ShareGear Terms and Conditions
These Terms and Conditions were last updated on Friday the 18th August 2017
Welcome to ShareGear Limited’s ShareGear site which provides a platform for you, as a User of the Site, to hire out Items to other Users and/or hire Items from other Users.
These terms and conditions form a legal agreement (Agreement) that set out our, and your, rights and obligations in relation to the Site. Please read this Agreement carefully before registering to use the Site. By using the Site you agree to follow and be bound by the terms and conditions of this Agreement. If you do not agree to all the terms and conditions in this Agreement, you must not use the Site.
This Agreement may be varied by us at any time, effective upon the posting of modified terms on the Site or as otherwise notified to you in writing (including by email). You will ensure that you have read, understood and agree to the most recent terms posted on the Site or as otherwise notified to you.
1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires or is specified otherwise:
Access Details has the meaning given in clause 5.3(b);
Account means the online profile you create with us that is accessible via the Site;
Account Information has the meaning given in clause 3.1;
Agreement means these terms and conditions;
Booking has the meaning given in clause 2.1;
Business Day means a day other than a Saturday, Sunday or public holiday in Auckland;
Feedback has the meaning given in clause 8.3;
Hire Rate means the price that an Item is hired out for, based on a daily rate (unless otherwise specified);
Hirer means a User who hires, or is interested in hiring, an Item from an Owner;
Intellectual Property Rights means all intellectual property rights and includes any patents, registered designs, utility models, trade marks (including logos and trade names), domain names, copyright, circuit layouts, rights in computer software and databases, rights in inventions, ideas, know-how and trade secrets, image and personality rights (including all things recording that intellectual property), in each case whether registered or unregistered (including applications for the grant of any of the foregoing) and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world and all rights to apply for any such rights;
Item(s) means household or other goods that may be hired by Hirers from Owners through the Site as further defined on our Information page at https://info.sharegear.co.nz ;
Listing has the meaning given in clause 4.1;
Listing Fee means the fee payable by an Owner to us, being the fee set out on our Information page at https://info.sharegear.co.nz;
Messages has the meaning given in clause 8.2;
Owner means a User who hires, or is interested in hiring, out an Item it owns (or otherwise has a right to hire out) to a Hirer;
Payment Provider means the payment service provider PayPal and/or such other payment service provider we may specify from time to time. For more information about PayPal please see Information page at https://info.sharegear.co.nz;
Refund Procedure means the procedure set out on the refund section of the Information page at https://info.sharegear.co.nz;
Site means the website found at sharegear.co.nz owned by us, which allows Owners to hire out Items they own to Hirers, and Hirers to hire Items from Owners;
Updates has the meaning given in clause 6.1;
User means an individual or entity that accesses and/or uses the Site, whether in the capacity of an Owner or Hirer;
User Details has the meaning given in clause 3.2;
User Generated Content means any content posted on or via the Site that is generated or uploaded by a User, and includes Listings, Messages and Feedback;
Virus means any thing or device (including any software, code, file or program) which may: (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or (c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
we, us and our are a reference to ShareGear Limited (Company no. 6152147); and
you and your refers to you, the individual or entity that accesses and/or uses the Site.
1.2 In this
Agreement, unless the context requires otherwise:
(a) words importing one gender include the others;
(b) words importing the singular or plural number include the plural and singular number respectively;
(c) headings are inserted for the sake of convenience of reference only and do not affect the interpretation of this Agreement; and
(d) a person includes any individual, corporation, unincorporated association, government department or municipal authority.
2. Nature of the Site
2.1 The Site provides a platform for Owners and Hirers to connect with each other. Where a connection between an Owner and a Hirer is made, the Site provides a booking service for the Hirer to hire an Item from an Owner (Booking).
2.2 If a Booking is made, a contract is formed between the Owner and Hirer directly. We do not act as agent for either party and do not participate in any provision of goods, hire services, agreements, or any dispute resolution between you and other Users; we simply offer a platform for Hirers and Owners to connect.
3. Account Registration
3.1 All Users may register an Account. When doing so, you will be asked to provide us with certain information about yourself including your first and last names, address and contact details (Account Information). You are responsible for providing accurate, current, and complete Account Information. We may, either during or after registration of your Account, request further Account Information from you and/or use third party services to verify your Account and/or your identity. Your Account Information will not be made available to any other User.
