In consideration of your use of the Service, as defined below, [BandWagon Scooters] (“Provider”) requires that you (“User”, “You”, or “Your”) agree to all terms and conditions in this Bicycle Rental Agreement (“Agreement”). The “Service” is composed of Provider bicycle stations (“Stations”), stands that allow the docking of Provider bicycles (“Bike Docks”), the Provider bicycles, the related payment system, and all related equipment, personnel, and information.
- [Fees. All Users are subject to fees for use of the Services. The fees are set forth in the chart below. Once per month, the total amount of chargeable trips will be charged to User’s credit or debit card. If User has any claim or dispute regarding a chargeable trip, then User must, within 10 business days from the end of the prior month with the disputed claim, provide to Provider trip information necessary to identify the disputed charge, such as date of trip and approximate start and end times. The receipt, if any, indicating the date and time the Provider bicycle was returned would be additional proof that the Provider bicycle had been properly returned. User is encouraged to maintain all trip receipts.] [Note to Lattis: This likely needs to be edited to match with how your app handles charges.]
- Lost or Damaged Bicycles; Key; Additional Fees. Use of the Service is limited to a period of 24 consecutive hours. If the Provider bicycle is not returned to a Bike Dock within a period of 24 consecutive hours, then User will be charged a fee of [amount]. The Provider bicycle must be returned by User in the same condition in which it was rented. If the Provider bicycle is returned to a Bike Dock damaged or in a state of disrepair, then User will be charged a fee that is equal to the cost of repair. Such fees may be charged as soon as 24 hours after the Provider bicycle is not returned or is returned in a damaged state. Provider will attempt to contact User via telephone and email before charging the User’s credit or debit card, by using the contact information provided by User in connection witht the Service.
- Credit/Debit Card Matters. You must input a valid credit or debit card number and expiration date before You will be registered to use the Service. You represent and warrant to Provider that You are authorized to use the card. You authorize Provider to charge Your card for all fees incurred by You. If You dispute any charge on Your credit or debit card account, then You must contact Provider within 10 days of Your receipt of Your statement containing the disputed charge. You agree to immediately inform Provider of all changes relating to Your card.
- Releases; Disclaimers; Limited Liability; Assumption of Risk.
- Releases; Municipalities. “Claims” means, collectively, any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings, obligations, debts, liens, fines, charges, penalties, contracts, promises, costs, expenses (including attorneys’ fees, whether incurred at trial, on appeal, or otherwise), damages (including consequential, compensatory, or punitive damages), or losses (whether known, unknown, asserted, unasserted, fixed, conditional, or contingent) of any kind or nature that arise from or relate to any aspect of the Service, including, without limitation, any use of a bicycle rented by the User by User or any other person. In exchange for being allowed to use the Service, User hereby, to the maximum extent permitted by law: (i) waives any Claims against and fully and forever releases and discharges Provider and its affiliates, and each of their owners, officers, directors, employees, agents, representatives, successors and assigns (collectively, the “Provider Parties), Velo Labs, Inc. (dba “Lattis”) and all of the Provider Parties’ other vendors, licensors, service providers and partners (collectively, “Related Parties”) and any municipality in which any part of the Services are made available and all of its elected and appointed officers, officials, employees, and agents (collectively, the “Municipalities”) from all Claims that User has or may have against Provider and its Related Parties and/or the Municipalities, except for Claims caused by Provider’s gross negligence or willful misconduct, and (ii) agrees to indemnify and hold harmless Provider and its Related Parties and the Municipalities from and against all Claims, provided that User does not release the Provider Parties or indemnify any person or entity with respect to Claims arising from Provider’s gross negligence or willful misconduct. Such releases are intended to be general and complete releases of all Claims. Provider and its Related Parties and the Municipalities may plead such releases as a complete and sufficient defense to any Claim, as intended third beneficiaries of such releases. User agrees that the forgoing terms and conditions of this Section 4 shall be binding upon all of User’s agents, affiliates, representatives, successors, heirs, and assigns. In the event that the application of any provision of this Section 4 to any particular facts or circumstances shall be held to be invalid or unenforceable, then: (i) such provision shall be reformed without further action by the parties to the extent strictly necessary to render such provision valid and enforceable when applied to such particular facts or circumstances; and (ii) the validity and enforceability of such provision as applied to any other particular facts or circumstances, and the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby.
