Last updated: Version 1 - April 2020
- GymLend Pty Ltd (ABN 66 600 876 319) (GymLend or our or we or us) is in the business of conducting an online marketplace for the hire of health and fitness equipment between owners (Owners) and renters (Renters) (Services).
- The Services may be available via website, social media accounts, applications, software and other technological means (Platform), as well as in connection with any direct communication between you and GymLend.
- In these User Terms “you” or “your” means any unregistered user of the Platform or any Member of the Platform, as the context requires. If you are using the Platform, these User terms are between you and GymLend.
- Nothing in these User Terms obliges GymLend to make the Services available at any time or by any technological or direct means.
- By using the Platform, you agree to comply with and be legally bound by the terms and conditions of these terms and conditions (User Terms or Terms), whether or not you become a Member or user of the Services. These User Terms govern your access to and use of the Platform and all Collective Content, and constitute a binding legal agreement between you and GymLend.
- These User Terms incorporate the following policies and any other policies displayed on the Platform from time to time:
- Owner Protection Policy.
- Where GymLend provides additional policies on the Site for the co-operation and management of Bookings, GymLend makes no representations or warranties in respect of those policies and is in no way liable to enforce or comply with those Policies between Owners and Renters unless otherwise expressly stated, including but not limited to:
- Delivery Policy;
- Health and Safety Policy;
- Risk Waiver.
- Definitions in GymLend’s policies adopt the meaning contained in these User Terms unless otherwise stated.
- GYMLEND ENABLES INTERACTIONS, COMMUNICATIONS, BOOKINGS AND PAYMENTS BETWEEN MEMBERS VIA THE PLATFORM. GYMLEND IS NOT A PARTY TO ANY BOOKING BETWEEN MEMBERS AND DOES NOT VERIFY THE SUITABILITY OR RANKING OF THE MEMBER, THE EQUIPMENT OR THE BOOKING. THE SERVICES PROVIDED BY GYMLEND IN CONNECTION WITH THE PLATFORM IS LIMITED TO THE ENABLING OF BOOKINGS AND COLLECTION AND REMITTANCE OF FEES PURSUANT TO THESE USER TERMS.
- MEMBERS ARE WHOLLY RESPONSIBLE FOR ENSURING THAT THEIR USE OF THE PLATFORM AND BOOKINGS ENABLED BY IT COMPLY WITH APPLICABLE REGULATIONS, LAWS AND THIRD-PARTY AGREEMENTS. SUCH REGULATIONS, LAWS AND THIRD-PARTY AGREEMENTS INCLUDE BUT ARE NOT LIMITED TO:
- TAXATION REGULATIONS AND LAWS;
- HEALTH AND SAFETY REGULATIONS AND LAWS;
- EMPLOYMENT REGULATIONS AND LAWS.
- YOU WILL BE WHOLLY RESPONSIBLE FOR ANY ADDITIONAL FEES AND CHARGES INCURRED BY YOU IN CONNECTION WITH THE PLATFORM AND/OR THE SERVICES (WHETHER ARISING DIRECTLY OR INDIRECTLY).
- The Platform is intended solely for persons who are 18 or older. Any access to or use of the Platform by anyone under 18 is expressly prohibited. By accessing or using the Platform you represent and warrant that you are 18 or older. If you do not agree to these User Terms, you have no right to obtain information from or otherwise continue using the Platform.
- By accepting these Terms, a Member is granted a limited, non-exclusive and revocable licence to access the Platform in accordance with these User Terms.
- You agree to only use the Platform and Materials for their intended legal purposes and shall not use any or all of them to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by GymLend in its sole and unfettered discretion.
- GymLend may revoke, suspend or terminate the Member’s licence in its absolute discretion for any reason that it sees fit, including for breach of these User Terms by the Member or any of its users and where Member’s ratings or use of the Services are not considered acceptable by GymLend. GymLend will ordinarily advise the Member of any suspension or revocation, however, it is under no obligation to do so.
- The information contained on the Platform is provided in good faith on an "as is" basis. GymLend does not represent or warrant to the reliability, accuracy or completeness of the information contained on the Platform or in the Collective Content.
- You understand and agree that GymLend is not a party to any agreements entered into between Owners and Renters, nor is GymLend a broker, agent or insurer. GymLend has no control over the content contained in any Booking Request, the condition, legality or suitability of any Equipment, the conduct of Owners, Renters and/or other users of the Platform, and disclaims all liability in this regard to the maximum extent permitted by law. Any Bookings are made or accepted at the Member’s own risk.