3.2 When registering an Account you will be asked to create a username, specify the suburb you live in, and, if you wish to do so, upload a photo of yourself (User Details). User Details will be available for all Users to see.
3.3 By using the Site and/or registering an Account, you represent and warrant that you are at least 18 years of age.
4. Listings
4.1 If you are an Owner you can create a post on the Site containing information about an Item that you own and want to hire out (Listing).
4.2 The Listing will include your User Details, and:
(a) at a minimum, must include basic information about the Item, including its name, Hire Rate and availability, a photograph, and a brief description (including details about its condition); and
(b) may also include additional information that is relevant to your Listing or that you believe will help facilitate possible Bookings.
4.3 All other Users will be able to view your Listing.
4.4 If you are an Owner:
(a) you warrant that:
(i) your Listing is accurate, current, and complete, including that the Item in your Listing fits your description of its quality and condition, and the photo in your Listing is an accurate representation of the Item. We may, either during or after the creation of your Listing, request further information from you and/or use third party services to verify your Listing;
(ii) your Listing does not contain any Item that is offensive, objectional, stolen, unlawful, unsafe or unfit for purpose; and
(iii) you are the owner of the Item in your Listing, or if you are not the owner, that you have the authority of all relevant owners to create the Listing;
(b) you will provide the Item to the Hirer in the condition described in your Listing at the time agreed with the Hirer;
(c) you will provide reasonable instructions to the Hirer on how to use or operate the Item; and
(d) comply with any other terms you have agreed with the Hirer in relation to the hire of the Item.
4.5 If you are a Hirer, you will (unless otherwise agreed with the Owner):
(a) upon taking possession of an Item for hire, keep that Item safe and secure against theft, loss, damage and/or unauthorised use;
(b) immediately report to the Owner any theft, loss, damage and/or unauthorised use of the Item;
(c) return the Item to the Hirer at the time agreed with the Owner;
(d) at all times keep the Item in your possession or control and will not attempt to sell, pledge, charge, hire out or otherwise deal with the Item;
(e) use, operate and store the Item, and ensure the use, operation and storage of the Item, in a careful, prudent and lawful manner and in so doing will comply with the provisions of all relevant legislation, by-laws and regulations affecting the Item or the use or possession of it, and all reasonable instructions of the Owner;
(f) reimburse the Owner for any repair or replacement costs reasonably incurred by the Owner arising out of any theft, loss, damage and/or unauthorised use of the Item while in your possession; comply with any other terms you have agreed with the Hirer in relation to the hire of the Item; and
(g) comply with any other terms you have agreed with the Owner in relation to the hire of the Item.
4.6 If you are an Owner, we reserve the right to:
(a) edit and/or remove any information you include in your Listing; and
(b) verify your Listing as we consider necessary to validate the warranties you give in clause 4.4(a). Such verification may include (without limitation) accessing publically available records and conducting background checks, which may be carried out by third parties, as permitted by the law.
5. Licence and Access
5.1 We grant you a non-exclusive, non-transferable, revocable right to access and use the Site for the term of this Agreement solely for your own use and on a computer or other device that you own and/or control, all on the terms and conditions set out in this Agreement.
5.2 We will use reasonable endeavours to make the Site available to you on and subject to the terms of this Agreement.
5.3 You:
(a) will be solely responsible for:
(i) procuring and maintaining your network connections and telecommunications links from the computer or device you use to access the Site; and
(ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet;
(b) will keep any logins, passwords and registration codes (together, Access Details) that are required for your access to your Account and/or use of any part of the Site confidential and ensure you are the only person to access and use the Site through use of the Access Details;
(c) will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Site and, in the event of any such unauthorised access or use, promptly notify us;
(d) are fully responsible for all activities that occur under your Account and agree to immediately change your password in the event of any breach of security;
(e) acknowledge and agree that we may disable your login Account or access to the Site if we discover that the Access Details have been provided to any third party;
(f) will ensure that all information that you provide to us is true and correct and kept up to date for so long as you continue to use the Site;
(g) will abide by all information and instructions or other relevant notices on the Site; and
(h) will comply with all applicable laws (including the Privacy Act 1993) and any third party terms you have agreed to (for example with your telecommunications service provider) with respect to your use of the Site.
