Long Beach CA Bikeshare Rental Agreement & Waiver
Long Beach Bike Share Rental Agreement & Waiver
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE RENTING OR USING A BICYCLE (“BIKE”) FROM LONG BEACH BIKE SHARE, AND THE CITY OF LONG BEACH, IN ITS CAPACITY AS OWNER OF THE LONG BEACH BIKE SHARE PROGRAM. THE CITY IS REFERENCED HEREIN AS "OPERATOR". BY RENTING OR USING A BIKE, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, INCLUDING, BUT NOT LIMITED TO, THE WAIVERS, RELEASES AND LIMITATIONS OF LIABILITY SET FORTH HEREIN. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF USE, YOU ARE NOT PERMITTED TO RENT OR USE A BIKE FROM OPERATOR OR ITS AFFILIATES. PARTIES, CONSIDERATION AND BIKE SHARE PROGRAM DESCRIPTION
- AGREEMENT. These Bicycle Rental Terms and Conditions of Use (this “Agreement”) are between you (“You” or “Rider”) and Operator.
1.1. CONSIDERATION: In consideration of Operator renting a Bike to Rider, Rider agrees to the terms and conditions of this Agreement.
1.2. EQUIPMENT. Operator maintains a network of hub stations (“Stations”) where Bikes are docked at Bike racks (“Rack”) using an electronically controlled lock (“Lock”). Kiosks are located at some Stations for renting Bikes. Bikes are equipped with global positioning system devices. All of the foregoing equipment and other equipment located at a Station or that consists of any Bike, in whole or part, shall be referred to as “Operator Equipment.”
1.3. HOW IT WORKS. (1) Purchase a membership online at longbeachbikeshare.com, from a self-service kiosk located at a hub station, or from the Social Bicycles smart phone app. (2) Once Rider purchases a membership, Rider can access a bicycle in one of the following ways: sign into your account at longbeachbikeshare.com and reserve a bicycle for up to ten (10) minutes, or use the Social Bicycles app to locate an available bike and reserve the bicycle for up to ten (10) minutes, or by walking up to a bike and entering your account number and PIN using the keypad on-board the bicycle located on the bicycle rear rack. Please note that when using the reservation feature you will only have ten (10) minutes from the time you reserved the bicycle to the time you unlock the bicycle. (3) The Lock should be holstered properly on the rear rack during Bike use, and used to lock the Bike whenever the Bike is not in use, including at locations other than a Rack at a designated station. Rider’s period of Bike rental begins either when the Bike is unlocked or at the time the Rider reserves a Bike with the mobile app or on the website. The Rental Period ends when the Bike is locked at a designated hub location or at any other public bike rack using the yellow Lock bar. (“Rental Period”). Rider must wait for verification, on the Bike screen, indicating the Rental Period has ended. Additional fees will apply if the Bike is not returned and locked to a designated station. Rental Periods will be rounded up and then prorated to the next highest minute.
1.4. BOUNDARIES. Bikes may not be left outside of the boundaries posted at each Station (“Program Area”), shown on the mobile app, and visible on the program website www.longbeachbikeshare.com. Locking the bike constitutes expiration of the Rental Period and a $20.00 fee will be charged to Rider’s account each time the Bike is locked outside the Program Area boundaries.
2.BICYCLE RENTAL PLANS AND FEES
2.1. RENTAL PLANS. You may purchase from Operator Pay As You Go plans or monthly rental plans. The Pay As You Go plan requires a minimum purchase of $7.00 to activate an account, minutes are purchased in advance and the balance of available time is reduced when used. Unused minutes do not expire. Rider is charged by the minute from the time the Bike is unlocked to the time the Bike is locked. Monthly member plans entitle Rider to a fixed amount of “Daily Riding Time” defined as the number of minutes included with your plan each day, or as Bike use per day. The Basic plan includes 90 minutes of Bike use per calendar day, which may be used in one trip or in multiple trips. There will be no rollover credit. Riding minutes in excess of plan minutes will be rounded to the next highest minute and prorated at the Pay As You Go rate. • “Pay As You Go” plan $7.00 per hour plus taxes (1 hour minimum purchase required upon account set up) • Prepaid plan $21.00 plus taxes (purchase 180 minutes up front, receive 60 minute bonus) • Monthly Plan $15.00 plus taxes (90 minutes daily riding time) • Annual Plan $120 plus taxes billed monthly for a yearlong commitment (90 minutes daily riding time) In addition, the following applies to the rental plans: • Monthly plans are recurring and Rider will be charged every 30 days until the membership is canceled by Rider. Annual plans are recurring and Rider will be charged monthly until the membership is canceled by Rider. To cancel your membership, login to your account at longbeachbikeshare.com. • Overage fees for the Member plans will be charged on the 1st day of each month for the previous month. • Overage fees for the Pay As You Go Plan will be charged to Rider within 7 days of initial use.
