CDPHP Cycle! Rental Agreement & Waiver
BICYCLE RENTAL AGREEMENT, LIABILITY WAIVER, AND RELEASE
Welcome to CDPHP Cycle! We hope you love participating in our bike share program. But take a moment. This document contains important information that you need to consider before agreeing to participate.
BEFORE YOU CLICK “I ACCEPT” BELOW, PLEASE READ THIS DOCUMENT CAREFULLY. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL LIMIT OR ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS.
These terms and conditions are a legal agreement between you (“Member”, “Rider”, “You”, or “Your”) and MobilityCloud, Inc., with offices at 244 Madison Avenue, New York City, NY 10016 (“Our”, “We”, or “Us”), establishing terms and conditions under which You will submit information to, rent bicycle(s) from, and participate in a bicycle sharing program operated by Us.
General; Service; Rental Not Purchase; Adult Agreement Required. We offer a service comprised of an automated self-serve bicycle rental system, bicycles, and related equipment, personnel, and information (collectively, the “Program” or “Service”). The Service includes maintenance of Our bicycles (individually or collectively, the “Bicycle”, “Bicycles”, or “Bicycle(s)”) and hub station(s) (“Station(s)”) where the Bicycles are docked at a designated rack (“Rack”) using an electronically controlled lock (“Lock”). In consideration of Your use of the Service, We require that You agree to all the terms and conditions in this Bicycle Rental Agreement (the “Bicycle Rental Agreement” or this “Agreement”). You agree and acknowledge that You are renting the Bicycle(s) and that ownership of the Bicycle(s) remains with Us at all times. A valid credit card is required to rent a Bicycle. The Bicycle(s) may be rented by and used by individuals at least 18 years of age only. If Member falsifies or misrepresents Member’s age, Member and his/her legal guardian accept full responsibility for all Claims (as defined below) related to such misrepresentation.
Modifications to Agreement. We reserve the right to unilaterally amend, modify, or change this Bicycle Rental Agreement (each a “Modification”), at any time and from time to time, in Our sole discretion, without Your consent. Whenever a Modification is made to this Bicycle Rental Agreement, We will post a notification of such Modification on https://cdphpcycle.com (the “Website”). By continuing to use the Service after any Modification, You agree to be bound by such Modification. You must carefully review this Agreement on the Website from time to time in order to maintain awareness of all Modifications.
Rental Fees; Return of Bicycles; Credit Card Authorizations. We agree to rent to You, and You agree to rent from Us, the Bicycle(s) through the Service subject to the terms and conditions of this Bicycle Rental Agreement and in accordance with the rates set forth on the Website, which are subject to applicable sales taxes and other local government charges and which may be modified from time to time at Our sole discretion. You understand and agree that the purpose of the Service is to provide short-term access to Bicycles and that Your use of any one Bicycle in the Service should be limited to a period of 24 hours. Any Bicycle(s) not returned within 24 hours will be deemed stolen or lost. You assume full responsibility for care of the Bicycle(s) during the period of time You rent the Bicycle(s) (“Rental Period”). If the Bicycle(s) is damaged, stolen, or lost during the Rental Period, You shall immediately return any such damaged Bicycle(s) and/or report any such stolen or lost Bicycle to Us. You shall compensate Us if the Bicycle(s) is damaged (excluding damage from normal wear and tear), stolen, or lost during the Rental Period. Amounts due for a damaged, stolen, or lost Bicycle(s) will be charged to the credit or debit card associated with Your account up to a maximum of $1,600 per Bicycle. If the Bicycle(s) is damaged, You will be charged the cost to repair damages, as determined by Us and our affiliates in our sole discretion, when the damages are reported to or discovered by Us. If the Bicycle(s) is stolen or lost, You will be charged up to an amount of $1,600 when the theft or loss is reported to or discovered by Us. You hereby authorize Us to charge Your credit or debit card for all fees incurred by You as well as such amounts due in connection with any overdue, damaged, stolen, or lost Bicycle. If You dispute any charge on Your account, then You must contact Us within ten (10) days of Your receipt of Your statement containing the disputed charge.