5.4 You will not:
(a) except as may be permitted by any applicable law which is incapable of exclusion by agreement between you and us:
(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, display, transmit, or distribute all or any portion of the Site in any form or media or by any means; or
(ii) attempt to decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Site;
(b) access the Site in order to build a product or service which is the same as or similar to the Site or which otherwise competes with the Site;
(c) remove, disable, circumvent or attempt to undermine the integrity of any security or technical measures, including any digital rights management system or other content protection or features used by us, that control access to:
(i) the Site; or
(ii) our, or any third party’s, systems, networks or resources used in the provision of the Site; and
(d) access, store, distribute or transmit any Viruses through the Site, and we may, without liability to you, disable your access to the Site if you are in breach of this clause.
6. Changes to the Site
6.1 You acknowledge that we may provide updates, upgrades, patches and other modifications to the Site (together Updates) that must be installed for you to continue to use the Site properly or at all. You may be required to install Updates to your internet web browser or to update or upgrade the device you use to access the Site or the operating system running on that device in order to continue to use the Site. Unless we specify otherwise, Updates will be provided at no cost.
6.2 Although we use reasonable endeavours to ensure that any Updates to the Site do not cause any problems in your use of the Site, our liability to you to the extent that problems arise from such Updates is limited in accordance with clause 12.
6.3 We may at any time change any fees payable for the use of the Site, and modify, discontinue or restrict access to the Site (or any part of it), temporarily or permanently with or without notice to you. To the extent permitted by law, you agree that we will not be liable to you or to any third party for any modification, discontinuance or restriction of the Site.
7. Information and Privacy
7.1 Information we collect includes (but is not limited to):
(a) User Details that you provide to us;
(b) Account Information from you when you register an Account. If you register an Account using an account from an online social platform (for example Facebook), we will request your permission to access your basic information on that social media platform, such as your name, profile picture and friends;
(c) aggregate information generated by our systems, which track traffic to the Site but do not identify you personally;
(d) information gathered from a “cookie” file relating to the computer or device you are using to access the Site, such as your IP address, PC platform (e.g. Windows or Mac), browser (e.g. Edge, Chrome or Safari, plus the version of the browser), and domain (whether you are accessing the Site from New Zealand or elsewhere); and
(e) for the purpose of facilitating payments between an Owner and a Hirer information about the nominated account that you have with the Payment Provider.
7.2 In so far as any of the information you provide to us is personal information for the purposes of the Privacy Act 1993 (Personal Information), we will comply with our obligations under the Privacy Act 1993 in respect of that Personal Information. You acknowledge and agree that we will be permitted to share or disclose your Personal Information:
(a) in accordance with the Privacy Act 1993, including without limitation where we believe on reasonable grounds that we are required to do so by law or that disclosure is necessary to facilitate the sale of the Site (whether as a going concern or otherwise); and
(b) as agreed by you under this Agreement.
If you have any questions in connection with our use of any Personal Information you have provided to us or you wish to access your Personal Information please write to us at our registered office address above or at info@sharegear.co.nz.
7.3 You acknowledge and agree that we may use your Personal Information for the purpose of:
(a) providing the Site to you and otherwise performing our obligations under this Agreement. This may include (without limitation) passing your Personal Information to:
(i) another User for the purposes of connecting that User with you in respect of a Listing;
(ii) a third party service provider for the purpose of verifying your Listing under clause 4.6(b); or
(iii) overseas data centre and outsourcing providers for the purpose of providing and/or maintaining the Site;
(b) ensuring that you are complying with the terms and conditions of this Agreement;
(c) improving or enhancing the Site;
(d) performing research and data analysis on an aggregated and anonymous basis; and
(e) marketing our own and third party products and services to you, where you have indicated, or otherwise agreed, that we may do so.
8. User Generated Content and Communications
8.1 You will not post on the Site, or transmit to other Users, any User Generated Content (including links to other content), or otherwise engage in any activity through the Site, that:
(a) breaches the Intellectual Property Rights of any third party;
(b) uses another person’s personal information other than for the specific purposes that person’s personal information was provided to you for;
(c) implies that the User Generated Content is in any way endorsed or sponsored by us;
(d) is intended to harass, annoy, threaten or intimidate any other User;
(e) is false, misleading, defamatory, inaccurate, abusive, pornographic, racially or ethnically objectionable in nature, or otherwise objectionable; or
(f) contains any Viruses.
