever incurred by you, in relation to the use of Open Shed;
k) the Operator makes no warranties or guarantees in relation to Open Shed except as expressly provided in the Agreement and to the extent that any such warranties or guarantees are required to be implied by law;
l) the Operator provides Open Shed on a purely "as is’ basis without warranty of any kind and, to the maximum extent permitted by law, the Operator expressly disclaims any and all liability and any warranties or guarantees, express or implied, regarding the provision of the services via Open Shed, including, but not limited to, any implied warranties or guarantees of merchantability, fitness for a particular purpose, acceptable quality or non-infringement of third party rights;
m) to the maximum extent permitted by law, the Operator does not warrant that Open Shed will meet your requirements or that the use of Open Shed will be uninterrupted or error-free, and you may not make any claim against the Operator for losses or damages you suffer as a result;
n) you assume the risk of any and all damage or loss from use of, or inability to use, the Site, and the Operator shall not, to the maximum extent permitted by law, be liable in any circumstances for any loss or damage howsoever incurred by you, in relation to the use of the Site; and
o) to the maximum extent permitted by law, in no event shall the Operator be liable for damages of any kind (including, but not limited to, special, incidental, or consequential damages, lost profits, or lost data, regardless of the foreseeability of those damages) arising out of or in connection with your use of Open Shed or any other materials or services provided to you by the Operator or otherwise on or from the Site and whether arising from breach of contract, tort or any other legal claim under any jurisdiction at law or in equity.
3.2 You hereby indemnify and undertake to keep the Operator and its affiliates, officers, directors, employees, consultants, agents and representatives fully and effectually indemnified from and against:
a) any and all third party claims, proceedings, losses, liability, damages and/or costs (including legal fees on an indemnity basis) arising from your access to or use of Open Shed and/or your breach of any warranty, representation, term or condition of the Agreement; and
b) any and all claims, proceedings, losses, liability, damages and/or costs (including legal fees on an indemnity basis) from another user or Member of Open Shed.
4. Intellectual Property and Use Content
4.1 You agree that by the Operator making content, including but not limited to information in the form of text, photographs and other data, available to you from the Site (collectively, the “Content”):
a) any Content you access from the Site or download from the Site, is only used by you under licence from the Operator for the limited purpose of enabling you to use Open Shed whilst you are a Member and strictly in accordance with, and subject to, the Agreement;
b) the Operator retains full and complete title to the Content as well as all intellectual property rights therein;
c) you do not acquire any right, title or interest in any Content under any circumstances;
d) you must not copy, license, sell, distribute, communicate to the public, store or reproduce the Content in any form, nor may you decompile, reverse-engineer, disassemble, or otherwise convert the data relating to the Site or to any Content; and
4.2 In relation to any information, including but not limited to the Rental Listing, images or any other material you make available to the Site, whether by posting, uploading, displaying, performing, transmitting or otherwise, or which you otherwise provide to the Operator in respect of your use of Open Shed (“User Content”):
a) you warrant and represent that you own all rights to the User Content and are entitled to provide such User Content to the Operator for use on the Site without restriction, and that the Operator may use such User Content without infringing any rights of any third party (including without limitation any intellectual property rights and rights of privacy and confidentiality) without otherwise giving rise to any risk of an adverse claim against the Operator;
c) you agree that the Operator may publish or otherwise disclose your User Content, whether on its own volition or by legal compulsion by law, to assist any legal authority in the investigation of a criminal offence, or to assist any party in the resolution of a complaint or claim for civil relief in relation to activities by you, another Member or the Operator in relation to Open Shed;
d) you warrant and represent that each time you provide User Content to the Operator or upload User Content to the Site, such User Content (and every part of it) will not be inaccurate, untruthful, defamatory, abusive, threatening, harassing, obscene, pornographic, fraudulent, misleading or deceptive, tending to be a breach of any criminal law or which may give rise to any civil liability, racial vilification, discrimination or directly or indirectly endorse any other product or service not operated or provided by the Operator;
e) to the extent that such User Content comprises a rating of the Operator or of another Member or of their performance of any transaction relating to Open Shed, you agree that such User Content will be honest in all respects and not misleading or deceptive, malicious, exaggerated or defamatory or otherwise calculated to cause ridicule or contempt;
f) you acknowledge and agree that the Operator will be entitled to remove any User Content from the Site for any reason (and without being required to disclose that reason to you) at its sole and absolute discretion, and that the Operator is not obliged to remove any User Content upon a request made by you to the Operator such that any requests are determinable at the sole and absolute discretion of the Operator;
g) you may establish a hypertext link from any website to this Site, but must not state or imply that you are affiliated or associated with the Operator in any way, including having any endorsement or sponsorship from the Operator;
h) you may not establish, display or cause to be displayed, a hypertext link on this Site to any other external website, other than to your personal social networking account or blog (which is not used for business purposes), without the prior written consent of the Operator; and
i) you acknowledge that the Operator reserves the right to suspend or terminate your Account, your use of Open Shed and access to the Site, free of compensation to you, should you breach the Agreement.
6. Financial Matters
6.1 You acknowledge that the Operator shall have the right to impose or vary any fees or charges in relation to the use of Open Shed and you shall be deemed to be on notice of and accept any notifications regarding such fees or charges posted to the Site by the Operator prior to you making a Rental Request.