- If you choose to create an account on the Platform, you understand and agree that your relationship with GymLend is limited to being a Member, and not an employee, agent, joint venture or partner of GymLend for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf of or for the benefit of GymLend. GymLend does not control, and has no right to control, your Booking, your offline activities associated with your Booking, or any other matters associated with your Booking, that you provide. As a Member, you agree not to do anything to create a false impression that you are endorsed by, partnering with, or acting on behalf of or for the benefit of GymLend, including by using GymLend’s Intellectual Property, without the prior written consent of GymLend.
- Despite GymLend facilitating the matching of Owners with Renters for particular Booking Requests, GymLend does not endorse any Owner, Renter, Equipment, Booking or Booking Request. Owners and Renters are responsible for ensuring the accuracy, reliability and currency of all information supplied to GymLend, and each other, through the Platform or otherwise and must immediately notify GymLend and the other party if any information supplied changes or is inaccurate.
- By using the Platform, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties other than GymLend will be limited to a claim against the particular Members or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from GymLend with respect to such actions or omissions. We encourage you to communicate directly with other Members on the Platform regarding any Booking Requests or Bookings made by you. This limitation shall not apply to any claim by an Owner against GymLend regarding the remittance of payments received from a Renter by GymLend on behalf of an Owner, which instead shall be subject to the limitations described in the section below entitled “Warranty and Limitation of Liability”.
- You acknowledge and agree that the copyright in the Platform content and the software, design, text and graphics, the selection and layout of the Platform, the content and materials on the Platform and all other Intellectual Property in connection with the Platform (together, the Materials) are owned by or licenced to us.
- You must not modify, copy, adapt, store in a retrieval system, reproduce, upload, post, transmit, sell, distribute in any way or communicate to the public, the Materials without our prior written consent.
- You must not frame or embed in another website any of the Materials without our prior written consent.
- You may store a reproduction of the content on the Platform on your local computer for the sole purpose of viewing the content and Materials; and print hard copies of the content and Materials for the sole purpose of viewing, listing or booking Equipment, but not for any other use.
- The Platform, the Materials and any ancillary materials or documents owned or used by GymLend in connection with the Services and promotion of its business contains registered trademarks which are protected by law and other branding, images, content which constitute the Intellectual Property of GymLend. You must not use any of the marks or trademarks appearing on the Platform and/or on or within Materials or our name or the names of our related bodies corporate or any of our Intellectual Property without our prior written consent.
- GymLend does not represent or warrant that any information, files or Collective Content obtained from, through or in connection with the Platform is free from viruses or other faults or defects. You are responsible for scanning any information, files or Collective Content for viruses.
- You agree that GymLend has no responsibility or liability to you or any other person for any loss or damage (whether direct, indirect, consequential or economic), regardless of cause, negligence or otherwise, which may be the direct or indirect result of any virus, fault or defect transmitted from, through or in connection with the Platform or the Collective Content. In any event, if GymLend is found to be liable this will be limited to the cost of supplying the information, files or Collective Content again.
- When registering on the Platform and creating an account, you may register as an Owner and/or Renter.
- Owners who provide Equipment in their individual capacity must register in their own names. Where a company or business with Equipment wishes to register, a company or business representative must register in their own name and may be invited to add the business name to their profile on the Platform.
- Where applicable, Owners may provide a valid ABN and where they are registered for GST, a valid ABN number.
- GymLend reserves the right to accept or reject your request to register for an account at its sole discretion and GymLend may request additional information from you before accepting or rejecting your request to register for an account. Failure to provide such information is likely to result in rejection of your request.
- You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party. Accounts are personal to a Member and can only be accessed by the Member and their personnel.
- GymLend reserves the right, at any time and without prior notice, to remove or disable access to any Equipment listing for any reason, including Equipment listings that GymLend, in its sole discretion, considers to be objectionable for any reason, in violation of these User Terms, or otherwise harmful to the Platform.
- Renters may create Booking Requests. To create a Booking Request, you will select Equipment listed for hire on the Platform and complete further information as required by the fields of the Booking Request page as amended from time to time. Such information includes the duration required, location, persons using the Equipment, your Payment Details, whether you wish to collect or have the Equipment delivered and any additional requirements you may have.
- You acknowledge and agree that you alone are responsible for any and all Booking Requests and Member Content you post.
- Please note that GymLend assumes no responsibility for an Owners’ compliance with any agreements with or duties to third parties, applicable laws, rules and regulations.