8.2 The Site provides a messaging tool through which Users can communicate via messages (Messages). Messages are intended to be used by Users to submit and/or respond to queries about a Listing. Messages cannot be used by Users for communications that are irrelevant to the Site or any Listings, Items or Bookings. . Messages must, without limiting clause 8.1:
(a) be used in good faith and only for the purposes of enquiring about, or facilitating, a Booking; and
(b) not contain offensive, defamatory, retaliatory, inappropriate, misleading or deceiving language or content.
8.3 After a Booking has been completed, the Users involved in that Booking will have the option to place feedback about each other (Feedback). Feedback must, without limiting clause 8.1:
(a) only be given in relation to the relevant Booking, Listing or Item;
(b) not include any personal information about a User that is not disclosed in their User Details; and
(c) not contain offensive, defamatory, retaliatory or inappropriate language or content.
8.4 You acknowledge and agree that:
(a) we do not control, and therefore are not responsible for, any communication between you and any other User that may have been initiated as a result of use of the Site; and
(b) we in no way endorse or necessarily agree with the views expressed in User Generated Content. While we will endeavour to monitor User Generated Content and exercise editorial control where possible, you acknowledge that you use and rely on the User Generated Content obtained through the Site at your own risk.
8.5 We may at any time:
(a) refuse to post any User Generated Content; or
(b) edit or remove User Generated Content;
that we in our absolute discretion (acting reasonably) consider breaches the terms of this Agreement or is otherwise inappropriate for the Site.
8.6 Where you publish or upload User Generated Content on the Site, you are deemed to have granted us a non-exclusive, perpetual and worldwide licence to use such content on, and in relation to, the Site. You also warrant that any such User Generated Content does not infringe the Intellectual Property Rights of any person. You agree to indemnify us for all direct and indirect damages, losses and costs of any kind incurred or suffered by us as a result of or in connection with a breach of the warranty given by you in this clause 8.5
9. Intellectual Property Rights
9.1 You acknowledge and agree that we own all Intellectual Property Rights in and to the Site. Except as expressly stated in this Agreement, this Agreement does not grant you any Intellectual Property Rights in or to, or any other rights or licences in respect of, the Site.
9.2 We acknowledge and agree that, except for the rights you grant us to use your User Generated Content under this Agreement, you will own all rights, title and interest in and to all of your User Generated Content and you will have sole responsibility for the legality, reliability, integrity, accuracy and quality of your User Generated Content.
10. Listing Fee and Payment
10.1 When a Booking is made, the Hirer will pay the applicable Hire Rate directly to the Owner through the Payment Provider (Amount Paid).
10.2 Once we receive notification from the Payment Provider that the Hirer has paid the Amount Paid to the Owner, we will charge the Owner the applicable Listing Fee through the Payment Provider. If you are an Owner, you authorise us to request the payment of the Listing Fee from the Payment Provider using the account you have nominated. If the payment of the Listing Fee is declined by the Payment Provider, you will pay the Listing Fee to us in the manner and at the time directed by us.
10.3 To the maximum extent permitted by law, any amount paid and/or payable by you under this Agreement is non-refundable. If there is an issue with your Booking (including the non-fulfilment of a User’s obligations in respect of that Booking) then you must contact the other party to resolve that issue. However, if you believe that the Booking cannot be completed due to any act, omission or representation made by another User in relation to that Booking, then please follow our Refund Procedure. Any refund made in accordance with our Refund Procedure is done so entirely at our discretion.
11. Insurance
11.1 Until 19th February 2019 4pm, through Through ShareGear, users have insurance facilitated for them to cover Items deemed in-scope as per the policy document which is located at info.sharegear.co.nz/insurance/.
11.2 This insurance is brokered and underwritten by external parties and you acknowledge that ShareGear has no responsibility or involvement in claims or disputes in relation to insurance.