6.2 If you are entitled to payment as a result of a transaction via the Site involving another Member, but that Member fails to pay the relevant amount due to the Operator, you accept and agree that you may only look to such other Member to recover the amount due to you and, in no circumstances will the Operator be liable to you or any other party in any respect arising out of the failure by that Member to pay such relevant amount.
6.3 You agree that payments in respect of your use of the Site, whether payments due to be paid by you or to you, may only be made via the approved payment platforms described on the Site from time to time.
6.4 The Operator is not responsible for any taxes that arise as a result of the transactions between Members from using Open Shed, including without limitation income taxes, goods and services taxes, stamp duty and any and all other forms of impost, withholding or Federal or State charges). All Members agree that they are responsible for:
a) determining what taxes will result from entering into or performing an Item Hire Contract; and
b) paying all such taxes as and when they are due.
7. Complaints Procedure
If you wish to lodge a complaint about any matter in relation to the use of Open Shed or the operation of your Account, you must provide full details of the complaint to the Operator by email (firstname.lastname@example.org) and allow the Operator a reasonable amount of time to investigate the complaint before giving you a written response.
8. Withdrawal from Membership
If you wish to cancel your registration with Open Shed, you need to log on to the Site and cancel your Account in the ‘Dashboard’ section by pressing the Cancellation button and confirming such cancellation. Alternatively, you can email support@Open Shed.com.au with your details. Prior to cancelling your Account, Members must ensure that they do not have any active rentals or Accepted Rental Requests. Members are required to cancel any Accepted Rental Requests prior to cancelling their registration.
The Operator may, in its sole and absolute discretion and without prior notice, a) modify Open Shed (including, without limitation, the Site); or b) discontinue Open Shed and/or the Site at any time, in either case, without liability to you.
If, for whatever reason, a court of competent jurisdiction finds any term or condition in this Agreement to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect.
The Operator shall not be taken to waive the enforcement of any of its rights, whether for past, future or continuing breaches, contained under this Agreement unless made in writing and signed by an authorised representative of the Operator.
12.2 In the event there is any inconsistency between the Agreement and any other information appearing on the Site, or any other material accessible, available or observable on the Site and published by the Operator, including information prepared by the Operator known as the “FAQs”, the Agreement shall prevail.
13. Governing Law
This Agreement shall be construed in accordance with and governed by the laws of the New South Wales, Australia, and the Federal Laws of Australia where applicable. You hereby irrevocably consent to the jurisdiction of the state or federal courts in Australia in all disputes arising out of or related to the use of Open Shed, the Site or this Agreement.
TERMS OF SERVICE
1. Effect of Terms of Service
1.1 Open Shed Pty Ltd (the “Operator”) is the owner and operator of the website, including the mobile friendly version of such website, at www.openshed.com.au (the “Site”) which provides the service known as “Open Shed” (as described in the General Terms and these Terms of Service). Open Shed enables and facilitates Members to rent certain items for use by other Members and for the entry into rental transactions. As such, the Operator is only a third party provider of an online platform and is not responsible to any Members in relation to a rental transaction or a party thereto.
1.2 These terms and conditions, being the “Terms of Service”, are intended to provide a convenient basis, and serve as good practice, upon which rental transactions, that is, Item Hire Contracts, should be entered into between Members via Open Shed. Whilst Open Shed accepts that it cannot compel Members to enter into rental transactions in the form as herein set out, Members are deemed to be engaging one another on the basis that these Terms of Service apply, and any non-adherence to these Terms of Service are automatically treated as a contravention of the General Terms by virtue of paragraph 2.2 of the General Terms.
1.3 All Members acknowledge that the Operator acts merely to facilitate a Item Hire Contract between Members and that the Operator is not the owner of the relevant Items or otherwise providing the Items for rental via the Site and takes no responsibility for the performance or breach of any rental arrangements entered into between Members.
1.4 All Members acknowledge that they have read and understood these Terms of Service and the General Terms, and that a reference to any term or name not otherwise defined herein shall have the same meaning as found in those General Terms. If there is any conflict between the General Terms and these Terms of Service, the latter shall prevail.
To enable you to fully understand these Terms of Service, it is important that you are aware of the following defined terms:
a) Accepted Rental Request: a Rental Request made by a Renter which is accepted by the Owner in accordance with the procedures on the Site, as and when confirmed by the Operator sending the Renter an email to that effect;
b) Account: the account that an Owner or Renter establishes with the Operator to use Open Shed;
c) Additional Terms: any additional terms and conditions agreed between the Owner and Renter via the Messaging Service or any other communications between the Owner and Renter in relation to the rental of an Item prior to an Accepted Rental Request becoming a Confirmed Rental;
d) App: the mobile friendly version of the Site created by the Operator for use by Members as part of Open Shed that allows for viewing and entering of the Booking Code;
e) Authorisation / Authorised: an agreement between the Renter and the Operator where the Renter gives permission for the Operator to charge their Credit Card at a later date in accordance with these Terms of Service.
