VANCOUVER BIKE SHARE RENTAL AGREEMENT & WAIVER (“AGREEMENT”)
LAST UPDATED: Nov 15, 2019
LAST UPDATED: Nov 15, 2019
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE RENTING OR USING A BICYCLE (“BIKE”) FROM VANCOUVER BIKE SHARE INC. AND CYCLEHOP, LLC dba MOBI BY SHAW GO OR ANY OF THEIR AFFILIATES (COLLECTIVELY, "VBS"); VBS AND SMOOVE SAS. ARE JOINTLY REFERRED TO HEREIN AS "OPERATOR".
BY RENTING OR USING A BIKE, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED WITHIN THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE WAIVERS, RELEASES AND LIMITATIONS OF LIABILITY SET FORTH HEREIN. YOUR CONSENT IS EFFECTIVE IMMEDIATELY FOLLOWING YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF USE SET FORTH IN THIS AGREEMENT, YOU ARE NOT PERMITTED TO RENT OR USE A BIKE FROM OPERATOR OR ITS AFFILIATES.
TO PURCHASE A RENTAL PLAN (“PASS” or “MEMBERSHIP”) AND/OR TO RENT A BIKE, YOU MUST BE AT LEAST: (i) 19 YEARS OF AGE; or (ii) 12 YEARS OF AGE AND ASSISTED BY AN ADULT IN THE MANNER OUTLINED IN THIS AGREEMENT.
PARTIES, CONSIDERATION AND BIKE SHARE PROGRAM DESCRIPTION
1. AGREEMENT. This Agreement is between the user (“you” or “Rider”) and the Operator.
1.1. CONSIDERATION: In consideration of the Operator renting a Bike to you, you agree to all the terms, conditions and provisions contained within this Agreement.
1.2. EQUIPMENT. The Operator maintains a network of hub stations (“Stations”) where Bikes are docked at Bike racks (“Rack”) using an electronically controlled lock (“Lock”). Signs and self-serve payment kiosks (“Payment Kiosks”) are located at some Stations which provide instructions and accept payment. Bikes are equipped with Smoove Box devices. All of the foregoing equipment and other equipment located at a Station or that consists of any Bike, in whole or part, is referred to herein as “Operator Equipment.”
1.3. HOW IT WORKS.
(1) REGISTRATION AND PURCHASE. You must register for a Rider account (“Account”), including providing credit card info in accordance with Section 2.8, and purchase a Pass or Membership via: (i) the Operator’s website; (ii) the mobile app; (iii) other applicable third party apps; or (iv) a Payment Kiosk.
(2) METHOD OF RENTAL. Once you purchase a Pass or Membership, you can rent an available Bike in one of the following ways: (i) enter your Account number and PIN code at the Smoove Box located on the Bike; or (ii) tap your Membership card and enter your PIN code at the Smoove Box located on the Bike.
(3) RENTAL PERIOD. Your Bike rental period (“Rental Period”) begins when the Bike is unlocked from a Rack at a Station. You take the Bike for a trip (“Trip”), and the Rental Period ends when the Bike is returned to a Station. To end the Rental Period, you must lock the Bike to an available Rack, and wait for verification on the Bike screen, Return OK, and audio signal of one beep, indicating the Rental Period has ended prior to leaving the Bike. If Rider has difficulty ending a Trip, Rider must make reasonable effort to troubleshoot the situation such as but not limited to removing the bike from the Rack to retry ending the Trip, using a different available Rack in the same Station, or a Rack in an alternative Station. If the difficulty persists, Rider must contact Operator at 778-655-1800 or email@example.com for assistance. Fees up to $50 may be applied to Rider for Trips where the Rental Period has not been properly ended as determined by the Operator in its sole discretion.
1.4. BOUNDARIES. All Trips must begin and end at a Station. Trips cannot terminate outside of the VBS program area designated on the map posted at each Station or available on the website and app (“Program Area”), and any Bike left outside the Program Area will be considered stolen with fees charged in accordance with Section 2.5.
2. RENTAL RULES
2.1. RENTAL PLANS. You may acquire from the Operator the following rental plans at the following rate structures:
- 365 Day Memberships:
- 365 Day Standard Pass costs $129 plus tax for 365 days of bike access and provides the Rider that holds such Pass with the first 30 minutes free of charge each time a single Bike is checked out from a Station.
- 365 Day Plus Pass costs $159 plus tax for 365 days of bike access and provides the Rider that holds such Pass with the first 60 minutes free of charge each time a single Bike is checked out from a Station.
- 365 Day Founding Standard Pass costs $99 plus tax for 365 days of bike access and provides the Rider that holds such Pass with the first 30 minutes free of charge each time a single Bike is checked out from a Station.
