Background: Kindling Collective acquires equipment and other outdoor gear resources for the benefit of community members in the Greater Portland area. Kindling Collective’s resources are to support programs that align with our goals and vision: we are a queer-centered gear library working to create an accessible pathway to outdoor experiences in Maine (Wabanaki Confederacy Territory). We aim to build community and support people in the greater Portland area in building and sustaining relationships with the natural world.
Kindling Collective’s gear library is a shared resource. When borrowing gear from Kindling, it is expected that you (and your group) will treat the gear as if it were your own.
BORROWING AGREEMENT
BY AGREEING TO THESE TERMS & CONDITIONS, THE BORROWER WAIVES CERTAIN RIGHTS, INCLUDING THE RIGHT TO SUE.
DEFINITIONS:
In this agreement, the terms “you” and the “Borrower” refer to the person borrowing items (the “equipment”) from Kindling Collective Gear Library and the term “Borrower Parties” refers to you and any other persons coming into contact with the equipment during the term of the Borrower’s loan, whether or not authorized to do so by the Borrower. The Kindling Collective Gear Library includes its affiliates, directors, officers, volunteers, employees, members, agents, contractors, representatives and sponsors (hereinafter referred to collectively as the “Kindling Collective Gear Library”).
1. PHYSICAL CONDITION OF EQUIPMENT
You, the Borrower, acknowledge that prior to borrowing the equipment, you will diligently examine it, read any informational resources with respect to the equipment provided by the Kindling Collective Gear Library, observe it in operation (if appropriate), and seek out additional informational resources, as appropriate, to inform your use of the equipment. Once you take possession of the equipment, you will be deemed to have acknowledged that the equipment is in good working condition except for any defect noted by the Kindling Collective Gear Library. You are responsible to return the equipment to the Kindling Collective Gear Library in the same working condition as it was in at the time that you took possession of the equipment.
2. TITLE
You understand and agree that the Kindling Collective Gear Library shall retain all rights of ownership and title to the equipment. You understand and agree that you have no rights or property interest in the equipment. You will not, and you will instruct any other Borrower Parties not to, do any act or permit anyone to do any act inconsistent with the Kindling Collective Gear Library’s ownership and title to the equipment.
3. USE OF THE EQUIPMENT
The Borrower represents and warrants that they are registered as a member of the Kindling Collective Gear Library and are currently, and will be, at all times during the course of the loan period, in compliance with the Kindling Collective Gear Library Borrowing Policies. The Borrower acknowledges that Kindling Collective Gear Library is relying upon this representation and warranty.
You specifically understand and agree that the equipment be used only for the purpose for which the equipment was manufactured and intended. Subleasing or improper use of the equipment is strictly prohibited.
You agree to assume responsibility for acquiring any licenses, permits or permissions required for the use of the equipment (e.g., fishing license). You agree that you are solely responsible for the proper use and storage of the equipment by any person, whether or not such person was authorized by yourself to use or store such equipment, from the time of pick-up of the equipment until the return of the equipment is accepted and processed by the Kindling Collective Gear Library.
ACKNOWLEDGMENT
You acknowledge that the use of the equipment may require physical exertion and can activate or aggravate pre-existing conditions, injuries, symptoms or limitations. You agree that you and/or any other Borrower Parties will seek medical advice if you or the Borrower Parties, as applicable, have or may have a physical condition, injury, symptom or limitation that may be activated or aggravated by the use of the equipment.
You acknowledge that no Borrower Parties shall be under the influence of drugs or alcohol while using the equipment. You acknowledge and agree that any Borrower Parties should take appropriate safety precautions while using the equipment, including, but not limited to, wearing a life jacket while using any equipment in or around bodies of water, and you shall instruct any other Borrower Parties of the same.
ASSUMPTION OF RISK
You acknowledge and agree that the use of the equipment, including the failure to properly use the equipment and/or the failure of the equipment, may involve foreseeable and unforeseeable risks, dangers and hazards including, but not limited to, exposure to communicable diseases, including COVID-19 or any variant thereof, serious bodily harm or injury, permanent disability, paralysis, disfigurement, drowning, hypothermia and/or death. You acknowledge and agree that the use of the equipment outdoors, including for activities such as swimming, paddling, hiking, camping, backpacking, fishing, and travel may involve foreseeable and unforeseeable risks, dangers and hazards, including but not limited to exposure to rocks, debris, trees, human-made objects, flooding, storms, extreme cold or heat, high winds and variations in weather. You understand that it is your choice to borrow the equipment and that you are doing so at your own risk. By executing this agreement, you are freely accepting and fully assuming any and all such risks, dangers and hazards.
RELEASE OF LIABILITY AND INDEMNIFICATION
I, the Borrower, understand that I am responsible for the use of the equipment at all times, at all locations and by all persons, including Borrower Parties, whether or not such persons were authorized by you to use the equipment, from the time it is picked-up to the time the equipment is returned, accepted and processed by the Kindling Collective Gear Library. In return for borrowing the equipment from the Kindling Collective Gear Library, I, the Borrower, hereby release and agree not to sue the Kindling Collective Gear Library from or for, as applicable, all present and future liabilities, claims and causes of action of any kind, whether at law or in equity, that may be made by me, my family, estate, heirs or assigns arising as a result of or in connection with the borrowing and/or use of the equipment from the Kindling Collective Gear Library, wherever, whenever, or however the same may occur, including but not limited to actions for property loss or damage, personal injury, wrongful death or breach of any statutory or other duty of care. I, the Borrower, understand and agree that this means that I give up any right to sue and bring any claims, including for negligence, and to seek damages, whether known or unknown, foreseen or unforeseen, against the Kindling Collective Gear Library.