f) Bond: an amount specified on the Rental Listing which can be claimed by the Owner in accordance with these Terms of Service;
g) Confirmed Rental: when the Renter agrees to proceed with the rental of the relevant Item by handing over the Booking Code to the Owner, subject to the Owner then verifying the Booking Code in accordance with the procedures on the Site and the Owner then giving possession of the relevant Item to the Renter for the Rental Period;
h) Coverage Amount: the amount (in Australian Dollars) of coverage pursuant to the Item Damage Guarantee which must not in any case exceed AU$1,000;
i) Owner Fee: 10% of the Rental Fee, plus GST, payable by the Owner to the Operator;
j) General Terms: the terms and conditions expressed to be read in conjunction with these Terms of Service as located here;
k) Item: the object, thing or article that is made available for renting by the Owner on the Site to other Members, subject to these Terms of Service;
l) Item Damage Guarantee: the guarantee provided by the Operator to the Owner in respect of damage to the Item arising from an Item Hire Contract, as further set out in Section 6 below;
m) Item Hire Contract: the contract formed between an Owner and a Renter when a Confirmed Rental occurs, as described in Section 3 below;
n) Members: a person who has established and maintained an Account on the Site and who has not cancelled such Account or which has not been suspended or cancelled by the Operator;
o) Messaging Service: the messaging service available on the Site which enables communications between Members;
p) Owner: a Member who lists one or more Items on the Site with the objective of renting that Item out through Open Shed;
q) Rental Listing: the information published by the Owner on the Site regarding an Item that is available for Rental Requests, including descriptions, photographs, instructions (including as to use, care, transportation, collection, return and cleaning), details of the Rental Fee and the Bond amount, the dates or times the Item is available for hire, and any other information required to be provided pursuant to these Terms of Service;
r) Rental Fee: the fee (in Australian Dollars) charged by the Owner, and agreed to be paid by the Renter in accordance with the relevant Accepted Rental Request;
s) Rental Period: the period for which a Renter seeks to rent an Item in accordance with a Rental Request, as accepted by the Owner when making an Accepted Rental Request;
t) Rental Request: a request submitted by a Renter to rent an Item in accordance with the procedures on the Site;
u) Renter: a Member who wishes to rent an Item by submitting a Rental Request;
v) Booking Code: the booking code provided by the Operator to a Renter, accessible once there is an Accepted Rental Request, and emailed to the Renter by the Operator prior to the commencement of the Rental Period;
w) Service Fee: the greater of $2.00 (two Australian dollars) or 10% of the Rental Fee, plus GST, payable by the Renter to the Operator;
x) Total Transaction Amount: is the aggregate of the Rental Fee and the Service Fee, payable by the Renter; and
y) Transaction Account: means an account held with a financial institution to handle transactions pursuant to these Terms of Service.
3. The Item Hire Contract
3.1 Members acknowledge that a Confirmed Rental creates a legally binding contract, herein referred to as the “Item Hire Contract”, between the relevant Owner and the Renter immediately upon the occurrence of such Confirmed Rental under which:
a) the Owner agrees to rent the relevant Item to the Renter, and the Renter agrees to rent such Item from the Owner, for the Rental Period in accordance with these Terms of Service;
b) these Terms of Service form the basis of such contract, including without limitation those terms and conditions set out in this Section 3 and in Sections 2, 4, 5, 6 and 7 below;
d) such other terms and conditions as are implied by law or which otherwise apply by operation of law are incorporated into each such contract; and
e) such other Additional Terms which are not inconsistent with the Agreement.
3.2 In relation to each Accepted Rental Request, the Owner and Renter acknowledge that the Rental Fee, Bond and Rental Period shall be as those terms are contained in the Accepted Rental Request and that if either Member wishes to amend those items, the Renter will be required to submit a new Rental Request with the amended terms.
3.3 In relation to each Accepted Rental Request, the Owner and Renter must ensure that they agree the time and location for the collection and return of the Item and any Additional Terms as part of the Item Hire Contract, and, wherever practicable, to record such agreement via the Messaging Service on the Site.
3.4 In entering into an Item Hire Contract, the relevant Owner and Renter acknowledge and agree that the Operator is not a party to the Item Hire Contract and release the Operator from any and all claims, damages, liability, loss or costs (including without limitation consequential and indirect loss and damages), relating to the performance or breach of any Item Hire Contract.
3.5 Members acknowledge that a Rental Request or an Accepted Rental Request does not bind them to enter into an Item Hire Contract or any other contract.
3.6 Members acknowledge and agree that in the event of any conflict between these Terms of Service and any Additional Terms, the former will prevail except to the extent that these Terms of Service expressly anticipate that Additional Terms may override specific terms of these Terms of Service.