- 365 Day Founding Plus Pass costs $119 plus tax for 365 days of bike access and provides the Rider that holds such Pass with the first 60 minutes free of charge each time a single Bike is checked out from a Station.
- Vancity Community Pass costs $20, including tax, for 365 days of bike access and provides the Rider that holds such Pass with the first 60 minutes free of charge each time a single Bike is checked out from a Station.
- 365 Day Standard Pass SALE costs $99 plus tax for 365 days of bike access and provides the Rider that holds such Pass with the first 30 minutes free of charge each time a single Bike is checked out from a Station.
- 365 Day Plus Pass SALE costs $119 plus tax for 365 days of bike access and provides the Rider that holds such Pass with the first 60 minutes free of charge each time a single Bike is checked out from a Station.
- Multi-Day Memberships:
- 90 Day Pass costs $75 plus tax for 90 days of bike access and provides the Rider that holds such Pass with the first 30 minutes free of charge each time a single Bike is checked out from a Station.
- Monthly Memberships:
- Monthly Basic Pass costs $10 plus tax for 30 days of bike access and provides the Rider that holds such Pass with the right to use a Bike at a rate of $2 per every 30 minutes of riding time.
- Monthly Standard Pass costs $15 plus tax for 30 days of bike access and provides the Rider that holds such Pass with the first 30 minutes free of charge each time a single Bike is checked out from the Station.
- Monthly Plus Pass costs $20 plus tax for 30 days of bike access and provides the Rider that holds such Pass with the first 60 minutes free of charge each time a single Bike is checked out from a Station.
- 30 Day Pass costs $25 plus tax for 30 days of bike access and provides the Rider that holds such Pass with the first 30 minutes free of charge each time a single Bike is checked out from a Station.
- 24 Hour Pass provides the Rider that holds such Pass with the first 30 minutes free of charge each time a single Bike is checked out from a Station. The Pass holder can rent up to a total of 4 Bikes on one 24 Hour Pass by selecting the number of Bikes during the sign-up process. Each Bike costs $12, plus tax and overage fees. 24 Hour Passes come into effect on payment and expire 24 hours after sign-up.
- Single Trip Pass costs $0 to gain access to bikes, and the Rider that holds such Pass is charged $3.75 per 30 minute interval of riding each time a single Bike is checked out from a Station.
- VIP Passes may be provided by the Operator from time to time to select individuals and/or organizations, and a Rider that uses such a Pass is bound by the rights and obligations contained in the terms and conditions attached by the Operator to such Pass.
OVERAGE FEES – IF A BIKE IS NOT RETURNED WITHIN THE FIRST 30 OR 60 MINUTES, AS THE CASE MAY BE, THE RIDER WILL BE CHARGED OVERAGE FEES IN ACCORDANCE WITH SECTION 2.2.
AUTOMATIC RENEWAL – Unless otherwise provided by the Operator or in this Agreement, all the following Passes and Membership are automatically renewed unless cancelled at least one (1) day prior to the end of their term:
- all annual memberships (sale memberships renew as regular priced memberships), except Vancity Community Passes; and
- all monthly memberships.
NON-TRANSFERABLE – Any unused rental time under a Pass or Membership cannot be carried over from one day to another day. For example, if you purchase a 30 Day Pass and do not rent a Bike on a given day within the applicable 30 day-period, you are not permitted to “bank” time from that calendar day to any other day.
2.2. OVERAGE FEES. You will be charged overage fees when a Trip exceeds the time period corresponding to the particular Pass or Membership you have purchased. You hereby agree to pay all overage fees incurred under your particular Pass or Membership. All Rental Periods will be rounded up to the next half hour. You assume all risks and responsibilities for tracking the duration of each Trip undertaken pursuant to your Pass or Membership. All overage fees are subject to tax.
The following table shows the overage fees that apply per current rental plan and riding time:
|Ride Time||24 Hour Pass||30 Day Pass||365 Day Pass Standard (Regular & SALE)*||365 Day Pass Plus (Regular & SALE)**|