- DISCLAIMERS. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF ANY ASPECT OF THE SERVICE IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, PROVIDER AND ITS RELATED PARTIES AND THE MUNICIPALITIES DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY ASPECT OF THE SERVICE, WHICH ARE ALL PROVIDED “AS IS” AND “AS AVAILABLE” (AND YOU RELY ON THEM SOLELY AT YOUR OWN RISK). NONE OF PROVIDER AND ITS RELATED PARTIES AND/OR THE MUNICIPALITIES REPRESENT OR WARRANT THAT ANY ASPECT OF THE SERVICE WILL BE IN GOOD REPAIR OR ERROR-FREE, AND DELAYS, OMISSIONS, INTERRUPTIONS, OR INACCURACIES COULD EXIST IN ANY OF ASPECT THE SERVICE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS FOR USING ANY ASPECT OF THE SERVICE, AND NONE OF PROVIDER AND ITS RELATED PARTIES AND/OR THE MUNICIPALITIES ARE LIABLE FOR ANY CLAIM ATTRIBUTABLE TO ANY OF THE FOREGOING. YOU ASSUME FULL RESPONSIBILITY AND LIABILITY FOR ALL CONSEQUENCES, CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, LIABILITIES, DAMAGES, INJURIES, COSTS, EXPENSES, PENALTIES, ATTORNEYS’ FEES, JUDGMENTS, SUITS, OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER RELATED TO YOUR STOLEN OR LOST BICYCLE OR SYSTEM KEY.
- LIMITED LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT NONE OF PROVIDER AND ITS RELATED PARTIES AND/OR THE MUNICIPALITIES ARE RESPONSIBLE OR LIABLE FOR ANY CLAIM, INCLUDING THOSE THAT ARISE OUT OF OR RELATE TO (A) ANY RISK, DANGER, OR HAZARD DESCRIBED IN THIS AGREEMENT, (B) YOUR USE OF, OR INABILITY TO USE, ANY ASPECT OF THE SERVICE, (C) YOUR BREACH OF THIS AGREEMENT OR YOUR VIOLATION OF ANY LAW, (D) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION BY YOU, (E) YOUR FAILURE TO WEAR A BICYCLE HELMET WHILE USING A PROVIDER BICYCLE, OR (F) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION OF ANY THIRD PARTY. YOU HEREBY WAIVE ALL CLAIMS WITH RESPECT TO ANY OF THE FOREGOING, INCLUDING THOSE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER GROUNDS, EVEN IF ANY OF PROVIDER AND ITS RELATED PARTIES AND/OR THE MUNICIPALITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS. OUR TOTAL LIABILITY FOR ALL CLAIMS, INCLUDING THOSE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER GROUNDS, IS LIMITED TO THE GREATER OF THE SUM OF $100 AND THE AMOUNTS PAID BY YOU TO PROVIDER WITH RESPECT TO THE USE OF THE SERVICE TO WHICH THE CLAIM RELATES. Some jurisdictions do not allow for limited liability or exclusion of implied warranties; and, if any of those laws apply to You, then some or all of the above disclaimers, exclusions, or limitations might not apply to You, and You might have additional rights.
- Assumption of Risk by User. User agrees that riding a Provider bicycle involves many obvious and non-obvious risks, dangers, and hazards, which may result in injury or death to User or others, as well as damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. User agrees that such risks, dangers, and hazards are User’s sole responsibility. User agrees that if User’s use of any aspect of the Service causes injury or damage to another person or property, then User may be liable for all resulting injuries, damages, and related costs. By choosing to ride a Provider bicycle, User assumes all responsibility for all related risks, dangers, and hazards, and User agrees that Provider and its Related Parties and the Municipalities are not responsible for any injury, damage, or cost caused by User with respect to any person or property, including the Provider bicycle itself. User is solely and fully responsible for the safe operation of the Provider bicycle at all times.
- Activation. Once You are successfully registered to use the Service, Provider will provide you with access to the Service. You must follow the steps outlined by Provider in order to access the Service.