4. Obligations of Owners
Owners irrevocably agree, warrant and represent (whichever the context permits) that:
4.1 you have read and understood these Terms of Service and accept that they form part of the Item Hire Contract you enter into with a Renter in respect of a Confirmed Rental;
4.2 you are aged 18 or over and have the capacity to accept these Terms of Service and to enter into an Item Hire Contract and do so in your personal capacity and not on behalf of any other person or legal entity;
4.3 you own the title to the Item or you otherwise have the legal right, without restriction or qualification, to invite third parties (including Renters) to enter into an Item Hire Contract in relation to that Item in return for payment of a fee;
4.4 by making your Item available to Renters and entering into an Item Hire Contract, neither you nor the Renter will or is likely to violate any local, state or federal law, regulation, ordinance, by-law, planning restriction or policy;
4.5 the Item will be suitable for the purpose for which the relevant Item is reasonably intended to be used and complies with any other description you provide of it in the Rental Listing and in any Additional Terms;
4.6 the information which you provide to establish an Account and in using Open Shed, including without limitation the posting a Rental Listing, will be correct at all times, including but not limited to when a Renter makes a Rental Request, when you make an Accepted Rental Request, at the time of entering into a Confirmed Rental and throughout the Rental Period;
4.7 if you make an Item available for rental on Open Shed, that you intend to and have the ability to commit to accepting a Rental Request which does not conflict with the Rental Listing, subject to your right to cancel an Accepted Rental Request in accordance with these Terms of Service;
4.8 the relevant Rental Listing for an Item fully and accurately describes the Item, its condition (including any flaws or defects with the Item), operating instructions, safety procedures, risks, limitations, capacity, cleaning and care instructions, requirements as to consumables (including fuel, oil and lubricants), power consumption and any other matter which you feel will materially influence a potential Renter in deciding whether to make a Rental Request and enter into an Item Hire Contract;
4.9 it is your responsibility in the Rental Listing to convey what condition you expect the Item to be in at the end of the Rental Period or upon return to you from the Renter, subject to fair wear and tear, including without limitation any condition that the Item be cleaned, refilled, restocked, refuelled, recalibrated, repaired or stored, when the Renter returns the Item;
4.10 the Rental Fee accepted and charged by you in the course of making an Item available for Rental Requests will be the final rate upon which you agree to enter into an Item Hire Contract with the relevant Renter, and any arrangement to increase or decrease the Rental Fee outside Open Shed after an Accepted Rental Request is made will be deemed to violate these Terms of Service;
4.11 you accept that the Bond shall form part of the Rental Listing (and any eventual Item Hire Contract) as one means to recover monies to pay for the repair or replacement of the Item should it be damaged during the Rental Period in accordance with Section 6 below;
4.14 you will apply any amount claimed pursuant to the Bond or the Item Damage Guarantee to the repair or replacement of the Item as envisaged under these Terms of Service;
4.15 the consideration payable by a Renter for you agreeing to rent an Item in accordance with an Item Hire Contract is the applicable Rental Fee (less the Owner Fee);
4.16 the Owner Fee will be deducted from the Rental Fee by the Operator prior to the balance of the Rental Fee being deposited into your Transaction Account;
4.17 you will accept Rental Requests in accordance with these Terms of Service;
4.18 if you do not accept or reject a Rental Request within 48 hours of your receipt of such Rental Request, the Rental Request will lapse and the Renter will be notified that the Rental Request is no longer active;
4.19 in respect of an Accepted Rental Request which proceeds to a Confirmed Rental, you must provide the Item in accordance with these Terms of Service, including the Rental Listing, any Additional Terms and the terms of the Accepted Rental Request;
4.20 an Accepted Rental Request entitles the Operator to confirm such Accepted Rental Request to the Renter, and unless you or the Renter has cancelled the Accepted Rental Request (to the extent permitted pursuant to these Terms of Service), you agree to meet the Renter immediately prior to the commencement of the Rental Period, at the agreed time and location, to enable the Renter to inspect the Item and, if the Renter agrees to provide you with the Booking Code, to hand over the Item for the duration of the Rental Period once such Booking Code has been processed by the Operator;
4.21 in respect of a Confirmed Rental, you will not do anything which would prevent the relevant Renter from having the full benefit of the Item for the Rental Period;
4.22 you are responsible for checking whether any insurance policy you have in respect of an Item will not be vitiated or voided, or that there will be any other consequences, as a result of entering into an Item Hire Contract;
4.23 if a Renter agrees to proceed to a Confirmed Rental by providing you with a Booking Code, you will immediately upon receipt of such Booking Code notify the Operator of such Booking Code via the Site or App;
4.24 upon your receipt of a message from the Operator confirming that the Booking Code has been verified, you must hand over the Item to the Renter;
4.25 if you do not receive a message from the Operator confirming that the Booking Code has been verified, you must not hand over the Item to the Renter but if you do so, it will be in breach of these Terms of Service and at your risk, and the Operator will not be liable to you for paying or recovering the Rental Fee on your behalf; and
4.26 you hereby indemnify and undertake to keep indemnified the Renter and the Operator from any and all claims, liability, damages, costs (including legal costs on an indemnity basis) and expenses arising directly or indirectly from your breach of any of the terms and conditions of these Terms of Service and your breach of any Item Hire Contract.
