Updated April 2019
GOLF CLUB RENTAL AGREEMENT
For the purposes of this Agreement, (a) “Club” is any type of golf equipment, such as a clubs, bags, gloves, balls, tees, etc. made available through the FOREager website (the “Site”); (b) the “Renter” is the person renting the Club and any other equipment using an account created on the Site), and the “Lister” is the owner or authorized agent for the Club made available for rent via the Site. This Club rental agreement (“Agreement”) is a binding agreement between Renter and Lister. FOREager, LLC (“FOREager”) is a party to this Agreement solely to the extent necessary to facilitate the rental transaction and collect and pay any fees that may be owed hereunder and is otherwise a third-party beneficiary of this Agreement.
Lister enters into this Agreement and allows Renter to rent and use the Club, along with any associated equipment (the “Rental”) only on the condition that Renter accepts all the terms in this Agreement. By entering into this Agreement to rent and use the Club, Renter acknowledges that
• he or she has read and understood this Agreement;
• he or she agrees to be bound by all of the terms of this Agreement;
• he or she is knowledgeable with respect to the type of equipment being rented and adjustments required for safe operation and use; and
IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL NOT BE PERMITTED TO RENT THE CLUB OR ANY OTHER EQUIPMENT.
This Agreement is effective on the date Renter agrees to the terms and conditions as provided herein (“Effective Date”).
Renter and Lister agree as follows:
1.1 Agreement to Rent. By accepting this Agreement, Lister agrees to rent the Club to Renter, and Renter agrees to rent the Club from Lister, on the terms and subjects to the conditions set forth herein, and for the period agreed via the Site (the “Rental Period”).
1.2 Condition of Club. By making the Club available for rent hereunder, and agreeing to the terms of this Agreement, Lister represents and warrants that (a) he or she is the sole owner of the Club, or that he or she has full agency or other authority to enter into this Agreement and to rent the Club to Renter; (b) the Club has been accurately described on the Site, including any known faults or issues; (c) except as clearly set forth on the Site, the Club is in proper working condition, has been properly maintained, and contains all functionality necessary for the Renter to attain his or expected use of the Club during the Rental Period. Unless expressly agreed, the Rental does not include additional equipment, such as balls, tees, gloves, ball markers or headcovers.
1.3 FOREager Guarantee. FOREager provides a limited guarantee to Listers for Rentals in Covered Countries (defined below) of up to US $500 for clubs, subject to requirements set forth on the Site (the “FOREager Guarantee”) . Lister understands that the FOREager Guarantee is limited to loss or damage to the Club during the scheduled Rental period, and does not cover ordinary wear and tear, any repairs paid for by the Renter, or any loss or damage occurring prior to or after conclusion of the scheduled Rental period. “Wear and Tear” includes all cosmetic damage, including scratches and is further defined in Exhibit A below. The FOREager Guarantee covers only damage that compromises the functionality or safety of the Club. Furthermore, the guarantee does not cover any other property damage, injuries, loss of use or incidental, special or punitive damages - such damages may only be recovered from a Renter. The FOREager Guarantee does not cover Clubs that are stored outside and unsupervised at night (including any time from 10:00 p.m. to 6:00 a.m.), and Listers are advised to notify all Renters of this exclusion. Furthermore, Lister acknowledges and agrees that the FOREager Guarantee is only available if accurate and current photographs and description of the Club have been included with the listing as described in Exhibit B prior to the Rental period, and to the extent such photographs and description are sufficient to establish the make, model, components and condition of the Club and any accessories (if applicable).
All claims under the FOREager Guarantee must be initiated within twenty-four (24) hours of return of the Club; late claims will not be honored. Therefore, we strongly encourage all Listers to examine their Clubs for safety and functionality as soon as possible following return. No exceptions to the 24-hour rule will be made. All claims for damage must include photographic evidence of the claimed damage; however, FOREager reserves the option to require a physical inspection prior to making any payment under the FOREager Guarantee. Any claim for a stolen Club must be accompanied by a police report to be valid. For all claims, Lister may be required to provide additional documentation, such as purchase receipts for the Club and any components, maintenance records, and such other documents as FOREager may request in its reasonable discretion. If Lister is entitled to coverage under the FOREager Guarantee for lost or stolen Clubs, or where the repair cost would exceed the replacement value of the Club, FOREager will make commercially reasonable efforts to provide the Lister with a Club that is of a similar make, model and year, and with similar components and other aftermarket parts. If the Club or components are not reasonably available at standard retail prices FOREager reserves the right to provide a Club of equal quality and/or value. In order to determine the value of the Club and/or components in question, FOREager will use the PGA Value Guide to determine the fair market value. These values are determined by year, condition, and overall value and may use the following sources: product manufacturers websites, our network of industry partners and pro shops, e- commerce websites such as valueguide.pga.com. FOREager may use other relevant factors in its reasonable discretion. In the case of damage, the repair cost of the Club shall be in FOREager’s reasonable discretion, in consultation with professional repair personnel knowledgeable in the appropriate field and shall account for any salvage value of the Club, if applicable. Lister will be entitled to select a preferred repair shop, but any costs in excess of FOREager’s estimated repair cost shall be Lister’s sole responsibility. “Covered Countries” currently consist of the United States. The list of Covered Countries is subject to change from time to time, and this Agreement will be updated to reflect any such changes. The FOREager Guarantee only provides coverage for Clubs rented through the FOREager platform. No coverage is provided for third party property, personal injuries or other losses, which are the sole responsible of the Renter or the Lister, as applicable. When you file a damage or theft claim, FOREager determines, in its sole discretion, whether your claim qualifies for coverage under our FOREager Guarantee. FOREager’s original determination is considered final, but you may be able to file an appeal of the decision with FOREager if you have new or compelling information not available at the time of the original determination or you believe there was an error in the decision-making process.
1.4 Lister Obligations. If there is damage to a Club during a Rental, the Lister must notify FOREager within twenty -four (24) hours of completion of the Rental Period or prior to any subsequent rental, whichever occurs first. If any damage is not reported during such period, then the damage shall be presumed to have occurred subsequent to the Rental. Lister shall be responsible for the cost of any diagnostic fees, estimates, etc. If Renter does not return a Club at the conclusion of the Rental Period, and does not agree within twenty-four (24) hours to schedule a new return time, or does not return the Club at such rescheduled return time, then Lister agrees to file a report with the applicable police department and provide a copy of such report to FOREager. In filing the report, Lister is required to notify the police department of the FOREager Guarantee, and that FOREager may ultimately be subrogated to Lister’s right to recovery of the Club. Lister must also authorize the police department to discuss and provide any information regarding the case with FOREager.
2. RENTER OBLIGATIONS
2.1 Usage. No other person may use or otherwise operate the Club except Renter. Renter is responsible for securing the Club at all times, including the use of theft prevention devices, where appropriate, and only storing the Club in an enclosed area at night. Renter is also responsible for any injuries to themselves or other people, or damage to the Club or any other property during the Rental Period.
2.2 Return. Renter agrees to return the Club to Lister in the same condition as received, except for ordinary wear and tear, on the due date and time and at the location specified by Lister at time of rental. Renter understands that there will be additional charges if the Club is returned at a different time, date, or location than indicated in this Agreement, including late charges and additional rental charges at no less than the daily or hourly rate applicable to the Rental. If Renter fails to return the Club at the agreed date, time and location, and has not agreed with Lister or FOREager on an alternate delivery time and location within 24 hours of the scheduled delivery time, or Renter fails to return the Club at the rescheduled time and place, then (a) FOREager shall determine that Renter does not intend to return the Club; (b) FOREager will charge Renter’s payment method for the full retail value of the Club, along with any other fees due to FOREager; (c) FOREager or Lister may lawfully repossess the Club; and (d) FOREager and Lister may exercise any other rights or remedies, and take any other necessary measures, to repossess the Club and/or collect the full amount owed by Renter hereunder. If Lister fails to appear at the scheduled time and place for return of the Club, Renter remains responsible for the safe keeping of the Club. In such event Renter should contact FOREager to try to arrange alternate means of return of the Club, which may be through a pro shop or other public facility at FOREager’s direction. Lister shall be responsible for any fees incurred by FOREager in connection with such alternate return method, and understands and acknowledges that, if the such fees exceed the amount of the rental fee due Lister, or any other credit amounts in Lister’s account, then the Club will not be released to Lister until payment arrangement satisfactory to FOREager have been made. FOREager shall not be responsible for any delay or loss of use of the Club due to Lister’s failure to appear as scheduled or to make alternate payment and return arrangements.
2.3 Repossession. Lister may repossess the Club at any time if: (a) the Club is used in violation of any term or condition in this Agreement, (b) Renter made a misrepresentation to Lister or (c) Renter fails to return the Club when due. Lister is not required to notify Renter in advance of repossession.
2.4 Prohibited Use. Use of the Club is restricted to the general geographical area agreed upon by Renter and Lister. Renter will not use the Club outside of this area and will not remove the Club from this area. Renter agrees not to use or permit the Club to be used for hire or in any location that operation would be illegal or a nuisance to others. A violation of this paragraph automatically terminates the rental and makes Renter liable to Lister for any penalties, fines, forfeitures, liens, recovery and storage costs, and any related legal expenses associated with a violation of this paragraph. Clubs left unsupervised are not covered by the FOREager Guarantee.
2.5 Damage to Club. Renter shall pay Lister for all losses and/or damage to the Club, except for ordinary wear and tear that does not impact the usability of the Club or significantly impact the resale value of the Club, regardless of fault (e.g. Renter agrees to pay for the loss or damage even though someone else caused the damage or is at fault) . The determination of whether damage impacts the usability or resale value of the Club shall be made by FOREager in its sole discretion. Renter is also responsible for all theft or vandalism losses, even if Renter is not at fault for making the theft or vandalism possible, and regardless of any measures Renter may have taken to secure or protect the Club. If the Club is damaged, Renter agrees to pay the reasonable costs of repair and diminution in value, if any. If the Club is damaged beyond reasonable repair (as determined by Lister), Renter shall be responsible for the retail fair market value of the Club, less any salvage value if applicable. In addition to the above, Renter shall also be responsible for the reasonable down time (“Loss of Use”) if the solution for the case takes more than 10 business days, reasonable administrative fee as determined by Lister or specified by law, plus any pick-up and/or storage charges. Neither FOREager nor the Renter will provide extra compensation for income lost due to damage or theft. In the event of theft, Renter shall be responsible for paying Loss of Use at the daily rate for each 24 hours Renter delays in paying the total loss. Renter is also responsible for any loss if Renter: (a) abuses the Club or uses or operates the Club other than as specified in this Agreement; (b) uses the Club recklessly; (c) obtains the Club through fraud or misrepresentation; or (d) uses the Club for an illegal purpose. Renter authorizes Lister to collect from a responsible third party any applicable loss and/or damage. In the event Lister obtains a recovery from a third party after Renter has paid Lister for all or part of any loss, Lister will refund to Renter any excess above the amount of the loss plus administrative fees and other collection costs and attorneys' fees incurred.
2.6 Payment. Renter agrees to pay upon demand all rates, charges, (including those applicable to miscellaneous services and equipment), plus applicable taxes, fees, and surcharges (if applicable), which may apply to the Rental, including, without limitation, charges for loss and/or damage to the Club. Renter specifically agrees and authorizes FOREager to apply any charges to the method of payment used by Renter at the time of rental.
2.7 Booking and Payment. Renter authorizes FOREager to charge the amounts due as a result of the Booking Rental process to Renter’s credit card. Charges for upcoming rentals will be processed at the time of the booking. FOREager may cause an additional charge authorization to be processed against Renter’s credit card or other payment method as a security deposit, which will be credited back to Renter’s payment method upon satisfactory return of the Club without damage or delay. FOREager is also authorized to make additional charges to Renter’s credit card related to late return fees, Clubs that are lost or damaged during the Rental Period.
2.8 Ownership. The Club, at all times, remains the exclusive property of Lister. Renter is responsible for damage to or loss of Club. If the Club is lost, destroyed or damaged beyond repair in the judgment of Lister, Renter agrees to pay Lister the value of Club.
3. RISK AND LIABILITY TERMS
3.1 Acknowledgement of Risks. Renter understands and acknowledge that the Club is provided “as is” and without warranties.
3.2 Assumption of Risk. RENTER KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ASSUME ALL RISKS RELATED TO THE USE AND POSSESSION OF THE CLUB, INCLUDING, WITHOUT LIMITATION ANY BODILY INJURY OR DEATH TO ANY PERSON, OR PROPERTY DAMAGE TO ANY PROPERTY WHICH MAY RESULT FROM THE USE OF THE CLUB OR POSSESSION OF THE CLUB EVEN IF SUCH LOSS OR DAMAGE IS DUE TO ANY NEGLIGENCE OF LISTER, FOREAGER, THEIR AGENTS, EMPLOYEES, OFFICERS, PARTNERS, MEMBERS, SUCCESSORS AND/OR ASSIGNS. DESPITE KNOWING ALL ASSOCIATED RISKS, RENTER FREELY ASSUMES ALL RISKS OF PERSONAL INJURY AND/OR DAMAGE IN THE USE OF THIS CLUB AND RENTER AGREES TO HOLD LISTER AND FOREAGER HARMLESS FROM ALL CLAIMS OF INJURY OR DAMAGE.
3.3 Waiver and Release. In consideration of Lister renting the Club, Renter specifically releases and forever discharges Lister, FOREager, and their affiliates, officers, agents, and employees from any and all liability or claims for injury, illness, death or loss of or damage to property which Renter may suffer while renting this Club and participating in associated activities. This discharge specifically includes, but is not limited to, liability or claims for injury, illness, death or damage caused by the negligence of Lister, FOREager, or their affiliates, officers, agents, or employees. It is the express intent of this Agreement that Renter release Lister and FOREager and hold them harmless from all liability for any such property loss or damage, personal injury or loss of life, whether caused by the negligence of Lister or FOREager or whether based upon breach of contract, breach of warranty, or any other legal theory. In agreeing to this Agreement, Renter fully recognizes that if injury, illness, death or damage occurs while engaged in renting this Club or participating in activities associated with the Club, Renter will have no right to make a claim or file a lawsuit against Lister, FOREager or their affiliates, officers, members, agents or employees, even if any of them negligently cause any injury, illness, death or damage.
3.4 Indemnification. Renter agrees to indemnify and hold harmless Lister and FOREager and their subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including attorney's fees) arising from, related to, or in any way connected with, or resulting from Renter’s participation in this activity or use of the Club, including the possession, use, or return of the Club, and including any such claims which allege negligent acts or omissions on the part of Lister or FOREager. Should Lister, FOREager or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, Renter agrees to indemnify and hold them harmless for all such fees and costs.
4. Third Party Claims.Neither Lister nor FOREager shall be responsible if Renter causes injury to another person or if Renter damages personal property of another. Renter agrees to protect, defend, indemnify and hold Lister and FOREager harmless and pay any claim, including attorneys’ fees, brought by a third party arising out of Renter’s use of the Club and for any liability associated with any personal accident/injury as a result of Renter’s use of the Club starting off from the rental period.
4.1 Insurance. Renter certifies that he or she has adequate insurance to cover any injury or damage Renter may cause or suffer while participating in the activity, or else Renter agrees to bear the costs of such injury or damage. Renter understands and agrees that Lister and/or FOREager may make a claim against any insurance coverage Renter maintains, whether liability, casualty, personal or health insurance, in the event of any loss, injury, death or damage to person or property while using or operating the Club. Neither the maintenance of, or failure to maintain, adequate insurance shall relieve Renter of any liability hereunder.
4.2 Physical Condition. Renter understands the he or she should be in good physical health to play golf. Renter certifies that Renter has no medical or physical conditions which could interfere with Renter’s safety in this activity, or else Renter is willing to assume all liability, damages or costs that may be created, directly or indirectly, by any such condition.
5. GENERAL PROVISIONS
5.1 No Warranty. THE CLUB IS PROVIDED TO RENTER ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CLUB IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, LISTER DOES NOT WARRANT THAT THE CLUB OR ANY RENTAL WILL MEET RENTER’S REQUIREMENTS.
5.2 Limitation of Liability. (a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LISTER OR FOREAGER, THEIR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM ANY RENTAL OR THE USE OF, OR INABILITY TO USE, THE CLUB. (b) IF LISTER OR FOREAGER, OR THEIR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, OR SUPPLIERS ARE FOUND TO BE LIABLE, SUCH LIABILITY TO RENTER OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (A) THE TOTAL FEES PAID HEREUNDER AND (B) $100. (c) THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF FOREAGER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
5.3 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by either Lister or Renter.
5.4 Third Party Beneficiary. FOREager shall be an intended third party beneficiary of this Agreement with the full rights to enforce the provisions relating to FOREager herein.
5.5 Governing Law. This Agreement shall be governed by the internal substantive laws of the State of Indiana, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any claim or dispute between Renter and Lister that arises in whole or in part from the rental of the Club shall be decided exclusively by a court of competent jurisdiction closest to Lister’s residence.
5.6 No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
5.7 Entire Agreement/Severability. This Agreement shall constitute the entire agreement between Renter and Lister concerning the rental of the Club. If a court of competent jurisdiction deems any provision of this Agreement invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
Definition of “Wear and Tear”
“Wear and Tear” includes all cosmetic damage, including scratches that do not affect the integrity or functionality of the golf clubs. The determination of "Wear and Tear" shall be made by FOREager in its sole discretion Examples of “Wear and Tear” include: - Cosmetic damage to clubs (light scratches, paint chips) - Cosmetic damage to club components (grip wear, shaft nicks, etc.) - Wear to consumable items on the club (golf balls, golf tees). Examples of Damage as opposed to “Wear and Tear” for clarity: - Penetration or cracks in club - Deep scratches in club head or components - Tears in club grips or accompanying bag - Bent shafts.
Listing Guidelines for FOREager Guarantee eligibility
- Club photographs shall be accurate and current. High-resolution images are preferred.
- Listing shall have multiple photographs of the club. Include pictures of the individual components of the club - rear wheel, front wheel, derailleur, suspension fork, bars, etc.
- Description shall include all details of the model, year, and the make of the club. - All descriptive details such as club type, clubr height, frame size, extras, etc. shall be filled out.
- All accessories, add-ons, upgrades shall be explicitly stated in description to be eligible for coverage. - Rental pricing shall follow appropriate market price compared to the value of the club. For example, a $5,000 set of clubs shall not be rented out for $1.00 per day.
- Note: For high value items, we recommend you contact customer service before listing to ensure your club will be covered by the guarantee. - FOREager will make a final decision on your claim, in its sole discretion, based on the coverage and eligibility requirements set forth above, any additional information provided during the online dispute resolution process or any other information FOREager deems relevant and appropriate under the circumstances.