Last Revised: March 5, 2021
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS RELEASES, WAIVERS, DISCLAIMERS, ASSUMPTION-OF-RISK PROVISIONS, AND A BINDING ARBITRATION AGREEMENT THAT LIMIT YOUR LEGAL RIGHTS AND REMEDIES. IT ALSO SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICES. CAPITALIZED TERMS HAVE THE MEANINGS GIVEN TO THEM WHERE DEFINED IN THIS AGREEMENT.
THE SERVICES PROVIDED BY REVEL TRANSIT INC. (“REVEL” OR “COMPANY”) ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT. BY EITHER ACCEPTING THIS SUBSCRIPTION AGREEMENT OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
Welcome to eBikes!
Our subscription eBike service lets customers rent their own eBike month by month. The subscription provides all the perks of having your own eBike without the responsibilities of ownership and uncertainties of sharing! We were founded on the idea that there’s a better way around. That’s why our goal isn’t just to get you to your destination. It’s to help you make your way.
First, you will need to become a Member before you may access the Services. Just download the App, which can be found on Google Play or the Apple App Store, and register quickly and easily. You will need to be at least 18 years of age, and have a credit or debit card to register.
HERE ARE THE DEFINITIONS WE USE IN THIS AGREEMENT:
1.01“Agreement” or “Subscription Agreement” means this eBike Subscription Agreement, Waiver of Liability, and Release, as well as Appendix A attached hereto and made a part hereof.
1.02 “App” or “Revel App” means Company’s proprietary software application, which can be downloaded from Google Play and the Apple App Store and accessed with a mobile device.
1.03 “Battery” means the 36V 10.4ah lithium ion battery provided by Company as part of a Subscription for the purpose of powering an eBike.
1.04 “Damage, Loss, or Theft Fee” means the fee or fees that Company may assess for damage, loss, or theft of the eBike, or for violation of the terms of this Agreement, up to the full replacement cost of the item(s) or part(s) damaged, lost, or stolen, and as may be amended by Company from time to time.
1.06 “Effective Date” means the date on which you accept the terms of this Agreement.
1.07 “Helmet” means a safety helmet designed for bicycle use. Member may provide their own Helmet or purchase a Revel-branded Helmet from Company’s partner FEND, using a unique promotional code provided by Company after Member is approved for a Subscription. A Helmet must be worn at all times while operating an eBike.
1.09 “Lock” means the bicycle lock provided by Company to Member with an eBike for the purpose of securing the eBike when not in use.
1.10 “Member” means a person who meets the eligibility criteria described in Section 2.01 below and has been approved by Company for a Subscription, and is therefore eligible to access the Services.
1.11 “Member Account” means an App-based portal used by Members to manage their Subscription.
1.13 “Prohibited Area” means (i) any area other than streets with a speed limit equal to or lesser than 30 miles per hour or designated bicycle lanes, and (ii) any area in which eBikes are prohibited under applicable law from being ridden. Prohibited Areas include but are not limited to sidewalks, highways, parks or greenspaces other than in designated bicycle lanes, and any area that is unpaved or off-road.
1.14. “Rules” means all the rules set forth in this Agreement and in Appendix A attached hereto and incorporated herein, as may be amended from time to time.
1.16 “Site” means Company’s web site (located at gorevel.com) operated by Company and pertaining to the Services.
1.18 “Subscription Fee” means the fee charged by Company to Member on a monthly basis for the Subscription, as described here.
1.19 “Term” means the time period from the Effective Date and while the Subscription is active and in good standing, and not otherwise terminated by Company or Member as described herein. The Term ends when Company or Member terminates the Subscription and Member returns the eBike and Welcome Kit to Company.
1.21 “Welcome Kit” means the materials other than the eBike, Battery, and Lock delivered to Member by Company at the beginning of the Subscription, which are provided for the purpose of facilitating the safe use and storage of the eBike by Member, including one of each of the following: (i) charger for recharging the Battery; (ii) U-lock for securing the eBike; (iii) U-lock key; (iv) 4mm hex key (allen wrench); (v) Battery key; (vi) alarm fob.