Our Commitments to You; Availability of Service; State of Good Repair. (a) No Warranty. The Bicycle is rented to You AS IS and all Services are provided AS AVAILABLE WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. We and the other Released Parties are not responsible for any damage caused by the Bicycle(s), including to clothing or other personal items. (b) Availability of Service. We will make every effort to provide the Service, but We do not guarantee that the Service will be available at all times, as use of the Bicycles by other members of the Program, repairs, force majeure events, or other circumstances might prevent Us from providing the Service. Access to Bicycles is conditioned upon the availability of Bicycles. We do not guarantee, represent, or warrant the availability of the Service or the availability of any Bicycle. We may suspend all or part of the Service, may relocate Stations, reduce the number of Bicycles available for rent, and otherwise operate the Program in our sole discretion. Members should use the Website or SoBi mobile application (“Mobile Application”) to check the availability of Bicycles. You agree that We may require You to return a Bicycle at any time and that You shall comply with any such requirement. (c) State of Good Repair. We will make every effort to provide Bicycles that are usable and in a state of general good repair. Before using a Bicycle, You shall inspect such Bicycle for defects and report to Us any such defect. You must report defects to Us by using the repair function on the keypad of the Bicycle (“Keypad”) or via the Mobile Application. If You notice a Bicycle with a defect, You must use a different Bicycle.
Your Commitments to Us; Miscellaneous Requirements. (a) Use of the Bicycle(s). You agree to treat the Bicycle(s) with great care. You are responsible for loss or damage to the Bicycle(s) rented by You due to theft, mysterious disappearance, or any other cause, other than ordinary wear and tear. (b) Rental of Multiple Bicycles. Subject to program requirements and availability, Members may rent up to three Bicycles at the same time on one account. If You elect to rent multiple Bicycles at the same time, You agree to rent the first Bicycle for your own use and to make subsequent Bicycles available to additional riders. Prior to riding, the additional rider renting a Bicycle under Your account will need to review and accept this Agreement on the Bicycle’s Lock interface. You further acknowledge and agree that (a) You shall be responsible for each Bicycle rented under Your account, (b) You shall be responsible for ensuring that any individual operating or using a Bicycle rented under Your account shall read and comply with this Agreement, and (c) You are fully and completely responsible and liable for all Claims (as defined below) arising from or related to another individual’s use of a Bicycle rented under Your account. (b) Locking the Bicycle(s). If You leave a Bicycle unattended at any time for any reason, You are responsible for securing the Bicycle to a bicycle rack using the Lock to protect against theft of the Bicycle. You hereby agree to ensure that when a Bicycle is not in use the Lock is at all times securely attached to the Bicycle and a bicycle rack and not only to the Bicycle. You shall not leave any Bicycle unattended or unsecured at any location at any time for any reason. (c) Returning the Bicycle(s). Upon the end of the Rental Period, You agree to return the Bicycle to one of the Station locations listed on the Mobile Application and to secure the Bicycle to the Rack by the Lock. In the event the Program permits return of the Bicycle(s) to any bicycle rack that is not at a Station within the Program area, as indicated on the Website, additional fees will apply and You agree to lock the Bicycle(s) as specified above. You agree to refer to the Website for further requirements for returning the Bicycle(s) and to comply with any and all such requirements and instructions.
Media Release. We reserve the right to photograph and record You using the Bicycle(s). You hereby give Us the right to use Your image and likeness (including caricature), and any reproduction or simulation thereof, in any media now known or hereafter developed, both during and after the term of this Agreement, for whatever the purposes We deem necessary or desirable. You hereby waive any right to royalties or other compensation arising from or related to any such use by Us or related entities.
ASSUMPTION OF RISK, RELEASE AND WAIVER OF LIABILITY, AND INDEMNITY. In consideration for your participation in the Program and Your use of any of the Services, You hereby freely and voluntarily acknowledge and/or take action for yourself, and on behalf of Your spouse, children, parents, guardians, heirs, next of kin, and any legal or personal representatives, executor, administrators, successors and assigns, or anyone else who might claim or sue on Your behalf, as follows:
(a) YOU HEREBY ACKNOWLEDGE AND ASSUME ALL RISKS OF PARTICIPATING IN THIS PROGRAM. You acknowledge that bicycling is inherently dangerous and carries with it the potential for serious bodily injury, permanent disability, paralysis and death, and property damage and loss. You acknowledge and agree that it is Your responsibility to determine whether You are sufficiently fit and healthy enough to safely participate in the Program, which You elect voluntarily. You have no physical or medical condition that would endanger You or others if You participate in the program, or would interfere with Your ability to safely participate. You also certify that You have not been advised against participation in the Program by any health professional. You understand and acknowledge that there may be heavy vehicle and pedestrian traffic. You assume all other risks associated with participation in the Program including without limitation: falls; dangers of collision with vehicles, pedestrians, and fixed objects; dangers arising from surface hazards, equipment design failure, and inadequate safety equipment; hazards posed by vehicles, pedestrians, and other cyclists; and weather conditions. You further acknowledge that these risks include risks that may be the result of the failure and/or design of equipment supplied by, or the negligent acts, omissions and/or carelessness of, the Released Parties. You understand that You will be participating in the Program at Your own risk, that You are responsible for the risks of participation in the Program, and that Your participation in the Program is fully voluntary.
(b) You have been advised to wear a protective helmet while participating in the Program. You understand and acknowledge the increased risk for personal injury, permanent disability, paralysis and death due to not wearing a protective helmet. You assume responsibility for any injury, loss, or damage associated with Your choosing not to wear a protective helmet; further, because helmets do not protect against all head injuries, and do not protect against other injuries, You assume responsibility for any injury, loss, or damages associated with Your participation in the Program even if You choose to wear a protective helmet. You will also agree to follow the “Rules of the Road”: follow and obey all laws, obey traffic signals and stop signs, ride with traffic, make Your intentions clear to motorists and other road users, ride in a straight line and do not swerve, stay seated while riding, signal turns, and check before turning or changing lanes.
(c) You understand and acknowledge the dangers associated with the consumption of alcohol and/or drugs while riding a bike and You recognize that consumption of alcohol and/or drugs might impair Your judgment and motor skills. You assume responsibility for any injury, loss, or damage associated with Your consumption of alcohol and/or drugs.
(d) YOU WAIVE, RELEASE, AND FOREVER DISCHARGE MobilityCloud Inc., the Program’s sponsors, organizers, promoters, staff, advertisers, volunteers, property owners, administrators, contractors, any and all other vendors and all other individuals or entities involved with the Program, and all state, city, town, county, and other governmental bodies and/or municipal agencies whose property and/or personnel are used and/or in any way assist in locations in which the Program takes place, and each of their respective parent, subsidiary and affiliated companies, officers, directors, partners, board members, shareholders, attorneys, insurers, agents, employees, volunteers, and other participants and representatives (individually and collectively, the “Released Parties”) from any and all claims, liabilities of every kind, demands, damages (including without limitation, direct, indirect, incidental, consequential and punitive), losses and causes of action (whether known, unknown, asserted, unasserted, fixed, conditional, or contingent), of any kind or nature (including without limitation, those based in contract, tort, statutory, or other grounds, which You have or may have in the future, including court costs, attorneys’ fees and litigation expenses (individually and collectively, the “Claims”) that may arise out of, or result from, Your participation in the Program, including Your death, personal injury, partial or permanent disability, negligence, property damage and damages of any kind, property theft, and Claims relating to the provision of first aid, medical care, medical treatment, or medical decisions and any claims for medical or hospital expenses, EVEN IF SUCH CLAIMS ARE CAUSED BY THE NEGLIGENT ACTS, OMISSIONS, OR THE CARELESSNESS OF THE RELEASED PARTIES AND EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS. Any such release is intended to be a complete and general release of all Claims. The Released Parties may plead such releases as a complete and sufficient defense to any Claim, as intended third party beneficiaries of such releases.
(e) YOU FURTHER COVENANT AND AGREE NOT TO SUE any of the Released Parties for any of the Claims that You have waived, released, or discharged herein. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS the Released Parties from any and all expenses incurred, Claims made by You or third parties, for liabilities assessed against the Released Parties, including but not limited to court costs, attorneys’ fees, and litigation expenses, arising out of or resulting from, directly or indirectly, in whole or in part, Your breach or failure to abide by any part of this Waiver, by Your breach or failure to abide by the rules of the Program and/or Your actions or inactions which cause injury or damage to any other person.
(f) You understand that the Program does not provide insurance coverage for injuries incurred during the Program. You agree to be responsible and assume liability for any and all costs incurred as a result of participation in the Program, including without limitation ambulance transport services, hospital stays, medical treatment, except for care and treatment covered by Your insurance. You agree to indemnify and hold harmless the Released Parties from all liability for such costs.
(g) You understand that We reserve the right, at Our sole and complete discretion, to deny Your participation in the Program.
(h) FOR THE AVOIDANCE OF DOUBT, YOU DO HEREBY ACKNOWLEDGE AND AGREE THAT WE AND ALL OTHER RELEASED PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR ANY CLAIM THAT ARISES OUT OF OR RELATES TO (A) ANY RISK, DANGER, OR HAZARD DESCRIBED IN THIS AGREEMENT, (B) YOUR USE OF, OR INABILITY TO USE, ANY SERVICE, BICYCLE, OR RELATED INFORMATION, (C) YOUR BREACH OF THIS AGREEMENT OR YOUR VIOLATION OF ANY LAW, (D) ANY MISCONDUCT, OR OTHER ACTION OR INACTION BY YOU, OR (E) YOUR FAILURE TO WEAR A BICYCLE HELMET WHILE PARTICIPATING IN THE PROGRAM. YOU DO HEREBY WAIVE ALL CLAIMS WITH RESPECT TO ANY OF THE FOREGOING, INCLUDING THOSE BASED IN CONTRACT, TORT, STATUTORY, OR OTHER GROUNDS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE OR ANY RELEASED PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM PARTICIPATION IN THE PROGRAM OR THE USE OF, OR INABILITY TO USE, THE SERVICES. IF WE, OR ANY RELEASED PARTY, ARE FOUND TO BE LIABLE, SUCH LIABILITY SHALL BE LIMITED TO THE GREATER OF (A) THE TOTAL FEES PAID HEREUNDER OR (B) ONE HUNDRED US DOLLARS ($100).
Term and Termination. We may unilaterally terminate Your right to use the Service, in Our sole discretion and without any notice or cause. You may terminate Your use of the Services at any time; provided, however, that (i) no refund will be provided by Us and (ii) You may still be charged any applicable additional fees arising under this Agreement. Sections 3, 4, 5, 6, 7, 8, and 9 shall survive any termination or expiration of this Agreement.
Miscellaneous. The Bicycle Rental Agreement constitutes the entire agreement between Member and Us with respect to the subject matter hereof and is the final, complete, and exclusive statement of the terms of the Agreement, superseding all prior written and oral agreements, understandings, representations, and undertakings with respect to the subject matter hereof. The waiver of any term or condition or any breach thereof shall not affect any other term of condition of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of New York, NY excluding its conflicts of laws principles. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the State of New York located in Albany County or, if appropriate, the federal court located in Albany within the Northern District of the State of New York, and the Parties each consent to the jurisdiction of such a court. Termination of this Agreement or your right to use the Service will not relieve You of any payment obligations hereunder. If any provision of this Agreement shall be held illegal, unenforceable, or in conflict with any law of any authority having jurisdiction over this Agreement, the validity of the remaining portions or provisions hereof shall remain in full force and effect. We shall not be liable for failure to perform any of Our obligations hereunder for reasons that are beyond Our reasonable control, including, without limitation, fire, flood, earthquake, natural disaster, interruptions in supply, war, embargo, riots, or acts of terrorism.
YOU HEREBY AFFIRM THAT YOU ARE AT LEAST 18 YEARS OF AGE; YOU HAVE THE LEGAL AND MENTAL CAPACITY TO ENTER INTO THIS AGREEMENT; AND YOU HAVE READ AND AGREED TO THIS AGREEMENT, FULLY UNDERSTAND ITS CONTENT, AND INTENTIONALLY AND VOLUNTARILY ACCEPT ITS TERMS.