5. Obligations of Renters
Renters irrevocably agree, warrant and represent (whichever the context permits) that:
5.1 you have read and understood these Terms of Service and accept that they form part of the Item Hire Contract you enter into with an Owner in respect of a Confirmed Rental;
5.2 you are aged 18 or over and have the capacity to accept these Terms of Service and to enter into an Item Hire Contract and do so in your personal capacity and not on behalf of any other person or legal entity;
5.3 by making a Rental Request and entering into an Item Hire Contract and performing the obligations herein stated, neither you nor the Owner will or is likely to violate any local, state or federal law, regulation, ordinance, by-law, planning restriction or policy, nor will you use the Item in a manner that will or will likely contravene any law applicable to you personally or applicable to the general operation of Items of that kind;
5.4 you will be fully qualified to use any Item rented to you by an Owner pursuant to an Item Hire Contract and will ensure that any other person you allow to use such Item will also be so qualified;
5.5 at the time of making a Rental Request, you have read the Rental Listing and are satisfied that the Item suits the purpose for which you intend to use the Item;
5.6 the information which you provide as part of establishing an Account and in using Open Shed will be correct at all times, including but not limited to when you make a Rental Request, at the time of entering into a Confirmed Rental and throughout the Rental Period;
5.7 at the time of making a Rental Request, you intend to and have the ability to commit to such transaction at the commencement of the relevant Rental Period and paying the relevant Rental Fee, subject to your right to cancel the Accepted Rental Request in accordance with these Terms of Service;
5.8 at the time of making a Rental Request, it is your responsibility to enquire as to the reasonableness of any Bond amount set in relation to an Item and that you irrevocably and unconditionally agree to pay the relevant amount of the Bond where the Owner genuinely claims to have suffered loss or damage as a result of your breach of these Terms of Service or any other term or condition of the Item Hire Contract;
5.9 at the time of making a Rental Request, you unconditionally authorise the Operator to escrow the Total Transaction Amount.
5.10 it is your responsibility to arrange with the Owner as to the suitability of the Item for any particular purpose outside the purposes for which such Item is reasonable expected to be suitable based upon the description provided of it in the Rental Listing;
5.11 if an Accepted Rental Request proceeds to a Confirmed Rental, you are agreeing to transfer the escrowed Rental Fee to the Owner immediately upon the Confirmed Rental occurring, in consideration for the Owner renting the Item to you in accordance with the Item Hire Contract;
5.12 if an Accepted Rental Request proceeds to a Confirmed Rental, you unconditionally agree to pay the Bond or part thereof, to the extent that the Bond is claimed by the Owner within three days of the end of the Rental Period;
5.13 you will have adequate funds in your Transaction Account to pay the Total Transaction Fee and Bond (if the Bond is claimed as per Section 6 below) upon your provision of the Booking Code to the Owner;
5.14 you will ensure that the Item remains under your care and control throughout the Rental Period, and not to take the Item outside Australia (unless you have agreed otherwise with the Owner as part of the Additional Terms), and to return the Item at the time and location agreed with the Owner on the last day of the Rental Period, time being of the essence;
5.15 you will use the Item with due care and diligence, in accordance with all legal requirements, and having in mind the purpose for which the Item is normally used and any other conditions agreed between you and the Owner in accordance with the Rental Listing and any Additional Terms;
5.16 you will not cause any damage to the Item, whether directly or indirectly, by you or by any other person during the Rental Period, subject to fair wear and tear, or cause the Item to be destroyed or lost or otherwise irreparably damaged;
5.17 you will not alter, edit, manipulate or otherwise change the structure, appearance, features, composition or functionality of the Item from when the Item was handed to you by the Owner;
5.18 you will return the Item in the same state and condition as when you took possession of the Item, fair wear and tear excepted, and in compliance with these Terms of Service, especially in regards to the matters in Section 6 below;
5.19 to give the Owner the Booking Code only after being satisfied the Item presented by the Owner is that described in the Rental Listing and any Additional Terms, and the act of providing the Booking Code to the Owner shall be deemed to be evidence of your acknowledgement that the Item does in fact match such description but without prejudice to any claim you may have against the Owner to the extent that the Item does not, in your opinion, meet the agreed purpose for which the Item was supplied;
5.20 if you arrive at an arranged meeting to inspect the Item and find the Item is not available for the commencement of the Rental Period or is unsuitable for the purposes you have disclosed to the Owner or does not otherwise match the description in the Rental Listing or any Additional Terms, you must not give the Owner the Booking Code and may leave feedback via the feedback feature on the Site specifying the reason for declining to proceed with a Confirmed Rental;
5.21 to the extent that an Owner claims all or part of the applicable Bond, you shall have no claims against the Operator under any circumstances (including without limitation if the Owner does not comply with these Terms of Service in determining whether, or to what extent, to claim the Bond);
5.22 if you claim to have returned an Item before the end of the Rental Period you acknowledge that you are not entitled to any deduction of the Total Transaction Amount;
5.23 no legal ownership or other property rights in an Item are transferred to you, whether during a Rental Period or otherwise; and
5.24 you hereby indemnify and undertake to keep indemnified the Owner and the Operator from any and all claims, liability, damages, costs (including legal costs on an indemnity basis) and expenses arising directly or indirectly from your breach of any of the terms and conditions of these Terms of Service and your breach of any Item Hire Contract.
6. Claiming the Bond and the Item Damage Guarantee
6.1 The Owner must, within three (3) days after the Item is returned to the Owner pursuant to an Item Hire Contract (time being of the essence) (“Claim Period”), notify the Operator whether the Owner wishes to claim all or part of the Bond from the Renter, as permitted pursuant to this Section 6. If the Owner chooses to claim all or part of the Bond, the Owner must provide information, via any feature of the Site created for such a purpose, or via any other method as instructed by the Operator, stating why the Owner is claiming the Bond or part thereof and give a reasonable explanation to the Operator and the Renter.