2.01 Eligibility. The Service is only available pursuant to a Subscription. To be eligible for initial and continued Subscription, Member must:
(a) Obtain at its own expense all necessary equipment and services needed to use the Revel App (including a mobile device and wireless service). Charges from a Member’s wireless carrier or communication service are not Company’s responsibility. Company makes no guarantees that the App can be accessed by all wireless devices or service plans or that it will be available in all locations;
(b) Provide Company with a valid credit or debit card number, billing zip code, and expiration date. Member agrees to immediately inform Company of any and all changes relating to the applicable credit or debit card;
(c) Provide Company with a valid phone number for purposes of verifying Member’s identity;
(d) Provide Company with a valid email address;
(f) Be 18 years old or older;
(g) Have the physical ability and skill to safely and comfortably operate the selected eBike;
(h) Agree to wear a Helmet at all times when operating the eBike;
(i) Agree to store the eBike indoors or in a safe place outside;
(j) Agree to be bound by the terms and conditions in this Agreement.
In order to begin a Subscription, Member must meet the above criteria and fully complete the Subscription registration process in the App. Satisfaction of the application criteria in this Agreement does not automatically grant the right to a Subscription, and Subscription criteria and the application process may be changed by Company from time to time in its sole discretion. Applications are subject to final approval by Company in its sole discretion. All Subscriptions are non-transferable and non-refundable, subject to the terms of this Agreement.
2.02 Ownership; Use. Neither a Subscription nor this Agreement grants Members any rights of ownership or property interest in or over Company, Company’s operations or finances, or any eBike, Battery, Lock, or Welcome Kit. Company and/or its licensor(s) remains the sole owner of the eBike, Battery, Lock, Welcome Kit, and any other items made available to Member hereunder. A Member may use Company’s eBike only after approval of the Subscription by Company and payment of the Subscription Fees and any other applicable fees.
2.03 Changes to Agreement. Company may edit and revise this Agreement in its sole discretion at any time, so Members should check the Agreement on the Site periodically. Company will promptly send Members notice of any material changes by email to the address provided by the Member during registration, by notification through the App, or by other means. Company will post the revised Agreement on the Site and/or on the App. The revised Agreement is effective the moment the new version is sent to the Member by email or uploaded to the Site or App, unless otherwise indicated. Use of the Services after revision to the Agreement qualifies as acceptance by Member of the new Agreement.
2.04 Duration of Agreement. This Agreement shall be in force between Company and you from the Effective Date through the duration of the Term, subject to the provisions of Section 14.07.
2.05 Termination of Subscription.
To terminate a Subscription, Member must contact Company via the App. Member must provide Company notice of his or her intent to terminate the Subscription prior to the date on which the Subscription Fee will next be charged in order to avoid payment for the following month of Service.
In the event of termination by Member, Member is responsible for all fees incurred through the date of termination. No fees will be refunded in the event of termination by Member. Once the Subscription Fee is paid, Member will have access to the Service and eBike for the following month. Company will not refund Member if Member wishes to return the eBike or end the Subscription prior to the end of the month for which the Subscription Fee has already been paid.
After Member provides notice of intent to terminate the Subscription, the Subscription will end on the date on which the Subscription Fee would have next been charged. For example, if Member is charged monthly on the first of the month, and provides notice of intent to terminate on the fifteenth, the Subscription will end on the first of the following month.
Termination by Company. Company may terminate this Agreement and Member’s Subscription upon notice to Member at any time with or without cause. Without limiting the foregoing, Company may immediately terminate this Agreement and Member’s Subscription, at its sole discretion and without notice, if the Member:
In the event that Company terminates Member’s Subscription due to Member’s violation of any provision of this Agreement, no fees will be refunded to Member. If Company terminates Member’s Subscription for reasons other than Member’s noncompliance with this Agreement, Company may in its sole discretion issue refunds as it deems appropriate.
Company will provide notice to Member of its intent to terminate the Subscription by phone, email, or through the App.