- GymLend reserves the right, at any time and without prior notice, to remove or disable access to any Booking Request for any reason, including Booking Requests that GymLend, in its sole discretion, considers to be objectionable for any reason, in violation of these User Terms, or otherwise harmful to the Platform.
- If a Renter makes a Booking Request and the Booking is accepted by the Owner, the agreement entered into by the Renter and Owner is between those parties and GymLend is not a party to it.
- When a Booking Request is made it will be open for an Owner to consider and accept or decline.
- If an Owner fails to accept a Booking Request within 3 days, the Booking Request will be automatically cancelled.
- If an Owner accepts the Booking Request, then the Owner and Renter agree that the Equipment is hired to the Renter as specified in the Booking Request.
- A Booking is subject to any Risk Waiver and/or additional terms described in the Equipment Listing and on the Platform, in addition to the generic provisions set out in these User Terms.
- The Owner may, but is not obliged to, provide the Renter with its own separate terms of transporting and/or using the Equipment which the Renter must acknowledge and abide by, but which must not be inconsistent with these User Terms.
- The Owner, not GymLend, is solely responsible for honouring any confirmed Bookings and making available any Equipment booked through the Platform. If you, as a Renter, choose to enter into a transaction with an Owner for the Booking of Equipment, you agree and understand that you will be required to enter into an agreement with the Owner and you agree to accept any terms, conditions, rules and restrictions associated with Booking imposed by the Owner.
- You acknowledge and agree that you, and not GymLend, will be responsible for performing the obligations of any such agreements, that GymLend is not a party to such agreements, and that, with the exception of GymLend’s payment obligations pursuant to these User Terms, GymLend (inclusive of all subsidiaries and related entities) disclaims all liability arising from or related to any such agreements.
- Owners will be required to enter their bank details into the Platform on registration as a Member. This enables GymLend to disburse Hire Fees to Owners (Payment Details).
- Renters will be required to enter their Payment Details during check-out of a Booking Request. This enables GymLend to deduct the Hire Fee from Renters (also Payment Details).
- GymLend uses a third party payment gateway to collect and disburse payments in accordance with these User Terms.
- Once a Booking has been accepted, the Platform will charge the Hire Fee to the Renter.
- All fees and charges shown on the Platform and identified in these Terms are in Australian Dollars (AUD).
- All prices displayed on GymLend are GST inclusive (for Australian Owners and Renters) or otherwise inclusive of sales and other taxes (in other jurisdictions).
- Not Used.
- GymLend will include any GST (or sales tax in other jurisdictions) in the Hire Fee on behalf of the Owner, which will be itemised in the tax invoice generated on the Platform. It is the responsibility of the Owner and the Renter to determine and comply with their taxation status in relation to the Hire Fee.
- The Renter hereby authorises GymLend to collect and disburse the Hire Fee in accordance with these User Terms, including on an ongoing recurring basis where applicable.
- To the extent permitted by law, the Hire Fee is non-refundable and may be immediately paid by GymLend to the Owner (less the Booking Fee).
- GymLend will release the Hire Fees (less the Booking Fee) received from the Renter to the Owner on or within three (3) days of GymLend having received the Renter’s payment. Additional payout periods may apply from the third party payment gateway beyond GymLend's control.
- If the Renter seeks to recover any part of the Hire Fee for any reason whatsoever, it must contact the Owner. GymLend is in no way responsible for monies collected from Renters or remitted to Owners.
- Where the Renter fails to pay the Hire Fee, despite whether the Equipment is collected or delivered, the Owner is authorised, at its discretion, to enforce its rights in full in accordance with these User Terms.
- GymLend is not responsible for collection of the Hire Fee other than conducting two attempts in accordance with the Renter’s Payment Details via the Platform. The generation of a tax invoice by the Platform does not constitute an obligation by GymLend to pay for the Hire Fee as set out in the tax invoice. The Owner acknowledges and agrees that in the event that GymLend is unable to collect monies owing to the Owner by a Renter, the Owner releases GymLend from any monies owing to the Owner.
- GymLend will charge a Booking Fee to the Owner in connection with the Services (i.e. the facilitation of a booking between Owner and Renter using the Platform).
- Once the Booking has been made, GymLend has performed its Services and to the extent permitted by law, the Booking Fee is non-refundable. In the event that the Owner cannot collect a Hire Fee from a Renter, the Booking Fee remains due and payable to GymLend.