|00:01 – 31:00 minutes||Included||Included||Included||Included|
|31:01 – 61:00 minutes||$6||$3||$3||Included|
|61:01 – 91:00 minutes||$12||$6||$6||$3|
|91:01 – 121:00 minutes||$18||$9||$9||$6|
|121:01 – 151:00 minutes||$24||$12||$12||$9|
|151:01 – 181:00 minutes||$30||$15||$15||$12|
|Each additional 30 minutes
** - includes applicable 365 Day Plus corporate and/or community Memberships, and Vancity Community Passes.
The following overage fees apply for archived Rental Plans:
Monthly Standard Pass: 00:01 – 31:00 minutes included; 31:01 – 61:00 minutes $3; 61:01 – 91:00 minutes $6; Each additional 30 minutes +$3
Monthly Plus Pass: 00:01 – 31:00 minutes included; 31:01 – 61:00 minutes included; 61:01 – 91:00 minutes $3; Each additional 30 minutes +$3
90 Day Pass: 00:01 – 31:00 minutes included; 31:01 – 61:00 minutes $2; 61:01 – 91:00 minutes $5; Each additional 30 minutes +$3
2.3. MAXIMUM RENTAL TIME. If a Bike is not returned to a Station within 16 hours of the start of a Rental Period, the Operator may deem the Bike to be stolen and charge you a bike fee in accordance with Section 2.5.
2.4. REPAIR FEE. If a Bike is damaged during your Rental Period of the Bike, beyond regular wear and tear, you shall be charged a fee that is equal to the cost of repairing such damage.
2.5. LOST OR STOLEN BIKE FEE.
General – The Operator may charge you the Bike’s full replacement cost of up to $2,000 if: (i) you leave a Bike unlocked or unattended and it is stolen; (ii) a Bike is lost or stolen through your fault as determined by the Operator in its sole discretion; or (iii) a Bike is not returned to a Station within the maximum rental time set out in Section 2.3.
Vancity Community Pass Holder – If a Bike becomes lost, stolen, or reasonably damaged while under the care or responsibility of a Rider holding a Vancity Community Pass, the Operator may, in its sole discretion:
- suspend such Rider from the right to rent any Bike for a period of up to one (1) year; or
- require the Rider to pay a one-time fee of up to $250,
Community Partner Pass holder – If a Bike becomes lost, stolen, or reasonably damaged while under the care or responsibility of a Rider holding a non-renewable 365 Day Passes issued by the Operator to a community partner, both the Rider and the applicable community party are liable for any damages caused. In addition, the Operator may, in its sole discretion:
- suspend such Rider from the right to rent any Bike for a period of up to one (1) year; or
- require the Rider and/or the applicable community partner to pay a one-time fee of up to $250,
2.6. HELMET USAGE. You expressly acknowledge that applicable laws and ordinances require each Rider to wear an appropriate protective helmet designed for riding bicycles. You are solely responsible for yourself and any other permitted users who are renting Bikes under your Account (24 Hour Pass only) to ensure that each of you wears a helmet and complies with the law. For convenience, a Mobi helmet (“Helmet”) is attached to each Bike or is available elsewhere as indicated on Station signs or the Bike Share Program website – and its use is included in the Bike rental fee or other payment as indicated. Helmets are only provided for use during a Rental Period and must be returned at the same time that a Trip is concluded. If you do not return a Helmet, you may be charged a Helmet fee of $50. Failure to wear a helmet while riding a Bike may result in fines, tickets, citations, or loss of ridership privileges. Helmets are deemed to be included in the definition of “Bike” for the purpose of this Agreement.
2.7. VIOLATIONS. You shall be completely responsible, and shall indemnify the Operator, for all tickets and fees assessed against the Bike or the Operator during your Rental Period or as a result of the location where you parked the Bike. You are responsible for all tickets and moving violations incurred during the Rental Period including those resulting from your failure to wear a helmet. You agree to reimburse the Operator for any costs, expenses and attorney’s fees for processing, pursuing and/or defending any such claims.
2.8. CREDIT CARD.
General – Except as otherwise provided in this section 2.8, you must provide the Operator a valid credit card number with expiration date (“Credit Card”) before being registered to use a Bike. This Credit Card will be verified for its validity through a one-time $100 card verification anytime the Credit Card is added to Rider Account and prior to any applicable electronic payment process; the amount will be applied and immediately cancelled and/or refunded. Pre-paid credit cards are not considered a valid method of payment. By providing your Credit Card to the Operator, you represent and warrant to the Operator that you are authorized to use the Credit Card. You further authorize the Operator to charge the Credit Card for all costs (including fees, expenses and tickets) incurred by you under this Agreement, including under section 2.7, and all such costs are subject to applicable taxes and other local government charges, which may be charged and collected by the Operator. In the event that your Credit Card is declined for any reason, the Operator may suspend your rental plan and ability to use any Bikes until all of your prior charges are paid in full, and the Operator may also charge you a reinstatement fee of up to $30.
Community Partners – If you hold a Pass issued by the Operator to a community partner, such community partner will be responsible for providing a Credit Card to the Operator and making the authorizations outlined above; however, the applicable community partner may choose to collect all costs (including fees, expenses and tickets), applicable taxes and local government charges from you if discussed in advance with the Operator.
Vancity Community Pass Holder – Holders of a Vancity Community Pass may, in addition to payment by valid credit card, provide payment for all or any costs (including fees, expenses and tickets), applicable taxes and local government charges by cash or debit payment using the Square software.
2.9 CREDITS. The Operator may issue time or other credits (“Credits”) to you to be used toward future Trips. Credits shall have no monetary value. Credits may be transferred to family or friends as approved by the Operator but may not be sold. No monetary exchange is permitted for Credits on Rider Account. If any Credit has an expiration date, it will be noted in your Account page. Unused Credits will expire and be removed from the your Account at the end of any applicable validity period. The terms outlined in this Agreement are applicable to all Bike usage whether or not a Credit is applied to the Trip.
2.10. THIRD PARTY PAYMENT PROCESSOR. The Operator uses a third party payment processing company called Stripe. In collecting payment, Stripe processes your credit card transactions and obtains personal information from you. Stripe provides some or all of the services from systems located within the United States. As such, your credit card data (“Card Data”) and personal information will be transferred, processed and stored outside of Canada on servers in the United States, and may be subject to disclosure as required by applicable law. Stripe may provide the Operator with information such as your name, credit card type, expiration date, and the last four digits of your credit card number. This information is only used to make single payment requests, or register the Rider for an ongoing membership plan that requires automatic payments in the future. For more information on Stripe’s payment processing and security practices, please visit https://stripe.com/ca/privacy and https://stripe.com/ca/terms#section_a.
If you object to your personal information and/or Card Data being processed and stored in this manner, you cannot use the Operator’s Bike rental service. By registering for the Bike rental service pursuant to this Agreement and providing valid payment, you expressly consent to the Operator’s use and disclosure of your personal information and Card Data in the manner described in this Agreement.
2.11. RENTAL OF MULTIPLE BICYCLES. Subject to program requirements and availability, a Rider over the age of 19 who purchases a 24 Hour Pass may rent up to four (4) Bikes at the same time on that Rider’s Account. If a Rider elects to rent multiple Bikes at the same time, such Rider (referred to as the “Main Rider” for the purposes of this Section 2.11) agrees to rent the first Bike for the Main Rider's own use and to make subsequent Bikes available to additional users (each, an “Additional User”) under the Main Rider’s Account. Prior to riding, each Additional User must review and accept this Agreement, except such requirements outlined herein to create an Account. The Main Rider further acknowledges and agrees that:
- the Main Rider shall be responsible for each Bike rented under the Main Rider's Account;
- that each Additional User is at least 12 years of age;
- the Main Rider must ensure that each Additional User reads and complies with this Agreement, except such requirements outlined herein to create an Account; and
- the Main Rider is fully and completely responsible and liable for all Claims (as defined in Section 5, below) arising from or related to all Additional User(s)’ use(s) of a Bike/Bikes.
Riders under the age of 19: In the event that the Main Rider is renting multiple bicycles and one or more of the Additional User(s) is under 19 years of age, the Main Rider agrees to the following:
YOU HEREBY AFFIRM THAT:
- YOU ARE THE PARENT OR LEGAL GUARDIAN OF EACH ADDITIONAL USER(S) WHO IS UNDER 19 YEARS OF AGE;
- YOU ARE AT LEAST 19 YEARS OF AGE AND EACH ADDITIONAL USER OF A BIKE IS: (i) AT LEAST 12 YEARS OF AGE; AND (ii) AT LEAST 150 CM IN HEIGHT;
- YOU HAVE THE LEGAL AND MENTAL CAPACITY TO ENTER INTO THIS AGREEMENT;
- YOU HAVE ENSURED THAT EACH ADDITIONAL USER WHO IS UNDER 19 YEARS OF AGE HAS READ AND UNDERSTOOD THIS AGREEMENT AND THAT, IF NECESSARY, YOU HAVE EXPLAINED THE TERMS OF THIS AGREEMENT TO SUCH ADDITIONAL USER(S);
- YOU ARE AGREEING TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, SECTION 3 (RESTRICTIONS AND OTHER TERMS AND CONDITIONS OF BIKE USE), SECTION 5 (RELEASE AND LIMITATION OF LIABILITY), SECTION 6 (ASSUMPTIONS OF RISKS DISCLAIMER) AND SECTION 8 (INDEMNIFICATION) ON BEHALF OF EACH SUCH ADDITIONAL USER;
- YOU AUTHORIZE THE USE OF YOUR ACCOUNT FOR BIKE RENTAL SERVICES BY EACH SUCH ADDITIONAL USER IN ACCORDANCE WITH THIS AGREEMENT, INCLUDING THE RESTRICTIONS AND OTHER TERMS AND CONDITIONS OF BIKE USE OUTLINED FOR RIDERS IN SECTION 3 WHICH APPLY TO EACH ADDITIONAL USER; AND
- YOU ARE RESPONSIBLE FOR EACH ADDITIONAL USER’S COMPLIANCE WITH THE APPLICABLE PROVISIONS OF THIS AGREEMENT, INCLUDING SECTIONS 1.4, 2.3 TO 2.7, 3, 5, 6, 8, 10, 12, 13 AND 15.
In addition, THE PARENT OR LEGAL GUARDIAN HEREBY AFFIRMS THAT:
- YOU ARE THE PARENT OR LEGAL GUARDIAN OF THE YOUTH RIDER;
- YOU ARE AT LEAST 19 YEARS OF AGE AND THE YOUTH RIDER IS AT LEAST 150 CM IN HEIGHT;
- YOU HAVE THE LEGAL AND MENTAL CAPACITY TO ENTER INTO THIS AGREEMENT;
- YOU HAVE ENSURED THAT THE YOUTH RIDER HAS READ AND UNDERSTOOD THIS AGREEMENT AND THAT, IF NECESSARY, YOU HAVE EXPLAINED THE TERMS OF THIS AGREEMENT TO SUCH YOUTH RIDER;
- YOU ARE AGREEING TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, SECTION 3 (RESTRICTIONS AND OTHER TERMS AND CONDITIONS OF BIKE USE), SECTION 5 (RELEASE AND LIMITATION OF LIABILITY), SECTION 6 (ASSUMPTIONS OF RISKS DISCLAIMER) AND SECTION 8 (INDEMNIFICATION) ON BEHALF OF THE YOUTH RIDER;
- YOU AUTHORIZE THE USE OF YOUR ACCOUNT FOR BIKE RENTAL SERVICES BY THE YOUTH RIDER IN ACCORDANCE WITH THIS AGREEMENT, INCLUDING THE RESTRICTIONS AND OTHER TERMS AND CONDITIONS OF BIKE USE OUTLINED FOR RIDERS IN SECTION 3 WHICH APPLY TO EACH YOUTH RIDER; AND
- YOU ARE RESPONSIBLE FOR THE YOUTH RIDER’S COMPLIANCE WITH THE APPLICABLE PROVISIONS OF THIS AGREEMENT, INCLUDING SECTIONS 1.4, 2.3 TO 2.7, 3, 5, 6, 8, 10, 12, 13 AND 15.
2.14 NON-TRANSFERABLE. Except as provided above in section 2.11, Memberships are non-transferable and cannot be shared, and rental of Bikes is restricted to the Account holder (and, in the case of a 24 Hour Pass holder, such permissible Additional Users in accordance with Section 2.11).
2.15 ACCOUNT SUSPENSIONS. The Operator reserves the right to suspend or cancel your Account without notice if you breach any provision of this Agreement. If your Account is suspended, you may be charged a reinstatement fee of up to $30 to reactivate your Account once a resolution has been reached.
3. RESTRICTIONS AND OTHER TERMS AND CONDITIONS OF BIKE USE
3.1. REPRESENTATIONS AND WARRANTIES. As a condition precedent to the Operator’s agreement to allow you to participate in the Bike Share Program and to rent a Bike, you represent and warrant to the Operator that:
- You are at least 12 years of age;
- You (or your parent or legal guardian if section 2.12 applies) are the legal holder of and named on the Credit Card used to rent a Bike in accordance with the terms of this Agreement;
- You are experienced and familiar with the safe and competent operation of the Bike, and you are physically and mentally fit to ride the Bike;
- You are familiar with all applicable rules, regulations, codes and laws that relate to the safe and legal operation of a bicycle; and
- You will wear a helmet at all times that you are in motion on the Bike.
- You are fully aware that riding a bicycle on streets poses a risk of accident due to motorists, pedestrians, and road conditions, and you must be aware and keep a proper lookout to avoid such accidents;
- You are fully trained and capable of operating and riding a bicycle and are not relying in any way on the Operator to learn how to operate or ride a bicycle;
- Failure to use a helmet or to use the Bike in a careful and reasonably competent manner may result in bodily injury or death to you and others, for which you accept full responsibility;
- You are solely responsible for obtaining and using a helmet and proper clothing and shoes;
- You are required to wear a helmet pursuant to the law of the Province of British Columbia;
- A helmet, even when used, does not eliminate the risk of bodily injury in the event of an accident;
- You are solely responsible for operating and riding a Bike in a careful and reasonably competent manner;
- All Bikes are and shall remain the exclusive property of the Operator at all times;
- You are solely responsible for any moving violations and fines incurred by you while using the Bike, including any fees for parking the Bike in prohibited locations or for riding without wearing a helmet;
- The Operator is not obligated to provide insurance of any kind related to you or your use of the Bike, and in the event that the Operator, at its option, carries insurance, you shall remain liable for any liability, property damage, personal injury, injury to others, damages, penalties, fines, losses, and expenses of any kind whatsoever;
- If you cause any damage to property or injury to another party while operating or in possession of the Bike, you are solely liable for all such damage or injury;
- You shall return the Bike to the Operator in the same condition as when received;
- You are liable for any and all damages resulting from improper use or abuse of the Bike and the full cost of such damages; and
- The Operator provides Bikes as a service, and such rental availability is intended to be used only by those persons who are able and qualified to operate a Bike on their own and who have agreed to all terms and conditions of this Agreement.
- put on a helmet and make sure it is fit properly to your head;
- carefully inspect the Bike that you wish to rent prior to use to ensure the Bike is in good operating condition;
- make sure the Lock is stored properly inside the handlebar during Bike use, and is used to lock the Bike whenever the Bike is not in use when away from Stations;
- test the Bike’s operating components before proceeding with the intended use, including, but not limited to the brakes, tires, gears, pedals, lights, frame and saddle;
- promptly notify the Operator customer service of any defect, malfunction or needed repair to a Bike;
- adjust the Bike saddle to proper height prior to operating the Bike;
- adjust Bike riding behavior for safe operation according to weather conditions;
- only use Bike riding behavior that is that of a reasonably experienced and prudent bicycle rider;
- stop riding and return the Bike to Station if the Bike is not functioning properly; and
- contact the Operator and local police immediately in the event of theft of the Bike or an accident that occurs during your use of the Bike resulting in bodily injury.
- use any Bike if you are not wearing a helmet;
- allow anyone who is younger than 19 years of age to use a Bike, except in accordance with section 2.11 or section 2.12;
- use any Bike if you have any existing physical or mental condition that would prevent you from safely operating the Bike;
- operate a Bike while carrying any item that impedes your ability to safely operate the Bike;
- operate a Bike while under the influence of alcohol, drugs, or any other substance that impairs your ability to safely operate the Bike;
- use any cell phone or electronic device, including, but not limited to, for the purposes of phone calls, text messages, music or any other use that distracts you, or has the potential to distract you, from the safe operation of the Bike;
- allow any other person to use the Bike at the same time as yourself, or allow more than one person to be carried on the Bike at any time;
- overfill the Bike basket or place objects weighing in total more 9 kilograms (20 pounds) in the Bike basket;
- violate any applicable law or legal requirement while using a Bike;
- operate or use a Bike in any manner during adverse weather conditions, including but not limited to: hail, snow, dust storms, fog, heavy rains, or lightning storms;
- ride or operate a Bike that has any defect, fails to operate as a properly functioning bicycle, or that is in need of repair;
- continue using the Bike if it, or any component of it, should become defective or malfunction;
- use the Bike for racing (two or more riders competing to arrive at a particular location first), trick riding, jumping, stunt riding and/or, off-road riding;
- use the Bike for any commercial purposes;
- tow, pull, carry or push any person or object with a Bike;
- remove, modify, or add any accessories, parts or components of any Bike; and
- ride the Bike without paying applicable user fees at the time they become due.
The Operator is not responsible for loss of or damage to a Rider’s property or the property of others left at any time in or on any Bike or on the Operator’s premises, even if it is in the Operator’s possession and regardless of who is at fault. The Operator is not obligated to contact a Rider regarding lost items belonging to the Rider, other authorized user(s), or any other person. The Operator is not obligated to remove a Bike from service due to loss of property and is not required to search any Bike for lost property.
4. SERVICE LIMITATIONS
The Rider acknowledges and agrees that from and after the date that the Operator makes Bikes available to the public for rental, the Operator may, in its sole discretion: suspend all or part of its Bike Share Program at any time; relocate Stations; reduce the number of Bikes available for rent; and otherwise operate its Bike rental program in its sole discretion.
The Rider further acknowledges that the Operator may suspend the availability of Bikes during adverse weather conditions, or may be required to suspend the rental of Bikes by the city or applicable jurisdiction in which the Bikes are located.
The Rider shall not be entitled to a refund of any fees for unused rental periods unless the Operator’s Bike rental service shall have been suspended for a total of more than fifteen (15) days over the course of a twelve (12) month period.
The Operator does not represent or warrant that Bikes will be available for rental at any Station at any time.
The Operator may, in its sole discretion, require the return of any or all of its Bikes at any time.
5. RELEASE AND LIMITATION OF LIABILITY
5.1. FOR AND IN CONSIDERATION OF RENTAL AND USE OF THE BIKE, THE RIDER, FOR HIMSELF OR HERSELF AND ON BEHALF OF RIDER’S HEIRS, EXECUTORS, ADMINISTRATORS AND ASSIGNS, FOREVER RELEASES AND RELINQUISHES AND DISCHARGES (i) THE OPERATOR AND THE OPERATOR’S OFFICERS, BOARDS AND COMMISSIONS, MEMBERS, MANAGERS, EMPLOYEES, SUPPLIERS, AGENTS, REPRESENTATIVES, (ii) ANY MUNICIPALITY OR OTHER AUTHORITY WITH WHICH THE OPERATOR HAS CONTRACTED WITH TO PROVIDE A BIKE SHARE PROGRAM, AND (iii) ANY OWNER OF PROPERTY WITH WHICH THE OPERATOR, CITY OR OTHER APPLICABLE AUTHORITY HAS CONTRACTED WITH TO PROVIDE REAL PROPERTY ON WHICH A BIKE SHARE FACILITY, INCLUDING, WITHOUT LIMITATION, STATIONS, HUBS, RACKS, INTENDED FOR BIKE SHARE USE (ALL, COLLECTIVELY, THE “OPERATOR PARTIES”) FROM ANY AND ALL CLAIMS, DEMANDS, DISPUTES, LOSSES, LIABILITIES, DEBTS, LIENS, CHARGES, PENALTIES, PROCEEDINGS, CAUSES OF ACTION AND DAMAGES INCLUDING FOR PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, AND INJURY TO RIDER OR TO THIRD PARTIES (COLLECTIVELY, “CLAIMS”), INCLUDING UNKNOWN OR UNANTICIPATED CLAIMS, WHICH ARISE FROM OR ARE RELATED DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE RENTAL, MAINTENANCE, DESIGN, USE AND/OR OPERATION OF THE OPERATOR EQUIPMENT, INCLUDING THE BIKES, OR THE OPERATOR WEBSITE, INCLUDING ANY AND ALL CLAIMS RELATED TO THE SOLE OR PARTIAL NEGLIGENCE OF OPERATOR, THE OPERATOR PARTIES OR ANY OTHER PARTY. THE RIDER HEREBY EXPRESSLY WAIVES ANY CLAIMS AGAINST THE OPERATOR PARTIES WHICH THE RIDER DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF RENTING A BIKE, AND EXPRESSLY WAIVES ALL OF THE RIDER'S RIGHTS UNDER ANY STATUTES THAT PURPORT TO PRESERVE THE RIDER'S UNKNOWN CLAIMS.
5.2. IF THE OPERATOR OR THE OPERATOR PARTIES ARE DEEMED TO HAVE ANY LIABILITY UNDER THIS AGREEMENT OR ARISING OUT OF A RIDER’S USE OF THE OPERATOR EQUIPMENT, INCLUDING THE BIKES, OR THE OPERATOR WEBSITE, SUCH LIABILITY SHALL NOT EXCEED THE AMOUNT OF THE MEMBERSHIP OR RENTAL PAID TO THE OPERATOR BY THE RIDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY.
6. ASSUMPTIONS OF RISKS; DISCLAIMER.
THE RIDER EXPRESSLY ACKNOWLEDGES AND ACCEPTS THAT THE RIDER’S RENTAL AND USE OF THE BIKE IS AT HIS/HER OWN RISK. THE RIDER ACCEPTS THE BIKE FOR USE AFTER EXERCISING HIS/HER OWN FREE CHOICE TO PARTICIPATE VOLUNTARILY IN THIS ACTIVITY AND AFTER HAVING INSPECTED THE BIKE AND CERTIFYING THAT IS IN GOOD OPERATING CONDITION. THE RIDER UNDERSTANDS THAT BICYCLING MAY BE A HAZARDOUS ACTIVITY. THE RIDER ACKNOWLEDGES, UNDERSTANDS AND ASSUMES ALL RISK RELATING TO THE RENTAL, MAINTENANCE, DESIGN, USE AND/OR OPERATION OF THE OPERATOR EQUIPMENT, INCLUDING THE BIKES, AND THE OPERATOR WEBSITE AND UNDERSTANDS THAT BICYCLING INVOLVES RISK TO THE RIDER AND OTHERS INCLUDING DAMAGES, BODILY INJURY, PARTIAL OR TOTAL DISABILITY, PARALYSIS AND DEATH TO THE RIDER OR OTHERS, AND THAT THE RIDER HAS FULL KNOWLEDGE OF SAID RISKS AND DANGERS, INCLUDING SUCH RISKS, DAMAGES AND INJURIES THAT MAY ARISE FROM THE NEGLIGENCE OF OTHERS OR AS A RESULT OF ROADWAY CONDITIONS. ALL BIKES AND OTHER OPERATOR EQUIPMENT ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. OPERATOR AND THE OPERATOR PARTIES HEREBY DISCLAIM ANY CLAIM IN TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY).
IN NO EVENT WILL THE RIDER CLAIM THAT THE OPERATOR, OR ANY OF THE OPERATOR PARTIES INDIVIDUALLY OR COLLECTIVELY, FAILED TO ADEQUATELY TRAIN THE RIDER, OR PROVIDE THE RIDER WITH ADEQUATE INSTRUCTIONS NECESSARY TO RIDE THE BIKE IN THE SAME MANNER AS A PERSON WHO IS AN EXPERIENCED BICYCLE RIDER WHO HAS BEEN TRAINED TO RIDE A BICYCLE IN A SAFE AND CAREFUL MANNER.
7. DISPUTE RESOLUTION.
The Rider agrees that the Operator, at its sole discretion, may submit any disputes whatsoever arising out of, resulting from, and/or relating to this Agreement, the Rider’s use of the Operator’s Equipment, including, without limitation, Bikes, and/or the Operator website, to final and binding arbitration under the rules of procedure of the British Columbia International Commercial Arbitration Centre by one or more arbitrators appointed in accordance with the said rules. In the event that the Operator submits such dispute to arbitration, then such arbitration shall be mandatory and binding on the parties. Such proceeding shall be held in the City of Vancouver. All arbitration proceedings will be conducted in the English language.
SHOULD THE OPERATOR NOT ELECT TO SUBMIT ANY DISPUTE OR CLAIM TO ARBITRATION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE OPERATOR AND THE RIDER EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LITIGATION OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT OR THE RIDER’S USE OF THE OPERATOR’S EQUIPMENT, INCLUDING, WITHOUT LIMITATION, BIKES, AND/OR THE OPERATOR WEBSITE.
The Rider shall indemnify, defend and hold harmless the Operator, the Operator Parties and the City of Vancouver for, from and against any and all Claims related to or arising out of this Agreement, including, but not limited to the Rider’s breach of any representations, warranties or covenants set forth in this Agreement, and the rental, maintenance, design, use or operation of the Bike, the Locks, the Stations and/or the Operator website, even where caused in whole or in part by the Operator’s negligence, and/or the negligence of others, whether presently known or unknown. At the Operator’s option, the Rider will assume control of the defense and settlement of any Claim subject to indemnification by the Rider (provided that, in such event, the Operator may at any time elect to take over control of the defense and settlement of any such Claim). In no event may the Rider settle any Claim without the Operator’s prior written consent.
The Operator may assign its rights and duties under this Agreement in its sole discretion to any party at any time without notice to the Rider.
10. NO WAIVER.
The Operator’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any part of this Agreement. No waiver by the Operator shall be construed as a waiver of any proceeding or succeeding breach of any provision in this Agreement.
11. TERMINATION OF AGREEMENT.
The Operator may terminate this Agreement at any time and cancel the Rider’s Account, without cause, legal process, or notice to the Rider and the Rider’s use of the Bike Share Program is “at the will” of the Operator. The Rider waives all claims, causes of actions, expenses, and/or damages connected and/or related to any such termination. The Rider shall not be entitled to a refund of any amount paid for unused rental periods if this Agreement is terminated for cause. The Rider may terminate the Rider’s rental plan at any time; provided, however, that no refund will be provided by the Operator for time already used or not used by the Rider.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Agreement shall remain in full force and effect.
All provisions of this Agreement relating to limitation and exclusion of liability, waivers, assumption of risk, warranties and indemnification obligations shall survive the termination of this Agreement, and all amounts unpaid at the time of termination or expiration of this Agreement shall remain due and payable.
15. ENTIRE AGREEMENT.
This Agreement constitutes the final and entire Agreement between the Operator and the Rider and prevails over any prior or contemporaneous, conflicting or additional communications and agreements that pertain to the matter of this Agreement, unless otherwise agreed to by the Parties in writing. The Operator shall have the right to revise, change and modify the terms and conditions contained in this Agreement at any time without prior written notification by posting the revised Agreement on www.mobibikes.ca, and such changes shall apply to all future use of Bikes after the date of such changes. Riders shall be solely responsible for reviewing and becoming familiar with any modification to this Agreement. Use and/or operation of the Bike by the Rider following any modifications to this Agreement constitutes the Rider’s acceptance of the terms and conditions as modified.