INSTRUSHARE – TERMS & CONDITIONS
- 1 Welcome to the InstruShare website located at www.instrushare.com.au (“InstruShare”) which is owned by InstruShare Holdings Pty Ltd (ABN 75 644 761 366) and operated by InstruShare Pty Ltd (ABN 11 644 761 473) (together “Company”)
- 2 InstruShare is an online rental platform that offers its users the ability to make available their musical related items for hire by other users.
- 4 The Company reserves the right to alter, modify, add to or change in any way, any provision of these Terms & Conditions and may, in its absolute discretion, limit or expand the services available via InstruShare, without giving prior notice to you. It is your responsibility to check the Terms & Conditions each time you use InstruShare.
- 1 For the purpose of these Terms & Conditions the following definitions apply:
“Account” means an account registered with InstruShare in accordance with Clause 3.1;
“Booking” means a completed booking made by a Seeker to rent an Item in accordance with Clause 4.3;
“Cancellation Fee” means a cancellation fee in the amount equivalent to one (1) day of the rental rate of an Item;
“Company” has the meaning set out in Clause 1.1;
“Company Materials” has the meaning set out in Clause 16.1;
“Data” means any data or information inputted by a User or on behalf of a User into InstruShare;
“Fee” means the Rental Charge, Service Charge, Security Deposit and other applicable charges which may apply to a Booking;
“InstruShare” has the meaning set out in Clause 1.1;
“Item” means an item (e.g. musical instrument) made available for rent by a Provider via InstruShare;
“Late Fee” means a late fee in the amount equivalent to one (1) week of the rental rate of an Item;
“Listing” means a listing of an Item by a Provider via InstruShare in accordance with Clause 4.1;
“Original Condition” means the original condition of the Item as provided to the Seeker at Pick Up (as defined in Clause 5.1);
“Profile” means a profile on InstruShare in accordance with Clause 3.2;
“Provider” means a User that has uploaded a Listing;
“Rental Charge” means the total charge to rent an Item for a Rental Period payable to the Provider, calculated on the weekly rental rate in accordance with a Booking;
“Rental Period” means the period the Seeker rents and possesses the Item in accordance with Clause 5.2;
“Security Deposit” means the amount payable as insurance for the Item in a Booking as determined by the Provider;
“Seeker” means a User that has made a Booking;
“Service Charge” means the additional ten (10) percent service charge (calculated on the total Rental Charge) payable only to the Company from each Booking; and
“User”, “you”, “your” has the meaning set out in Clause 1.3.
- 1 In order to access InstruShare as a Seeker or Provider, you must create an account and profile. You may create an account at any time while using InstruShare by completing the registration process (“Account”) which will enable you to create a profile.
- 2 Once you receive a confirmation email that your Account is registered, you must then log into your Account and upload your image, name, phone number and address to your profile (“Profile”).
- 3 You are solely responsible for maintaining the confidentiality of your Account and for ensuring that all information uploaded to your Account is accurate and current.
- 1 When a User views a Listing, the Listing shall include, with respect to the applicable Item, the weekly rental rate, rental availability, description, location, pick up details, condition, Provider and (where applicable) reviews (“Listing”).
- 2 When a User proceeds to book an Item via a Listing, they will be shown their proposed Rental Period and the Fees in connection with renting the applicable Item.
- 3 In order to complete the “Booking”, a User must:
(a) upload a photo identification and verification selfie; and
(b) enter and submit payment of the Fees to the Company via PayPal.
- 4 For the avoidance of doubt, the Fees must be received by the Company in advance of the Rental Period in order for the Booking to be valid and confirmed. The Company is not responsible for any payment processed (or not processed) via PayPal and or other methods of payment which may added in the future.
- 5 When a Booking is completed in accordance with Clause 4.3, the:
(a) Seeker will receive confirmation of the Booking with the contact details of the relevant Provider; and
(b) Provider will be notified of such Booking.
- RENTAL PERIOD
- 1 The Seeker and the Provider, in accordance with the dates selected in the Booking, shall arrange the time, location and any other details necessary for the Item to be:
(a) Picked up by the Seeker from the Provider (“Pick Up”); and
(b) Dropped off by the Seeker to the Provider (“Drop Off”).
- 2 The “Rental Period” for an Item commences at Pick Up and ends at Drop off.
- 3 The Seeker and Provider must use their best efforts to meet the terms mutually agreed in relation to the Rental Period. In the event that there is a failure or significant delay in connection with the Rental Period caused by either the Provider or Seeker, a dispute may be lodged via the Dispute Resolution Process in accordance with Clause 11. For the avoidance of doubt, the Company shall not be responsible to any party for any delays or failure under this Clause.