6.2 The Owner must only elect to claim the Bond, or any part thereof, where he/she has suffered loss or damage as a result of the Item not being returned to the Owner at all or the Item being returned by the Renter in a condition that is either one or more of the following:
a) contrary to the matters in Sections 4.9 or 5.16 – 5.20 above; or
b) contrary to any Additional Terms relating to the condition of the Item on return; or
c) materially different to the condition, fair wear and tear excepted, that the Item was originally provided to the Renter at the commencement of the Rental Period.
6.3 The Owner must only elect to claim so much of the Bond which the Owner reasonably believes, based on his/her knowledge regarding the Item and items in the marketplace that are substantially similar to the Item in terms of value, branding, specifications, age and condition, would be necessary to pay for the repair or replacement of the Item, as applicable (other than as a result of fair wear and tear).
6.4 For the avoidance of doubt, the Renter is only required to pay an amount of the Bond in accordance with its obligations as set out in Section 5.8 above.
6.5 If the Owner holds a reasonable belief in accordance with Section 6.3 above that the loss or damage he/she has suffered exceeds the total amount of the Bond, the Owner must elect to claim all of the Bond before the Owner may elect to claim any part of or all of the Coverage Amount under the Item Damage Guarantee.
6.6 If the Owner does not notify the Operator that the Owner wishes to claim any part of or the entire Bond within the Claim Period, the Owner’s right to claim the Bond and the Item Damage Guarantee shall irrevocably lapse.
6.7 Subject to the matters in Sections 6.6 and 6.7 above, the Owner shall only be entitled to claim all or part of the Coverage Amount under the Item Damage Guarantee by notifying the Operator during the Claim Period of such an intention, and the Owner must provide information, via any feature of the Site created for such a purpose or any other method as instructed by the Operator, stating why the Owner is claiming the Coverage Amount, or part thereof, and give a reasonable explanation to the Operator and the Renter, and engage in any further correspondence, in good faith, with the Operator in regards to such a claim.
6.8 The Owner must only elect to claim any portion of the Coverage Amount where he/she has suffered loss or damage as a result of the Item not being returned to the Owner at all or the Item being returned by the Renter in a condition that is either one or more of the following:
a) contrary to the matters in Sections 4.9 or 5.16 – 5.20 above;
b) contrary to any Additional Terms relating to the condition of the Item on return; or
c) materially different to the condition, fair wear and tear excepted, that the Item was originally provided to the Renter at the commencement of the Rental Period,
and where the Bond is incapable of satisfactorily compensating the Owner as set out in Section 6.6 above.
6.9 Within ten (10) days after the day on which the Owner notifies the Operator that the Owner wishes to claim any portion of the Coverage Amount, the Owner must supply to the Operator with a receipt (“Receipt”) in relation to the repair or replacement of the particular Item that is lost or damaged that clearly shows the following:
a) the full name of the business responsible for the repair or which sells the replacement;
b) the monetary amount of the repair or replacement in Australian dollars (“Paid Monies”);
c) details of the repair, including the repair time taken and/or the materials used where appropriate, or the identity of the replacement item (with details of its primary characteristics and/or technical build specifications);
d) the date of the repair or replacement; and
e) all other material particulars of the receipt without redaction or editing.
6.10 If the Owner cannot supply a Receipt to the Operator within the time provided for in Section 6.10 above, the Owner shall within that time period request an extension of time to comply with Section 6.10, such extension not to be greater than a further ten (10) days from the date of such request, and provide reasons to the Operator for requiring such an extension. However, for the avoidance of doubt, the Operator may refuse to grant an extension under this Section 6.11 if the Operator is not satisfied that the reasons given by the Owner for its request for extension is genuine and/or is reasonable in all the circumstances.
6.11 Upon compliance with the matters set out in Section 6.10 or Section 11 above (as the case may be), the Owner must assist the Operator in relation to any further enquiries that the Operator may have in relation to the process of repair or replacement of the Item, including the provision of further evidence or materials relating to the Item, or any other matters the Operator deems fit, and the Owner must cooperate in good faith in response to the Operator’s enquiries.
6.12 Subject to the matters in Section 6.12 above and to the Operator being reasonably satisfied as to the matters in Sections 6.14 to 6.17 (as applicable) below, the Operator shall pursuant to the Item Damage Guarantee, pay to the Owner, an amount, up to the Coverage Amount and after deduction of any Bond amount already paid to or due and owing to the Owner, in contribution to the satisfaction of the Paid Monies, and such a payment by the Operator shall discharge the Operator of any and all obligations under the Item Damage Guarantee.
6.13 In regards to the repair of the Item under this Section 6, the Owner agrees that the following conditions apply:
a) the value of the repairs must not be greater than the replacement cost of the Item, such value to be determined by items of a substantially similar value, initial purchase price, branding, specifications and condition;
b) the damage to the Item must not be trifling or insignificant, or be the result of fair wear and tear; and
c) the repairs must return the Item as closely as possible to the state of its condition in accordance with Section 6.9 above;
d) the repairs must not have the effect of upgrading or improving the Item to a condition which exceeds the aforementioned state of condition in section 6.14d) above.