- All prices displayed on GymLend are GST inclusive (for Australian Owners and Renters) or otherwise inclusive of sales and other taxes (in other jurisdictions).
- Not Used.
- The Owner hereby authorises GymLend to collect and disburse the Booking Fee in accordance with these User Terms, including on an ongoing recurring basis where applicable.
- The Owner is solely responsible for ensuring it is the owner of the Equipment or has the legal title to the Equipment and ability to lawfully rent the Equipment to the Renter.
- The Equipment is provided to the Renter as fiduciary bailee subject to any conditions imposed by the Owner.
- The Owner must not release the Equipment to the Renter until such time as full payment of the Booking Fee has been received from the Renter.
- Our Delivery Policy sets out the default position in relation to collection and delivery options available to you, unless otherwise stipulated by an Owner.
- The Owner is responsible for checking any Delivery Fees calculated at checkout in the Platform. Any Delivery Fees calculated by the Platform are an estimate only.
- Collection and delivery expense is the responsibility of the Renter unless a freight service is provided by the Owner using the Platform. The Owner and Renter must ensure that the they sign an acknowledgement as to the quantity and condition of the Equipment on collection/delivery and again on return of the Equipment.
- The Owner will make available for collection, the Equipment no later than one (1) business day of a successful Booking or as advertised on the Platform or otherwise agreed in writing.
- Any freight procured by the Owner or the Renter is entirely the responsibility of the procuring party, despite whether the freight provider is a preferred partner of GymLend or not.
- Freight providers will have their own terms and conditions of carriage.
- Risk in each piece of Equipment passes to the Renter upon collection from the Owner or despatch of the Equipment from the Owner (or the Owner’s freight provider, as applicable) The Renter hereby releases and indemnifies the Owner in respect of the Renter’s use of the Equipment save and except in the event of the Owner’s gross negligence. Renters indemnify the Owner and/or GymLend for all injury and/or damage caused or contributed to by the Renter to persons and property in relation to the Equipment and its operation and have adequate insurance to cover all liabilities incurred as a result of the use of the Equipment.
- Subject to any default in the observance or performance of any of the terms and conditions, the Renter may peaceably possess and enjoy the Equipment during the hire period without any interruption or disturbance from the Owner.
- Upon default by a Renter of the due performance or observance of any other obligation under these User Terms, including becoming insolvent or unable to pay your debts as and when they fall due, the Owner may by notice in writing to you enter upon your premises to remove any of the Equipment and for this purpose you shall afford the Owner all reasonable assistance to locate and take possession of the Equipment.
- Renters must not sell, transfer, on-hire or otherwise deal with the Equipment other than as contemplated by these User Terms.
- Renters will maintain the Equipment in good repair and working order as provided to you at the time of hire, and must not alter or otherwise tamper with the hardware or software of the Equipment.
- Renters warrant they have the requisite skill, ability, expertise, experience, training and resources to operate the Equipment and perform their obligations under these User Terms.
- Renters acknowledge that they are familiar with the risks associated with the Equipment.
- Renters must:
- only allow use of the Equipment by the person named in the Booking;
- operate the Equipment safely, strictly in accordance with all laws, only for its intended use and in accordance with the manufacturer's instructions whether supplied by the Owner or not;
- ensure the Equipment is stored safely and securely and is protected from theft, vandalism, seizure and damage or subject to adverse climatic or environmental conditions which may damage the Equipment (i.e. corrosion, sea-salt and flooding);
- ensure the Equipment is not exposed to any hazardous substance including asbestos without prior written consent and advise the Owner of any risks of hazardous substance contamination to the Equipment as soon it becomes apparent (or should have become apparent);
- ensure the Equipment is not altered, defaced, removed or any notices, safety information, identifying mark, plate or number on the Equipment is removed;
- ensure the safe loading, securing and transporting of all Equipment in accordance with all laws, industry guidelines and manufacturer's guidelines;
- indemnify the Owner and/or GymLend for all injury and/or damage caused or contributed to by the Renter to persons and property in relation to the Equipment and its operation and have adequate insurance to cover all liabilities incurred as a result of the use of the Equipment;
- not in any way attempt to repair, alter, modify, tamper with, damage or repair the Equipment without the prior written consent of the Owner; and
- comply with all laws in connection with the use of the Equipment.
- Renters must not use the Equipment:
- other than for its intended purpose;
- outside of the address nominated in the Booking;
- during inclement weather; and
- whilst they are unwell or otherwise injured, intoxicated or impaired,
- The Renter must return the Equipment to the Owner in the same good and clean condition it was in when the Renter received it, Fair Wear and Tear excepted.