- 4 Where the Seeker is solely responsible for a failure to return an Item by more than 24 hours of Drop Off, the Seeker shall be liable to pay a Late Fee which shall be deducted from its Security Deposit. For the avoidance of doubt, the Seeker is liable for and shall promptly pay to the Company any Late Fees under this Clause that exceed the Security Deposit.
- 5 The Provider shall notify the Company when Pick Up is complete, and the Company shall pay the Rental Charge to the Provider via its PayPal account as provided in Clause 9.2(b) within 24 hours of receiving such notice.
- 6 Once Drop Off is complete, the Provider shall inspect the Item. If the Provider deems that the Item is returned in its Original Condition, the Provider shall confirm this with the Company.
- 7 The Company shall return the Security Deposit back to the Seeker within 24 hours of receiving a confirmation from the Provider under Clause 5.5 via PayPal.
- 8 At the end of the Rental Period, the Provider and Seeker must rate and review each other via InstruShare. Reviews under this Clause must be accurate and must not contain discriminatory, offensive and/or defamatory content.
- MODIFICATIONS TO RENTAL PERIOD
- 1The Seeker may end the Rental Period earlier by making a request to the Provider, and if the Provider (in its sole discretion) accepts such request, the Seeker must return the Item to the Provider in its Original Condition, as agreed between the parties. For the avoidance of doubt, the Seeker shall not be entitled to a refund of any Fees (or part thereof) if the Rental Period ends early under this Clause.
- 2 The Company must be notified immediately by the Provider of any modification to the Rental Period under this Clause 6.
SEEKER - SPECIFIC TERMS
- SEEKER WARRANTIES
- 1 During the Rental Period, the Seeker must use its best efforts to maintain the Item in its Original Condition and must prevent any loss, damage or theft from occurring to the Item.
- 2 The Seeker agrees that:
(a) When the Item is not being used or is being transported, it must be adequately secured, supervised and/or safely locked in a secure location;
(b) The Item is only used and/or played for its intended purpose; and
(c) No other persons shall use or take possession of the Item.
- 3 In the event that the Item is damaged or lost during the Rental Period, the Seeker agrees:
(a) To contact the Company immediately;
(b) That it will not perform or attempt to perform repairs to the Item without prior approval from the Company; and
(c) Clause 8.1 shall apply.
- 4 The Seeker agrees that all ownership in and to the Item remains with the Provider. During the Rental Period, the Seeker holds the Item for and on the Provider’s behalf as a bailee only, and must not take any action to sell, offer to sell, assign, pledge or lend, or that results in a charge, lien or security interested over the Item, or otherwise prejudice the Provider’s ownership and interest in the Item.
- SEEKER LIABILITY, LOSS & DAMAGE
- 1 The Seeker is solely responsible for any consequential loss, damage or destruction that is caused to the Item for any reason (including fire, loss and/or theft) during the Rental Period. For the avoidance of doubt, the Company shall use the Security Deposit to pay for the cost of any repairs in order to restore the Item to its Original Condition or, where repair is not possible, replace the Item at the current market value determined by the Company in its sole discretion (e.g. where the Item is stolen or damaged beyond repair).
- 2 For the avoidance of doubt, Clause 8.1 shall not apply to general wear and tear to an Item as determined by the Company in its sole discretion.
- 3 In the event that the Security Deposit is insufficient to pay for the repairs or replacement under Clause 8.1, the Seeker shall be liable for any additional fees with respect thereof and shall promptly pay such amounts to the Company.
- 4 The Seeker agrees that they are solely responsible for maintaining any insurance against any risks, loss, theft or damage in accordance with this Clause 8.
PROVIDER – SPECIFIC TERMS
- PROFILE AND LISTINGS
- 1 The Provider may only create one Listing per Item and is solely responsible for ensuring that its Listing is:
(a) Accurate and current, including but not limited to the rental rate, availability, quality, standard, functionality, description and requirement of the Item as represented in the Listing and the Security Deposit; and
(b) Not offensive, unsafe, harmful, objectionable and/or defamatory in any way.
- 2 Once a Provider creates a Listing, they must:
(a) upload a photo identification and verification selfie; and
(b) enter their PayPal account details in the Payouts section of their Account.
- 3 If the Company, in its sole discretion, approves the Listing, the Listing will be active and displayed on InstruShare.