- Removing Bicycle by User. Users must follow the instructions provided by Provider regarding the removal of Provider bicycles from a Station.
Before each use of a Provider bicycle, User shall conduct a safety inspection of the Provider bicycle, which includes inspecting the following: (i) proper tire pressure; (ii) trueness of the wheels; (iii) safe operation of all brakes and lights; (iv) proper attachment of the seat, pedals, and basket; (v) good condition of the frame; and (vi) any sign of damage, unusual or excessive wear, or other mechanical problem or maintenance need. User agrees not to ride the Provider bicycle if User notices any mechanical or other problem or safety issue, to promptly notify Provider of all problems and issues, and to use a different Provider bicycle. User agrees to notify Provider immediately upon docking a Provider bicycle that User notices has any mechanical or other problem or safety issue.
- Returning Bicycle. To return the Provider bicycle, User must secure it into an available Bike Dock through use of the provided Lattis bike lock and confirm that it is securely locked. Any Provider bicycle that is not properly secured with the Lattis bike lock remains the sole responsibility of User, and the fees set forth in Section 1 will be charged until the Provider bicycle is properly secured.
- Obtaining Receipt. From time to time, Provider may provide functionality through the Service to allow User to print or save a receipt to confirm that the Provider bicycle has been properly returned to the Bike Dock.
- Lost or Stolen Bicycle. If User maintains possession of the Provider bicycle beyond a period of 24 consecutive hours, then the Provider bicycle is deemed lost or stolen, User’s credit or debit card will be charged a fee equal to the replacement cost of the bicycle and a police report may be filed with local authorities. The data generated by the Service’s computer is conclusive evidence of the period of use of a Provider bicycle by a User. For any disappearance of a Provider bicycle where a User is held responsible, User must report the disappearance to Provider within 24 hours following the disappearance and must report the disappearance to the local police department within 48 hours. Any use that exceeds a period of 24 consecutive hours is deemed a disappearance of the Provider bicycle, until the Provider bicycle is found or returned to a Bike Dock.
- Helmets; Safety. All riders are required wear a Snell, CPSC, ANSI, or ASTM approved helmet that has been properly sized, fitted, and fastened, according to the manufacturer’s instructions. Wearing a Snell, CPSC, ANSI, or ASTM approved helmet, properly sized, fitted, and fastened, while cycling may protect against an injury, or may lessen the severity of an injury, caused by an impact to the head; however, bicycle helmets are not 100% effective, do not protect against all head injuries, and do not protect against other injuries. None of Provider and its Related Parties and/or the Municipalities represent or warrant the quality or safety characteristics of any helmet, and User agrees that none of Provider and its Related Parties and/or the Municipalities are liable for any injury suffered by User while using the Service, whether or not User is wearing a helmet at the time of injury. User may need to take additional safety measures or precautions not specifically addressed in this Agreement. User represents and warrants that User has and shall wear a Snell, CPSC, ANSI, or ASTM approved helmet, properly sized, fitted, and fastened, at all times while using the Service.
- Prohibited Acts. User must not ride a Provider bicycle while carrying any briefcase, backpack, bag, or other item if it impedes User’s ability to operate a Provider bicycle safely. In addition, Provider riders must not:
- use any cellular telephone, text messaging device, portable music player, or other device that may distract User from safely operating a Provider bicycle.
- operate a Provider bicycle while under the influence of any alcohol, drugs, any medication or other substance that may impair User’s ability to safely operate a Provider bicycle.
- carry a second person on a Provider bicycle.
- dock or lock any bicycle in any Station other than Provider bicycles.
- use any locking mechanism, other than the Lattis lock provided by Provider, to lock a Provider bicycle to a Bike Dock.
- violate any applicable federal, state, or local law, including those for bicycle riders.
- dismantle or modify a Provider bicycle in any way. (This rule does not apply to the use of any seat height adjustment feature on Provider bicycles.)
- exceed the maximum weight limit for the Provider bicycle ([limit]) [or the cargo carrier ([limit]), and User must not otherwise use the cargo carrier improperly with regard to type of contents or any visual obstruction or riding impediment.]
- operate a Provider bicycle in extreme weather conditions, including snow, hail, and electrical storms, which make it more dangerous to operate a Provider bicycle. User is advised to adjust User’s riding behavior and braking distance to suit the weather conditions.
- allow others to use a Provider bicycle that User has removed from a Bike Dock. User understands that when User removes from a Provider bicycle from a Bike Dock, it is to be used only by User.
- User agrees, represents, and warrants that User is a safe and competent bicycle operator, is physically able to safely ride a bicycle without a risk to the User’s health, is knowledgeable about the operation of a bicycle, and is knowledgeable about the laws pertaining to bicycles operated within the applicable state and all cities and towns where the Service is offered and/or used. Like any physical activity, riding a Provider bicycle may cause minor or major injuries or discomfort and may worsen or complicate underlying medical conditions or diseases. By choosing to ride Provider bicycle, User assumes all responsibilities and risks for all such injuries or other medical conditions.
- User agrees that bicycles are machines that may malfunction, even if the bicycle is properly maintained, and that such malfunction may cause injury.
- User agrees that Provider does not provide or maintain places where to ride Provider bicycles, and that Provider and the Municipalities do not guarantee that there will always be a safe place to ride a Provider bicycle. Roads, bicycle lanes, and bicycle routes may become dangerous due to weather, traffic, or other hazards. User must not use a Provider bicycle for racing, riding off road, or any other use, besides safe operation on public or private roads or property and designated bicycle routes.
- User agrees that Provider and the Municipalities are not a common carrier. Alternative means of public and private transportation are available to the general public and to User individually, including public buses and rail service, taxis, and pedestrian paths. Provider and the Municipalities provide Provider bicycles only as a convenience, and such rental availability is intended to be used only by those persons who are able and qualified to operate a Provider bicycle on their own and who have agreed to all terms and conditions of this Agreement.
- User agrees that access to the Service is denied to any person less than 16 years of age, whether or not accompanied by a parent or guardian. Minors who are at least 16 years of age may use the Service, but only if the minor’s use of the Service is facilitated by and under the responsibility of the minor’s parent or legal guardian. By authorizing use of the Service by a minor, the parent or legal guardian agrees s/he is fully responsible and liable for all injuries, damages, and costs and expenses arising from or related to the minor’s use of the Service and guarantees, represents, and warrants: (i) the parent’s or legal guardian’s; and (ii) the minor’s acceptance of and agreement and compliance with all terms and conditions of this Agreement as a User.
- User must report to the police and to Provider Customer Service at [number] as soon as possible, but in no event later than 24 hours, after the occurrence of any of the following events: any crash, damage, loss, or personal injury while using a Provider bicycle; any vandalism; any stolen or lost bicycle; and, any stolen or lost system key.
- User is responsible for all charges, damages, or injuries incurred either directly or indirectly resulting from use of User’s key prior to deactivation of the key by Provider upon expiration of membership or a report to the Provider Customer Service at [number] that the key is lost or stolen.
- Limitations on Availability of Service. Provider makes every effort to provide the Service continuously during the hours of [__________], but does not guarantee that the Service will be available at all times, as force majeure events or other circumstances might prevent Provider from providing the Service. Access to the Service also is conditioned on the availability of Provider bicycles at each Station. Provider does not represent or warrant the availability of any Service or the availability of any Provider bicycle at any Station. User agrees that Provider may require User to return a Provider bicycle at any time.
- Term and Termination. The term of this Agreement begins when You first use the Service, and the term ends 10 years after Your last use of the Service; provided, however, that Your personal financial responsibility under Section 3 of this Agreement, titled Credit/Debit Card Matters, expires one year after the later of (i) Your last use of the Service, or (ii) the expiration of Your membership. At any time and from time to time, and without User’s consent, Provider may unilaterally terminate Your right to use the Service, in Provider’s sole discretion and without any notice or cause. User may terminate User’s use of the Service at any time; provided, however, that (i) no refund will be provided by Provider, (ii) the term of this Agreement continues in accordance with this Section 17 of the Agreement, (iii) User may still be charged any applicable additional fees in accordance with Sections 1 and 2 of this Agreement. This Agreement remains in full force and effect, in accordance with its terms and conditions, after any termination of Your right to use any aspect of the Service, regardless of how the Agreement is terminated.
