Last Updated: January 7, 2022




e-Bike SUBSCRIPTION AGREEMENT, WAIVER OF LIABILITY, AND RELEASE


THE SERVICES PROVIDED BY MY DEVICE INC. D/B/A WHIZZ (“COMPANY”) ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT. BY EITHER ACCEPTING THIS SUBSCRIPTION AGREEMENT OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS RELEASES, WAIVERS, DISCLAIMERS, ASSUMPTION-OF-RISK PROVISIONS, AND A BINDING ARBITRATION AGREEMENT THAT LIMIT YOUR LEGAL RIGHTS AND REMEDIES. IT ALSO SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICES

1. Definitions.

“Agreement”
means this e-Bike Subscription Agreement, Waiver of Liability, and Release.

“App”
means Company’s proprietary software application, which can be downloaded from Google Play and the Apple App Store and accessed with a mobile device or accessed via desktop browser.

“Battery”
means the battery provided by Company as part of a Subscription for the purpose of powering an e-Bike.

“Damage Fee”
means the fee or fees that Company may assess for damage, loss, or theft of the e-Bike, or for violation of the terms of this Agreement, up to the full replacement cost of the item(s) or part(s) damaged, lost, or stolen, and as may be amended by Company from time to time. Damage Fees for certain types of damage to the e-Bike are listed in the Annex A to this Agreement.

“e-Bike”
means the bicycle with electric pedal assist provided by Company to Users as part of the Services pursuant to a Subscription and the terms of the Legal Terms, and which can throttle up to 25 miles per hour. The term “e-Bike” includes the Battery and Lock unless otherwise specified.

“Effective Date”
means the date on which you accept the terms of this Agreement.

“Helmet”
means a safety helmet designed for bicycle use. User may provide their own Helmet, or purchase a Helmet from Company upon availability. A Helmet must be worn at all times while operating an e-Bike.

“Legal Terms”
means this Agreement, the Terms of Use and the Privacy Policy.

“Lock”
means the bicycle lock provided by Company to User with an e-Bike for the purpose of securing the e-Bike when not in use.

“User”
means a person who meets the eligibility criteria described in Section 2.1 below and has been approved by Company for a Subscription, and is therefore eligible to access the Services.

“Messengers”
means SMS, WhatsApp, Facebook Messenger, WeChat, QQ Messenger, Telegram, Viber, Line or other instant messaging services.

“Personal Account”
means a portal used by Users on the Site or in the App to manage their Subscription.

“Privacy Policy”
means Company’s Privacy Policy located on and available at the www.getwhizz.com/privacy and incorporated in this Agreement, and as may be amended by Company from time to time.

“Prohibited Area”
means (i) any area other than streets with a speed limit equal to or lesser than 30 miles per hour or designated bicycle lanes, (ii) any area in which e-Bikes are prohibited under applicable law from being ridden, and (iii) any area outside New York City.
Prohibited Areas include but are not limited to sidewalks, highways, parks or greenspaces other than in designated bicycle lanes, and any area that is unpaved or off-road.

“Services”
means the services provided by Company which, for the avoidance of doubt, include (i) the App, the Site, and any social media accounts or pages operated or owned by Company, (ii) the e-Bike and the rental, management, and maintenance of the e-Bike, and (iii) all other related equipment, including services, applications, websites, and information provided or made available by Company, as more fully described in the Legal Terms.

“Site”
means Company’s web site (located at www.getwhizz.com) operated by Company and pertaining to the Services.

“Subscription”
means a User’s month-to-month rental of an e-Bike from Company pursuant to Legal Terms.

“Subscription Fee”
means the fee charged by Company to User on a monthly basis for the Subscription, as described at www.getwhizz.com.

“Supplemental Equipment”
means the materials other than the e-Bike delivered to User by Company at the beginning of the Subscription, which are provided for the purpose of safe usage and storage of the e-Bike by User, including the following: (i) charger for recharging the Battery; (ii) U-lock for securing the e-Bike; (iii) U-lock key; (iv) Battery; (v) Battery key; vi) Other supplemental equipment.

“Term”
means the time period from the Effective Date and while the Subscription is active and in good standing, and not otherwise terminated by Company or User as described in this Agreement. The Term ends when Company or User terminates the Subscription, User returns the e-Bike to Company, and any fees owed to Company are paid by User in full.

“Terms of Use”
means Company’s Terms of Use located on and available at the www.getwhizz.com/terms, incorporated in this Agreement, and as may be amended by Company from time to time.

2. Subscription.

2.1. Eligibility. The Service is only available pursuant to a Subscription. To be eligible for initial and continued Subscription, User must:

(a) obtain at its own expense all necessary equipment and services needed to use the App (including a mobile device and wireless service). Charges from a User’s wireless carrier or communication service are not Company’s responsibility;

(b) be 18 years old or older;

(c) provide Company with a valid: (i) ID, or one of the documents listed in Section 3.2, (ii) phone number, (iii) email address, (iv) credit or debit card number, billing zip code, and expiration date;

(d) agree to be bound by the terms and conditions of this Agreement, the Privacy Policy and Terms of Use;

(e) have the physical ability and skill to safely and comfortably operate the selected e-Bike;

(f) agree to wear a Helmet at all times when operating the e-Bike;

(g) agree to store the e-Bike indoors or in a safe place outside.

In order to begin a Subscription, User must meet the above criteria and fully complete the Subscription registration process in the App. Satisfaction of the application criteria in this Agreement does not automatically grant the right to a Subscription, and Subscription criteria and the application process may be changed by Company from time to time in its sole discretion. Applications are subject to final approval by Company in its sole discretion at the time of the e-Bike pick-up process.

2.2. Ownership; Use. Neither a Subscription nor this Agreement grants Users any rights of ownership or property interest in or over Company, Company’s operations or finances, or any e-Bike, Battery, or Lock. Company remains the sole owner of the e-Bike, Battery, Lock, and any other items made available to User under this Agreement. A User may use Company’s e-Bike only after approval of the Subscription by Company and payment of the Subscription Fees and any other applicable fees.

2.3. Changes to Agreement. Company may edit and revise this Agreement in its sole discretion at any time, so Users should check the Agreement on the Site periodically. Company will promptly send Users notice of any material changes by email to the address provided by the User during registration, by notification through the App, or by other means. Company will post the revised Agreement on the Site and/or on the App. The revised Agreement is effective the moment the new version is sent to the User by email or uploaded to the Site or App, unless otherwise indicated. Use of the Services after revision to the Agreement qualifies as acceptance by User of the new Agreement.

2.4. Duration of Agreement. This Agreement will be in force between Company and you from the Effective Date through the duration of the Term.

2.5. Termination of Subscription.

(a) Termination by User; No Refund. If User is in compliance with all the terms of the Legal Terms, User may terminate his or her Subscription immediately for no reason, subject to payment of any Subscription Fees due at the time of the User’s request for termination and e-Bike’s and Supplemental Equipment return.

To terminate a Subscription, User must notify Company via the Personal Account, Messengers, by phone, or in person by visiting Company’s office. User must provide Company notice of his or her intent to terminate the Subscription prior to the date on which the Subscription Fee will next be charged in order to avoid payment for the following month of Service.

In the event of termination by User, User is responsible for all fees incurred through the date of termination. No fees will be refunded in the event of termination by User. Once the Subscription Fee is paid, User will have access to the Service and e-Bike for the following month. Company will not refund User if User wishes to return the e-Bike or end the Subscription prior to the end of the month for which the Subscription Fee has already been paid.

After User provides notice of intent to terminate the Subscription and returns the e-Bike and Supplemental Equipment in accordance with this Agreement, the Subscription will end on the date on which the Subscription Fee would have next been charged.

(b) Termination by Company. Company may terminate this Agreement and User’s Subscription upon notice to User at any time with or without cause. Without limiting the foregoing, Company may immediately terminate this Agreement and User’s Subscription, at its sole discretion and without notice, if the User:

(i) fails to pay any sum due;

(ii) fails to comply with any term or condition of the Legal Terms;

(iii) is involved in an incident while utilizing Company’s Services, that, in Company’s reasonable discretion, renders the User ineligible or inappropriate for continued use of the Service;

(iv) engages in any activities or conduct that Company determines to be unsafe, reckless, inappropriate, negligent, offensive, abusive, fraudulent, or otherwise unacceptable, including, but not limited to, failing to observe any safety requirement set forth in this Agreement or applicable law (including wearing a Helmet, failing to secure the e-Bike leading to theft, or breaking applicable traffic or bicycle laws) whether observed by Company or Company’s employees directly or as reported to Company by a third party along with credible evidence, which credibility will be determined by Company at its sole discretion;

(v) is not paying the User’s debts as such debts generally become due or becomes insolvent;

(vi) engages in communications which Company and/or its authorized agents deem to be deceptive, untruthful, or incomplete in their disclosure of required information.

In the event that Company terminates User’s Subscription due to User’s violation of any provision of this Agreement, no fees will be refunded to User. If Company terminates User’s Subscription for reasons other than User’s noncompliance with this Agreement, Company may in its sole discretion issue refunds as it deems appropriate.

Company will provide notice to User of its intent to terminate the Subscription by phone, email, Messengers, or through the App.

2.6. Availability. The Services are available to Users subject to the limitations specified in this Agreement and to any changes to the availability of the Service that Company may make from time to time in its sole discretion. Company does not guarantee that the Services will be available at all times, as weather conditions, unforeseen events or other circumstances might prevent Company from providing the Services. Supplies are limited, and access to the Services is conditioned on the availability of e-Bikes. Company does not represent, warrant, or guarantee the availability of any of the Services or the availability of any e-Bike at any time.

The Service is currently available only in the New York City, New York.

3. The Service and Use of the e-Bike.

3.1. Subscription Fees. User agrees to pay the Subscription Fee, in the amount indicated on the Site www.getwhizz.com, on a monthly basis for the duration of the Subscription. Company reserves the right to change the Subscription Fee at any time and without notice, including after User’s Subscription has started. User should visit the Site periodically for up-to-date information about the Subscription Fee.

Company will charge User the initial Subscription Fee either immediately upon acceptance of User’s registration for a Subscription or upon receipt of an e-Bike, at User’s discretion. Subsequent charges will occur monthly from the date of the first charge.
Subscription Fees and other charges may be subject to applicable taxes and other local government charges, which may be charged and collected by Company.

3.2. e-Bike Pick-up. e-Bikes and Supplemental Equipment may only be picked up at Company’s office located at 29 East 10th Street, New York, NY 10003, during work hours as it disclosed on the website www.getwhizz.com. To receive an e-Bike User must provide one of the following:

(a) U.S. Passport or U.S. ID Card;

(b) Permanent Resident Card or Alien Registration Receipt Card;

(c) an unexpired Employment Authorization Document that contains a photograph;

(d) driver’s license or ID card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address.

For avoidance of doubt, “unexpired” for purposes of this Section means having a validity period exceeding 2 months from the pick-up date.

Company may also request User’s Social Security Number or Employer Identification Number. Company reserves the right to decline the Subscription application at the time of pick-up for any or no reason, including, but not limited to any negative results of User’s background check, prior violations of this Agreement, or presence of any indebtedness to Company. User must inspect the e-Bike, and sign the Property Receipt Act prior to taking the e-Bike which will be provided to User by Company.

3.3. Operation of e-Bike. Operating instructions and tips are provided with the Supplemental Equipment and/or on the Site and/or App. Users must read and become familiar with these instructions prior to commencing use of the e-Bike.

3.4. Return of e-Bike and Supplemental Equipment.
Within 48 hours after the end of the Subscription, User must personally (or through a representative with a valid Power of Attorney issued in accordance with New York laws) return to Company the e-Bike, Supplemental Equipment, and any other materials provided by Company in connection with the Services.

User agrees to return the e-Bike to Company in the same condition as received, except for ordinary wear and tear. The e-Bike must be in a clean state at the time of the return.
On return Company’s representative will examine the e-Bike and Supplemental Equipment for any items that do not constitute normal wear and tear. User must be present at the inspection and sign the Property Return Act after it is finished. User specifically agrees and authorizes Company to make any charges by credit card for damages listed in the Property Return Act.

If for any reason a full inspection cannot be undertaken on e-Bike’s return or User refused to be present during the inspection or sign the Property Return Act, Company reserves the right to inform User within 15 days of the return of any damage found and charge its credit card on file accordingly.

Company also reserves the right to inform User within 15 days of the return of any damage not listed in the Property Return Act that was identified later during technical examination or that could not be identified at the time of the return (due to external circumstances, including, but not limited to dirt on the e-Bike, preventing proper inspection on return). User specifically agrees and authorizes Company to make any charges by credit card if such damage is found.

In the event of termination of the Subscription by Company, User must coordinate with Company to return the e-Bike, Supplemental Equipment, and any other materials immediately.

The e-Bike must be returned within the time slot indicated in this Agreement to the same place where it was picked up. The e-Bike will be considered returned only when it is returned to a representative of Company in person. Failure to return the e-Bike without prior notice or without proven exceptional circumstances will be considered an act of theft and User will be reported to the police.

In the event of termination of the Subscription by User, User must coordinate with Company to return the e-Bike, Supplemental Equipment, and any other materials at the end of the monthly billing period in which User has given notice of termination. User may request return of the e-Bike prior to the expiration of such billing period, however Company will not refund any Subscription Fee in the event of early return of the e-Bike.
If User does not return the e-Bike, Supplemental Equipment, or any other materials to Company, Company may charge User Damage Fees up to the full replacement value of the items not returned, in Company’s sole discretion. In particular, if the e-Bike is not returned within 48 hours after the Subscription period has ended and the Subscription Fee for the next month is not paid by User, Company will charge User a Damage Fee in the amount of $20 per day until the e-Bike is returned. In the event of continued failure to return the e-Bike and/or nonpayment of Damage Fees, Company will consider the e-Bike stolen and may pursue all legal remedies, including filing a police report.

3.5. Payment Method. User represents and warrants to Company that User is authorized to use any credit or debit card User furnishes to Company. User authorizes Company to charge the card for all Subscription Fees incurred by User, and to transmit User’s credit card information to Company’s third-party vendors for the sole purpose of processing such charges. All fees are subject to applicable sales taxes and other local government charges, which may be charged and collected by Company. All fees and costs are due when they are incurred, including but not limited to Subscription Fees and Damage Fees. Temporary or prepaid credit/debit cards are not an acceptable form of payment.

3.6. Disputed Charges. If User disputes any charge on User’s credit or debit card account, then User must contact Company within 7 days of the date of the disputed charge, and provide to Company all information that is necessary to identify the disputed charge, such as the date of subscription, or any cancellation information associated with the disputed charge. If no notice is given by User to Company within the foregoing 7-day period, the charge will be final.

3.7. Delinquent Accounts. Users are billed for amounts due via credit/debit card, or other means as established by Company. Any Subscription Fee or Damage Fees or other amount which is past due may result in suspension or termination of User’s Subscription and/or use of the Services by Company in its sole discretion. If payment of any amount due is rejected by the credit/debit card provided by User, Company may suspend or terminate User’s Subscription and/or use of the Services, in Company’s sole discretion. Users are responsible for providing and maintaining current credit/debit card information on file with Company. Ongoing issues with credit/debit card billings may result in termination of Subscription, or use of Services. Under no circumstances will Company be responsible for any overdraft or other fees charged by a User’s credit/debit card bank.

3.8. No Refunds. Except as set forth in Section 2.5 (b), once charged all fees are final and nonrefundable.

3.9. e-Bike is the Exclusive Property of Company. User agrees that the e-Bike, Battery, Lock, Supplemental Equipment, and any other items, material, or equipment provided by Company to User in connection with the Services at all times remain the exclusive property of Company. User must not dismantle, write on, or otherwise modify, repair or deface an e-Bike, any part of an e-Bike, or other Company equipment in any way. User must not write on, peel, or otherwise modify or deface any sticker on an e-Bike in any way. User must not use an e-Bike, or other Company equipment, for any advertising or other commercial purpose without the express written permission of Company.

3.10. Charging of e-Bike. Company will provide instructions on how to charge the Battery utilizing the Supplemental Equipment. User must familiarize themselves with these directions and follow these directions whenever charging the Battery. User must not attempt to charge the Battery with any charging device other than that provided by Company in the Supplemental Equipment. It is, at all times, User’s responsibility to charge the Battery. If the Battery runs out of charging power during usage of the e-Bike, User will be responsible for charging the Battery prior to the next usage.

3.11. Repair or Replacement of e-Bike. Company offers e-Bike repair service as part of the Subscription. If the e-Bike is in need of repair, User must submit a repair request by a phone, e-mail, Messengers, App, or in person by visiting Company’s office during work hours. Company will contact the User to arrange a repair or replacement of the e-bike. If the e-Bike cannot be repaired on site, Company will provide a replacement e-Bike at no extra cost except as provided in Section 4.3. Company will endeavor to schedule a repair appointment within 48 hours of receiving a repair request but does not guarantee any specific time for addressing or resolving repairs. Users must not attempt to repair the e-Bike themselves. User may perform minor routine upkeep or maintenance on their own, such as adjusting seat height or inflating a tire. If User attempts to repair an e-Bike instead of requesting a repair from Company, User expressly assumes all risks thereof, including risk of personal injury, and may be charged a Damage Fee. User may also request repair or replacement of parts and accessories in the Supplemental Equipment through the App.

3.12. Helmets; Safety. Users must wear a Helmet at all times while using an e-Bike. User may provide their own Helmet, or purchase a Helmet from Company upon availability after User is approved for a Subscription. Any injuries resulting from User’s failure to follow the Rules, applicable traffic or bicycle law, or otherwise act prudently, including the failure to use a Helmet while operating an e-Bike, shall be solely User’s responsibility. User agrees that Company is not liable for any injury or illness suffered by User for failure to use a Helmet while operating an e-Bike. User assumes all risk for themselves of not wearing a Helmet or other protective gear. User may need to take additional safety measures or precautions not specifically addressed in this Agreement.

3.13. Use by User Only; No Passengers or Cargo. The e-Bike is intended for use only by the User engaged in the Subscription. User must not share the e-Bike with others or permit anyone other than Company employees to ride, repair, or utilize the e-Bike. The e-Bike is not intended to support passengers or cargo. User must not allow passengers or cargo, other than a backpack or small items that can be worn on User’s person without interfering with the safe operation of the e-Bike.

3.14. Storage and Locking of e-Bike. It is User’s sole responsibility to reasonably and properly lock and store the e-Bike during the Subscription. User must use the Lock and Supplemental Equipment provided by Company to securely lock the e-Bike when not in use. User agrees to store the e-Bike indoors whenever possible. If indoor storage is not possible, User must secure the e-Bike using the Lock in an area in which public bicycle parking is permitted by law.


3.15. Accidents. In the event of an accident or crash involving an e-Bike, User should immediately call 911 and seek any medical attention necessary. User must report the incident to Company as soon as it is safe to do so by contacting Company’s customer service by phone or via Messengers. User must also cooperate with Company and/or its insurance carrier to investigate the incident, including by filing a police report. As soon as practicable following the incident, User agrees to provide to Company all of the information below:

(a) details, circumstance, and location of the incident (time, address, relevant details of the accident);

(b) relevant information for any vehicles or third party involved (e.g., license plate, names, phone number, and driver’s license number of any persons involved, VIN, make and model, vehicle color);

(c) insurance materials of all parties involved (e.g., policy number, name, insurance provider);

(d) witness contact information (e.g., name, address, phone number);

(e) photographs of any damage to the e-Bike or of other vehicles involved; and
(f) a copy of the police report for the incident, if any.

User agrees to fully cooperate with Company, investigators, and insurance partners in the event of an accident or damages to any third-party person or property.

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;
(b) pedestrians;
(c) traffic;
(d) e-Bike, Battery, or other component malfunction;
(e) theft;
(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.

9. NOTICES.
Any communications and notices from User to Company in relation to this Agreement must be sent to Company by email at hello@getwhizz.com, except as otherwise provided for in this Agreement. Routine Company communications will be sent to the cell phone number, email address, through Messengers, or to the mailing address provided by the User in his or her application for a Subscription. Company communications may also be sent to Users through notifications or messages within the App. Any notices deemed necessary for User’s attention while using the Services will continue to be sent to User even after opting out of communications. To stop receiving notices of any kind from Company, User has to terminate the Subscription and User Account, as more fully described above and in our Privacy Policy.

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. Miscellaneous

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.


ANNEX A

CERTAIN DAMAGE FEES