2.06 Availability. The Services are available to Members subject to the limitations specified herein and to any changes to the availability of the Service that Company may make from time to time in its sole discretion. Company makes every effort to provide the Services 365 days per year, but does not guarantee that the Services will be available at all times, as weather conditions, unforeseen events or other circumstances might prevent Company from providing the Services. Supplies are limited, and access to the Services is conditioned on the availability of eBikes. Company does not represent, warrant, or guarantee the availability of any of the Services or the availability of any eBike at any time.
From time to time, eBike availability may be subject to a waitlist. In such instances Member may sign-up for the waitlist and Company will notify Member if an eBike becomes available for use. The Service is currently available only in certain parts of New York City (Brooklyn, Bronx, Queens, and Manhattan).
3.0 The Service and Use of the eBike.
3.01 Compliance with Rules. Member agrees to comply with all the Rules set forth herein and in Appendix A attached hereto, and the Fees and Violation and Suspension Policy set forth on the Site.
3.02 Subscription Fees. Member agrees to pay the Subscription Fee, in the amount indicated on the Site here, on a monthly basis for the duration of the Subscription. Company reserves the right to change the Subscription Fee at any time and without notice, including after Member’s Subscription has started. Member should visit the Site periodically for up-to-date information about the Subscription Fee.
Company will charge Member the initial Subscription Fee immediately upon acceptance of Member’s registration for a Subscription. The second Subscription Fee charge will occur one month and four days from the initial charge, in order to account for delivery time. Subsequent charges will occur monthly from the date of the second charge. Subscription Fees and other charges may be subject to applicable taxes and other local government charges, which may be charged and collected by Company. Member expressly acknowledges and agrees that this Agreement and any subscription taken hereunder are supported by good and adequate consideration separate and apart from any subscription fee.
3.03 Delivery of eBike and Welcome Kit. Upon registering for a Subscription via the App, Member will provide an address at which Company can deliver the eBike. After acceptance of Member’s registration and prior to delivery, Company will contact Member to arrange delivery of the eBike. Delivery instructions can be found on the Site here.
After acceptance of Member’s registration for a Subscription, Company will mail the Welcome Kit to the address provided by Member.
3.04 Operation of eBike. Operating instructions and tips are provided with the Welcome Kit, on the App, and on the Site here and here. Members must read and become familiar with these instructions prior to commencing use of the eBike.
3.05 Return of eBike and Welcome Kit. At the end of the Subscription, Member must return to Company the eBike, Welcome Kit, and any other materials provided by Company in connection with the Services.
In the event of termination of the Subscription by Company, Member must coordinate with Company to return the eBike, Welcome Kit, and any other materials immediately.
In the event of termination of the Subscription by Member, Member must coordinate with Company to return the eBike, Welcome Kit, and any other materials at the end of the monthly billing period in which Member has given notice of termination. Member may request return of the eBike prior to the expiration of such billing period, however Company will not refund any Subscription Fee in the event of early return of the eBike.
Company will pick up the eBike and Welcome Kit from Member. Company will contact Member to coordinate the date, time, and place of pickup. Return and pickup instructions can be found on the Site, here. If Member does not return the eBike, Welcome Kit, or any other materials to Company, Company may charge Member Damage, Loss, or Theft Fees up to the full replacement value of the items not returned, in Company’s sole discretion. In the event of continued failure to return the eBike and/or nonpayment of Damage, Loss, or Theft Fees, Company will consider the eBike stolen and may pursue all legal remedies, including filing a police report.
Member agrees to return all Company property in their possession to Company, and agrees to cover all legal fees and expenses necessary for Company to recover any debts owed by Member under this Agreement.
3.06 Payment. Member represents and warrants to Company that Member is authorized to use any credit or debit card Member furnishes to Company. Member authorizes Company to charge the card for all Subscription Fees incurred by Member, and to transmit Member’s credit card information to Company’s third-party vendors for the sole purpose of processing such charges. All fees are subject to applicable sales taxes and other local government charges, which may be charged and collected by Company. All fees and costs are due when they are incurred, including but not limited to Subscription Fees and Damage, Loss, or Theft Fees. Temporary or prepaid credit/debit cards are not an acceptable form of payment.