2.3. OVERAGE FEES. Riders with membership plans shall be responsible to pay any additional time beyond the time to which they are entitled in their chosen plan on any given day. Rider agrees to pay Operator for any additional time beyond the allocated use time at a rate of $7.00 per additional hour prorated by the minute.
2.4. MAXIMUM RENTAL TIME. If a Bike is not returned to a designated Hub within 12 hours of the start of Rider’s Rental Period, Operator may deem the Bike to be stolen and charge Rider the amount of $2,000.00.
2.5. FEE FOR NOT RETURNING (OR RETURNING) A BIKE TO A LONG BEACH BIKE SHARE HUB. Each time a Rider does not return a Bike to a designated Hub the Operator may charge Rider $2.00. Each time Rider begins his or her Rental Period with a Bike that is not in a Long Beach Bike Share Hub, but returns that Bike to a Long Beach Bike Share Hub, the Rider shall receive a $1.00 credit to Rider’s account.
2.6. OUT OF PROGRAM AREA FEE. Operator may charge Rider $20.00 for each time Rider locks a Bike outside of the defined Program Area.
2.7. REPAIR FEE. If a Bike is damaged during Rider’s use of the Bike, beyond regular wear and tear, as a result of negligent or intentional conduct on the part of Rider, Rider shall be charged a fee that is equal to the cost of repairing such damage.
2.8. STOLEN BIKE FEE. If Rider leaves a Bike unlocked or unattended and it is stolen, Operator may charge Rider a replacement cost equal to $2,000.00.
2.9. VIOLATIONS. Rider shall be completely responsible, and shall indemnify Operator, for any tickets or fees assessed against the Bike or Operator during Rider’s Rental Period or as a result of the location where Rider parked the Bike. Rider is responsible for all tickets and moving violations incurred during the Rental Period. Rider agrees to reimburse Operator for any costs, expenses and/or attorney’s fees for processing, pursuing and/or defending any such claims.
2.10. CREDIT CARD OR DEBIT CARD. Rider must provide Operator a valid credit or debit card number and expiration date before being registered to use a Bike. Rider represents and warrants to Operator that Rider is authorized to use the credit or debit card information provided. Rider authorizes Operator to charge the credit or debit card for which information is provided for all fees incurred by Rider under this Agreement, and all fees are subject to applicable sales taxes and other local government charges, which may be charged and collected by Operator. In the event Rider’s payment method on file with Operator is declined for any reason, Operator may suspend Rider’s rental plan and ability to use any Bikes until all of Rider’s prior charges are paid in full and charge Rider a $5.00 reinstatement fee.
2.11. RENTAL OF MULTIPLE BICYCLES. Subject to program requirements and availability, a Rider who purchases a membership may rent up to 6 [six] Bikes at the same time on one account. If a Rider elects to rent multiple Bikes at the same time, Rider agrees to rent the first Bike for Rider's own use and to make subsequent Bikes available to additional riders. If a Rider elects to rent multiple bikes, the first bike will utilize the Rider’s subscription minutes and additional bikes will be billed to the Rider’s account at the Pay As You Go rate of $7 per hour. Prior to riding, the additional rider renting a Bike under Rider's account will need to review and accept this Agreement on the Bike’s keypad. Rider further acknowledges and agrees that (a) Rider shall be responsible for each Bike rented under Rider's account, (b) Rider shall be responsible for ensuring that any individual operating or using a Bike rented under Rider's account shall read and comply with this Agreement, and (c) Rider is fully and completely responsible and liable for all Claims (as defined in Section 5, below) arising from or related to another individual’s use of a Bike rented under Rider's account. In the event that Rider is renting multiple bicycles and one or more of the riders will be under eighteen (18) years of age, Rider agrees to the following:
YOU HEREBY AFFIRM THAT YOU ARE THE PARENT OR LEGAL GUARDIAN OF THE RIDER, WHO IS 16 YEARS OF AGE 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 CONTENT, AND INTENTIONALLY AND VOLUNTARILY ACCEPT ITS TERMS ON BEHALF OF THE MINOR MEMBER; AND YOU AUTHORIZE THE USE OF THE SERVICES BY THE MINOR MEMBER.