6.14 In regards to the replacement of the Item under this Section 6, the Owner agrees that the following conditions apply:
a) the value of the replacement item must not be greater than the value of the Item, such value to be determined by items of a substantially similar value, initial purchase price, branding, specifications and condition;
b) the replacement item must be substantially similar to the Item, such that it must have substantially the same primary characteristics and technical specifications, and must serve a purpose which is closely identical; and
c) that the Owner must purchase the replacement item which costs the least if there are a variety of equally suitable replacement items available.
6.15 If the Item cannot be repaired or replaced in accordance with the matters as set out in this Section 6, the Owner must demonstrate, to the reasonable satisfaction of the Operator, that the Item is incapable of repair and replacement, such as by providing any documentation or evidence as reasonably required by the Operator, before the Operator will pay any portion of the Coverage Amount which it believes to be proportionate to the value of the Item. The Operator is entitled to inform itself of the value of the Item in any way it deems appropriate. The Owner is entitled to submit any evidence which he/she deems appropriate to the Operator regarding the value of the Item, however, the Operator is not required give such evidence any greater weight than is otherwise reasonable in the circumstances.
6.16 In regards generally to the conditions for prior to claiming the Bond or under the Item Damage Guarantee, the Owner agrees and accepts that:
a) the Owner must not be in breach of any matters in the Agreement, including these Terms of Service and the General Terms;
b) the Owner must have complied with the process of claiming the Bond or under the Item Damage Guarantee as set out in this Section 6;
c) the Owner must not have in any way contributed, whether intentionally, negligently or accidentally, to the loss of or damage to the Item whether during or after the Rental Period and before the relevant claimed amounts are paid to the Owner;
d) the Owner must not have supplied to the Operator or any other party, information that is misleading or deceptive, incomplete or inaccurate, or that otherwise constitutes a breach of any matters in the Agreement concerning the integrity of any information (including the “User Content” as defined in the General Terms) supplied by Members to the Operator as a result of the use of Open Shed; and
e) the Owner must have otherwise acted genuinely and in good faith at all times in respect of its claims of the Bond and/or the Item Damage Guarantee.
6.17 The Renter must reimburse the Operator for any monies which the Operator has paid to the Owner under the Item Damage Guarantee (“IDG Payment”), without set-off or counterclaim, if the following matters apply:
a) the Operator has indicated to the Renter that the IDG Payment was paid to the Owner for the loss or damage which the Owner has genuinely suffered, in excess of the value of any Bond payments made to the Owner, by reason of the Renter’s breach of these Terms of Service or any other term or condition of the Item Hire Contract; and
b) the Operator has issued an invoice (“Invoice”) to the Renter in respect of the IDG Payment.
6.18 The Renter must reimburse to the Operator for a monetary amount equivalent to the IDG Payment in the manner as directed by the Operator within fourteen (14) days of receipt of the Invoice without set-off or counterclaim, and the Operator shall have the absolute right to terminate or suspend Renter’s Account indefinitely until such Invoice is paid.
6.19 Both the Owner and the Renter must participate in good faith in any activities required by the Operator to process the claims to which this Section 6 apply such that the non-participation by either party may result in the claim being delayed or indefinitely suspended, and where it is the Owner who fails to cooperate with the reasonable requests or enquiries of the Operator after seven (7) days of being notified, the Owner is treated to have abandoned its claims under this Section 6.
6.20 Notwithstanding any of the above matters, the Owner is required to repay any amount of the Bond or Coverage Amount claimed and paid to him or her if the Owner has claimed an amount which is reasonably over and above the loss or damage suffered by the Owner pursuant to the matters set out in Sections 6.2 and 6.9 above.
6.21 Without limiting the generality of paragraph 1.5 of the General Terms, the Owner and the Renter acknowledge and agree that the Operator has an absolute discretion to vary the terms and conditions of the Bond and/or the Item Damage Guarantee, however, any variation will be notified to all Members and will not affect any then-current Item Hire Contracts or any other pending Rental Request, Accepted Rental Request or Confirmed Rental.
6.23 The Owner and Renter acknowledge that this Section 6 does not intend to limit the rights and obligations of either party to each other that would otherwise apply under the general law.
7. General Matters
7.1 All Owners and Renters acknowledge and accept that all Items that are made available via the Site must be items normally available for consumer supply under the laws of Australia and must not be contrary to any of the following (a “Prohibited Item”):
a) must not be an article which would be prohibited, under the laws of Australia, to be available for hire, sale or supply;
b) must not be a house, apartment or any other form of real property;
c) must not be a person, animal or other living entity;
d) must not be a motor vehicle which requires an operator to hold a valid licence to operate;
e) must not be an article that otherwise infringes the legal rights of any person;
f) must not be an article that contains any text or image or capable of generating text or image that is obscene or pornographic or that violates any classification rules under Australia law;
g) must not be an article that would contravene these Terms of Service or the Agreement;
h) must not be an article of money, or any other form of financial product, including but not limited to shares, securities and loan contracts;
i) must not be an article that is stolen or which may be subject to any current or possible criminal proceedings, including proceeds of crime; and
j) must not be an article that has been deemed inappropriate by the Operator in its sole and absolute discretion and which the Operator has notified as such on the Site at any time, whether it be before or after the relevant Rental Listing for such article was made available, and even if an Accepted Rental Request has been made in respect of such Item.
