RIDER'S RENTAL AGREEMENT, RELEASE OF LIABILITY & ASSUMPTION OF RISK INDEMNITY AND HOLD HARMLESS
THIS IS A LEGAL AND BINDING AGREEMENT. RIDERS SHOULD READ ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE AGREEING TO ENTER INTO THIS AGREEMENT. BY ENTERING INTO THIS AGREEMENT, RIDER IS PERMITTED TO USE BIKES PROVIDED BY DECOBIKE AS PART OF THE DISCOVER BIKE PROGRAM IN SAN DIEGO WITH CERTAIN USE RESTRICTIONS AS A CONDITION FOR USE OF THE BIKE. ADDITIONALLY, RIDER RELEASES AND WAIVES CERTAIN RIGHTS AND CLAIMS, AS WELL AS ACCEPTING CERTAIN RESPONSIBILITIES.
THE DISCOVER BIKE PROGRAM IN SAN DIEGO, IS AN AUTOMATED PUBLIC BICYCLE SHARING AND RENTAL PROGRAM OPERATED BY DECOBIKE (THE "PROGRAM"). IT DIFFERS FROM A TYPICAL PRIVATE BICYCLE RENTAL. TWO TYPES OF ACCESS TO THE AUTOMATED PROGRAM ARE OFFERED: MEMBERSHIPS OR RENTALS.
MEMBERSHIPS: FOR ALL TYPES OF PROGRAM MEMBERSHIPS, BIKES ARE REQUIRED TO BE DOCKED INTO DECOBIKE STATION LOCATIONS AT SPECIFIC TIME INTERVALS (TIME INTERVAL VARIES DEPENDING ON MEMBERSHIP TYPE) OR ADDITIONAL CHARGES/LATE FEES MAY APPLY PER THE POSTED RATES, WHICH IS TYPICAL OF PUBLIC BIKE SHARING PROGRAMS. A BIKE IS NOT TO BE KEPT FOR LONGER THAN A ONE DAY OR FOR MUTLIPLE DAYS BY THE RIDER. A MAXIMUM DAILY RATE OF $75 PER DAY WILL APPLY FOR ANY BIKE NOT RETURNED IN THE PRESCRIBED MEMBERSHIP USE PERIOD. IF RIDER FAILS TO RETURN BIKE WITHIN 25 HOURS OF THE EXPIRATION OF THEIR ORIGINAL MEMBERSHIP USE PERIOD, RIDER WILL BE CHARGED A FEE OF $800.
RENTALS: FOR ALL PROGRAM RENTALS ORIGINATING AT A PROGRAM STATION, THE RIDER MAY KEEP BIKE FOR THE ENTIRE TIME OF RENTAL WITHOUT THE NEED TO DOCK BIKE AT A PROGRAM STATION. RIDER MAY, AT ITS OPTION, DOCK BIKE AT ANY DECOBIKE STATION WHEN NOT IN USE AND RETRIEVE THE SAME OR ANOTHER BIKE WITH SAME CREDIT/DEBIT CARD DURING THE INITIAL RENTAL PERIOD WITHOUT INCURRING ADDITIONAL FEES. IF BIKE IS NOT RETURNED PRIOR TO THE END OF THE INITIAL RENTAL PERIOD, ADDITIONAL CHARGES/FEES MAY APPLY PER THE POSTED RATES. A MAXIMUM DAILY RENTAL RATE OF $75 PER DAY WILL APPLY FOR ANY BIKE NOT RETURNED IN THE PRESCRIBED RENTAL PERIOD. IF RIDER FAILS TO RETURN BIKE WITHIN 25 HOURS OF THE EXPIRATION OF THEIR ORIGINAL RENTAL TERM, RIDER WILL BE CHARGED A FEE OF $800.
DECOBIKE LLC, FROM TIME TO TIME, PARTICIPATES IN "SPECIAL EVENTS" IN A NON-AUTOMATED FORMAT AND PROVIDE BIKES TO USE ON A COMPLIMENTARY BASIS, OR FOR A FEE, WITHOUT USING AUTOMATED DECOBIKE STATIONS TO CHECK BIKES OUT FROM OR RETURN BIKES TO. WHETHER A RIDER PAYS FOR USE OF THE BIKE OR IT IS PROVIDED ON A COMPLIMENTARY BASIS, ALL TERMS AND CONDITIONS, RELEASE OF LIABILITY, ASSUMPTION OF RISK, INDEMNITY AND HOLD HARMLESS TERMS OF THIS AGREEMENT STILL APPLY TO RIDER'S USE OF THE BIKE (WITH THE EXCEPTION OF BILLING ITEMS UNIQUE FOR MEMBERSHIPS AND AUTOMATED RENTALS). IF BIKE IS NOT RETURNED PRIOR TO THE END OF THE INITIAL SPECIAL EVENT RENTAL PERIOD, ADDITIONAL CHARGES/FEES WILL APPLY AT THE RATE OF $4 FOR EACH ADDITIONAL 30-MINUTE PERIOD UNTIL RETURNED, UP TO A MAXIMUM DAILY RENTAL RATE OF $75 PER DAY. IF RIDER FAILS TO RETURN BIKE WITHIN 25 HOURS OF THE EXPIRATION OF THEIR ORIGINAL SPECIAL EVENT RENTAL TERM, RIDER WILL BE CHARGED A FEE OF $800.
PURPOSE OF AGREEMENT
This document constitutes the entire Agreement ("Agreement") between the Rider ("Rider"), the individual agreeing to be bound by the terms of this document and to use and rental of a bike ("the Bike") accordingly, and DECOBIKE ("DecoBike") shall be considered a third party beneficiary of this Agreement. For purposes of this Agreement, wherever Discover is referred to below such definition shall include all of Discover's members, managers, employees and investors.
GENERAL RULES & RESTRICTION FOR BIKE USE AND RENTAL
- Age Restriction: Rider is and must be 18 years of age or older. Rider certifies and guarantees that he/she meets this requirement. If Rider falsifies or misrepresents, unintentionally or intentionally, Rider's age, the Rider accepts full responsibility for any and all damages, demands, consequences, causes of action, losses, injuries, court and litigation costs, attorney's fees, penalties, fines, legal actions of any kind, judgments, expenditures of any type or nature whatsoever related to such misrepresentations, whether intentional or unintentional.
- Helmet Warning: Failing to wear a helmet could result in serious bodily injury or death in the event of an accident or collision. As a preventive measure, DISCOVER recommends that all Riders use a properly fitted helmet at all times when operating the Bike. It is the Rider's sole responsibility to utilize a helmet. Rider agrees that in consideration of the use and rental of the Bike, DECOBIKE and its and their agents, directors, officers, shareholders, successors, assigns, subsidiaries, parent organizations and affiliates, shall not be liable or responsible for any damages or injuries caused by or relating to Rider failing to wear a properly fitted and/or fastened helmet.
- Requirement to Inspect Bike Prior to Operating: Rider agrees to carefully inspect the Bike he/she wishes to ride prior to riding the Bike, and shall, while within 15 feet of the place of rental, test the Bike's operating components including but not limited to: the chain, brakes, pedals, lights, tires, frame and seat. This is not intended to be an extensive or exhaustive list. Rider agrees, prior to operating the Bike, that he/she will notify DISCOVER if there appear to be any issues with the Bike and if Rider rides any Bike that Rider that later determines is not operating properly, Rider will immediately stop riding the Bike, return the Bike and notify DISCOVER. Rider should adjust seat height to fit their body frame prior to operating the Bike.
- Requirement to Discontinue Use: Rider expressly agrees that he/she shall discontinue use of the Bike immediately and return it to a Program Station if it, or any component of it, should become defective or malfunction while riding the Bike and during any use or operation of the Bike and Rider shall notify DISCOVER customer service. DISCOVER may, at its sole discretion, issue another Bike to Rider, pick up the Bike at issue, or provide any other related services.
- Rider Experienced with Bicycle Operation: Rider asserts, represents and certifies that he/she is experienced and familiar with the safe and competent operation of a bicycle, and further, that he/she is physically and mentally fit to ride the Bike. Rider is solely responsible for any injury or damages resulting from improper or unsafe operation of the Bike. If rider has any existing physical or mental condition that would prohibit Rider from safely operating the Bike, he/she is prohibited from riding the Bike.
- Rider Restricted from riding or operating the Bike in adverse weather conditions: Rider agrees that he/she will not ride, operate or use a bike in any manner during adverse weather conditions, including but not limited to: tornados, hurricanes, fog, heavy rains, or lightning storms.
- Rider Restricted from using or operating a Bike while Impaired: Rider expressly agrees that he/she shall not ride or attempt to operate a Bike if he/she is under the influence of drugs or alcohol and/or impaired with an alcohol level above what is legally permissible under state or local laws. Rider assumes all risks and liabilities resulting from any and all use or attempted use of a Bike while impaired. Operating a Bike while impaired or under the influence can cause death or serious bodily injury as well as endangering the safety of others.
- Rider Required to Comply with all applicable local, state, and county rules, regulations, codes and laws that relate to the safe operation of a bicycle. Rider certifies he/she has familiarized himself/herself with such prior to riding or operating a Bike. Should Rider wish to further review such regulations, they can be obtained from the State of Florida, the Florida Bicycle Organization and on the internet.
- Restrictions of Type of Use of Bike: Rider agrees not to use the Bike for racing, tricks riding, jumping, stunt riding and/or, off-road riding. Rider further agrees not to use the Bike for any commercial or hire purposes. Rider shall not ride the Bike on unpaved roads, through puddles or water, or any other uses/places prohibited by law. Rider agrees not to tow, pull, carry or push any person or object with Bike as such can create an unsafe condition. Rider agrees to be seated at all times while pedaling and shall not pedal the Bike while in a standing position. Pedaling the Bike from an upright, standing position may create a dangerous condition and increase Rider's chance of an injury.
- Bike is and shall remain the exclusive property of DISCOVER at all times. Rider shall not remove or modify any accessories, parts or components of the Bike as it is a criminal act to do so.
- Rider shall not permit others to ride upon or use Bike: Rider is expressly prohibited from allowing any 3rd party to ride upon or use the Bike in any capacity whatsoever, as the Bike is the exclusive property of DISCOVER. Rider is prohibited from allowing anyone else upon any part of the Bike at all times.
- Restricted use of Front Basket: Rider agrees that he/she will not use the basket for any purpose other than carrying small and light items while riding the Bike. Rider acknowledges the basket is for light items only and that he/she should not overfill the basket with too many items or heavy items as it can cause an unsafe condition and may impair the balance, steering and/or stability of the Bike which can result in injury to Rider. DISCOVER is not responsible for damage or loss to any items being transported, carried or left in the Bike basket and Rider is solely responsible for such items at all times.
- Rider required to report accidents or incidences of theft, loss and damage to Police: Rider must contact DISCOVER and local Police immediately in the event of theft of the Bike or an accident that occurred during Rider's use of Bike resulting in bodily injury. A police report should be obtained in any of these events and provided to DISCOVER upon request within 5 business days of the incident as provided below and contain the facts surrounding the incident and contact information for witnesses and anyone else involved in the accident/incident.
- Rider's liability in the event of theft or loss of Bike: Rider shall be liable and responsible for any costs, claims, judgments, demands, damages, injuries, expenses, penalties, expenditures of any nature, causes of action, losses, attorney's fees and court costs of any kind relating to a stolen, lost or damaged Bike. If Rider leaves Bike unlocked or unattended and it is stolen, Rider is expressly responsible for its replacement cost.
- Rider Responsibility for Damage to Bike or Other Property: Rider expressly agrees to return the Bike to DISCOVER 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 shall become due and payable at standard labor and parts rates upon invoicing by DISCOVER to Rider. If Bike is permanently damaged and must be removed from circulation, Rider shall be responsible for furnishing DISCOVER with the replacement cost of the Bike, due and payable upon invoicing by DISCOVER to Rider. Email, express courier and USPS are all acceptable methods to deliver such invoices from DISCOVER. Rider is restricted from renting a bike that has visible defects or damage that may interfere with the safe operation of the Bike. Should Rider cause damage to the property of another party while operating or in possession of the bike, Rider is solely liable for such damage.
- Requirement to Secure Bike at All Times: Rider agrees to maintain the Bike in a secure manner at all times which should be returned or stored at Program Stations. Bikes may or may not be equipped with onboard cable, chain or wire locks. Under any and all circumstances, DISCOVER is not responsible for any lost, stolen, destroyed or damaged Bikes regardless of whether locks are utilized and/or properly functioning. Rider expressly agrees that he/she shall pay for any damages to the Bike caused by Rider or anyone else during Rider's rental or use period of the Bike. Any required repairs will be performed and billed at normal labor rates and parts/materials costs. Should a Bike be damaged to the point that it is no longer function or safe to operate, Rider agrees to pay DISCOVER the full replacement value of the Bike.
- Requirement to acknowledge that No Insurance is Provided under this Agreement: Rider expressly acknowledges and agrees that DISCOVER does not provide insurance of any kind including but not limited to: property damage, liability, personal injury, injury to others, damages, penalties, fines, losses, and/or expenses of any kind whatsoever.
- Rider agrees to conditions regarding payment for unreturned, damaged, lost or stolen Bike: Rider agrees that if the Bike is not returned to a designated DISCOVER location within the allocated time period as described herein, or the Bike is otherwise damaged beyond repair, lost or stolen, DISCOVER will immediately charge Rider a $ fee which will be charged directly to the credit and or debit card that Rider used to rent the Bike and/or in a subsequent invoice to Rider, payable upon receipt. Rider shall be personally liable for the payment of the fee even if their credit or debit card lacks sufficient funds to cover the fee.
- Rider participating in a public bicycle sharing program: Rider understands that he/she is participating in a public bicycle sharing program, and that unlike a standard private bicycle rental, Rider is required to check bikes in and out of stations periodically so that such bikes are available to the next user when accessing the program via a MEMBERSHIP. When not in use, Rider should always dock the bike at a DISCOVER station location and Rider may select any other available bike when ready to ride again. Rider is prohibited from keeping or possessing a specific bike for an entire day or multiple days when accessing program via a membership. If Rider selects a bike sharing program MEMBERSHIP Rider shall be permitted to ride an unlimited number of trips during such membership period to get Rider from station to station. The duration of each trip shall be limited to the type of membership selected by Rider.
- If Rider selects to access the program via a RENTAL (different from membership), Rider shall promptly return such bike to a DISCOVER location at the end of the rental period or he/she shall incur additional charges at the posted rate and as otherwise described herein.
- Rider Responsibility for Acts of Destruction; Recovery of Costs; Prosecution; Rider agrees that any willful or negligent act of destruction of the Bike and/or DISCOVER property will result in prosecution to the fullest extent of the law and DISCOVER will seek the recovery of all costs and administration chares from Rider, including attorney's fees and costs.
- Rider responsibility for Tickets, Fees and Fines: Rider agrees that he/she is solely responsible and will not hold Discover and/or any of its or their agents, directors, officers, shareholders, employees, successors, assigns, subsidiaries, parent organizations, and/or affiliates liable for any moving violation, fines, and/or illegal activities incurred by Rider while using, riding and/or operating the Bike. Rider agrees to pay on demand all fines, and court costs, including administrative fees for parking, bus lane, traffic or other legal and/or moving violations assessed against the Bike, the Rider or Discover during the rental or use of the Bike by Rider. Rider agrees to pay Discover for any costs, expenses and/or attorney's fees for processing, pursuing and/or defending any such claims.
- Lost Membership Cards & Replacement Fees: Should Rider lose or misplace their Membership card, Rider agrees to immediately log into their account via the internet and report their card lost. If Rider loses its membership card and subsequently a Bike is checked out and not returned using the lost card, Rider is responsible for its replacement cost. A card replacement fee of $5.00 applies for the issuance of each new membership card.
- Failed Membership Account Billing: Riders with an ongoing Membership subscription are responsible for timely payment of membership fees and/or any additional usage fees on the prescribed due date. It is Rider's responsibility to maintain updated and accurate billing information and method of payment in their Membership account online. Should a Rider's payment method on file be declined for any reason, a $5.00 reinstatement fee will be added to Rider's membership account balance and a temporary hold will be placed on the Rider's membership card disabling Rider from being able to check out a Bike until Rider's billing and payment is successfully processed.
- Police Authorized to Stop Any Person Riding or in Possession of the Bike(s): DECOBIKE LLC has specifically authorized local, county and state Police to stop any person riding or possessing a Bike at their request for safety and/or security purposes. This may include any Bike that appears damaged, altered, is missing its bike identification number(s), and/or has been checked out longer than the Bike's last corresponding rental/membership use period. Police may ask Rider to present any of the following forms of identification to ensure the Rider or person in possession of the Bike(s) is authorized to have, or be using, the Bike(s): (a) Membership card if Rider is a membership subscriber, (b) the credit or debit card used to rent the bike if Rider is not a membership subscriber, and/or (c) a form of government issued identification such as a driver's license of state issue ID card.
Waiver and/or Limitation of Liability
- For and in consideration of rental and use of Bike, Rider expressly forever releases and relinquishes and discharges Discover and/or any of its or their agents, directors, officers, shareholders, employees, successors, assigns, subsidiaries, parent organizations, and/or affiliates from any and all claims and/or liability, causes of action and/or damages including for personal injury, wrongful death, property damage, injury to others and/or third parties which arise from or related directly or indirectly to this Agreement; the rental, use and/or operation of the Bike; the Program or the Program website, including any and all claims, liability, causes of action and/or damages related to the sole or partial negligence of any non-related third party. By this Agreement any such claims, rights and causes of action that Rider (and Rider's legal guardian(s), if applicable) may have are hereby waived, released and relinquished, and Rider does so on behalf of Rider's heirs, executors, administrators and assigns.
- Rider expressly agrees to release and hold harmless Discover and/or any of it or their agents, directors, officers, shareholders, employees, successors, assigns, subsidiaries, parent organizations, and/or affiliates from all liability for any such property damage or loss, personal injury or loss of life, whether caused by the sole or partial negligence of a non-related third party others, whether based upon breach of contract, breach of warranty, active or passive negligence or any other legal theory, in consideration for using and/or operating the Bike. Rider voluntarily agrees, understands and acknowledges that Rider will have no right to make a claim or file a lawsuit against Discover or any of their agents, directors, officers, shareholders, employees, successors, assigns, subsidiaries, parent organizations, and/or affiliate es arising out of this Agreement; the rental, use and/or operation of the Bike; the Program and/or the Program website, in consideration for using and/or operating the Bike.
Assumption of Risks and Acceptance of Responsibility
- Rider expressly acknowledges and accepts that Rider rides at his/her own Risk. Rider accepts the Bike for use, exercising his/her own free choice to participate voluntarily in this activity. Rider promises and agrees to take due care during such rental, use, participation and/or operation of the Bike. Rider understands that bicycling may be a hazardous activity. Rider acknowledges, understands and assumes all risk relating to the rental, maintenance, design, use and/or operation of the Bike and understands that bicycling involves risk to the Rider and others including bodily injury, partial or total disability, paralysis and death, and damages which may arise therefrom and that Rider has full knowledge of said risks and dangers. Rider understands that bicycling protective gear such as helmets and gloves are not provided but are recommended. Rider expressly understands that such gear, even when used, does not eliminate the risk of injury in the event of an accident.
- Rider acknowledges that there may be risks and dangers not known to Rider or not reasonably foreseeable at this time related to bicycling, maintenance, design, rental, use and/or operation of the Bike, and Rider assumes responsibility for any and all such risks and dangers. Rider acknowledges and understands that risks and dangers related to the rental, maintenance, design, use and/or operation of the Bike may be caused by the negligence of the Riders or others including DISCOVER and DISCOVER's Parties. Rider assumes responsibility for all such risks and dangers.
- Rider freely and expressly assumes an accepts any risks and all injuries to the Rider, Rider's personal property, and any others injured or damaged as a result of the rental, maintenance, design, use and/or operation of the Bike. Rider acknowledges, understands and agrees that all of the risk and dangers related to the rental, maintenance, design use and/or operation of the Bike, including those caused by the negligence of others, are included within the waiver, release and relinquishment of liability contained in this Agreement.
- Arbitration. Rider expressly agrees that DISCOVER, at its sole discretion, may submit any disputes whatsoever arising out of, resulting from, and/or relating to this Agreement; the rental, use and/or operation of the Bike, the DISCOVER program, and/or the DISCOVER 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. Notwithstanding these rules, however, such proceeding shall be held in SAN DIEGO by the laws of the State of Florida. All arbitration proceedings will be conducted in the English language. Any award in an arbitration initiated under this clause shall be limited to monetary damages and shall include no injunction or direction to any part other than the direction to pay a monetary amount. Further, the arbitrators shall have no authority to award punitive, consequential or other damages not measured by the prevailing party's actual damages in any arbitration initiated under this section, except as may be required by statute.
- No Warranty. Discover does not provide any warranties, express or implied. There is no warranty of merchantability or fitness for a particular purpose, and the Bike and DISCOVER equipment is accepted "As Is".
- Service Interruptions. Discover shall not be liable for, or owe a refund to, Rider for any interruptions in service caused by or reasonably attributed to public unrest, emergencies, labor strikes, adverse weather conditions, criminal acts of others and acts of god, as well as mechanical/technical failures of internet, cellular and data hosts/service providers, both wired and/or wireless.
- Indemnification. In consideration for the use of the Bike, Rider expressly agrees to indemnify, defend, protect and hold harmless Discover and/or any of its or their agents, directors, officers, shareholders, employees, successors, assigns, subsidiaries, parent organizations, and/or affiliates against any and all claims, demands, causes of action, losses, liabilities, damages, injuries, costs and expenses, penalties, attorneys fees, judgments, suits, including claims brought by a third party, or disbursements of any kind of nature whatsoever related to, resulting from , regarding or referencing this Agreement, the rental, maintenance, design , and use and/or operation of the Bike, the Program and/or the Program website.
- Jurisdiction & Governing Law for All Proceedings. Rider expressly agrees that in the event of any proceeding, dispute, claim or controversy arising out of, resulting from and/or relating to this Agreement, the rental, maintenance, design, use and/or operation of the Bike, the DISCOVER program and/or the DISCOVER website shall be construed in accordance with and governed in all respects by the laws of the State of Florida, venue shall be SAN DIEGO Dade County. Rider expressly agrees to submit to the exclusive jurisdiction of the State of Florida courts. DISCOVER may assign its rights and duties under this Agreement to any party at any time without notice to Rider.
- No Waiver. DISCOVER'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 DISCOVER shall be construed as a waiver of any proceeding or succeeding breach of any provision in this Agreement.
- Termination of Agreement. DISCOVER may terminate this Agreement at any time, without cause, legal process, or notice to the Rider. Rider waives all claims, causes of actions, expenses, and/or damages connected and/or related to any such termination.
- Severability. Each provision of this Agreement, including any exclusions or limitations of liability, shall be construed separately, applying and surviving even if for any provision in this Agreement is held to be inapplicable or unenforceable under any circumstances.
- Entire Agreement: This Agreement constitutes the final and entire Agreement between DISCOVER and Rider. This Agreement represents the entire understanding between DISCOVER and Rider and prevails over any prior or contemporaneous, conflicting or additional, communications, unless DISCOVER revises or modifies this Agreement. DISCOVER 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 the DISCOVER website. 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.
- Acceptance of Agreement by Rider. Rider expressly acknowledges that he or she has carefully read the entire Agreement, including the terms and conditions, and understands this Agreement, including but not limited to the Waiver of Liability, Assumption of Risk and Indemnification Provisions, fully, and expressly agrees to be bound by this Agreement. Rider voluntarily gives his or her consent and expressly agrees to all the conditions included in this Agreement as set forth above.
RIDER HAS READ, UNDERSTANDS AND EXPRESSLY AGREES TO THE ABOVE AGREEMENT AND TERMS AND CONDITIONS. BY ACCEPTING THIS AGREEMENT AND CHECKING OUT A BIKE AT A PROGRAM KIOSK (EITHER THROUGH A MEMBERSHIP OR RENTAL), RIDER HAS AFFIRMATIVELY AGREED TO ENTER INTO THIS AGREEMENT.