3.RESTRICTIONS AND OTHER TERMS AND CONDITIONS OF BIKE USE
3.1. REPRESENTATIONS AND WARRANTIES. As a condition precedent to Operator’s agreement to allow Rider to participate in the Bike Share Program and to rent a Bike, Rider represents and warrants to Operator that: • Rider meets the minimum age requirements: (1) is 18 years of age or older to check out a Bike with a credit card; and (2) is 16 years of age or older to ride. • Rider is experienced and familiar with the safe and competent operation of a bicycle, and that he/she is physically and mentally fit to ride the Bike. • Rider is familiar with all applicable local, state, and county rules, regulations, codes and laws that relate to the safe and legal operation of a bicycle.
3.2. ACKNOWLEDGEMENTS AND AGREEMENTS. As a condition precedent to Operator’s agreement to allow Rider to participate in the Bike Share Program and to rent a Bike, Rider acknowledges and agrees as follows: • Rider is fully aware that riding a bicycle on streets poses a risk of accident due to motorists, pedestrians, and road conditions, and rider must keep a proper lookout to avoid such accidents. • Rider is fully trained and capable of operating and riding a Bike and is not relying on Operator to learn how to operate or ride a Bike. • Failure to use a helmet and protective gear or to use the bicycle in a careful and reasonably competent manner may result in bodily injury or death. • Rider is solely responsible for obtaining and using a helmet and protective gear. • Riders under the age of 18 are required to wear a helmet pursuant to California Vehicle Code § 21212(a). • Rider is solely responsible for operating and riding a Bike in a careful and reasonably competent manner. • A helmet and protective gear, even when used, does not eliminate the risk of bodily injury in the event of an accident. • All Bikes are and shall remain the exclusive property of Operator at all times. • Rider is solely responsible for any moving violations and/or fines incurred by Rider while using the Bike, including any fees for parking the Bike in prohibited locations. • Operator is not obligated to provide insurance of any kind related to Rider or Rider’s use of the Bike, and in the event that Operator, at its option, carries insurance, Rider shall remain liable for any liability, property damage, personal injury, injury to others, damages, penalties, fines, losses, and/or expenses of any kind whatsoever. • If Rider causes damage to property or injury to another party while operating or in possession of the Bike, Rider is solely liable for such damage or injury. Rider agrees to defend and hold harmless Operator from any and all losses, liabilities, claims, causes of action, costs, fees, , penalties or the like arising from Rider’s use or possession of the Bike. • Rider shall return the Bike to Operator in the same condition as when received. • Rider is liable for any and all damages resulting from improper use or abuse of the Bike and the cost of such damages. • Operator provides Bikes as a convenience, and such rental availability is intended to be used only by those persons who are able and qualified to operate a Bike on their own and who have agreed to all terms and conditions of this Agreement.
3.3. REQUIREMENTS. As a condition precedent to Operator’s agreement to allow Rider to participate in the Bike Share Program and to rent a Bike, Rider shall do the following during any use of a Bike (“Use Requirements”): • Carefully inspect the Bike that Rider wishes to rent prior to use to ensure the Bike is good operating condition. • Test the Bike’s operating components before proceeding with the intended use, including, but not limited to the brakes, tires, gears, pedals, lights, frame and saddle. • Promptly notify Operator customer service of any defect, malfunction or needed repair to a Bike. • Adjust saddle to proper height prior to operating the Bike. • Adjust Bike riding behavior for safe operation according to weather conditions. • Adjust Bike riding behavior so that it is that of a reasonably experienced and prudent bike rider. • Contact Operator and local Police immediately in the event of theft of the Bike or an accident that occurred during Rider’s use of the Bike resulting in bodily injury.
3.4. RESTRICTED USES. Rider shall not do any of the following acts (“Restricted Uses”): • Use any Bike if Rider is younger than 16 years of age. • Use any Bike if Rider has any existing physical or mental condition that would prohibit Rider from safely operating the Bike. • Operate a Bike while carrying any item that impedes Rider’s ability to safely operate the Bike. • Operate a Bike while under the influence of alcohol, drugs, or any other substance that impair Rider’s ability to safely operate the Bike. • Use any cell phone or mobile electronic device, including, but not limited to, for the purposes of phone calls, text messages, music or any other use that distracts Rider from the safe operation of the Bike. • Allow any other person to use the Bike or allow more than one person to be carried on the Bike. • Overfill the Bike basket or place objects weighing in total more 20 pounds in the Bike basket. • Violate any applicable federal, state, or local law. • Operate or use a Bike in any manner during adverse weather conditions, including but not limited to: hail, dust storms, fog, heavy rains, or lightning storms. • Ride or operate a Bike that has any defect, fails to operate as a properly functioning bicycle or that is in need of repair. • Continue using the Bike if it, or any component of it, should become defective or malfunction. • Use the Bike for racing, trick riding, jumping, stunt riding and/or, off-road riding. • Use the Bike for any commercial purposes. • Tow, pull, carry or push any person or object with a Bike. • Remove or modify any accessories, parts or components of any Bike. • Ride the Bike without paying applicable user fees at the time they become due.
4.SERVICE LIMITATIONS. Rider acknowledges and agrees that from and after the date that Operator makes Bikes available to the public for rental, Operator may suspend all or part of its Bike Share Program at any time, may relocate Stations, reduce the number of Bikes available for rent and otherwise operate its Bike rental program in its sole discretion. Rider further acknowledges that Operator may suspend the availability of Bikes during adverse weather conditions, or may be required to suspend the rental of Bikes by the city in which the Bikes are located. Rider shall not be entitled to a refund of any fees for unused rental periods unless Operator’s Bike rental service shall have been suspended for more than 15 days. Operator does not represent or warrant that Bikes will be available for rental at any Station at any time. Operator may require the return of its Bikes at any time.
5.RELEASE AND LIMITATION OF LIABILITY 5.1. FOR AND IN CONSIDERATION OF RENTAL AND USE OF THE BIKE AND TO THE FULLEST EXTENT PERMITTED BY LAW, RIDER, FOR HIMSELF OR HERSELF AND ON BEHALF OF RIDER’S HEIRS, EXECUTORS, ADMINISTRATORS AND ASSIGNS, FOREVER RELEASES AND RELINQUISHES AND DISCHARGES (i) OPERATOR AND OPERATOR’S OFFICERS, BOARDS AND COMMISSIONS, MEMBERS, MANAGERS, EMPLOYEES, SUPPLIERS, AGENTS, REPRESENTATIVES, (ii) ANY MUNICIPALITY WITH WHICH OPERATOR HAS CONTRACTED WITH TO PROVIDE A BIKE SHARE PROGRAM, AND (iii) ANY OWNER OF PROPERTY WITH WHICH CITY HAS CONTRACTED WITH TO PROVIDE REAL PROPERTY ON WHICH A BIKE SHARE FACILITY, INCLUDING, WITHOUT LIMITATION, STATIONS, HUBS, RACKS, INTENDED FOR BIKE SHARE USE (ALL, COLLECTIVELY, THE “OPERATOR PARTIES”) FROM ANY AND ALL CLAIMS, DEMANDS, DISPUTES, LOSSES, LIABILITIES, DEBTS, LIENS, CHARGES, PENALTIES, PROCEEDINGS, CAUSES OF ACTION AND DAMAGES INCLUDING BUT NOT LIMITED TO, FOR PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, AND INJURY TO RIDER OR TO THIRD PARTIES (COLLECTIVELY, “CLAIMS”), INCLUDING UNKNOWN OR UNANTICIPATED CLAIMS, WHICH ARISE FROM OR ARE RELATED DIRECTLY OR INDIRECTLY TO: (A) THIS AGREEMENT OR THE RENTAL, MAINTENANCE, DESIGN, USE AND/OR OPERATION OF THE OPERATOR EQUIPMENT, INCLUDING THE BIKES, OR THE OPERATOR WEBSITE; (B) ANY RISK, DANGER OR HAZARD DESCRIBED IN THIS AGREEMENT; (C) RIDER’S USE OF, OR INABILITY TO USE, ANY OF THE OPERATOR EQUIPMENT; (D) RIDER’S BREACH OF THIS AGREEMENT OR RIDER’S VIOLATION OF ANY LAW; (E) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION BY RIDER OR A THIRD PARTY; OR (F) RIDER’S FAILURE TO WEAR PROTECTIVE GEAR SUCH AS A HELMET WHILE UTILIZING THE OPERATOR EQUIPMENT. 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 OPERATOR, THE OPERATOR PARTIES OR ANY OTHER PARTY. RIDER HEREBY EXPRESSLY WAIVES ANY CLAIMS AGAINST THE OPERATOR PARTIES WHICH RIDER DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF RENTING A BIKE, AND EXPRESSLY WAIVES RIDER'S RIGHTS UNDER ANY STATUTES THAT PURPORT TO PRESERVE RIDER'S UNKNOWN CLAIMS. 5.2. IF OPERATOR OR THE OPERATOR PARTIES ARE DEEMED TO HAVE ANY LIABILITY UNDER THIS AGREEMENT OR ARISING OUT OF RIDER’S USE OF THE OPERATOR EQUIPMENT, INCLUDING THE BIKES, OR THE OPERATOR WEBSITE, SUCH LIABILITY SHALL NOT EXCEED THE AMOUNT OF THE MEMBERSHIP OR RENTAL PAID TO OPERATOR BY RIDER. 5.3 ASSUMPTIONS OF RISKS; DISCLAIMER. RIDER AGREES THAT BICYCLES ARE MACHINES THAT MAY MALFUNCTION, EVEN IF THE BIKE IS PROPERLY MAINTAINED, AND THAT SUCH MALFUNCTION MAY CAUSE INJURY. RIDER EXPRESSLY ACKNOWLEDGES AND ACCEPTS THAT RIDER’S RENTAL AND USE OF THE BIKE IS AT HIS/HER OWN RISK, AND THAT BY CHOOSING TO RIDE A BIKE, RIDER ASSUMES FULL AND COMPLETE RESPONSIBILITY FOR ALL RELATED RISKS, DANGERS, AND HAZARDS. RIDER ACCEPTS THE BIKE FOR USE AFTER EXERCISING HIS/HER OWN FREE CHOICE TO PARTICIPATE VOLUNTARILY IN THIS ACTIVITY AND AFTER HAVING INSPECTED THE BIKE AND CERTIFYING THAT IS IN GOOD OPERATING CONDITION. RIDER UNDERSTANDS THAT BICYCLING MAY BE A HAZARDOUS ACTIVITY THAT INVOLVES MANY OBVIOUS AND NOT-SO-OBVIOUS RISKS, DANGERS, AND HAZARDS, WHICH MAY RESULT IN INJURY OR DEATH TO RIDER OR OTHERS, AS WELL AS DAMAGE TO PROPERTY, AND THAT SUCH RISKS, DANGERS, AND HAZARDS CANNOT ALWAYS BE PREDICTED OR AVOIDED. RIDER ACKNOWLEDGES, UNDERSTANDS AND ASSUMES ALL RISK RELATING TO THE RENTAL, MAINTENANCE, DESIGN, USE AND/OR OPERATION OF THE OPERATOR EQUIPMENT, INCLUDING THE BIKES, AND THE OPERATOR WEBSITE AND UNDERSTANDS THAT BICYCLING INVOLVES RISK TO THE RIDER AND OTHERS INCLUDING DAMAGES, BODILY INJURY, PARTIAL OR TOTAL DISABILITY, PARALYSIS AND DEATH TO RIDER OR OTHERS, AND THAT RIDER HAS FULL KNOWLEDGE OF SAID RISKS AND DANGERS, INCLUDING SUCH RISKS, DAMAGES AND INJURIES THAT MAY ARISE FROM THE NEGLIGENCE OF OTHERS OR AS A RESULT OF ROADWAY CONDITIONS. ALL BIKES AND OTHER OPERATOR EQUIPMENT ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. OPERATOR AND THE OPERATOR PARTIES HEREBY DISCLAIM ANY CLAIM IN TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY). IN NO EVENT WILL RIDER CLAIM THAT OPERATOR PARTIES INDIVIDUALLY OR COLLECTIVELY FAILED TO ADEQUATELY TRAIN RIDER, OR PROVIDE RIDER WITH ADEQUATE INSTRUCTIONS NECESSARY TO RIDE THE BIKE IN THE SAME MANNER AS A PERSON WHO IS AN EXPERIENCED BIKE RIDER WHO HAS BEEN TRAINED TO RIDE A BIKE IN A SAFE AND CAREFUL MANNER. TO THE FULLEST EXTENT PERMITTED BY LAW, AND WITH RESPECT TO RIDER’S RENTAL AND USE OF THE BIKE, STATIONS, OR RELATED INFORMATION, OPERATOR PARTIES DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OPERATOR PARTIES DO NOT REPRESENT OR WARRANT THAT ANY OF THE BIKES, OPERATOR EQUIPMENT OR RELATED INFORMATION WILL BE IN GOOD REPAIR OR ERROR-FREE, AND DELAYS, OMISSIONS, INTERRUPTIONS, OR INACCURACIES COULD EXIST WITH RESPECT TO ANY OF THE BIKES, OPERATOR EQUIPMENT OR RELATED INFORMATION. RIDER ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS FOR USING ANY OF THE BIKES, OPERATOR EQUIPMENT OR RELATED INFORMATION, AND THE OPERATOR PARTIES ARE NOT LIABLE FOR ANY CLAIM ATTRIBUTABLE TO ANY OF THE FOREGOING. RIDER ASSUMES FULL AND COMPLETE RESPONSIBILITY AND LIABILITY FOR ALL CONSEQUENCES AND CLAIMS OF ANY KIND OR NATURE WHATSOEVER RELATED TO RIDER’S STOLEN OR LOST BIKE.
6.DISPUTE RESOLUTION. Rider agrees that Operator, at its sole discretion, may submit any disputes whatsoever arising out of, resulting from, and/or relating to this Agreement, Rider’s use of Operator’s Equipment, including, without limitation, Bikes, and/or the Operator website, to final and binding arbitration under the Rules of the American Arbitration Association, by one or more arbitrators appointed in accordance with the said rules. In the event that Operator submits such dispute to arbitration, then such arbitration shall be mandatory and binding on the parties. Such proceeding shall be held in the County of Los Angeles, California by the laws of the State of California with out regard to choice of law principles. All arbitration proceedings will be conducted in the English language. SHOULD OPERATOR ELECT TO SUBMIT ANY DISPUTE OR CLAIM TO ARBITRATION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, OPERATOR AND RIDER EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LITIGATION OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT OR RIDER’S USE OF OPERATOR’S EQUIPMENT, INCLUDING, WITHOUT LIMITATION, BIKES, AND/OR THE OPERATOR WEBSITE.
7.INDEMNIFICATION. Rider shall indemnify, defend and hold harmless Operator and the Operator Parties for, from and against any and all Claims related to or arising out of this Agreement, including, but not limited to Rider’s breach of any representations, warranties or covenants set forth in this Agreement, and the rental, maintenance, design, use or operation of the Bike, the Locks, the Stations and/or the Operator website, even where caused in whole or in part by Operator’s negligence, and/or the negligence of others, whether presently known or unknown. At Operator’s option, Rider will assume control of the defense and settlement of any Claim subject to indemnification by Rider (provided that, in such event, Operator may at any time elect to take over control of the defense and settlement of any such Claim). In no event may Rider settle any Claim without Operator’s prior written consent.
8.ASSIGNMENT. Operator may assign its rights and duties under this Agreement to any party at any time without notice to Rider.
9.NO WAIVER. Operator’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any part of this Agreement. No waiver by Operator shall be construed as a waiver of any proceeding or succeeding breach of any provision in this Agreement.
10.TERMINATION OF AGREEMENT. Operator may terminate this Agreement at any time, without cause, legal process, or notice to the Rider and Rider’s use of the Bike Share Program is “at the will” of Operator. Rider waives all claims, causes of actions, expenses, and/or damages connected and/or related to any such termination. Rider shall not be entitled to a refund of any amount paid for unused rental periods if this Agreement is terminated for cause. Rider may terminate Rider’s rental plan at any time; provided, however, that no refund will be provided by Operator for time already used by Rider.
11.SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Agreement shall remain in full force and effect.
12.SURVIVAL. All provisions of this Agreement relating to limitation and exclusion of liability, waivers, assumption of risk, warranties and indemnification obligations shall survive the termination of this Agreement, and all amounts unpaid at the time of termination or expiration of this Agreement shall remain due and payable.
14.ENTIRE AGREEMENT. This Agreement constitutes the final and entire Agreement between Operator and Rider and prevails over any prior or contemporaneous, conflicting or additional, communications, unless otherwise agreed to by the Parties in writing. Operator shall have the right to revise, change and modify the terms and conditions contained in this Agreement at any time without prior written notification by posting the revised Agreement on www.longbeachbikeshare.com, and such changes shall apply to all future use of Bikes after the date of such changes. Riders shall be solely responsible for reviewing and becoming familiar with any modification to this Agreement. Use and/or operation of the Bike by Rider following any modifications to this Agreement constitutes Rider’s acceptance of the terms and conditions as modified.