12. Warranties
and Liability
12.1 You acknowledge that, except for those warranties or representations that cannot be excluded by law (including under the Consumer Guarantees Act 1993 and Fair Trading Act 1986), the Site is provided on an “as is” basis and all representations, conditions or warranties in respect of the Site (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) are expressly excluded.
12.2 In particular and without limiting clause 12.1, we do not warrant:
(a) that your use of, or access to, the Site will be uninterrupted or error-free;
(b) that the Site will meet your requirements;
(c) that the Site will operate on all types of devices; or
(d) that the Site will be secure or free from Viruses.
12.3 You agree that, to the maximum extent permitted by law, we will not be liable to you for any form of loss or damage or injury, regardless of cause or origin, on any basis whatsoever, (including but not limited to breach of contract, warranty, negligence, strict liability in tort or otherwise), arising out of or in connection with your use of the Site or this Agreement. If, notwithstanding the foregoing, we have any liability to you for any form of loss or damage, then to the maximum extent permitted by law, our maximum aggregate liability to you will not exceed the total amount you have paid to us through the site.
12.4 You warrant that you:
(a) will use the Site in utmost good faith and will honour all Bookings that you are party to;
(b) will not complete a Booking or any other transaction of a similar nature outside of the Site process, or make any other attempt to avoid any fees payable by you to us or any other person under this Agreement; and
(c) have the right to enter into a Booking in the capacity as either an Owner or Hirer, whichever you represent yourself to be.
12.5 You acknowledge that:
(a) you assume all risk when using the Site, including (without limitation) all of the risks associated with any online or offline interaction with others. You agree to take all necessary precautions when meeting other Users;
(b) we are not liable for any loss or damage caused to any Item(s) during a Booking and you take full responsibility for risk of loss or damage to Item(s) during a Booking;
(c) we have no obligation to verify the identity of, Users, or screen any User Generated Content, including (without limit) Listings and Messages. We have no control over the accuracy, reliability, or completeness of User Generated Content and we make no representations or warranties as to such User Generated Content;
(d) the Site may contain links to websites and resources provided by third parties, and that these links are provided for your information only. We have no control over the content on those websites or resources, and accept no responsibility for any loss or damage that may arise from your use of them; and
(e) we are not responsible for any and all problems, conditions, delays, delivery failures and all other loss or damage arising from, or relating to, your network connections or telecommunications links or caused by the internet.
12.6 You will indemnify us against all costs, losses, expenses and damages incurred through any claims against us resulting from your use of the Site.
12.7 The exclusions and limitations of our liability to you set out in this clause 6 are subject to any rights you have under the Consumer Guarantees Act 1993 and Fair Trading Act 1986 that cannot be excluded by agreement between you and us.
13. Termination
13.1 We may terminate this Agreement and cancel, or suspend, your Account if:
(a) you breach any provision of this Agreement;
(b) you dishonour any Booking(s) that you are party to; or
(c) if a serious complaint or multiple complaints are received about you from other Users.
13.2 You may terminate this Agreement at any time by deleting your Account, however you must continue to honour any Booking(s) that you are party to, which exist at the date of termination.
14. General
14.1 This Agreement constitutes the entire agreement between you and us in relation to the Site and supersedes any previous understanding or agreements on that subject matter.
14.2 If any part or a provision of this Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement will continue to operate.
14.3 A provision or a right under this Agreement may not be waived except in writing signed by the party granting the waiver.
14.4 A party to this Agreement may exercise a right, power or remedy under this Agreement at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under this Agreement does not prevent a further exercise of that or of any other right, power or remedy.
14.5 This Agreement may be varied by us at any time. Unless otherwise stated, amendments to these terms will be effective upon notifying you of the changes via email, or by posting the changes on the Site (including by push notification). You must ensure that you have read, understood and agree to the terms in this Agreement. You agree that your continued use of the Site represents your agreement to be bound by the most recent terms.
14.6 You will not assign, transfer or otherwise deal with this Agreement or any of your rights or obligations under this Agreement, whether in whole or in part, without our prior written consent.
14.7 This Agreement will be governed by and construed in accordance with the laws of New Zealand.
14.8 Should you wish to take any action against us in respect of the Site and/or this Agreement, you agree that any such action will be commenced only in the New Zealand courts, which courts will have exclusive jurisdiction over such actions and proceedings.