3.07 Pre-Authorization. Company may place a temporary hold on your credit/debit card before a Subscription continues to verify that your payment information is still valid, or in certain instances to verify that your credit/debit card has the necessary funds to cover Company’s fees and costs. Pre-authorization is not a charge to your account, it is a hold on those funds. Once your actual charge is posted to your account it can take up to thirty (30) days for the original pre-authorization to be removed by your bank. It is your responsibility to be aware of how your bank handles your transactions, including pre-authorizations.
3.08 Taxes. While using the Services, Member is responsible for all applicable governmental taxes, including sales tax, use tax, or VAT, as applicable. Applicable taxes will be added to Member’s bill.
3.09 Disputed Charges. If Member disputes any charge on Member’s credit or debit card account, then Member must contact Company within thirty (30) days of the date of the disputed charge, and provide to Company all information that is necessary to identify the disputed charge, such as the date of subscription, or any cancellation information associated with the disputed charge. If no notice is given by Member to Company within the foregoing thirty (30) day period, the charge will be final.
3.10 Delinquent Accounts. Members are billed for amounts due via credit/debit card, or other means as established by Company. Any Subscription Fee or Damage, Loss, or Theft Fees or other amount which is past due may result in suspension or termination of Member’s Subscription and/or use of the Services by Company in its sole discretion. If payment of any amount due is rejected by the credit/debit card provided by Member, Company may suspend or terminate Member’s Subscription and/or use of the Services, in Company’s sole discretion. Members are responsible for providing and maintaining current credit/debit card information on file with Company. Ongoing issues with credit/debit card billings may result in termination of Subscription, or use of Services. Under no circumstances will Company be responsible for any overdraft or other fees charged by a Member’s credit/debit card bank. In addition, Company may engage third parties to collect amounts owed to Company by a Member and the Member will also be responsible for any collection or similar fees associated with these collection activities. Company also reserves the right to charge interest on overdue charges at the lesser of the rate of 1.5% per month or the highest rate allowable by applicable law.
3.11 No Refunds. Except as set forth in Section 2.05, once charged all fees are final and nonrefundable.
3.12 eBike is the Exclusive Property of Company or its Licensor(s). Member agrees that the eBike, Battery, Lock, Welcome Kit, and any other items, material, or equipment provided by Company to Member in connection with the Services at all times remain the exclusive property of Company and/or its licensor(s). Member must not dismantle, write on, or otherwise modify, repair or deface an eBike, any part of an eBike, or other Company equipment in any way. Member must not write on, peel, or otherwise modify or deface any sticker on an eBike in any way. Member must not use an eBike, or other Company equipment, for any advertising or other commercial purpose without the express written permission of Company.
3.13 Electric Vehicle. The eBike is an electric vehicle that requires periodic charging of the Battery in order to operate. Company endeavors to provide a fully charged Battery to Member at the outset of the Subscription, but does not warrant or guarantee that the Battery will be fully charged upon delivery. It is Member’s sole responsibility to be aware of the level of charge in the Battery at all times. Member agrees to use and operate the eBike safely and prudently in light of the eBike being an electric vehicle and all of the limitations and requirements associated therewith. Member understands and agrees with each of the following:
The distance and/or time that Member may operate the eBike before it loses charging power is never guaranteed.
3.14 Charging of eBike. Company will provide instructions on how to charge the Battery utilizing the charger provided in the Welcome Kit. Member must familiarize themselves with these directions and follow these directions whenever charging the Battery. Member must not attempt to charge the Battery with any charging device other than that provided by Company in the Welcome Kit. It is, at all times, Member’s responsibility to charge the Battery. If the Battery runs out of charging power during usage of the eBike, Member shall be responsible for charging the Battery prior to the next usage.