- 4 The Company may, in its sole discretion, reject, remove or suspend a Listing without prior notice to the Provider if it deems such Listing to be in breach of Clause 9.1, or that it infringes (or potentially infringes) on the rights of others or any applicable law.
- 5 The Provider acknowledges that Listings shall be displayed in default order or as otherwise categorised by a User. The Company has no control over and makes no guarantee for any specific result or ranking order of any Listing via InstruShare.
- PROVIDER WARRANTIES
- 1 The Provider warrants to the Company that the Provider:
(a) Is solely responsible for providing the Item in accordance with the applicable Listing and/or any other representations made via InstruShare;
(b) Agrees that general wear and tear (as determined by the Company in its sole discretion) does not constitute damage or destruction to an Item and is not covered under Clause 8.1;
(c) Owns the Item or has the necessary rights to offer the Item for rent via Instrushare;
(d )Warrants that no third party rights or applicable laws will be infringed in its use of InstruShare; and
(e) Is responsible for any other fees or costs that it may incur and for paying any applicable income, sales, or other taxes that it may generate as a result of using InstruShare.
- DISPUTE RESOLUTION
- 1 In the event that the Provider and/or Seeker wish to initiate a complaint or resolve a dispute in connection with InstruShare, it must do so via the Company’s Dispute Resolution Process found in each ad or contact InstruShare [email protected].
- 2 Reasons for a complaint or dispute under Clause 11.1 may include but is not limited to:
(a) The Seeker receiving an Item that is not as represented in the Listing;
(b) Failure by a Seeker or Provider to comply with their obligations and/or warranties including the terms agreed with respect to the Booking and/or Rental Period; and
(c) Inappropriate, harassing or offensive behaviour by a Seeker or Provider.
- 1 In the event that a Seeker fails to arrive at the agreed location within 24 hours of the agreed Pick Up time, the Provider may cancel the Booking and a Cancellation Fee shall be payable by the Seeker.
- 2 If a Booking is cancelled under this Clause 12, the Company shall notify the Provider and Seeker and return the Fees (after deduction of any Cancellation Fee) paid by the Seeker via PayPal. The Company makes no guarantee that any Item with respect to a cancelled Booking will be available at a later date.
- BREACH & TERMINATION
- 1 If the Company determines that a User is in breach of this Agreement, the Company, in its sole discretion and without notice, has the right to limit access, suspend or terminate the Account and refuse any and all current or future use of the Account. Such suspension or termination shall not release that User of any obligations existing at the time their Account is suspended or terminated. In addition to terminating the Agreement, the Company will be regarded as discharged from any further obligations under this Agreement and may pursue any additional or alternative remedies provided by law.
- 2 Upon termination of this Agreement, the Seeker must return any outstanding Items in its Original Condition to the relevant Provider and at the expense of the Seeker. For the avoidance of doubt, no Fees paid by the Seeker shall be reimbursed.
- 3 In the event the Seeker fails to return an Item or where damage to the Item exceeds the Security Deposit, the Provider shall, to the fullest extent permitted by law, have the right to repossess or attempt to repossess the Item, at the expense of the Seeker and the Seeker shall be solely responsible for any losses incurred by the Provider or the Company in accordance with Clause 8 above.
- 4 A User has the right to suspend its Account (and its Listings) or terminate its Account via its Account’s page or by contacting the Company here: [email protected].
- 5 If the Account is terminated, suspended or otherwise limited, the Listings and/or Profile under an Account will no longer be publicly accessible.
- 6 The following sections of these Terms & Conditions will survive termination: Breach & Termination; Seeker Warranties; Seeker Liability, Loss & Damage; Provider Warranties; User Warranties; Intellectual Property Rights; Indemnity; No Warranties & Limitation of Liability; Governing Law & Jurisdiction; and Entire Agreement.
- USER CONDUCT
- 1 As a User, you must not (and must not allow any third party to):
(a) use InstruShare in any manner that could damage, disable, overburden or impair InstruShare;
(b) attempt to gain unauthorised access to any parts of InstruShare;
(c) interfere or attempt to interfere with the proper working of InstruShare software;
(d) use any robot, spider, scraper or other automated means to gain unauthorised access without express written permission from the Company;
(e) analyse, reverse engineer, attempt to replicate the underlying ideas, algorithms, and source code of InstruShare; and/or
(f) transmit any viruses, worms, defects, Trojan horses, malware or other computer programming that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system or data of InstruShare.
- 2 The Company reserves the right to disable any unauthorised links or frames and disclaims any responsibility for the content available on any third-party website or application which is linked to or from InstruShare.
- USER WARRANTIES
- 1 All Users warrant to the Company as follows:
(a) That all Data uploaded to InstruShare is current, true and accurate and does not contain any viruses, tracking software or other programming algorithms that interfere with the Company’s privacy, data or computer systems;
(b) The contract formed between the Seeker and Provider from a Booking is solely between that Seeker and Provider and the Company is not a party to such contract, nor does the Company assumes any responsibility arising out of or in connection with such contract; and
(c) If any User is using InstruShare or agreeing to these Terms & Conditions on behalf of another person or entity, including but not limited to a company or other organisation, the User represents and warrants that they have the power and authority to bind such person or entity to the terms of this Agreement.
- INTELLECTUAL PROPERTY RIGHTS
- 1 Except for third party data (including the Seeker’s and Provider’s Data) or as otherwise stated, all other parts of InstruShare is owned or controlled by the Company or third parties that have authorised such use, including but not limited to all trade marks, text, graphics, photographs, logos, underlying software, footage, sound recordings, musical works, videos, user interfaces, computer code, and other files and content of InstruShare (“Company Materials”).
- 2 All rights are reserved. No Company Materials may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part other than in accordance with these Terms & Conditions, without the prior written consent of the Company.
- 3 The User will retain ownership (including intellectual property rights) in any Data it uploads. In uploading Data, the User grants the Company the irrevocable, non-exclusive right to:
(a) store, use, display, promote and/or provide access to the Data (including any intellectual property rights) on InstruShare; and
(b) use the User’s Listing and/or Profile for promotional purposes throughout all media (including but not limited to email, advertisements, other sites and/or search engines).
- 1 A Provider and/or Seeker hereby indemnifies the Company and its officers, directors, employees and licensors against any and all costs, loss or damage suffered or may incur by reason of any Data imported into InstruShare, the access and use of InstruShare or the Item, and/or any breach or alleged breach of this Agreement by the Provider and/or Seeker.
- 2 Should the Company, in its sole discretion, determine that the Provider and/or Seeker has breached these Terms & Conditions, then nothing herein shall prevent or in any way restrict its right to pursue any of its legal and/or other remedies, including, without limitation, court action.
- NO WARRANTIES & LIMITATION OF LIABILITY
- 1 The Company makes no warranty that the Provider’s use of InstruShare will generate any Bookings.
- 2 InstruShare is provided on an "as is" basis and without representations or warranties of any kind to the User, whether express or implied, including without limitation as to the quality and/or fitness of InstruShare for a particular use, accessibility or warranties that access to or use of InstruShare will be uninterrupted or error-free. The Company does not represent that InstruShare will be secure or free of viruses or other harmful material or elements, or that any Company Materials (or other information contained on InstruShare) will be correct, accurate, timely or complete.
- 3 The Company has no liability for consequential loss, loss of profit (actual or anticipated) or for other damages of any kind, however caused, arising in any way out of or in connection with InstruShare, including but not limited to any loss or damage arising in connection with the Item, Listing, Profile, Account and/or other Data provided to the Company, the termination or suspension of the Account and/or any other information or representation made by either the Seeker or Provider.
- 1 The User acknowledges that this Agreement is personal to it and cannot be assigned, transferred, sold or otherwise disposed of without the prior consent in writing of the Company. The Company reserves its right to assign the provisions of this Agreement at any time.
- GOVERNING LAW & JURISDICTION
- 1 These Terms & Conditions and the access and use of InstruShare shall be governed by and construed in accordance with the laws of Victoria, Australia. By accessing and using InstruShare, the User accepts that any dispute under these Terms & Conditions or arising out of access and/or use of InstruShare shall be subject to the jurisdiction of the Victorian Courts in Australia and by accessing and/or using InstruShare, the User hereby submits to the jurisdiction of such courts for such purposes.
- 2 The User is solely responsible for compliance with any applicable laws of the State, Territory or Country from which they access InstruShare.
- 1 All amounts payable under these Terms & Conditions are deemed to be inclusive of any applicable goods and Services tax unless otherwise stated.
- ENTIRE AGREEMENT
- 1 This Agreement shall constitute the entire agreement and understanding between the User and the Company concerning the subject matter hereof and supersedes all prior agreements and understanding of the User and the Company with respect thereto.
- 2 If any provision of this Agreement shall be unlawful, void or unenforceable for any reason, the other provisions shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent.