Topeka Metro Bikes Rental Agreement & Waiver
BICYCLE RENTAL AGREEMENT AND LIABILITY WAIVER AND RELEASE Welcome to Topeka Metro Bikes, Topeka Metropolitan Transit Authority’s bike share program! We hope you will 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”, “You”, or “Your”) and the Topeka Metropolitan Transit Authority, d/b/a Topeka Metro Bikes, with administrative offices at 201 N. Kansas Ave., Topeka, Kansas 66603 (“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. 1. General; Service; Rental Not Purchase; Adult Agreement Required; No Account Sharing. 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 the 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”). You agree and acknowledge that You are renting the Bicycle(s) and that ownership of the Bicycle remains with Us at all times. We require that you be an adult in order to enter into this Agreement. A valid credit or debit card is required to rent a Bicycle. An individual’s bicycle rental account may not be shared with any other person. 2. 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 www.topekametro.org (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. Individual notifications will not be provided. 3. 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 may be subject to applicable sales taxes and other 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 not returned within 24 hours may be deemed stolen or lost. You assume full responsibility for care of the Bicycle during the period of time You rent the Bicycle (“Rental Period”). If the Bicycle is damaged, stolen, or lost during the Rental Period, You shall immediately return any damaged Bicycle and report any stolen or lost Bicycle to Us. You shall compensate Us if the Bicycle 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 will be charged to the credit or debit card associated with Your Account up to a maximum of $1,500 per Bicycle. If the Bicycle is damaged, You will be charged the cost to repair damages, as determined by Us and our affiliates in our sole discretion, whether the damages are reported to or discovered by Us. If the Bicycle is stolen or lost, You will be charged up to an amount of $1,500 whether the theft or loss is reported to or discovered by Us. If you promptly report a lost or stolen Bicycle to Us, file a police report with respect to such loss or theft, and forward to Us a copy of the police report within five (5) business days of its filing, We may, in Our sole discretion, waive the Fees for a lost or stolen Bicycle. 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. 4. 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 A PARTICULAR PURPOSE. We and Our partners (including the City of Topeka and Social Bicycles Inc.) are not responsible for any damages caused by the Bicycles, 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 in a Station. We do not guarantee, represent, or warrant the availability of the Service or the availability of any Bicycle in any Station. 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 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 promptly comply with any such requirement. (c) State of Good Repair.. Before using a Bicycle, You shall inspect such Bicycle for defects and report to Us any such defect and shall not use the Bicycle. You must report defects to Us by using the repair function on the keypad of the Bicycle (“Keypad”) or via the Website or Mobile Application or telephone. If You notice a Bicycle with a defect, You must use a different Bicycle. 5. Your Commitments to Us; Miscellaneous Requirements. (a) Use of the Bicycle(s). You agree to treat the Bicycle(s) with reasonable care. You are responsible for loss or damage to the Bicycle(s) rented by You due to any cause, including theft, mysterious disappearance, damage caused by others, 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 [six] 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 will 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.
(c) 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 unsecured at any location for any amount of time for any reason. (d) Returning the Bicycle(s). Upon the end of the Rental Period, You agree to return the Bicycle to a location listed on the Website or Mobile Application and to lock the Bicycle as specified above. If you lock the bicycle outside an approved hub or outside the system area, additional fees will apply. 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.
(e) Payment of Bicycle Retail Value. We will not charge You for more than the Bicycle Retail Value ($1,500) for any charges arising under this Agreement, excluding collection costs, which will include attorney fees. (f) Collections. All amounts due and payable to Us will be charged to Your debit or credit card. In the event that the debit or credit card charges are not paid to Us, other collection procedures will be employed. You agree to pay all of Our costs of collection, including without limitation, reasonable attorney fees, if You do not pay amounts owed hereunder when due. (g) Required Information. You shall provide us with Your name, phone number, email, zip code, and payment information, as well as other information as may be required. (h) Not a Common Carrier. You agree that, for purposes of this Bicycle Rental Agreement, Topeka Metro Bikes and any bike-share program, We are not a common carrier. Alternative means of public and private transportation are available to the general public and to You individually, including public buses , taxis, and pedestrian paths. We provide Bicycles only as a convenience, and the Service is intended for those persons who are able and qualified to operate a Bicycle on their own and who have agreed to all terms and conditions of this Agreement. (i) Use of Service by a Minor. You agree that access to the Service is denied to any person less than 16 years old, whether or not accompanied by a parent or guardian. Minor persons who are 16 years old or older (“Minor”) may use the Service but only if the Service is subscribed for by, and such Minor is the responsibility of, a parent or legal guardian. By authorizing use of the Services by a Minor, such Minor’s parent or legal guardian (A) represents, warrants, and agrees that such person is the Minor’s parent or legal guardian and that such person and such Minor have accepted and agreed to all terms and conditions of this Agreement and (B) agrees to be fully and completely responsible and liable for all injuries, damages, costs, and expenses arising from or related to the Minor’s use of the Service,. (j) Restricted Uses. You shall not do any of the following acts (“Restricted Uses”): • Use any Bicycle if You are younger than the permitted age. • Use any Bicycle if You exceed the maximum weight limit (275 pounds) of the Bicycle. • Use any Bicycle if You have any existing physical or mental condition that would impair Your ability to safely operate the Bicycle. • Operate a Bicycle while carrying any item that impairs Your ability to safely operate the Bicycle. • Operate a Bicycle while under the influence of alcohol, drugs, legal or illegal, or any other substance that impairs Your ability to safely operate the Bicycle. • Use any cell phone or mobile electronic device in a way that distracts You from the safe operation of the Bicycle, including but not limited to phone calls, text messages, and music. • Allow any other person to use the Bicycle or allow more than one person to be carried on the Bicycle. • Overfill the Bicycle basket or place objects weighing a total of more 20 pounds in the Bicycle basket. • Violate any applicable federal, state, or local law. • Operate or use a Bicycle in any manner during adverse weather conditions, including but not limited to hail, dust storms, fog, icy conditions, heavy rains, lightning storms, or tornadoes. • Operate a Bicycle that has any defect, fails to operate as a properly functioning bicycle, or that is in need of repair. • Use the Bicycle if it, or any component of it, appears to become defective or malfunctions. • Use the Bicycle for racing, tricks, jumping, stunt riding, and/or off-road riding without proper authorization from Us. • Use the Bicycle for any commercial purposes. • Tow, pull, carry, or push any person or object with a Bicycle. • Remove, dismantle, write on, deface, misuse, or modify any accessories, parts, or components of any Bicycle. 6. 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 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 and our affiliates and related entities. 7. 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, or for the participation in the program by a Minor for which you are responsible, You hereby freely and voluntarily acknowledge and/or take action for yourself, , or for the Minor, 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, or on behalf of the Minor, as follows. For purposes of this paragraph, You, Your and Yours includes a Minor for which you are responsible, (a) YOU HEREBY ACKNOWLEDGE YOUR ABILITIES AND ASSUME ALL RISKS OF PARTICIPATING IN THIS PROGRAM. You acknowledge and warrant that you know how to safely ride a bicycle. 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 to do voluntarily. You warrant that 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: risk of falls; risk of collision with vehicles, pedestrians, and fixed objects; risks arising from surface hazards, equipment design failure, and inadequate safety equipment; hazards posed by vehicles, pedestrians, and other cyclists; and risks arising from weather conditions. You further acknowledge that these risks You assume include risks that may be the result of the failure and/or design of equipment supplied by, or the negligent acts or omissions of, the Released Parties (as defined below). You understand that You participate in the Program at Your own risk and that You are responsible for the risks of participation in the Program, and that Your participation in the Program is fully voluntary. (b) Although it is not required by the Program nor mandated by local law that You wear a protective helmet, You have been advised to wear a protective helmet while participating in the Program. You understand and acknowledge the increased risk of personal injury, permanent disability, paralysis and death due to not wearing a protective helmet. However, bicycle helmets are not 100% effective, do not protect against all head injuries, and do not protect against other injuries. We recommend that all riders wear a Snell, CPSC, ANSI, or ASTM approved helmet that has been properly sized, fitted, and fastened according to the manufacturer’s instructions. We do not represent or warrant the quality or safety characteristics of any helmet. You agree to follow the “Rules of the Road,” to follow and obey all laws, to obey traffic signals, stop signs, and other traffic control, to ride with traffic, to make Your intentions clear to motorists and other road users, to ride in a straight line and not swerve, and to signal and check before turns and lane changes. (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 during your participation in the program. (d) YOU WAIVE, RELEASE, AND FOREVER DISCHARGE the Topeka Metropolitan Transit Authority, its past and present officers, directors, employees, agents, representatives, insurers, subrogees, affiliated entities, successors in interest, and all other persons or entities acting on behalf of the Authority, the Bike-Share Program’s sponsors, organizers, promoters, staff, advertisers, volunteers, property owners, administrators, contractors, Social Bicycles Inc., any and all other vendors and all other individuals or entities involved with the Program, and all state, city, 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 parents, subsidiaries 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, 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, attorney fees, and litigation expenses, including those relating to Your death, personal injury, partial or permanent disability, negligence, property damage and damages of any kind, property theft and those 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 BASED ON 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. This release is intended to be a complete and general release of all Claims. The Released Parties may plead this release as a complete and sufficient defense to any Claim, as intended beneficiaries of this release. (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 and claims made by You or third parties, for liabilities of 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, and/or 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 We do not provide insurance coverage for any injuries arising out of Your participation in 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. 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, AND BY WAY OF SUMMARY ONLY, 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 OR INHERENT IN YOUR PARTICIPATION IN THE PROGRAM, (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). 1. 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. 2. Miscellaneous. The Bicycle Rental Agreement constitutes the entire agreement between You 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 Kansas, including 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 the District Court of Shawnee County, Kansas , and the Parties each consent to the jurisdiction of said court. You shall not assign this Agreement without Our prior written consent. 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 CONTENTS, AND INTENTIONALLY AND VOLUNTARILY ACCEPT ITS TERMS. OR YOU HEREBY AFFIRM THAT YOU ARE THE PARENT OR LEGAL GUARDIAN OF THE MEMBER, WHO IS 16 YEARS OR OLDER; YOU ARE AT LEAST 18 YEARS OF AGE; YOU HAVE THE LEGAL AND MENTAL CAPACITY TO ENTER INTO THIS AGREEMENT; YOU HAVE READ AND AGREED TO THIS AGREEMENT, FULLY UNDERSTAND ITS CONTENTS, AND INTENTIONALLY AND VOLUNTARILY ACCEPT ITS TERMS; AND YOU AUTHORIZE THE USE OF THE SERVICES BY THE MINOR MEMBER.