I, the Borrower, also agree to indemnify and hold harmless the Kindling Collective Gear Library for any all claims, demands, suits, liabilities, judgements, obligations, causes of action, penalties, costs, expenses or damages of any kind or nature, including, without limitation, legal fees or disbursements, arising directly or indirectly out of or relating to the use or misuse, condition, operation, transportation, or possession of the equipment and all related activities, EVEN IN THE EVENT OF NEGLIGENCE, GROSS NEGLIGENCE, OMISSION, CARELESSNESS, BREACH OF CONTRACT OR BREATH OF ANY STATUTORY OR OTHER DUTY OF CARE BY the Kindling Collective Gear Library now or in the future.
I, the Borrower, expressly disclaim all warranties and conditions of any kind, express or implied, statutory, legal or otherwise, including, without limitation, for merchantability or fitness for a particular purpose.
I, the Borrower, understand and agree, that in no event shall the Kindling Collective Gear Library be liable for any special, direct, indirect, incidental, exemplary or consequential damages of any nature, whatsoever, whether based on warranty, contract, tort (including negligence or strict liability) or otherwise and whether known or unknown, foreseen or unforeseen, in connection with this agreement.
RESPONSIBILITY FOR EQUIPMENT
You understand and agree that you are responsible for the equipment from the time it is picked-up to the time the equipment is returned, accepted and processed by the Kindling Collective Gear Library. If the equipment is lost, stolen or damaged, under any circumstances, while being borrowed by you, regardless of fault, you shall be responsible for all charges to replace or repair the equipment, including any parts and labor costs.
You are also responsible for ensuring that any other Borrower Parties are made aware of, and comply with, the terms and conditions of this agreement as if they were a party hereto.
LOADING AND UNLOADING OF EQUIPMENT
You assume sole responsibility for the loading and unloading of any equipment that you borrow from the Kindling Collective Gear Library. In the event that members, employees, contractors, volunteers or representatives of the Kindling Collective Gear Library or any other individual assists in the loading or unloading of the equipment, you assume the risk of, and hold the Kindling Collective Gear Library harmless from any property loss or damage or personal injuries in connection with such loading and/or unloading of the equipment.
EQUIPMENT FAILURE AND REPAIR
You agree to immediately discontinue, or cause the discontinuance of, the use of the equipment should it become unsafe or in any state of disrepair, and you agree to promptly notify the Kindling Collective Gear Library of the facts surrounding such occurrences. The Kindling Collective Gear Library may, in its sole discretion, make the equipment operable within a reasonable time, or provide you with a similar piece of equipment, if available. This provision does not relieve you from the obligations imposed by other sections of this agreement. Under no circumstances shall the Kindling Collective Gear Library be responsible for any injury, loss or damage, including consequential damage, resulting from the failure or defect of any equipment.
RETURN OF THE EQUIPMENT
The equipment is loaned to you, subject to the terms and conditions of this agreement, for the period printed on this agreement, or as otherwise established with an employee or volunteer of the Kindling Collective Gear Library.
If the term of this agreement has not been extended and you fail to return the equipment when due, or you default on your obligations hereunder, the Kindling Collective Gear Library may take such steps as permitted by law to:
retake possession of the equipment, at any time, to protect the Kindling Collective Gear Library’s ownership of the equipment and its interests under this agreement; and/or
secure the reasonable value of the equipment, based on the condition of the equipment, at the beginning of the loan period. In such event, you shall reimburse the Kindling Collective Gear Library for all costs incurred, including, without limitation, reasonable legal fees.
Notwithstanding any retaking of equipment by the Kindling Collective Gear Library and/or payment of the reasonable value of the equipment as described above, you shall be responsible for all amounts due and unpaid by you to the Kindling Collective Gear Library under this agreement, including any amounts incurred by the Kindling Collective Gear Library arising as a result of or in connection with the retaking of the equipment as provided for in this clause. In addition, you acknowledge that the failure to return the equipment within the contracted time and the sale or concealment of the equipment are prohibited and that such action may constitute a crime and in the event of the foregoing, the Kindling Collective Gear Library, in addition to any action it may take, may notify authorities or take any other action including the filing of criminal complaints subjecting you to possible criminal prosecution. You acknowledge that the Kindling Collective Gear Library is entitled to take any and/or all of the actions specified in sections 10(a) and 10(b) without recourse.
You understand and agree this agreement is intended to be as broad and inclusive as permitted by the laws of the State of Maine. In the event that any one or more of the provisions contained in this agreement shall be held to be invalid, illegal or unenforceable in any respect, the remainder will continue in full legal force and effect.
You understand that this agreement shall be governed by the laws of Maine and that the courts of the State of Maine shall have sole and exclusive jurisdiction to resolve any and all disputes arising directly or indirectly out of this Agreement or from borrowing equipment from Kindling Collective Gear Library.
The Borrower acknowledges that they have had sufficient time to review such terms & conditions and to ask any questions they may have regarding same. The Borrower further acknowledges that (i) they have carefully read the terms & conditions and understand the contents thereof, (ii) they are voluntarily agreeing to the terms & conditions and (iii) this agreement is to be binding upon them, their heirs, executors, administrators, successors, assigns and personal representatives. The Borrower warrants that they are aware that they may borrow, operate, or use equipment from another organization, but have chosen to borrow, operate, or use equipment from the Kindling Collective Gear Library with the knowledge that agreeing to these terms & conditions is a requirement for the loan, operation, and use of said equipment. The Borrower further warrants that by agreeing to the terms & conditions they are fully aware that they are waiving any right they may have to bring a legal action or assert a claim against the Kindling Collective Gear Library for any negligence or fault on part of the Kindling Collective Gear Library.