3.15 Repair or Replacement of eBike. Company offers eBike repair service as part of the Subscription. If the eBike is in need of repair, Member must submit a repair request in the App. Company will contact Member to arrange for a Company employee to repair the eBike on-site at the address provided by Member. If the eBike cannot be repaired on site, Company will provide a replacement eBike at no extra cost. Company will endeavor to schedule a repair appointment within twenty-four (24) hours of receiving a repair request, but does not guarantee any specific time for addressing or resolving repairs. Member must not attempt to repair the eBike themselves. Member may perform minor routine upkeep or maintenance on their own, such as adjusting seat height or inflating a tire. If Member attempts to repair an eBike instead of requesting a repair from Company, Member expressly assumes all risks thereof, including risk of personal injury, and may be charged a Damage, Loss or Theft Fee. Member may also request repair or replacement of parts and accessories in the Welcome Kit through the App.
3.17 Helmets; Safety. Members must wear a Helmet at all times while using an eBike. Member may provide their own Helmet or purchase a Revel-branded Helmet from Company’s partner FEND, using a unique promotional code provided by Company after Member is approved for a Subscription. Any injuries resulting from Member’s failure to follow the Rules, applicable traffic or bicycle law, or otherwise act prudently, including the failure to use a Helmet while operating an eBike, shall be solely Member’s responsibility. Member agrees that Company is not liable for any injury or illness suffered by Member for failure to use a Helmet while operating an eBike. Member assumes all risk for themselves of not wearing a Helmet or other protective gear. Member may need to take additional safety measures or precautions not specifically addressed in this Agreement.
3.18 Use by Member Only; No Passengers or Cargo. The eBike is intended for use only by the Member engaged in the Subscription. Member must not share the eBike with others or permit anyone other than Company employees to ride, repair, or utilize the eBike. The eBike is not intended to support passengers or cargo. Member must not allow passengers or cargo, other than a backpack or small items that can be worn on Member’s person without interfering with the safe operation of the eBike, on the eBike.
3.19 Storage and Locking of eBike. It is Member’s sole responsibility to reasonably and properly lock and store the eBike during the Subscription. Member must use the Lock and Welcome Kit provided by Company to securely lock the eBike when not in use. Member agrees to store the eBike indoors whenever possible. If indoor storage is not possible, Member must secure the eBike using the Lock in an area in which public bicycle parking is permitted by law and endeavor to park the eBike in a well lit area with nearby video camera surveillance. If the eBike is stolen due to Member’s failure to use the Lock or otherwise follow the Rules herein or act reasonably, Company may charge member a Damage, Loss, or Theft Fee. Company recommends that Member take a timestamped photograph of the securely locked eBike whenever parking outdoors is necessary.
3.20 Accidents. In the event of an accident or crash involving an eBike, Member should immediately call 911 and seek any medical attention necessary. Member must report the incident to Company as soon as it is safe to do so by contacting Company’s customer service by phone (855-690-9180). Member must also cooperate with Company and/or its insurance carrier to investigate the incident, including by filing a police report. If your injuries do not prevent you from doing so, you must stay at the scene of any incident until the police finish their report and allow you to leave. As soon as practicable following the incident, Member agrees to provide to Company all of the information below:
Member agrees to fully cooperate with Company, investigators, and insurance partners in the event of an accident or damages to any third-party person or property. Company reserves the right to charge Member a $100 noncooperation fee if Member fails to comply with the provisions of this Section.
4.0 Damages, Loss, or Theft.
4.01 Damage or Injury to Third Parties; Member Solely Responsible. Company does not provide third party liability coverage to Member. Member expressly agrees that Member is solely responsible to any damage or injury to third parties or third-party property caused by Member’s use of the eBike or Service. Member’s personal insurance policies may not provide coverage for claims involving use of an eBike. To determine if coverage is provided, Member should contact Member’s insurance company or agent prior to using the Service. Is Member’s sole responsibility to determine whether their use of the Service is covered by their insurer.
