Terms and Conditions
These Terms of Service (this “Agreement”) applies to your gear rental and gear delivery (the “Services”) from Xscape Pod, LLC (“Xscape Pod”). Please read this Agreement carefully before accepting.
BY CHECKING THE BOX, YOU ARE CONSENTING TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SERVICES ALONG WITH ANY AMENDMENTS AND ANY RULES OR POLICIES THAT MAY BE PUBLISHED FROM TIME TO TIME BY XSCAPEPOD. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, AND ANY PERSON TO WHICH THE ENTITY PERMITS ACCESS AND USE OF SERVICES, TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CLICK THE “I AGREE” BUTTON AND THE REGISTRATION PROCESS WILL NOT CONTINUE.
The Effective Date of this Agreement shall be the earlier of: (1) the date that you check the box presented on the screen or (2) the date you begin using the Services. XscapePod may make changes to the Agreement, and your continued use of the Services after posting of such changes constitutes your acceptance of any such changes.
You are responsible for:
You agree NOT to:
XscapePod reserves the right to refuse to provide you with the Services or cancel your account for any reason. In addition, XscapePod may terminate this Agreement or suspend access to your account or the Services at any time if you or the organization purchasing the Services:
OWNERSHIP & PURCHASE OPTION
This is a rental agreement – you do not own the gear unless purchased in accordance with the following purchase option terms. After you rent the gear and at XscapePod’s sole option, you may purchase all or some of the gear at the price published or provided by XscapePod. Any gear purchased from XscapePod is sold AS-IS with no warranty, express or implied. There are no refunds on used gear purchases.
DAMAGED, LOST, OR STOLEN GEAR
You are fully responsible for any lost, stolen, or damaged gear. XscapePod has the sole right to determine whether the gear has been lost, stolen, or damaged. If XscapePod determines that the gear has been damaged, you are responsible for paying the reasonable cost of repair, as determined by XscapePod, but no lesser than $50.00. If the gear is lost, stolen, or damaged beyond repair, you are responsible for the full cost to replace the gear, at retail price, plus a restocking fee of $100.00. You consent to allowing XscapePod to automatically charge the credit card used in making your reservation. If such payment does not go through, you must pay the fee within five days from receiving notice from XscapePod.
You are responsible for returning the gear clean. XscapePod has the sole-discretion to determine whether the gear is clean. If the gear is returned with excessive dirt, grime, or unclean in anyway, XscapePod may charge you a cleaning fee of no more than $250.00. You consent to allowing XscapePod to automatically charge the credit card used in making your reservation. If such payment does not go through, you must pay the cleaning fee within five days from receiving notice from XscapePod.
XscapePod may from time-to-time offer third-party insurance covering the gear, or you may have your own insurance. Regardless, any and all insurance claims are your sole-responsibility and you must comply with the damaged, lost, or stolen gear policy above.
XscapePod retains the right to:
XscapePod represents and warrants that the Services will be provided in a workmanlike manner. XscapePod makes no other representation, warranty, or guaranty as to the reliability, quality, suitability, availability, or completeness of the Services or gear. The Services and gear are provided to you on an "AS IS" basis. By accepting this Agreement, you acknowledge that the gear may not operate according to its specifications at all times.
XscapePod DOES NOT represent or warrant that:
ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY XSCAPEPOD.
LIMITATIONS ON LIABILITY
XscapePod is not responsible nor liable for any harm resulting from your use or misuse of the gear. You expressly agree that XscapePod, its officers, directors, employees, affiliates and service providers, shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for bodily harm, or other intangible losses (even if XscapePod has been advised of the possibility of such damages), resulting from the use or misuse of the Services.
You agree to indemnify and hold XscapePod and its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that Your use of the Services has caused harm to a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your users of this Agreement.
Governing Law, Arbitration & Attorney’s Fees
This Agreement will be governed by and construed in accordance with the laws of the State of Oregon without regard to any contrary conflicts of law principles. Any dispute, controversy, or claim arising out of or relating to this Agreement will be settled by binding arbitration. Unless the parties otherwise agree, the arbitration will be administered by the Arbitration Service of Portland, Inc. (ASP) in accordance with ASP’s rules. Judgment on the award rendered by the arbitrator may be entered in the circuit court in the county in which the arbitration occurs, and the resolution of the disputed matter as determined by the arbitrator will be binding on the parties. There will be one arbitrator who will be a business lawyer or will have such alternate qualifications that are mutually agreeable to the parties. Any arbitration will be conducted in Portland, Oregon.
Waiver and Severability
No waiver of any term or condition set forth in this Agreement by XscapePod shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of XscapePod to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.
Merger & Amendments
This Agreement constitutes the complete agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matters discussed herein. This Agreement may be modified only as set forth in this Agreement.
LIABILITY WAIVER & RELEASE
BY RENTING GEAR FROM XSCAPEPOD LLC, I AGREE TO THE FOLLOWING LIABILITY WAIVER AND RELEASE. I UNDERSTAND THAT HIKING, BACKPACKING, CAMPING, AND OTHER OUTDOOR ACTIVITIES ARE INHERENTLY DANGEROUS. BY RENTING OUTDOOR GEAR FROM XSCAPEPOD
LLC, I ACKNOWLEDGE THAT I AM FULLY RESPONSIBLE FOR USING THE GEAR IN A SAFE MANNER. I AM AWARE AND UNDERSTAND THAT USING THE GEAR AND PARTICIPATING IN ACTIVITIES RELATED TO THE GEAR COULD BE DANGEROUS AND COULD SUBJECT ME OR THIRD PARTIES TO PROPERTY DAMAGE, INJURY, ILLNESS, FALLS, OR OTHER BODILY DAMAGE THAT COULD POTENTIALLY RESULT IN SERIOUS INJURY AND/OR DEATH. I ACKNOWLEDGE THAT I AM VOLUNTARILY PARTICIPATING IN THE ACTIVITIES WITH KNOWLEDGE OF THE DANGERS INVOLVED AND AGREE TO ACCEPT AND ASSUME ANY AND ALL RISKS OF INJURY OR DEATH, WHETHER CAUSED BY THE NEGLIGENCE OF XSCAPEPOD OR OTHERWISE. IN ADDITION, AS LAWFUL CONSIDERATION FOR RECEIVING XSCAPEPOD LLC’S SERVICES,
I EXPRESSLY WAIVE AND RELEASE ANY AND ALL CLAIMS AGAINST XCSAPEPOD LLC, AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, MEMBERS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, RELEASES), ON ACCOUNT OF INJURY, DEATH, OR PROPERTY DAMAGE ARISING OUT OF OR ATTRIBUTABLE TO XSCAPEOD LLC’S ACTIONS OR OMISSIONS. I COVENANT NOT TO MAKE OR BRING ANY SUCH CLAIM AGAINST XSCAPEOD LLC OR ANY OTHER RELEASEE, AND FOREVER RELEASE AND DISCHARGE XSCAPEOD LLC AND ALL OTHER RELEASEES
FROM LIABILITY UNDER SUCH CLAIMS. HOWEVER, THIS LIABILITY WAIVER DOES NOT RELIEVE XSCAPEOD LLC FROM LIABILITY FOR MISCONDUCT MORE SERIOUS THAN ORDINARY NEGLIGENCE. I HAVE READ AND UNDERSTOOD THE TERMS ABOVE. I HEREBY AGREE TO RELEASE XSCAPEPOD LLC AND THE RELEASEES FROM ANY AND ALL LIABILITY.