7.2 To the extent an Item is found to be a Prohibited Item and an Accepted Rental Request has been made in respect of such Item, the Operator is not obliged to provide a Booking Code to the Renter, and the Owner and Renter agree that they must not proceed to a Confirmed Rental.
7.3 The Owner and Renter acknowledge that they are not able to adjust the Rental Fee, Coverage Amount or Rental Period once established pursuant to an Accepted Rental Request.
7.4 In respect of each Accepted Rental Request, either party is allowed to cancel the transaction before the commencement of the Rental Period at no cost or liability to it.
7.5 In respect of each Accepted Rental Request which has not otherwise been cancelled by either the Owner or Renter, if the Booking Code is not notified to the Operator within two days of the commencement of the Rental Period, for any reason, the Accepted Rental Request will be taken to expire at the end of such two day period.
7.6 In respect of each Confirmed Rental where the Renter wishes to extend the Rental Period, the Renter must make a new Rental Request for the new Rental Period and, if this results in an Accepted Rental Request, the Renter must provide the Booking Code to the Owner before the end of the original Rental Period and must pay the applicable Total Transaction Amount in respect of the new Rental Request upon the Owner providing the new Booking Code to the Operator.
7.7 The rental of an Item pursuant to an Item Hire Contract comes to and end upon the Renter returning the Item to the Owner in accordance with these Terms of Service.
7.8 The Operator is not responsible for ensuring that the Owner or Renter who enter into an Item Hire Contract comply with the applicable terms and conditions of the Item Hire Contract.
7.9 The Operator is not liable to the Owner or the Renter for any breach of these Terms of Service or of any Item Hire Contract (including any Additional Terms).
7.10 The Owner and Renter must not reveal to any third party, by any means, any information about the identity or location of the other Member.
7.11 The Bond is Authorised by the Renter at the time the Renter makes a Rental Request. The Total Transaction Amount is payable by the Renter at the time the Renter makes a Rental Request.
7.12 The Operator reserves the right to investigate, suspend, terminate or otherwise do acts of a similar nature, against any Member who is suspected of violating these Terms of Service, and for the avoidance of doubt, this subsection shall deem the Terms of Service to be strict guidelines of behaviour expected of Members in the use of the Site.
7.13 A Renter must look solely to the applicable Owner to claim under the indemnity set out in Section 4 above.
7.14 An Owner must look solely to the applicable Renter to claim under the indemnity set out in Section 5 above.
7.15 The Owner and Renter must provide accurate, complete and reliable information during the process of negotiating and entering into an Item Hire Contract, and must ensure that they do not provide any misleading or deceptive information or fail to provide any information that may be relevant to the other party.
7.16 The Owner and Renter must ensure that all information they provide on the Site is up-to-date at all times.
7.17 The Operator has no control over, and is not responsible in any way for, the information made available on this Site by Owners and Renters and the Operator is under no obligation to verify the accuracy or completeness of any such information or to establish whether any such information is misleading or deceptive.
7.18 Any information or feedback the Owner or Renter provides on the Site regarding their experience of a particular Confirmed Rental must be accurate and not misleading or deceptive and must not be defamatory or abusive or bring the Operator or any of its officers or employees into disrepute;
7.20 The Owner and Renter respectively indemnify the Operator from and against any and all costs and expenses incurred by the Operator in relation to any claims or proceedings brought or threatened by either of them in relation to any matter involving the performance or breach of an Item Hire Contract.
7.21 The Operator shall not be liable to the extent that these Terms of Service or the applicable Item Hire Contract are inadequate, defective, misleading or deceptive.
8. Transaction Accounts
Owners and Renters agree to the following terms and conditions:
8.1 a valid Transaction Account must be registered when you establish an Account to facilitate the crediting and debiting by the Operator of funds pursuant to these Terms of Service, and should there be an invalid Transaction Account registered with an Account or a Transaction Account fails to complete any transaction contemplated under these Terms of Service, the Operator is not liable for any losses or damages thereby suffered;
8.2 the Operator shall not be liable to either party for any errors in relation to a Transaction Account in relation to the financial payments envisaged in these Terms of Service, and this subsection shall be an absolute defence to any legal action for remedies brought by either the Owner or the Renter against the Operator;
8.3 should there be any complications with the financial payments envisaged in these Terms of Service, whether relating to the operation of a Transaction Account or otherwise, all parties must cooperate with the Operator to rectify such errors and each party is to bear their own costs in this process;
8.5 the Owner’s Transaction Account will (subject as otherwise provided) be credited with the Rental Fee (less the Owner Fee) within 3 business days of the Owner providing the Booking Code to the Operator and such Booking Code being processed successfully by the Operator.
9. Withdrawal from the Site
If you wish to cancel your registration with Open Shed, you need to log on to the Site and cancel your Account in the “Dashboard” section by pressing the Cancellation button and confirming such cancellation. Alternatively, you can email support@Open Shed.com.au with your details. Prior to cancelling your Account, Members must ensure that they do not have any active rentals or Accepted Rental Requests. Members are required to cancel any Accepted Rental Requests prior to cancelling their registration.
10. Reporting Breaches
An Owner or Renter must report to the Operator, by email (email@example.com) any actual or alleged breach of these Terms of Service by an Owner or Renter as soon as practicable after such breach occurs.