- If the Equipment is damaged during transit or during the Booking Period, the Renter must immediately cease using the Equipment and notify the Owner immediately.
- The Owner and the Renter will work in good faith to determine and remedy the cause of the damage and rectify the damage, at the Owner’s discretion.
- If the Equipment cannot be readily repaired, at the Owner’s discretion, then the Owner may cancel the Booking and require immediate return of the Equipment, subject always to the Owner’s other enforcement rights in these User Terms.
- Renters must ensure that the Equipment is returned to the Owner before 2:00pm on the last rental day of the booking period.
BOOKING AND PAYMENT PLATFORM
TERMS OF SERVICE
PLATFORM INTELLECTUAL PROPERTY
TITLE TO EQUIPMENT
COLLECTION AND DELIVERY
USE OF EQUIPMENT
unless agreed as a specified use in writing by the Owner.
In the event you are late in returning the Equipment to the Owner, the following penalties will apply:
- up to 48 hours late will incur two (2) full week’s rental.
- deem that the Renter has purchased the Equipment from the Owner, by notice in writing, in which case the Renter will be charged the full new replacement value of the Equipment plus an administration charge of 20% of the Equipment value; or
- enter any premises, vehicle or other place, without liability for damage or destruction, and re-possess the Equipment.
- the cost of cleaning and/or repair of the Equipment; and/or
- Hire Fees payable (present or remaining Booking Period) or potentially foregone as a result of the damage or inactivity of the Equipment plus an administration charge of 20%,
together with interest, enforcement costs and expenses.
OWNER PROTECTION POLICY
PLATFORM USE OBLIGATIONS
- all information and data provided by you to GymLend (including billing and contact details) or otherwise is true, accurate, complete and up to date;
- any person receiving, accessing or using the Platform or the Collective Content using your Account is authorised by you to do so;
- you have and will comply with all relevant laws relating to your use of the Platform and the Collective Content and your making of any Booking Request or Booking with us;
- you will ensure that any log in information and password that is used to access the Platform or the Collective Content and the details of any account is kept in a safe and secure manner;
- you will promptly notify GymLend if you are or become aware that there is or has been an unauthorised use of any of your account, or any other security breach relating to any account;
- you are responsible for any costs associated with your access to or use of the Platform, Booking Requests, Bookings and/or any Collective Content including internet access fees; and
- you are responsible and liable for any person that uses your account and/or password to make Booking Requests or Bookings through the Platform.
- use the Platform in a manner or way, or post to or transmit to or via the Platform any material, which interferes with other users or our other customers or defames, harasses, threatens, menaces or offends any person or which prevents any other person from using or enjoying the Platform;
- make fraudulent or speculative enquiries, orders or requests through the Platform;
- use another person’s details without their permission or impersonate another person when using the Platform;
- post or transmit to the Platform any obscene, indecent, inflammatory or pornographic material or any other material that may give rise to civil or criminal proceedings;
- use any robot, spider, site search and retrieval application or other mechanism to retrieve or index any portion of the Platform;
- modify, adapt, translate or reverse engineer any portion of the Platform;
- remove any copyright, trade mark or other proprietary rights notices contained in or on the Platform;
- reformat or frame any portion of the web pages that are part of the Platform;
- use the Platform to violate the security of any computer or other network or engage in illegal conduct;
- tamper with or hinder the operation of the Platform or the Collective Content nor knowingly transmit any viruses, worms, defects, trojan horses or similar disabling or malicious code to the Platform;
- take any action that imposes or that would, in our reasonable opinion, result in an unreasonable or disproportionately large load on our infrastructure;
- violate any local, state, national or other law or regulation, or any order of a court, including without limitation zoning restrictions and Tax regulations;
- use the Platform or Collective Content to identify or communicate with a Member (directly or indirectly) and then complete a booking or reengagement independent of the Platform, in order to circumvent the obligation to pay any Booking Fees related to GymLend’s provision of the Services, or for any other reason. This obligation is taken extremely seriously by GymLend;
- recruit, or otherwise solicit any Member to join third party services, websites or applications that are competitive to GymLend, without our prior written approval; and
- use the Platform or the Collective Content other than in accordance with these Terms.
- use, copy, sub licence, adapt, transmit, publicly perform or display any such Member Content; and
- sub licence to third parties the unrestricted right to exercise any of the foregoing rights granted with respect to the Member Content.
WARRANTY AND LIABILITY
In these Terms: