Terms of Service

DayTrail, Inc.

Member (Equipment Owners and Equipment Renters) Terms of Service Agreement

(Last Revised October 13, 2023)

1. OVERVIEW

THIS MEMBER TERMS OF SERVICE AGREEMENT (THE “AGREEMENT”) IS ENTERED INTO BY AND BETWEEN DAYTRAIL, INC. (HEREAFTER REFERRED TO AS “DAYTRAIL”, “WE,” “US” OR “OUR”), AND YOU THE RECREATIONAL EQUIPMENT OWNER AND EQUIPMENT RENTER (HEREAFTER REFERRED TO AS “OWNER,” “RENTER,” “YOU” OR “YOUR”), AND IS MADE EFFECTIVE AS OF THE DATE OF ELECTRONIC ACCEPTANCE. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO CONFER ANY THIRD-PARTY RIGHTS OR BENEFITS EXCEPT TO THE EXTENT AS MAY BE EXPRESSLY SET FORTH HEREIN. PLEASE READ THIS AGREEMENT CAREFULLY AS ITS CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS OF YOUR USE OF THIS WEBSITE AND THE PRODUCTS, SERVICES AND/OR ONLINE PLATFORM ACCESSED THROUGH THIS SITE (COLLECTIVELY THE “SERVICES”). BY INDICATING YOUR ELECTRONIC ACCEPTANCE OF THIS AGREEMENT, OR BY USING THE SERVICES OR POSTING A LISTING, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT (WHETHER OR NOT YOU HAVE REGISTERED WITH US). IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.  FAILURE TO USE THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES.

DayTrail provides an online platform that allows owners who have recreational equipment available for rent to create listings and attempt to connect with third parties seeking to use, rent or otherwise request a booking for such equipment (“Renter(s)”), which platform is accessible at www.daytrail.com, and any other websites and/or software applications through which DayTrail makes the platform available (collectively, the “Site”). YOU UNDERSTAND AND AGREE THAT DAYTRAIL IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN AN OWNER AND A RENTER, NOR IS DAYTRAIL A BROKER, AGENT OR INSURER. YOU ACKNOWLEDGE AND AGREE THAT DAYTRAIL HAS NO CONTROL OVER OR RESPONSIBILITY FOR THE CONDUCT OF OTHER OWNERS, RENTERS OR USERS OF THE SITE OR SERVICES, AND DAYTRAIL HEREBY DISCLAIMS ANY AND ALL LIABILITY IN THIS REGARD.

2. ELIGIBILITY; AUTHORITY; MODIFICATIONS

The Services are available only to users who can form legally binding contracts under applicable law.  By using this Site or the Services, you represent and warrant that you are (i) at least eighteen (18) years of age and/or (ii) otherwise recognized as being able to form legally binding contracts under applicable law or (iii) providing written consent by a parent or legal guardian and have a current and valid driver’s license for operators under 18 years of age.  The minimum age to rent an insured vehicle is eighteen (18) years old, however, additional driver’s on a booking may be under 18 if written consent has been provided to DayTrail prior to the booking period and, at a minimum, 1 member of the rental party is above the age of 18.

If you are establishing this Agreement or using the Services on behalf of another company or other legal entity, you represent and warrant that you have the authority to bind that entity to this Agreement and, in such event, “Owner,” “Renter,” “you” and “your” will refer and apply collectively to you as an individual as well as to that entity.  If, after your acceptance of this Agreement, DayTrail finds that you do not have the legal authority to bind such entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. DayTrail shall not be liable for any loss or damage resulting from DayTrail’s reliance on any instruction, notice, document or communication reasonably believed by DayTrail to be genuine and originating from an authorized representative of your entity.

DayTrail, in its sole and absolute discretion, may change or modify this Agreement, and any other corporate policies and/or terms which are incorporated herein, at any time, and such changes or modifications shall be effective and binding on you as of fifteen (15) days after the earlier of the date (i) we send an email notification to you advising you of such changes or modifications, or (ii) we update the terms of this Agreement on our Site, as indicated by the “Last Revised” date set forth above.  By continuing to access or use the Services thereafter, you are indicating that you agree to be bound by the Agreement as changed or modified. If the changed or modified Agreement is not acceptable to you, your only recourse is to cease using the Services within the fifteen-day period before the changes or modifications take effect.

3. ADDITIONAL DEFINITIONS

• “Collective Content” means Member Content and DayTrail Content. 
• “Content” means text, graphics, images, music, software (excluding any DayTrail software application), audio, video, information, and any other content or materials.
• “DayTrail Content” means all Content that DayTrail makes available through the Site or Services, including any Content licensed from a third party, but excluding Member Content.
• “Equipment” means the applicable recreational equipment of the Owner.
• “Listing” means the listing established by the Owner to identify the Equipment as available for rental via the Services.
• “Member” means a person who completes DayTrail’s account registration process, including, but not limited to Owners and Renters, as described below.
• “Member Content” means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Services.
• “Tax” or “Taxes” mean any sales taxes, goods and services taxes (GST) and other similar municipal, state and federal indirect or other withholdings and personal or corporate income taxes.

4. HOW THE SERVICES WORK

4.1  Summary

The Services may be used by an Owner to facilitate the listing and booking of Equipment, and/or a Renter to facilitate the booking of equipment listed by an Owner. If you wish to create a Listing, or to book a Rental, you must first register to create a DayTrail account (“Account”). You acknowledge that DayTrail’s responsibilities are limited to: (i) using commercially reasonable efforts to facilitate the availability of the Services for existing listings, and (ii) serving as the limited agent of each Owner for the purpose of accepting payments from Renters on behalf of the Owner.

PLEASE NOTE THAT, AS STATED ABOVE, THE SERVICES ARE INTENDED TO BE USED TO FACILITATE THE BOOKING OF EQUIPMENT. DAYTRAIL DOES NOT CONTROL OR WARRANT THE CONTENT CONTAINED IN ANY LISTINGS NOR THE CONDITION, LEGALITY OR SUITABILITY OF ANY EQUIPMENT. DAYTRAIL IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND WARRANTIES AND LIABILITY RELATED TO ANY AND ALL LISTINGS AND EQUIPMENT. ACCORDINGLY, ANY LISTINGS AND BOOKINGS WILL BE MADE AT THE RENTER’S AND OWNER’S OWN RISK.

4.2 Account Registration

In order to access certain features of the Services, such as to create a Listing, you must first register to create an Account and become a Member. We may create your Account and your Account profile page for your use of the Services based upon the personal information you provide to us. You may not have more than one (1) active Account. You agree to provide current, accurate and complete information during the registration process and to update such information from time to time as needed to ensure it remains current, accurate and complete. DayTrail reserves the right to suspend or terminate your Account and your access to the Services at any time, for any reason or no reason, including if you create more than one (1) Account or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your account password and credentials. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify DayTrail of any unauthorized use of your Account.

4.3 Equipment Listings

As a Member, you may create Listings, as well as seek to establish a booking to rent Owner’s Equipment via the Services. To this end, you may be asked a variety of questions about the Equipment to be listed, including, but not limited to, any applicable VIN, registration information, value, location, size, features, availability, pricing, related rules, and financial terms. You acknowledge and agree that Listings will be made publicly available via the Services. Renters will be able to book your Equipment via the Services based upon the information provided in your Listing. You understand and agree that once a Renter requests a booking of your Equipment, the price for such booking may not be altered without contacting customer service. 

You acknowledge and agree that you are responsible for any and all Listings you post or initiate. Accordingly, you represent and warrant that any Listing you post and the booking of, or Renter use of, any Equipment in a Listing you post (i) will not breach any agreements you have entered into with any third parties and (ii) is in compliance with all applicable state, municipal and federal laws, Tax requirements, and rules and regulations that may apply to any Equipment included in a Listing you post, including, but not limited to, insurance requirements, Department of Motor Vehicle regulations, zoning laws, and any other laws governing rentals and operation of such Equipment, and (iii) will not conflict with the rights of third parties. Please note that DayTrail assumes no responsibility for Owner’s or Renter’s compliance with any applicable laws, rules and regulations. DayTrail is not responsible for any damages to Equipment rented through the Services and you will hold DayTrail harmless for any claims, demands and liabilities related to damages, injury, insurance claims, towing, service or repairs, tolls, fines and traffic violations.

DayTrail reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that DayTrail, in its sole discretion, considers to be objectionable for any reason, in violation of this Agreement or otherwise harmful to the Services.

DayTrail reserves the right, at any time and without prior notice, to remove or disable your access to the Services for any reason, including in connection with any bookings or other acts or omissions that DayTrail, in its sole discretion, considers to be objectionable for any reason, in violation of this Agreement or otherwise harmful to the Services

You understand and agree that DayTrail does not act as an insurer or as a contracting agent for you as an Owner or Renter of the Equipment. If a Renter requests a booking of your Equipment and uses your Equipment, any agreement you enter into with such Renter is between you and the Renter and DayTrail is not a party thereto. Notwithstanding the foregoing, DayTrail serves as the limited authorized agent of Owner for the purpose of accepting payments from Renters on behalf of the Owner and is responsible for transmitting such payments to the Owner subject to the terms of this Agreement.

When you create a Listing, you may also choose to include certain requirements which must be met by the Members who are eligible to request a booking of your Equipment, including, but not limited to, requiring Members to have a profile picture or verified phone number.  The following are minimum eligibility requirements for you as Renter:  you must hold a current, valid (non-temporary) driver’s license, and present your license to the owner when you begin your rental. You must be at least 18 years of age. You are subject to approval by DayTrail through identity verification and other background checks that the company may reasonably require. You may be required to demonstrate at least three years of current, licensed driving history and must hold a valid Driver’s License. If you hold a foreign license, you must be at least 18, and you will be required to provide your passport, an international driver permit or a photograph of your current driver license. You must possess a mobile phone in your own name that we can verify through text message and you must be a registered user of DayTrail’s Services.  DayTrail may make certain tools available to you to help you to make informed decisions about which Members you choose to confirm for booking for your Equipment. You acknowledge and agree that, as an Owner, you are responsible for your own acts and omissions.

4.4 No Endorsement

DayTrail does not endorse any Members or any Equipment. In addition, although this Agreement requires Members to provide accurate information, we do not attempt to confirm, and do not confirm, any Member’s purported identity or other information provided by such Member. You are responsible for determining the identity and suitability of others with whom you communicate via the Services. Except as may be expressly provided by this Agreement, we will not be responsible for any damage or harm resulting from your interactions with other Members. 

4.5 No Indirect Responsibility

By using the Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal or financial remedy from, DayTrail with respect to such actions or omissions. This limitation shall not apply to any claim by an Owner against DayTrail regarding the remittance of payments received from a Renter by DayTrail on behalf of an Owner, which instead shall be subject to the limitations described in the section below entitled “Limitation of Liability”.

4.6 Bookings and Financial Terms

If a booking is requested for your Equipment via the Services, you may be required to either confirm or reject the booking within 24 hours of when the booking is requested (as determined by DayTrail in its sole discretion) or the booking request may be automatically canceled. When a booking is requested via the Services, we will share with the Owner (i) the first and last name of the Renter who has requested the booking, and, (ii) a link to the Renter’s Account profile page, so that the Owner can view such information before confirming or rejecting the booking request. If a booking request is a rejected booking within such a 24 hour period, any amounts collected by DayTrail for the requested booking may be refunded to the applicable Renter’s credit card and any pre-authorization of such credit card may be released. When an Owner confirms a booking requested by a Renter, DayTrail will send both parties an email, text message or message via the Services confirming such booking.

The fees displayed in each Listing are the Equipment Fees (defined below) and Renter Fees (defined below). Where applicable, Taxes may be charged in addition to the Equipment Fees and Renter Fees. The Equipment Fees, the Renter Fees and applicable Taxes are collectively referred to in this Agreement as the “Total Fees”. The amounts due and payable by a Renter solely relating to an Owner’s Equipment, which are collected by DayTrail on behalf of the Owner, are the “Equipment Fees”. Please note that it is the Owner and not DayTrail who determines the amount of Equipment Fees. The Equipment Fees may include cleaning fees, security deposits, pre-paid fuel charges, at the Owner’s discretion. DayTrail also charges fees for use of the Service based upon a percentage of applicable Equipment Fees, which are the “Renter Fees” (and are the property of DayTrail, not Owner). The Renter Fees are added to the Equipment Fees to calculate the Total Fees (which will also include applicable Taxes) displayed in the applicable Listing. 

DayTrail will collect the Total Fees at the time of booking confirmation (i.e. when the Owner confirms the booking within 24 hours of the booking request) and will initiate payment of the Equipment Fees (less DayTrail’s Renter Fees). The Renter Fees, to which DayTrail is entitled, are deducted from the Total Fees before remitting the Equipment Fees to the Owner. Renters’ payments for Equipment Fees will be remitted to the Owner, by DayTrail, via payment methods described on the Services. Except as may be otherwise provided herein, Renter Fees are non-refundable.  Any failure to charge any of the fees or other indulgences shall not constitute a waiver of the right to exercise the same in the event another fee should become due at any other time.

The applicable Owner, not DayTrail, is solely responsible for honoring any confirmed bookings and making available any Equipment reserved through the Services. 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 reasonable terms, conditions, rules, and restrictions associated with such Equipment. You acknowledge and agree that you, and not DayTrail, will be responsible for performing the obligations of any such agreements, that DayTrail is not a party to such agreements, and that DayTrail disclaims all liability to you arising from or related to any such agreements. You acknowledge and agree that, notwithstanding the fact that DayTrail is not a party to the agreement between you and the Owner, DayTrail may act as the Owner’s payment agent for the limited purpose of accepting payments from you on behalf of the Owner. Upon your payment of amounts to DayTrail, which are due to the Owner, your payment obligation to the Owner for such amounts is extinguished, and DayTrail is responsible for remitting the applicable amounts to the Owner. 

In the event that the Renter fails to return the vehicle by the scheduled time and date, the Renter shall be charged a late fee equal to 25% of the daily rental fee for every two hour period that the vehicle is not returned, until the total amount due equals the daily rental fee. In addition, any mileage overage fees that were agreed upon between the Owner and Renter shall also be charged. In the event that the Renter does not return the vehicle at the scheduled time and date, causing disruption to another booking, the Renter will be subject to a late fee equal to the full daily rental rate, along with an administrative fee of $100. The Owner shall make reasonable efforts to notify the affected parties of any changes in rental schedule due to the Renter’s late return. The Renter acknowledges that the late return of the vehicle may result in the inability of the Owner to rent the vehicle to other customers, and therefore agrees to pay the aforementioned fees as liquidated damages and not as a penalty. 

You agree to pay DayTrail for the Total Fees for any booking requested in connection with your account if such requested bookings are confirmed by the applicable Owner. You hereby authorize the collection of such amounts by charging the credit card provided as part of requesting the booking directly by DayTrail. You also authorize DayTrail to charge your credit card in the event of damage caused to Equipment and for Security Deposits (as defined below), if applicable. Once a confirmed booking transaction is completed you will receive a confirmation email summarizing the confirmed booking. In order to establish a booking (pending the applicable Owner’s confirmation of your requested booking), you understand and agree that DayTrail, on behalf of the Owner, reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the Total Fees or (ii) charge your credit card a nominal amount, not to exceed one dollar ($1) to verify your credit card. DayTrail may also elect to collect the Total Fees in accordance with this Agreement and the pricing terms set forth in the applicable Listing once DayTrail receives confirmation of your booking from the applicable Owner. Please note that DayTrail cannot control any fees that may be charged to you by your bank related to DayTrail’s collection of the Total Fees, and DayTrail disclaims all liability in this regard.

In connection with your requested booking, you will be asked to provide customary billing information such as name, billing address and credit card information either to DayTrail or its third party payment facilitator.  You hereby authorize the collection of all amounts due to DayTrail by charging the credit card provided as part of requesting the booking, either directly by DayTrail or indirectly, via a third party online facilitating payments or by one of the payment methods described on the Services. If you are directed to a DayTrail third-party payment facilitator, you may be subject to terms and conditions governing use of that third party’s service and that third party’s personal information collection practices. Please review such terms and conditions and privacy policy before using the services. Once your payment transaction is completed you will receive an email, text message or message via the Services summarizing the transaction.

You agree that you may not complete any transaction for rental of a Member’s Equipment in a manner that circumvents your obligation to pay the Renter Fees to which DayTrail is entitled for its provision of the Services. If you circumvent any portion of the Total Fees, you will be liable to DayTrail and you hereby authorize DayTrail to charge your credit card for such amount.  DayTrail may also remove or disable your access to the Services, and DayTrail reserves all other rights and remedies with regard to your circumvention of such amount.

4.7 Appointment of DayTrail as Payment Agent for Owner 

Owner hereby appoints DayTrail as the Owner’s limited agent solely for the purpose of facilitating payments made by Renters on behalf of the Owner. Owner agrees that payment of Equipment Fees made by a Renter to payment processor, provided by DayTrail, shall be considered the same as a payment made directly to the Owner and the Owner will make the Equipment available to Renter in the agreed-upon manner as if the Owner has received the Equipment Fees directly. Owner agrees that DayTrail may, in accordance with any cancellation terms reflected in the relevant Listing, (i) permit the Renter to cancel the booking and (ii) refund to the Renter that portion of the Equipment Fees specified in the applicable cancellation terms. In accepting appointment as the limited authorized agent of the Owner, DayTrail assumes no liability for any acts or omissions of the Owner.

Please note that DayTrail does not currently charge fees for the creation of Listings. However, you acknowledge and agree that DayTrail reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of Listings, and/or for other features of the Services. 

4.8 Cancellation 

If you cancel your requested booking before 48 hours of the requested booking date, DayTrail will cancel any pre-authorization to your credit card and/or refund any nominal amounts charged to your credit card in connection with the requested booking except the non-refundable service fee of 2.9% + $0.30 that covers the cost of processing the transaction and is not refundable under any circumstances. If a requested booking is canceled by the applicable Owner, any amounts collected by DayTrail will be refunded to you and any pre-authorization of your credit card will be released, if applicable. If you cancel your request less than 48 hours before the booking date, you will receive 75% of your booking total minus the service fee of  2.9% + $ 0.30. 

If you wish to cancel a confirmed booking made via the Services, either prior to or after receiving the Equipment, the cancellation policy of the Owner contained in the applicable Listing will apply to such cancellation. Our obligation, if any, to refund the applicable fees and other amounts charged to you will depend upon the terms of the applicable cancellation policy. Except as may be otherwise provided herein, all fees and related Taxes are non-refundable; provided that DayTrail may, in accordance with any cancellation terms reflected in the relevant Listing, (i) permit Renter to cancel the booking and (ii) refund to the Renter that portion of the Equipment Fees specified in the applicable cancellation terms. Any failure to charge any of the fees or other indulgences shall not constitute a waiver of the right to exercise the same in the event another fee should become due at any other time. If an Owner cancels a confirmed booking via the Services, DayTrail will refund the Total Fees for such booking to you within a commercially reasonable time of the cancellation and you may receive an email or other communication from DayTrail containing alternative Listings and other related information.

4.9 Security Deposits

Owner’s may elect to require a Renter to provide a security deposit (“Security Deposit(s)”)in connection with their Listings. For all Security Deposits included in a Listing for a confirmed booking of Equipment, DayTrail will, in its capacity as the payment agent of Owner, use DayTrail’s commercially reasonable efforts to obtain a pre-authorization of the Renter’s credit card in the amount the Owner determines for the Security Deposit within a reasonable time. DayTrail will also use its commercially reasonable efforts to address Owner’s requests and claims related to Security Deposits, but DayTrail is not responsible for administering or accepting any claims by Owner related to Security Deposits, and disclaims any and all liability in this regard.

4.10 Drivers and Driving (for applicable equipment)

Owner shall use their best efforts to ensure that no person shall be allowed to operate the rental Equipment on any road or highway who is not at least the age of 18, a holder of a valid driver’s license in his or her actual possession, approved through a third party insurance binder, has passed DMV verification, and will have the skill and expertise to do so safely and free from negligence. 

You agree and warrant that no person shall be allowed to drive any applicable rental Equipment who is not at least the age of 18, a holder of a valid driver’s license in his or her actual possession, and also properly insured. You also warrant that any person who operates the rental Equipment will have the skill and expertise to do so safely and free from negligence. You acknowledge that recreational Equipment may be very large and handle differently from passenger cars, may require more skill and expertise to operate safely than passenger cars and, due to size and handling characteristics, your agree not to operate any Equipment at speeds in excess of fifty-five (55) miles per hour regardless of the posted speed limit.  You acknowledge that you are solely responsible for any passengers on the rental Equipment as well as the conduct of those passengers, and you shall confirm that both driver and passengers are properly using seat belts while the Equipment is in motion.

All Equipment may only be used on public roadways to the extent that the Equipment is legally allowed to operate on such roadways and that such roadways have sufficient width and clearance to allow the Equipment to be operated safely and without damage. Under no circumstance shall the Equipment be driven outside the state in which it is rented, unless expressly agreed with the Owner.

You must provide proof of insurance before renting or upon request. You are solely responsible for any and all parking tickets, citations, toll charges and other charges issued during your contractual possession of the rental. The laws of some states may require us to furnish you with the following notices:

WARNING – Any person who knowingly:

• Arizona: presents a false or fraudulent claim for payment of a loss or benefit is subject to criminal and civil penalties.
• Colorado: It is unlawful to knowingly provide false, incomplete, or misleading facts or information to an insurance company for the purpose of defrauding or attempting to defraud the company. Penalties may include imprisonment, fines, denial of insurance, and civil damages. Any insurance company or agent of an insurance company who knowingly provides false, incomplete, or misleading facts or information to a policyholder or claimant for the purpose of defrauding or attempting to defraud the policyholder or claimant with regard to a settlement or award payable from insurance proceeds shall be reported to the Colorado Division of Insurance within the Department of Regulatory Agencies.
• Idaho: and with intent to defraud or deceive any insurance company, files a statement of claim containing any false, incomplete, or misleading information is guilty of a felony.

4.11 Maintenance and Breakdown

As applicable depending on the type of Equipment, as between DayTrail and Owner, the Owner is responsible for inspecting brakes, tires and LP gas systems every 90 days and shall keep maintenance records affirming that these systems are inspected at a minimum of each 90 days. As applicable depending on the type of Equipment, as between DayTrail and Owner, the Owner is responsible to ensure that tires are at fifty percent (50%) tread wear or greater for each rental.  As between DayTrail and Owner, Owner is responsible for inspecting all fluid levels including oil and coolant levels at each refueling, for checking air tire pressure, lug nuts and wheels at each refueling, and for any mechanical damages due to negligence in operation and/or maintenance.

4.12 Inspection

As applicable depending on the type of Equipment, as between DayTrail and Renter, you are responsible for inspecting any brakes, tires and LP gas systems. As applicable depending on the type of Equipment, as between DayTrail and Renter, you are responsible to ensure that tires are at fifty percent (50%) tread wear or greater unless otherwise agreed between you and the Owner.  As between DayTrail and Renter, you are responsible for inspecting the Equipment as applicable, including with respect to all fluid levels including oil and coolant levels at each refueling, for checking air tire pressure, lug nuts and wheels at each refueling, and for any mechanical damages due to negligence in operation and/or maintenance.

4.13 Damage to Equipment

Owner acknowledges and agrees that you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who you invite, or otherwise permit, to access or use the Equipment. You agree that you will defend, indemnify and hold harmless DayTrail and its personnel from and against, and that DayTrail has no responsibility for, any harm or damages that are caused to Equipment or to any person (including any related claims, demand or liabilities). 

Owner agrees to cooperate with and assist DayTrail in good faith, and to provide such information and take such actions as may be reasonably requested by DayTrail, in connection with any complaints or claims made by Renters relating to Equipment (or any personal or other property located on or in Equipment) or with respect to any investigation undertaken by DayTrail regarding use or abuse of the Equipment or Services. You agree to participate in MEDIATION or similar alternative dispute resolution process, which process may be conducted by a third party selected by DayTrail in its sole reasonable discretion, with respect to any losses for which the Owner requests any payment from DayTrail. 

You are responsible for returning any rented Equipment in the condition it was in when you received it and you bear the risk of loss for the Equipment during the rental period. You acknowledge and agree that you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals whom you allow to access the Equipment. In the event an Owner identifies any damage to the Equipment in connection with your booking, you agree to pay the cost of replacing the damaged items with equivalent items. After being notified of the Owner’s claim, the security deposit payment may be charged to and taken from your credit card on file. If we are unable to charge the credit card on file or otherwise collect payment from you, you agree to remit payment for any damage to the Equipment to the applicable Owner or to DayTrail upon our request.  If Equipment has been stolen, or damaged as a result of vandalism, during the rental period you will promptly file a police report regarding such occurrence and provide a copy of the police report to DayTrail. You agree that you will hold DayTrail harmless and that DayTrail has no responsibility for any damages or injury that are caused to any Equipment or person. 

4.14 Reporting Misconduct

If you come across a user of our Services who is behaving inappropriately, please report them immediately to the appropriate authorities and also to DayTrail. Please note that your report does not obligate us to take any action beyond what is required by law, nor does it create any liability for us. Additionally, please be aware that the equipment owner is allowed to use various tracking technologies such as GPS, telematics, Lojack, or disabling technology. DayTrail may use data from these devices to terminate a rental early or suspend a renter’s account if we receive a report of reckless or unsafe behavior during the rental period.

5. TAXES

You agree to promptly provide Tax-related documentation and information to the extent reasonably requested by DayTrail.  IRS regulations regarding federal tax reporting requirements may stipulate that DayTrail must collect IRS Form W-9 from all Owners in the United States. You understand and agree that you are solely responsible for determining your applicable Tax reporting requirements in consultation with your Tax advisors. DayTrail does not offer Tax-related advice to Owners or to Renters. Additionally, please note that Owner is responsible for determining local indirect Taxes and for including any applicable Taxes to be collected or obligations relating to applicable Taxes in Listings. Where applicable or based upon request from the Owner, DayTrail may issue a valid VAT invoice to the Owner.

6. OWNER CONDUCT

You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Services and Content. In connection with your use of our Services, you may not and you agree that you will not:

• violate any local, state, provincial, national, park, campground or other law or regulation, or any order of a court, including, without limitation, zoning restrictions, admiralty law and Tax regulations;
• use manual or automated software, devices, scripts, robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Services or Content;
• use the Services for any commercial or other purposes that are not expressly permitted by this Agreement;
• copy, store or otherwise access any information contained on the Services or Content for purposes not expressly permitted by this Agreement;
• infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
• interfere with or damage our Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
• use our Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
• use our Services in connection with the distribution of unsolicited commercial email (“spam”) or advertisements unrelated to lodging in a private residence;
• “stalk” or harass any other user of our Services or collect or store any personally identifiable information about any other user other than for purposes of transacting rentals through the Services as an Equipment owner;
• offer, as an Owner, any Equipment that you do not yourself own or have permission to rent;
• offer, as an Owner, any Equipment that may not be rented pursuant to the terms and conditions of an agreement with a third party;
• register for more than one DayTrail Account or register for an DayTrail Account on behalf of an individual other than yourself;
• contact another owner for any purpose other than asking a question related to booking such owner’s equipment;
• contact a Renter for any purpose other than asking a question related to a booking or such Renter’s use of the Site, Application and Services;
• recruit or otherwise solicit any Owner or other Member to join third party services or websites, including any service or websites that are competitive to DayTrail, without DayTrail’s prior written approval;
• use automated scripts to collect information or otherwise interact with the Services;
• use the Services to locate a prospective Renter and then complete an Equipment rental transaction independent of the Services in order to circumvent the payment of Renter Fees related to DayTrail’s provision of the Services;
• submit any Listing with a false or misleading price information or submit any Listing with a price that you do not intend to honor;
• post, upload, publish, submit or transmit any Content that, in DayTrail’s reasonable judgment: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
• systematically retrieve data or other content from our Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
• use, display, mirror or frame the Services, or any individual element within the Services, DayTrail’s name, any DayTrail trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without DayTrail’s express written consent;
• access, tamper with, or use non-public areas of the Services, DayTrail’s computer systems, or the technical delivery systems of DayTrail’s providers;
• attempt to probe, scan, or test the vulnerability of any DayTrail system or network or breach any security or authentication measures;
• avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by DayTrail or any of DayTrail’s providers or any other third party (including another user) to protect the Services or Collective Content, except to the extent the foregoing restriction is prohibited by applicable law;
• forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Collective Content to send altered, deceptive or false source-identifying information;
• attempt to scrape assets and content from the Site;
• attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Collective Content; or
• advocate, encourage, or assist any third party in doing any of the foregoing.

7. RENTER CONDUCT

You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Services and Content. In connection with your use of our Services, you may not and you agree that you will not:

• violate any local, state, provincial, national, park, campground or other law or regulation, or any order of a court, including, without limitation, zoning restrictions, admiralty law and Tax regulations;
• utilize a rented vehicle in restricted locations;
• use manual or automated software, devices, scripts, robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Services or Content;
• use the Services for any commercial or other purposes that are not expressly permitted by this Agreement;
• copy, store or otherwise access any information contained on the Services or Content for purposes not expressly permitted by this Agreement;
• infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
• interfere with or damage our Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
• use our Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
• use our Services in connection with the distribution of unsolicited commercial email (“spam”) or advertisements unrelated to lodging in a private residence;
• “stalk” or harass any other user of our Services or collect or store any personally identifiable information about any other user other than for purposes of transacting rentals through the Services as an Equipment owner;
• register for more than one DayTrail Account or register for an DayTrail Account on behalf of an individual other than yourself;
• contact an Owner for any purpose other than asking a question related to booking such owner’s equipment;
• recruit or otherwise solicit any Owner or other Member to join third party services or websites, including any service or websites that are competitive to DayTrail, without DayTrail’s prior written approval;
• use automated scripts to collect information or otherwise interact with the Services;
• use the Services to locate prospective Equipment for rental and then complete a rental transaction independent of the Services in order to circumvent the payment of Renter Fees related to DayTrail’s provision of the Services;
• pursue any booking of Equipment with false or misleading information or submit any booking request that you do not intend to honor;
• post, upload, publish, submit or transmit any Content that, in DayTrail’s reasonable judgment: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
• systematically retrieve data or other content from our Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
• use, display, mirror or frame the Services, or any individual element within the Services, DayTrail’s name, any DayTrail trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without DayTrail’s express written consent;
• access, tamper with, or use non-public areas of the Services, DayTrail’s computer systems, or the technical delivery systems of DayTrail’s providers;
• attempt to probe, scan, or test the vulnerability of any DayTrail system or network or breach any security or authentication measures;
• avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by DayTrail or any of DayTrail’s providers or any other third party (including another user) to protect the Services or Collective Content, except to the extent the foregoing restriction is prohibited by applicable law;
• forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Collective Content to send altered, deceptive or false source-identifying information;
• attempt to scrape assets and content from the Site;
• attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Collective Content; or
• advocate, encourage, or assist any third party in doing any of the foregoing.

DayTrail will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. DayTrail may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement. You acknowledge that DayTrail has no obligation to monitor your access to or use of the Services or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating the Services, to ensure your compliance with this Agreement, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. DayTrail reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that DayTrail, at its sole discretion, considers to be objectionable for any reason, in violation of this Agreement or otherwise harmful to the Services.

8. PRIVACY

See DayTrail’s Privacy Policy at www.daytrail.com, or information and notices concerning DayTrail’s collection and use of your personal information.

9. OWNERSHIP, LICENSING, RESTRICTIONS, AND MEMBER CONTENT WARRANTY

9.1 Ownership 

The Services and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Services and Collective Content, including all associated intellectual property rights, is the exclusive property of DayTrail and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Collective Content.

9.2 Licenses and Restrictions

Subject to your compliance with this Agreement, DayTrail grants you a limited, non-exclusive, non-transferable license, to (i) access and view any DayTrail Content solely for your personal and non-commercial purposes and (ii) access and view any Member Content to which you are permitted access, solely for your personal use as for any purposes expressly set forth in this Agreement. You have no right to sublicense the license rights granted in this section.

You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Services or Collective Content, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by DayTrail or its licensors, except for the licenses and rights expressly granted in this Agreement.

We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site or Services, you hereby grant to DayTrail a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, or by means of the Services or otherwise. DayTrail does not claim any ownership rights in any such Member Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such Member Content.

9.3 Member Content Warranty

You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to DayTrail the rights in such Member Content, as contemplated under this Agreement; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or DayTrail’s use of the Member Content (or any portion thereof) on, through or by means of the Services or otherwise will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

10. INSURANCE

10.1 Overview

Throughout the term of this Agreement, you agree to purchase and maintain in effect commercially reasonable and appropriate insurance related to the Equipment and its use, including to the extent as may be required by applicable law.  When initiating a rental, Renter and Owner must complete a thorough, comprehensive Pre-trip Inspection Form of the Equipment, noting in writing any and all defects or damage to the rental Equipment prior to Renter’s acceptance of the same. Immediately prior to releasing the Equipment the Owner is responsible for completing a full inspection of the interior and exterior of the Equipment with the Renter, and must take photos to document its condition immediately prior to departure and immediately upon return.  

Upon return of the rental Equipment, the Owner must immediately inspect the rental and photograph any damages, and notify DayTrail of any losses within 24 hours of the end of the booking or return of the Equipment (whichever occurs first). Anything reported after 24 hours may not be covered by insurance. DayTrail is not responsible for personal property left in the rental. All defects and/or damage to the rental noted in the Post-Trip Inspection Form which are not noted on the Pre-Trip Inspection Form completed by Renter and Owner when accepting the rental shall be the sole responsibility of Owner and Renter, and Owner may insist that Renter reimburse the Owner for the cost of the repair. To the extent that the security deposit actually paid to the Owner is insufficient to cover the costs and damages incurred by Renter, the Owner may insist that Renter make immediate payment to DayTrail (on behalf of the Owner), upon demand. The security deposit for a rental booking will be applied to the deductible. The Renter is responsible for covering the costs of the deductible and any damage exceeding $10,000. Any cost of damage that exceeds the Equipment deductible may be covered by insurance up to $10,000, exclusions may apply. In the event of an exclusion, the Renter will be responsible for the full amount of the damages. 

Equipment Deductible by Vehicle Type:

• $1,000 CCC Liability Deductible ATV, PWC, Motorcycles offroad, Trailers
• $2,000 CCC Liability Deductible or 10% ACV, whichever is greater: Snowmobile, UTV, Camper Trailer, Boats, Rec Vehicle, Street Bike

You agree that DayTrail has no responsibility for any harm or damages that are caused to Equipment or to any person (including any related claims, demand or liabilities) during a rental that was booked using the DayTrail platform. 

Owner must report all accidents or incidents of theft or vandalism to the police as soon as Owner discovers them and provide a copy of the police report to DayTrail. 

10.2 Exclusions

The following areas have been restricted and therefore are not covered by insurance: Glamis Dunes, Imperial Dunes, Algodones Dunes, and Oceano Dunes. There will be no insurance coverage and the Renter will be liable for the entirety of the repair costs.

11. ADDITIONAL INTELLECTUAL PROPERTY TOPICS

11.1 Proprietary Rights Notices

All trademarks, service marks, logos, trade names and any other proprietary designations of DayTrail used herein are trademarks or registered trademarks of DayTrail. Any other trademarks, service marks, logos, trade names, and any other proprietary designations are the trademarks or registered trademarks of their respective owners.

11.2 Feedback

We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Services (“Feedback”). You acknowledge and agree that all Feedback will be the sole and exclusive property of DayTrail and you hereby irrevocably assign and agree to assign to DayTrail all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. You will execute documents and take such further acts as DayTrail may reasonably request to assist DayTrail to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.

11.3 Copyrights

DayTrail respects copyright law and expects Owner to do the same. DayTrail reserves the right to terminate any Account in the event the Account Holder infringes or is believed to be infringing the rights of copyright holders. Please see DayTrail’s Copyright Dispute Policy at www.daytrail.com, for further information.

12. TERMINATION AND CANCELLATION

DayTrail may in our discretion and without liability to you, with or without cause and with or without prior notice, at any time terminate this Agreement and your access to the Services, and/or cancel your Account. Upon such termination or cancellation, we will promptly pay you any amounts that we reasonably determine, in our discretion, we are legally obligated to pay you, and you will remain liable for all amounts due hereunder. If your Account is canceled, we do not have an obligation to delete or return to you any Content you have posted to the Site (including, but not limited to, any reviews or Feedback).

13. DISCLAIMERS

IF YOU CHOOSE TO USE THE SERVICES, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT DAYTRAIL DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, RENTERS AND OWNERS, BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. THE SERVICES AND COLLECTIVE CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, DAYTRAIL EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE SERVICES OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. DAYTRAIL EXPLICITLY DISCLAIMS ANY WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, EQUIPMENT, THE SERVICES OR COLLECTIVE CONTENT OR REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SERVICES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DAYTRAIL OR THROUGH THE SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY OTHER OWNERS AND/OR RENTERS. YOU UNDERSTAND THAT DAYTRAIL DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE OR SERVICES OR TO REVIEW OR INSPECT ANY EQUIPMENT. DAYTRAIL MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, INCLUDING, BUT NOT LIMITED TO, OTHER OWNERS AND RENTERS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON (REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY OR THROUGH DAYTRAIL).

NOTWITHSTANDING DAYTRAIL’S APPOINTMENT AS THE LIMITED AGENT OF THE OWNER FOR THE PURPOSE OF ACCEPTING PAYMENTS FROM RENTERS ON BEHALF OF THE OWNER, OWNER ACKNOWLEDGES AND AGREES THAT DAYTRAIL EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY OTHER OWNER, RENTER OR OTHER THIRD PARTY.

14. LIMITATIONS AND EXCLUSIONS OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES AND COLLECTIVE CONTENT, YOUR LISTING OF ANY EQUIPMENT,  AND ANY CONTACT YOU HAVE WITH OTHER USERS OF THE SERVICES, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DAYTRAIL SHALL NOT HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, FROM THE USE OF OR INABILITY TO USE THE SERVICES OR COLLECTIVE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT DAYTRAIL HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

EXCEPT FOR DAYTRAIL’S OBLIGATIONS TO PAY CERTAIN AMOUNTS TO APPLICABLE OWNERS PURSUANT TO THE EXPRESS TERMS OF THIS AGREEMENT, IN NO EVENT WILL DAYTRAIL’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SITE, SERVICES OR COLLECTIVE CONTENT (OR FROM ANY INABILITY TO USE THE SITE, SERVICES, OR COLLECTIVE CONTENT) OR IN CONNECTION WITH ANY EQUIPMENT OR ANY INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES, EXCEED THE AMOUNT YOU HAVE PAID TO DAYTRAIL IN CONNECTION WITH THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED DOLLARS ($100) IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS AND EXCLUSIONS ON LIABILITY AS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DAYTRAIL AND YOU. 

14.1 Express Assumption of Risk

In consideration of DayTrail and its affiliates and subsidiaries, and their officers, directors, employees and agents allowing Renter to access and use the Services, it is agreed on behalf of Renter and his or her child(ren), heirs, assigns and representatives (hereafter collectively “Participant”) as follows:

• NOTIFICATION OF RISKS: PARTICIPANT AGREES AND UNDERSTANDS THAT ACCESS TO AND USE OF EQUIPMENT, AND PARTICIPATION IN RECREATIONAL ACTIVITIES IN CONNECTION WITH EQUIPMENT, IS A HAZARDOUS ACTIVITY (HEREINAFTER THE “ACTIVITY”) THAT CAN RESULT IN SERIOUS INJURY OR DEATH. FURTHER, PARTICIPANT RECOGNIZES THAT THERE ARE RISKS INCLUDING, BUT NOT LIMITED TO, VARIATIONS IN TERRAIN AND SURFACE CONDITIONS, FALLS, LOSS OF CONTROL, COLLISIONS WITH OTHERS OR WITH NATURAL AND MANMADE OBJECTS, AND AERIAL MANEUVERS. PARTICIPANT RECOGNIZE THAT INJURIES ARE A COMMON AND ORDINARY OCCURRENCE OF THE ACTIVITY. FURTHER, PARTICIPANT VOLUNTARILY ELECTS TO PARTICIPATE IN THE ACTIVITY.
• ASSUMPTION OF THE RISK AND HOLD HARMLESS: PARTICIPANT HEREBY AGREES TO FREELY AND EXPRESSLY ASSUME AND ACCEPT ANY AND ALL RISKS OF PROPERTY DAMAGE, INJURY AND DEATH IN CONNECTION WITH THE ACTIVITY. PARTICIPANT FURTHER ASSUMES ALL RISKS WHICH MAY BE ASSOCIATED WITH AND/OR RESULT FROM INVOLVEMENT OF PARTICIPANT IN THE ACTIVITY, AND AGREES TO RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS DAYTRAIL AND ITS FOREGOING PERSONNEL WITH RESPECT TO ANY LIABILITY, CLAIMS, DEMANDS, ACTIONS AND CAUSES OF ACTION WHATSOEVER, WHETHER ARISING OUT OF OR RELATED TO ANY LOSS, DAMAGE OR INJURY, INCLUDING DEATH, THAT MAY BE SUSTAINED BY PARTICIPANT WHILE ENGAGED IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE INJURIES AND DAMAGES CAUSED BY THE NEGLIGENCE AND/OR BREACH OF WARRANTY, EXPRESS OR IMPLIED ON THE PART OF DAYTRAIL AND/OR ITS PERSONNEL.
• UNCONDITIONAL RELEASE AND COVENANT NOT TO SUE: PARTICIPANT AGREES TO FOREVER DISCHARGE AND RELEASE FROM ANY LEGAL LIABILITY, AND AGREES NOT TO SUE, DAYTRAIL AND ITS FOREGOING PERSONNEL FOR ANY PROPERTY DAMAGE, INJURY OR DEATH CAUSED BY OR RESULTING FROM THE ACTIVITY.

15. INDEMNIFICATION

You agree to release, defend, indemnify, and hold harmless DayTrail and its affiliates and subsidiaries, and their officers, directors, employees and agents, from and against any and all claims, demands, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Services and/or Collective Content or your violation of this Agreement or applicable law; (b) your Member Content; (c) your (i) interaction with any user of the Site or Services, (ii) the creation of a Listing or the booking of Equipment, or (iii) the use, condition or rental of Equipment, including, but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of any of the foregoing.

16. CONTROLLING LAW AND JURISDICTION

This Agreement will be interpreted in accordance with the laws of the State of Idaho, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state or federal court located in Ada County, Idaho, for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision below.

17. DISPUTE RESOLUTION

IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE PAYMENT AND INSURANCE DISPUTES WITH DAYTRAIL AND OTHER PARTIES ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

17.1 You and DayTrail agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. Further, unless both you and DayTrail otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of this Agreement.

17.2 By agreeing to this Agreement, you agree that you are required to resolve any claim and dispute that you may have with DayTrail, and with any other related party related to this Agreement, on an individual basis in arbitration, as set forth herein. This will preclude you from bringing any class, collective, or representative action against DayTrail and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against DayTrail by someone else.  You further agree that judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

Except for disputes relating to payment, DayTrail reserves all of its rights to bring any other dispute in any court of competent jurisdiction. The costs and expenses of arbitration, including the fees of the arbitrators but excluding any attorneys’ fees, shall be advanced by the party asserting the applicable claim, but will ultimately be borne by the non-prevailing party. You agree that, in the event of confirmation and enforcement, the delinquent party to the arbitration will be responsible for any attorney, court or other fees associated with such action.

17.3 You consent to electronic service of process, with service to be made to the email address we have on record for your Account. You acknowledge and agree that you are waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and DayTrail otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. 

17.4 You agree that any and all communications and evidence related to any claim or dispute involving DayTrail shall be protected by you as confidential, and that you will not take any action that will harm the reputation of DayTrail or any of the other parties to the dispute, or which would reasonably be expected to lead to unwanted or unfavorable publicity related to DayTrail or such parties. 

17.5 Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at http://www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.  If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

17.6 Arbitration Location and Procedure. Unless you and DayTrail otherwise agree, the arbitration will be conducted in Ada County, Idaho. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and DayTrail submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

17.7 Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of any damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. 

18. MISCELLANEOUS

18.1 Export Control and Restricted Countries

You will not use the Site or Services in any manner or for any purpose prohibited by applicable law or regulation.

18.2 Entire Agreement

This Agreement constitutes the entire and exclusive understanding and agreement between DayTrail and you regarding the Site, Services, Collective Content, and any Listings, and this Agreement supersedes and replaces any and all prior oral or written understandings or agreements between DayTrail and you regarding the foregoing.

18.3 Assignment

You may not assign or transfer this Agreement or your Account, by operation of law or otherwise, without DayTrail’s prior written consent. Any attempt by you to assign or transfer without such consent will be null and void ab initio.

DayTrail may assign or transfer this Agreement, at its sole discretion, without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.

18.4 Notices

Any notices or other communications permitted or required hereunder, may be in writing and given by DayTrail by email to the address that you provide, or by posting to the Site (including via any software application). For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

18.5 No Waiver; Non-Exclusive Remedies

The failure of DayTrail to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of DayTrail. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

18.6 No Partnership

This Agreement does not create any type of partnership between Owner and DayTrail. This Agreement may not be cancelled or modified except in a writing signed by all parties or as otherwise provided herein.

18.7 Additional Questions

If you have any questions about this Agreement, please contact DayTrail at www.daytrail.com.