4.02 Damage or Injury to Member. Like other rental and subscription services, Company does not provide health insurance. Member expressly agrees that Member is solely responsible to any damage or injury to Member or Member’s property caused by Member’s use of the eBike or Service. Member’s personal insurance policies may not provide coverage for claims involving use of an eBike. To determine if coverage is provided, Member should contact Member’s insurance company or agent prior to using the Service. Is is Member’s sole responsibility to determine whether their use of the Service is covered by their insurer. Section 7.0 of this Agreement contains further waivers, releases, and assumption of risk provisions, which Member should review carefully before using the Service.
4.03 Damage to eBike. Member agrees to return the eBike to Company in the same condition in which it was delivered. Member will not be responsible for normal wear and tear. If Member operates, repairs, or tampers with the eBike in violation of any provision of this Agreement, Member may be held financially responsible by Company for the cost of any damage to the eBike resulting from such violation, including for Damage, Loss, or Theft Fees.
4.04 Lost or Stolen eBike. An eBike may be deemed lost or stolen, after a Member reports the same, depending on the facts and circumstances that suggest to Company in its reasonable, good faith determination that an eBike has been lost or stolen. Member will be responsible for acting prudently to prevent and, when applicable, address any loss or theft, including by complying with Section 3.19 of this Agreement. In the event of theft of the eBike, Member must cooperate with Company to investigate said theft, including by filing a police report. If Company deems an eBike lost or stolen and the loss or theft was not reported by Member to Company pursuant to the reporting requirements set forth in Section 4.05 Agreement, Company shall have the authority to take any and all actions it deems appropriate, including (without limitation) charging a Damage, Loss or Theft Fee and/or terminating Member’s Subscription.
4.05 Reporting Damage, Loss, or Theft. Member must report any damage, loss, or theft of the eBike or Welcome Kit to Company within one (1) hour of the incident or as soon as it is safe to do so by contacting Company’s customer service team by phone (855-690-9180). Failure to report damage, loss, or theft may result in Company charging Member a Damage, Loss, or Theft Fee and/or termination of Member’s Subscription.
5.0 Member Responsibilities.
5.02 Pre-Ride Safety Check. Before each use of an eBike, Member shall conduct a safety inspection of the eBike, which includes inspecting the eBike for the following: (i) body damage; (ii) low tire pressure (iii) properly functioning brakes; (iv) good condition of the frame; (v) sufficient battery charge power; and (vi) any sign of damage, unusual or excessive wear, or other open and obvious mechanical problem/maintenance need. If the eBike has signs of any damage, Member must not use the eBike and instead must contact Company immediately by submitting a repair request in the App, as detailed in Section 3.15 of this Agreement. Failure to report damage prior to using the eBike shall constitute a breach of this Agreement. It is Member’s responsibility to make sure prior to initiating a ride that the eBike has adequate electric charge for the expected duration of the ride.
5.03 Traffic and Parking Tickets. Member is solely responsible for any violations, including but not limited to traffic violations incurred during the use of the Service. Member is solely responsible for any parking violations incurred as a result of use of the Service. Member’s responsibility includes fines for late payment and any processing fees. Member agrees to pay for all violations incurred. Member agrees that Company may charge Member’s payment method on record for any violations, tickets, or fees that may be assessed on Company as a result of Member’s use of the Service. Members must exercise prudent and reasonable judgement when parking an eBike.
5.04 Vehicle is Intended for Only Limited Types of Use. Member agrees that he/she will not use the eBike for racing, mountain riding, or stunt or trick riding. Member agrees that he/she will not operate and/or use the eBike in or on any Prohibited Area. eBikes may only be operated in bike lanes or on roads with a speed limit equal to or lesser than thirty (30) miles per hour. If Member must travel on a sidewalk with an eBike, the eBike must be walked, not ridden. Member agrees that he/she will not use the eBike to transport persons for hire or reward, nor use it in violation of any law, ordinance or regulation.
5.05 No Tampering. Member must not tamper with, attempt to gain unauthorized access to, or otherwise use the Services other than as specified in this Agreement.
6.0 Indemnification; Limitation of Liability.
6.01 Indemnification. Member agrees to indemnify, defend, and hold Company, its affiliates, and its and their respective, officers, directors, shareholders, partners, employees and agents (collectively referred to herein as “Company”) harmless from and against all damages, losses, claims, liabilities, injuries, demands, costs, and expenses of any kind (including but not limited to reasonable attorneys’ fees) (collectively, “Losses”) incurred by Company arising out of, resulting from, or related to Member’s Subscription or use of the Services or any eBike, Helmet, or Welcome Kit.
6.02 LIMITATION OF REVEL’S LIABILITY. Except to the extent any loss or damage is ultimately determined to be due SOLELY to Company’s gross negligence or willful misconduct:
7.0 RELEASES; DISCLAIMERS; ASSUMPTION OF RISK.
In exchange for Member being allowed to use Company’s Services, eBikes, and other equipment or related information provided by Company, Member agrees to fully release, indemnify, and hold harmless Company and all of its owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, assigns, and to the fullest extent permitted by law any sponsor of any of the Services and all of the sponsor’s owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, and assigns (collectively, the “Released Persons”) from liability for all “Claims” arising out of or in any way related to Member’s use of the Services, eBikes, or related equipment, including, but not limited to, those Claims based on Released Persons’ alleged negligence, breach of contract, and/or breach of express or implied warranty, except for Claims based on Released Persons’ gross negligence or willful misconduct. Such releases are intended to be general and complete releases of all Claims.
“Claims” means, for purposes of this Section 7.0, 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 attorney’s fees, whether incurred at trial, on appeal, or otherwise), damages (including but not limited to, for personal injury, illness, wrongful death, property damage, and injury to rider or to third parties, consequential, compensatory, or punitive damages), or losses (whether known, unknown, asserted, unasserted, fixed, conditional, or contingent) that arise from or relate to (a) any of the Services, including any eBike or related equipment, maintenance, or information, or this Agreement or (b) Member’s use of any of the foregoing.
To the fullest extent permitted by law, and as to Member’s use of any of Company’s Services, eBikes, or related equipment, Company and all other Released Persons disclaim all express and implied warranties, including warranties of merchantability and fitness for a particular purpose. All of the Services, eBikes, and related equipment are provided “as is” and “as available,” and Member relies on them at Member’s own risk.
Member is aware that Member’s use of any of Company’s Services, eBikes, and/or related equipment involves obvious and not-so-obvious risks, dangers, and hazards that may result in injury, illness, or death to Member or others and damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. Risks, dangers, and hazards, include, but are not limited to:
Member is solely and fully responsible for the safe operation of eBike at all times, including wearing of a Helmet. No passengers are allowed on an eBike. Member agrees that Company does not provide or maintain places to ride eBikes, and that Company does not guarantee that there will always be a safe place to ride an eBike. Roads, bike lanes, and bike routes may become dangerous due to weather, traffic, or other hazards. Member agrees that eBikes are machines that may malfunction, even if the eBike is properly maintained and that such malfunction may cause injury. Member assumes full and complete responsibility, for themselves and for all related risks, dangers, and hazards.
To the fullest extent permitted by law, this release and hold harmless agreement includes any and all Claims related to or arising from the sole or partial negligence of Company, the Released Parties, or any other party. Member hereby expressly waives any claims against the Released Parties or any other party which Member does not know or suspect to exist in his or her favor at the time of use of Services, and expressly waives Member’s rights under any statutes that purport to preserve Member’s unknown claims.
8.0 MEMBER ACCEPTANCE OF AGREEMENT
By filing an application for a Subscription, you hereby certify the following:
Member agrees to pay any Damage, Loss, or Theft Fee as set out in this Agreement, parking or traffic tickets, violations or fees, noncooperation fees, or any other fees, penalties or assessments described in this Agreement.
11.0 DISPUTE RESOLUTION
We are committed to customer satisfaction. If you have a problem or dispute, we will try to resolve your concerns. If we are unsuccessful, you may pursue claims as explained in this section.
Initial Dispute Resolution
You agree to give us an opportunity to resolve any dispute or claim relating to the Platform or your use (including access to) of the Platform, any dealings with our customer service representatives, any concern regarding any services or products provided, any representations made by us, any statement displayed on our Platform, or in any of our Legal Terms (“Claim”) by contacting Company customer support at 855-690-9180.
Most concerns may be quickly resolved in this manner. Each of you and Company agrees to use best efforts to settle any such Claim through consultation and good faith negotiations, and this consultation and negotiations shall be a precondition to either initiating a lawsuit or arbitration. If we are not able to resolve your Claim within sixty (60) days from the time the information dispute resolution is pursued pursuant to this clause, you may seek relief through arbitration or in small claims court, as set forth below.
Agreement to Binding Arbitration
If we do not reach an agreed upon solution pursuant to the clause immediately above, then the sole recourse for either party is to initiate binding arbitration pursuant to the following:
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THE LEGAL TERMS, OR YOUR USE OF (INCLUDING ACCESS TO) THE PLATFORM, SERVICES, OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND COMPANY, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including statutory damages, attorneys’ fees and costs), and must follow and enforce the Legal Terms as a court would.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your Claims to Company customer support at 855-690-9180.
If we request arbitration against you, we will give you notice at the email address or street address you have provided.
Each party will have the right to use legal counsel in connection with arbitration at its own expense.
The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator’s decision will follow the provisions of the Legal Terms and will be final and binding.
If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250.00), we will pay the additional cost. If we are required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. We will also be responsible for paying all other arbitration costs arising in connection with the arbitration. You will not be required to pay fees and costs incurred by Company if you do not prevail in arbitration.
Conducting of the Arbitration
The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location that is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances.
The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of the Legal Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator.
The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Legal Terms, including, but not limited to, any claim that all or any part of the Legal Terms is void or voidable.
The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
Class Action and Class Arbitration Waiver
You and Company further agree that any arbitration shall be conducted in your respective individual capacities only and not as a class action or other representative action, and you and Company each expressly waive your respective right to file a class action or seek relief on a class basis.
If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
Waiver of Jury Trial; Exclusive Venue for Litigation
To the extent that the arbitration clause set forth above does not apply, and a Claim proceeds in court rather than in arbitration, each party waives any right to a jury trial. Further, each party agrees that any litigation between them for disputes arising out of Company’s provision of Services in New York shall be filed exclusively in state or federal courts located in New York County, NY, except for small claims court actions which may be brought in New York County, NY or in the county where you reside.
Notwithstanding any of the foregoing, nothing in the Legal Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
12.0 CHOICE OF LAW
The interpretation of the Legal Terms shall be construed in accordance with the laws of the United States (including the Federal Arbitration Act) and the State of New York, U.S.A., without regard to its principles of conflicts of law or the U.N. Convention on Contracts for the International Sale of Goods.
13.01 Company reserves the right to change or amend the Services at any time, or deny the Services to a Member for any reason.
13.02 No waiver by Company of any of the provisions hereof is effective unless set forth in writing and signed by Company.
13.05 Unless stated otherwise, all remedies hereunder shall be in addition to any other remedies available to either party at law or in equity.
13.06 If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
13.07 Provisions of these terms that by their nature should apply beyond the Term will remain in force after any termination or expiration of this Agreement.
13.08 This Agreement may only be amended or modified by Company in its sole discretion.
13.09 This Agreement, and any rights hereunder may not be transferred or assigned by the Member without Company’s express written consent, which may be granted in Company’s sole discretion.
13.10 This Agreement is binding upon the parties hereto and their permitted successors and assigns.
13.11 Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for Member’s payment obligations.
13.13 Member acknowledges and agrees that Member has not relied upon any promise, representation, or warranty, either express or implied, not contained herein.
13.14 In the event of a conflict between the terms of this Agreement and any other document referenced herein, the terms of this Agreement shall govern.
13.15 Member agrees that execution of this Agreement and the Legal Terms by Member constitutes a transaction or transactions involving commerce, as that phrase is defined in and for purposes of the Federal Arbitration Act, 9 U.S.C. § 1, et seq.
RULES OF THE RIDE
These Rules are not exhaustive and do not absolve Member from exercising reasonable judgment and prudence. Member agrees to the following: