4. Damages, Loss, or Theft.
4.1. Damage or Injury to Third Parties; User Solely Responsible. Company does not provide third party liability coverage to User. User expressly agrees that User is solely responsible to any damage or injury to third parties or third-party property caused by User’s use of the e-Bike or Service. User’s personal insurance policies may not provide coverage for claims involving use of an e-Bike. It is User’s sole responsibility to determine whether their use of the Service is covered by their insurer.
4.2. Damage or Injury to User. Company does not provide health insurance. User expressly agrees that User is solely responsible to any damage or injury to User or User’s property caused by User’s use of the e-Bike or Service. User’s personal insurance policies may not provide coverage for claims involving use of an e-Bike. It is User’s sole responsibility to determine whether their use of the Service is covered by their insurer.
4.3. Damage to e-Bike. User agrees to return the e-Bike to Company in the same condition in which it was delivered. User will not be responsible for normal wear and tear. If User operates, repairs, or tampers with the e-Bike in violation of any provision of this Agreement, User may be held financially responsible by Company for the cost of any damage to the e-Bike resulting from such violation. If the e-Bike is damaged, User agrees to pay the reasonable costs of repair and diminution in value, applicable Damage Fees are also listed in the Annex A. If the e-Bike is damaged beyond reasonable repair (as determined by Company), the User will be responsible for the full price of the bike, with the value dependent upon the model being rented. In addition, User will also be responsible for the loss of use, administrative fees, as determined by Company or specified by law, plus any towing, pick-up, and/or storage charges.
4.4. Lost or Stolen e-Bike. If the e-Bike is lost or stolen, User agrees to pay Company the full value of the e-Bike with the value dependent upon the model being rented. User specifically agrees and authorizes Company to make any charges by credit card in such event.
If Company deems an e-Bike lost or stolen and the loss or theft was not reported by User to Company pursuant to the reporting requirements set forth in Section 4.5 of this Agreement, Company will have the authority to take any and all actions it deems appropriate, including (without limitation) charging a Damage Fee and/or terminating User’s Subscription.
4.5. Reporting Damage, Loss, or Theft. User must report any damage, loss, or theft of the e-Bike or Supplemental Equipment to Company within 24 hours of the incident or as soon as it is safe to do so by contacting Company’s customer service team by phone or via Messengers. Failure to report damage, loss, or theft may result in Company charging User a Damage Fee and/or termination of User’s Subscription.
5. User Responsibilities.
5.1. Acknowledgment. By becoming a User and accessing a Subscription, the User represents and warrants to Company that the User has received all explanations as the User may have reasonably requested concerning the content of the Legal Terms, including all schedules, and that the User has carefully reviewed, understands and agrees to the User’s commitments and obligations under. The User also represents that the User has reviewed, understands, and agrees to the Legal Terms.
5.2. Pre-Ride Safety Check. Before each use of an e-Bike, User will conduct a safety inspection of the e-Bike, which includes inspecting the e-Bike 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 e-Bike has signs of any damage, User must not use the e-Bike and instead must contact Company immediately by submitting a repair request, as detailed in Section 3.11 of this Agreement.
5.3. Traffic and Parking Tickets. User is solely responsible for any violations, including but not limited to traffic violations incurred during the use of the Service. User is solely responsible for any parking violations incurred as a result of use of the Service. User’s responsibility includes fines for late payment and any processing fees. User agrees to pay for all violations incurred. User agrees that Company may charge User’s payment method on record for any violations, tickets, or fees that may be assessed on Company as a result of User’s use of the Service. Users must exercise prudent and reasonable judgement when parking an e-Bike.
5.4. Vehicle is Intended for Only Limited Types of Use. User agrees that it will not use the e-Bike for racing, mountain riding, or stunt or trick riding. User agrees that it will not operate or use the e-Bike in or on any Prohibited Area. If User must travel on a sidewalk with an e-Bike, the e-Bike must be walked, not ridden. User agrees that it will not use the e-Bike to transport persons for hire or reward, nor use it in violation of any law, ordinance or regulation.
6. Indemnification; Limitation of Liability.
6.1. Indemnification. User 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 User’s Subscription or use of the Services or any e-Bike, Helmet, or Supplemental Equipment.
6.2. LIMITATION OF COMPANY’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:
(a) COMPANY IS NOT LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF USER’S RENTAL OR USE OF AN E-BIKE, HELMET, SUPPLEMENTAL EQUIPMENT, OR THE SERVICES. COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER INCLUDING, WITHOUT LIMITATION, THE CONDITION OF AN E-BIKE, HELMET, OR ANY ITEM PROVIDED IN THE SUPPLEMENTAL EQUIPMENT, OR THEIR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. RIDING AN E-BIKE IS A HIGH-RISK ACTIVITY. DEATH OR SERIOUS INJURY IS POSSIBLE. HEAD-ON COLLISIONS ARE THE MOST COMMON AND FATAL TYPE OF E-BIKE CRASH. ACCIDENTS ALSO FREQUENTLY OCCUR ON LEFT HAND TURNS OR WHILE STOPPED AT A TRAFFIC INTERSECTION SINCE AN E-BIKE IS MORE DIFFICULT FOR OTHER DRIVERS TO SEE. LANE SPLITTING CAN CAUSE SERIOUS ACCIDENTS AS WELL. OTHER COMMON REASONS BEHIND MANY E-BIKE ACCIDENTS (BUT NOT A COMPREHENSIVE LIST) INCLUDE POTHOLES, UNEVEN PAVEMENT, RIDING CARELESSLY IN INCLEMENT WEATHER, DEAD ANIMALS OR DEBRIS IN THE ROAD OR SIDEWALK, SPEEDING, AND DRIVING UNDER THE INFLUENCE OF DRUGS OR ALCOHOL. WHEN AN E-BIKE ACCIDENT DOES HAPPEN, OFTENTIMES SERIOUS INJURIES OCCUR. SOME OF THE MORE COMMON ONES INCLUDE HEAD AND/OR BRAIN INJURY, NECK AND/OR SPINAL CORD INJURY, BACK INJURY, NERVE DAMAGE, LOSS OF HANDS, FEET, FINGERS AND OTHER LIMBS, PARALYSIS, AND DEATH. BY RIDING AN E-BIKE AND/OR USING THE SERVICES, USER ACKNOWLEDGES AND ASSUMES THESE RISKS.
(b) Company is not accountable for any damage to the User’s person or belongings that occurs while riding or operating an e-Bike, handling or charging a Battery, or otherwise using the Service, nor shall it be accountable for any harm to third parties for the actions taken by any User during the period or use of the Service. Company makes every effort to ensure there are enough e-Bikes for Users but cannot guarantee availability or functionality of an e-Bike and is not responsible for any damages arising from e-Bike non-availability. Company is not responsible for damages to a User due to the use of any e-Bike accessories provided by Company. User is solely accountable for the e-Bike and its accessories and must check their condition before each use. If any accessory is found to be faulty or not in working order, User must promptly notify Company and not use the accessory.
(c) ANY USE OF AN E-BIKE PROHIBITED BY THIS AGREEMENT VOIDS ALL COVERAGES OR WARRANTIES (INCLUDING BUT NOT LIMITED TO INSURANCE, ACCIDENT, OR LIABILITY COVERAGES); MAKES AN E-BIKE SUBJECT TO IMMEDIATE RECOVERY BY COMPANY WITHOUT NOTICE TO USER; AND MAKES USER RESPONSIBLE FOR ALL LOSS OR DAMAGE TO, OR CONNECTED WITH THE E-BIKE, INCLUDING COMPANY EXPENSES, TO THE EXTENT THAT SUCH LOSS OR DAMAGE IS DUE TO SUCH PROHIBITED USE.
7. RELEASES; DISCLAIMERS; ASSUMPTION OF RISK.
In exchange for User being allowed to use Company’s Services, e-Bikes, and other equipment or related information provided by Company, User 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 (collectively, the “Released Persons”) from liability for all Claims arising out of or in any way related to User’s use of the Services, e-Bikes, 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, 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 e-Bike or related equipment, maintenance, or information, or this Agreement or (b) User’s use of any of the foregoing.
To the fullest extent permitted by law, and as to User’s use of any of Company’s Services, e-Bikes, 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, e-Bikes, and related equipment are provided “as is” and “as available,” and User relies on them at User’s own risk.
User is aware that User’s use of any of Company’s Services, e-Bikes, and/or related equipment involves obvious and not-so-obvious risks, dangers, and hazards that may result in injury, illness, or death to User 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:
(a) vehicles and other objects;
(d) e-Bike, Battery, or other component malfunction;
(f) communicable diseases;
(g) road conditions; and
(h) weather conditions.
User is solely and fully responsible for the safe operation of e-Bike at all times, including wearing of a Helmet. No passengers are allowed on an e-Bike. User agrees that Company does not provide or maintain places to ride e-Bikes, and that Company does not guarantee that there will always be a safe place to ride an e-Bike. Roads, bike lanes, and bike routes may become dangerous due to weather, traffic, or other hazards. User agrees that e-Bikes are machines that may malfunction, even if the e-Bike is properly maintained and that such malfunction may cause injury. User 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. User hereby expressly waives any claims against the Released Parties or any other party which User does not know or suspect to exist in his or her favor at the time of use of Services, and expressly waives User’s rights under any statutes that purport to preserve User’s unknown claims.
8. USER ACCEPTANCE OF AGREEMENT
By filing an application for a Subscription, you hereby certify the following:
(a) I certify that I have read and expressly agree to the terms and conditions of the above Releases; Disclaimers; Assumption of Risk, and I acknowledge that this section limits my legal rights and remedies. I intend my assent to this Agreement to be a complete and unconditional release of all liability to the greatest extent permitted by law. I represent and certify that I am familiar with the operation of the e-Bike, am reasonably competent and physically fit to ride the e-Bike, will not carry passenger(s) on the e-Bike, and will wear a Helmet at all times while operating the e-Bike.
(b) I certify that I am the User; I am 18 years old or over; I will take all reasonable safety precautions as required by this Agreement; I will not allow any person other than myself to operate or ride an e-Bike provided to me by Company pursuant to a Subscription. I will obey all traffic laws; I will ride at my own risk; and I have read and expressly agree to the terms and conditions set forth in this Agreement.
10. DISPUTE RESOLUTION
BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND COMPANY.
(a) In this Arbitration Section:
(i) “You” and “your” mean the individual or legal entity entering into these Terms, as well as any person claiming through such individual;
(ii) “We” and “us” means My Device Inc., its affiliates, and each of their respective parents, subsidiaries, affiliates, predecessors, successors, and assigns, as well as the officers, directors, and employees of each of them;
(iii) “Claim” means any dispute, claim, or controversy (whether based on contract, tort, intentional tort, constitution, statute, ordinance, common law, or equity, whether pre-existing, present, or future, and whether seeking monetary, injunctive, declaratory, or any other relief) arising from or relating to this Agreement or the relationship between us and you (including claims arising prior to or after the date of the Agreement, and claims that are currently the subject of purported class action litigation in which you are not a user of a certified class), and includes claims that are brought as counterclaims, crossclaims, third party claims or otherwise, as well as disputes about the validity or enforceability of this Agreement or the validity or enforceability of this Arbitration Section.
(b) Any Claim will be resolved by binding arbitration administered by the American Arbitration Association or JAMS, under the applicable arbitration rules of the administrator in effect at the time a Claim is filed (“Rules”). Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. You can obtain the Rules and other information about initiating arbitration by contacting the American Arbitration Association at 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org.
(c) Claims will be arbitrated by a single, neutral arbitrator, who will be a retired judge or a lawyer with at least ten years’ experience.
(d) Any in-person arbitration hearing will be held in the city with the federal district court closest to your residence, or in such other location as you and we may mutually agree. The arbitrator will apply applicable substantive law consistent with the Federal Arbitration Act, 9 U.S.C. §§ 1-16, and, if requested by either party, provide written reasoned findings of fact and conclusions of law. The arbitrator will have the power to award any relief authorized under applicable law. Any appropriate court may enter judgment upon the arbitrator’s award. The arbitrator’s decision will be final and binding except that: (1) any party may exercise any appeal right under the FAA; and (2) any party may appeal any award relating to a claim for more than $100,000 to a three-arbitrator panel appointed by the administrator, which will reconsider de novo any aspect of the appealed award. The panel’s decision will be final and binding, except for any appeal right under the FAA.
(e) YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS USER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise in writing, the arbitrator may not consolidate more than one person’s claims. The arbitrator will have no power to arbitrate any Claims on a class action basis or Claims brought in a purported representative capacity on behalf of the general public, other borrowers, or other persons similarly situated. The validity and effect of this paragraph (e) will be determined exclusively by a court, and not by the administrator or any arbitrator.
(f) If any portion of this Arbitration Section is deemed invalid or unenforceable for any reason, it will not invalidate the remaining portions of this section. The terms of this Arbitration Section will prevail if there is any conflict between the Rules and this section.
(g) YOU AND WE AGREE THAT, BY ENTERING INTO THESE AGREEMENT, THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND WE ACKNOWLEDGE THAT ARBITRATION WILL LIMIT OUR LEGAL RIGHTS, INCLUDING THE RIGHT TO PARTICIPATE IN A CLASS ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO CONDUCT FULL DISCOVERY, AND THE RIGHT TO APPEAL (EXCEPT AS PERMITTED IN PARAGRAPH (d) OR UNDER THE FEDERAL ARBITRATION ACT).
(h) You and we acknowledge and agree that the arbitration agreement set forth in this Arbitration Section is made pursuant to a transaction involving interstate commerce, and thus the Federal Arbitration Act will govern the interpretation and enforcement of this Arbitration Section. This Arbitration Section will survive the termination of this Agreement.
(i) In the event that a dispute does not proceed to arbitration, this Agreement and all other aspects of your use of the Services will be governed by and construed in accordance with the laws of the United States and, to the extent applicable, to the laws of the State of New York, without regard to its conflict-of-laws principles. You agree that you will notify us in writing of any claim or dispute concerning or relating to the Services and the information or services provided through it, and give us a reasonable period of time to address it before bringing any legal action, either individually, as a class user or representative, or as a private attorney general, against us.
11. CHOICE OF LAW
The interpretation of the Legal Terms shall be construed in accordance with the laws the State of New York, U.S.A., without regard to its principles of conflicts of law.
12.1. Company reserves the right to change or amend the Services at any time, or deny the Services to a User for any reason.
12.2. No waiver by Company of any of the provisions hereof is effective unless set forth in writing and signed by Company. No failure or delay in exercising any right, remedy, power or privilege arising from the Legal Terms operates as a waiver.
12.3. No single or partial exercise of any right, remedy, power or privilege arising from the Legal Terms precludes any other or the exercise of any other right, remedy, power or privilege. Unless stated otherwise, all remedies under this Agreement will be in addition to any other remedies available to either party at law or in equity.
12.4. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
12.5. This Agreement may only be amended or modified by Company in its sole discretion.
12.6. This Agreement, and any rights under it may not be transferred or assigned by the User without Company’s express written consent, which may be granted in Company’s sole discretion.
12.7. This Agreement is binding upon the parties and their permitted successors and assigns.
12.8. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for User’s payment obligations.
12.9. This Agreement constitutes the entire agreement between the parties regarding its subject matter.