Your right to use the Service is non-transferable and may be terminated if User breaches this Agreement, as decided by Provider in its sole discretion. If your use is terminated for breach of this Agreement, then no refund is provided.
- Confidentiality of Information.
Personally identifiable information pertaining to Users that is held by Provider includes names, addresses, phone numbers, email addresses, birth dates, and credit and debit card numbers, and further includes other information that, by its nature, is linked to personally identifiable information and could be used to identify You (such as, IP addresses linked to personally identifiable information). Personally identifiable information will be kept confidential by Provider; provided, however, that (i) if there is any accident where a User is unable to communicate personal information to the appropriate authorities, then Provider may, in its sole discretion or as required by any of the Municipalities, provide the User’s name, address, phone number, and other important information to such authorities, and (ii) if Provider receives a subpoena from any court or other authority, then Provider will provide all requested information in accordance with applicable law. Further, Provider may disclose personally identifiable information: (i) to investigate or defend against any allegation or claim against Provider, any of the Municipalities or involving the Provider Service; (ii) to assist government enforcement agencies; (iii) if required to do so by law; or (iv) for other lawful purposes that any of the Municipalities may determine to be reasonable and desirable.
Personally identifiable information and Provider usage information may be provided, in whole or in part, to any of the Municipalities for purposes of system monitoring and improvement, for promotion of municipal and/or bicycling related services and programs, as necessitated by the transition of the Provider to another operator (in which event information will be provided to the successor operator), in relation to services You may choose to participate in, such as, purchasing a helmet through the Provider website, and for any other lawful purposes that any of the Municipalities may determine to be reasonable and desirable, including, without limitation, in the event of an accident or receipt of a subpoena, as described in the previous paragraph, or other contemplated legal proceedings.
In addition to the forgoing, Your personally identifiable information may be shared with other third parties that provide part(s) of the Provider Service. In cases where Your personally identifiable information is disclosed to such third parties they are required to protect that information.
Please further be advised that Provider usage information that is not personally identifiable information is not subject to the restrictions set forth in this Section 18 and may be disclosed, as any of the Municipalities determine, for any lawful purpose.
Recipients of information received consistent with the provisions of this Section 18 may be able to combine information they properly obtained under this Section 18 with other information they independently possess concerning You. Neither Provider nor the Municipalities are responsible for such recipients’ later use of the information they properly obtained.
- Notice. You may contact Provider by writing, calling, or emailing Provider at the street address, telephone number, and email address listed below:
- Choice of Law; Dispute Resolution. This Agreement is governed by, and must be construed and enforced in accordance with, the laws of [state], excluding principles of conflicts of laws. For every dispute regarding this Agreement: (i) the prevailing party is entitled to its costs, expenses, and reasonable attorney fees (whether incurred at trial, on appeal, or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which the party may be entitled; (ii) each party consents to the jurisdiction of the courts of [state] and agrees that those courts have personal jurisdiction over each party; (iii) venue must be in [state]; and (iv) the parties must submit the dispute to mandatory mediation held in [state]. Every mediation must be completed within 6 months of the date when the initial notice demanding mediation was provided by any party. If, for any reason, the dispute is not resolved through mediation within the 6-month period, then the parties may continue seeking to resolve the dispute by use of any process, including litigation by trial.
- Waiver. No waiver of any breach of any provision of this Agreement is a waiver of any other breach or of any other provision of this Agreement. The terms of this Agreement may be waived or amended only in writing and only by the party that is entitled to the benefits of the term being waived or amended.
- Cumulative Remedies. All rights and remedies granted under or referred to in this Agreement are cumulative and nonexclusive, and resort to one does not preclude the availability or applicability of another or to any other right or remedy provided by law.
- Final Agreement; Modification by Provider. This Agreement contains the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Agreement supersedes all other prior agreements, written or oral, relating to such subject matter. Provider may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after Provider provides notice of the Changes; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.
- Contract Interpretation. The headings in this Agreement do not affect the interpretation of this Agreement. “Or” is not be exclusive in its meaning. “Including” means “including, but not limited to.” Unless the context otherwise requires, words in the singular number or in the plural number shall each include the singular number or the plural number. All pronouns include the masculine, feminine, and neuter pronoun forms.