VANCOUVER BIKE SHARE INC. DBA MOBI BIKE SHARE
VANCOUVER BIKE SHARE RENTAL AGREEMENT & WAIVER.
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE RENTING OR USING A BICYCLE (“BIKE”) FROM VANCOUVER BIKE SHARE INC. AND CYCLEHOP, LLC DBA MOBI BIKE SHARE, OR ANY OF THEIR AFFILIATES (COLLECTIVELY, "VBS"), VBS AND SMOOVE SAS. ARE JOINTLY REFERENCED HEREIN AS "OPERATOR". BY RENTING OR USING A BIKE, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, INCLUDING, BUT NOT LIMITED TO, THE WAIVERS, RELEASES AND LIMITATIONS OF LIABILITY SET FORTH HEREIN. 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, YOU ARE NOT PERMITTED TO RENT OR USE A BIKE FROM OPERATOR OR ITS AFFILIATES. YOU MUST BE AT LEAST 19 YEARS OF AGE TO PURCHASE A MEMBERSHIP AND TO RENT A BIKE.
PARTIES, CONSIDERATION AND BIKE SHARE PROGRAM DESCRIPTION
1. AGREEMENT. These Bicycle Rental Terms and Conditions of Use (this “Agreement”) are between you (“You” or “Rider”) and Operator.
1.1. CONSIDERATION: In consideration of Operator renting a bicycle ("Bike") to Rider, Rider agrees to the terms and conditions of this Agreement.
1.2. EQUIPMENT. Operator maintains a network of hub stations (“Stations”) where Bikes are docked at Bike racks (“Rack”) using an electronically controlled lock (“Lock”). Signs and 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, shall be referred to as “Operator Equipment.”
1.3. HOW IT WORKS.
(1) Membership can be purchased via (1) Operator’s website; (2) the mobile app (3) other third party apps and (4) from a self-service kiosk
(2) Once Rider purchases a membership, Rider can access a bicycle, by renting the available bicycle, in one of the following ways: (1) enter your account number and pin code at the Smoove Box located on the Bike, or (2) tap your membership card and enter your pin code at the Smoove Box located on the Bike.
(3) Rider’s period of Bike rental begins when the Bike is unlocked. The Rental Period ends when the Bike is locked at a Station (“Rental Period”). Upon return of Bike to the Rack and to properly end the Rental the Rider must wait for verification, on the Bike screen, indicating the Rental Period has ended, and prior to leaving the Bike.
1.4. BOUNDARIES. Trips should begin and end at a designated bike share station. Trips or rentals 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. Rider hereby agrees to pay $2,000.00 for the full cost levied for a lost or stolen Bike through fault of the Rider as set forth in Section 2.3.
2. BICYCLE RENTAL PLANS AND FEES
2.1. RENTAL PLANS. You may purchase from Operator the following plans at the rate structures set forth below.
a) Founding Membership Plans – The Basic Founding Membership costs $99 plus tax and provides Member with the first 30 minutes free of charge each time a single Bike is checked out from the station. The Extended Founding Membership costs $129 plus tax and provides Member with the first 60 minutes free of charge each time a single Bike is checked out from the station. BOTH MEMBERSHIPS ARE SUBJECT TO OVERTIME FEES, PER SECTION 2.2., IF THE BIKE IS NOT RETURNED WITHIN 30 MINUTES OR 60 MINUTES DEPENDING ON THE FOUNDING MEMBERSHIP PLAN.
Founding Membership Plans will expire after 12 months from the later of purchase or system launch, and upon expiration the plan will switch into a Monthly plan. To cancel your membership, login to your account at mobibikes.ca. If Rider selects a Founding Member rental plan, Rider shall receive a Welcome Kit within 90 days of registering for Founding Membership. Founding Membership plans will not be available for purchase after July 31st, 2016 unless extended by Operator.
b) Monthly Plans – The Monthly Basic Plan costs $10 per month and entitles Rider to a discounted rate of $2 per every 30 minutes of riding time. The Monthly Standard Plan costs $15 per month and provides Member with the first 30 minutes free of charge each time a single Bike is checked out from the station. The Monthly Plus Plan costs $20 per month and provides Member with the first 60 minutes free of charge each time a single Bike is checked out from the station.
MEMBERSHIPS ARE SUBJECT TO OVERTIME FEES, PER SECTION 2.2., IF THE BIKE IS NOT RETURNED WITHIN 30 OR 60 MINUTES depending on the plan. All monthly plans are 3 months minimum, and will automatically renew unless cancelled. To cancel your membership, login to your account at mobibikes.ca
c) Day Pass – The Day Pass costs $7.50 and provides the first 30 minutes of riding time without additional charge, for one bike, each time Rider checkout a Bike from the Station. THE DAY PASS IS SUBJECT TO OVERTIME FEES, PER SECTION 2.2., IF THE BIKE IS NOT RETURNED WITHIN 30 MINUTES. Day Passes will start upon payment and expire 24 hours after.
NOTE: Rider’s unused rental time cannot be carried over from one day to another day. For example, if Rider purchases a monthly plan and does not rent a Bike on a given calendar day, Rider will not be permitted to “bank” time from that calendar day. Rider still only be permitted to rent a Bike for each remaining day of the Member plan without additional charge.
2.2. OVERAGE FEES. Rider will be charged Overtime fees when a ride exceeds the time period corresponding to the particular plan purchased. Rider hereby agree to pay for all additional riding time beyond the riding time to which they are entitled in their chosen plan. Rental Periods will be prorated to the next half hour. Rider assumes all risk and responsibility for tracking the duration of each ride.
The following charts shows the overtime fees per plan and riding time:
All overtime fees are subject to tax.
2.3. MAXIMUM RENTAL TIME. If a Bike is not returned to a bike Station within 16 hours of the start of Rider’s Rental Period, Operator may deem the Bike to be stolen and charge Rider the amount of $2,000.00.
2.4. REPAIR FEE. If a Bike is damaged during Rider’s use of the Bike, beyond regular wear and tear, as a result of negligent or intentional conduct on the part of Rider, Rider shall be charged a fee that is equal to the cost of repairing such damage.
2.5. STOLEN BIKE FEE. If Rider leaves a Bike unlocked or unattended and it is stolen, Operator may charge Rider a replacement cost equal to $2,000.00.
2.6. HELMET USAGE. Rider expressly acknowledges that applicable laws and ordinances require each bike rider to wear an appropriate protective helmet designed for riding bicycles. You are solely responsible for You and other users renting Bikes under your account (Day Pass only) for wearing a helmet and complying with the law. For convenience, a helmet is attached to each Bike or is available elsewhere as indicated on Station signs or the Bike Share Program website – and is for use as part of the Bike rental fee or other payment as indicated. Unless You purchase a helmet, helmets are only provided for use while You are renting a Bike and must be returned at the same time that a ride is concluded. Rider expressly acknowledges that the license to borrow the Helmet terminates at the end of the Ride. If You do not return a helmet, You may be charged an additional fee of $50. Failure to wear a helmet while riding a bike share bike may result in fines, tickets, citations, or loss of ridership privileges. If you use a helmet provided by the Operator, such helmet is deemed to be included in the definition of “Bike” for the purpose of this Agreement.
2.7. VIOLATIONS. Rider shall be completely responsible, and shall indemnify Operator, for any tickets or fees assessed against the Bike or Operator during Rider’s Rental Period or as a result of the location where Rider parked the Bike. Rider is responsible for all tickets and moving violations incurred during the Rental Period including those resulting from Rider’s failure to wear a helmet. Rider agrees to reimburse Operator for any costs, expenses and/or attorney’s fees for processing, pursuing and/or defending any such claims.
2.8. CREDIT CARD. Rider must provide Operator a valid credit card number and expiration date before being registered to use a Bike. Rider represents and warrants to Operator that Rider is authorized to use the credit card information provided. Rider authorizes Operator to charge the credit card for which information is provided for all fees incurred by Rider under this Agreement, and all fees are subject to applicable sales taxes and other local government charges, which may be charged and collected by Operator. In the event Rider’s payment method on file with Operator is declined for any reason, Operator may suspend Rider’s rental plan and ability to use any Bikes until all of Rider’s prior charges are paid in full and charge Rider a $5.00 reinstatement fee.
2.9. THIRD PARTY PAYMENT PROCESSOR. 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 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 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 used only 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 card data being processed and stored in this manner, you cannot use Operator’s bike rental service. By registering for the service and providing valid payment, you expressly consent to Operator’s use and disclosure of your personal information and card data in the manner described in this Agreement.
2.10. RENTAL OF MULTIPLE BICYCLES. Subject to program requirements and availability, a Rider over the age of 19 who purchases a Day Pass may rent up to four (4) Bikes at the same time on one account.
The account will be charged the amount of a Day Pass for each bike taken. If a Rider elects to rent multiple Bikes at the same time, Rider agrees to rent the first Bike for Rider's own use and to make subsequent Bikes available to additional users. Prior to riding, the additional user renting a Bike under Rider's account will need to review and accept this Agreement. Rider further acknowledges and agrees that (a) Rider shall be responsible for each Bike rented under Rider's account and that each additional user is at least 16 years of age, (b) Rider shall be responsible for ensuring that each additional user operating or using a Bike rented under Rider's account shall read and comply with this Agreement, and (c) Rider is fully and completely responsible and liable for all Claims (as defined in Section 5, below) arising from or related to another user’s use of a Bike rented under Rider's account.
This Agreement will apply to any additional user who is at least 19 years of age and who is renting a Bike under the same Rider’s account. Such additional user will be deemed to be a “Rider” under this Agreement – including, without limitation, in respect of Section 5 (Release and Limitation of Liability), Section 6 (Assumptions of Risks Disclaimer) and Section 8 (Indemnification). Any liability of an additional user under these and other sections of this Agreement will be joint and several with the Rider whose account was used to rent a Bike. It is the responsibility of each Rider and his/her additional users to read and comply with this Agreement. Use of the Operator Equipment will be deemed to be acceptance of the terms of this Agreement.
In the event that Rider is renting multiple bicycles and one or more of the users will be under 19 years of age, Rider agrees to the following:
YOU HEREBY AFFIRM THAT YOU ARE THE PARENT OR LEGAL GUARDIAN OF THE USER WHO IS UNDER 19 YEARS OF AGE; YOU ARE AT LEAST 19 YEARS OF AGE AND EACH USER OF A BIKE IS AT LEAST 16 YEARS OF AGE; YOU HAVE THE LEGAL AND MENTAL CAPACITY TO ENTER INTO THIS AGREEMENT; YOU HAVE ENSURED THAT THE 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 USER; YOU ARE AGREEING TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, SECTION 5 (RELEASE AND LIMITATION OF LIABILITY), SECTION 6 (ASSUMPTIONS OF RISKS DISCLAIMER) AND SECTION 8 (INDEMNIFICATION) ON BEHALF OF SUCH USER; AND YOU AUTHORIZE THE USE OF THE SERVICES BY SUCH USER.
3. RESTRICTIONS AND OTHER TERMS AND CONDITIONS OF BIKE USE
3.1. REPRESENTATIONS AND WARRANTIES. As a condition precedent to Operator’s agreement to allow Rider to participate in the Bike Share Program and to rent a Bike, Rider represents and warrants to Operator that:
- Rider is 19 years of age or older.
- Rider is the legal holder of the credit card (whose name is on the credit card) used to rent a Bike in accordance with the terms of this Agreement.
- Rider is experienced and familiar with the safe and competent operation of a bicycle, and that he/she is physically and mentally fit to ride the Bike.
- Rider is familiar with all applicable local, and providence rules, regulations, codes and laws that relate to the safe and legal operation of a bicycle.
- Rider will wear a helmet at all times that Rider is in motion on the bicycle
- Rider is fully aware that riding a bicycle on streets poses a risk of accident due to motorists, pedestrians, and road conditions, and rider must keep a proper lookout to avoid such accidents.
- Rider is fully trained and capable of operating and riding a Bike and is not relying on Operator to learn how to operate or ride a Bike.
- Failure to use a helmet or to use the bicycle in a careful and reasonably competent manner may result in bodily injury or death.
- Rider is solely responsible for obtaining and using a helmet and proper clothing and shoes.
- All Riders are required to wear a helmet pursuant to British Columbia law.
- A helmet, even when used, does not eliminate the risk of bodily injury in the event of an accident.
- Rider is 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 Operator at all times.
- Rider is solely responsible for any moving violations and/or fines incurred by Rider while using the Bike, including any fees for parking the Bike in prohibited locations or for riding without wearing a helmet.
- Operator is not obligated to provide insurance of any kind related to Rider or Rider’s use of the Bike, and in the event that Operator, at its option, carries insurance, Rider shall remain liable for any liability, property damage, personal injury, injury to others, damages, penalties, fines, losses, and/or expenses of any kind whatsoever.
- If Rider causes damage to property or injury to another party while operating or in possession of the Bike, Rider is solely liable for such damage or injury.
- Rider shall return the Bike to Operator in the same condition as when received.
- Rider is liable for any and all damages resulting from improper use or abuse of the Bike and the cost of such damages.
- Operator provides Bikes as a convenience, and such rental availability is intended to be used only by those persons who are able and qualified to operate a Bike on their own and who have agreed to all terms and conditions of this Agreement.
- Put on a helmet and make sure it is fit properly to Rider’s head.
- Carefully inspect the Bike that Rider wishes to rent prior to use to ensure the Bike is good operating condition.
- Make sure the cable 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 Operator customer service of any defect, malfunction or needed repair to a Bike.
- Adjust saddle to proper height prior to operating the Bike.
- Adjust Bike riding behavior for safe operation according to weather conditions.
- Adjust Bike riding behavior so that it is that of a reasonably experienced and prudent bike rider.
- Stop riding and return the bike to Station if the bike s not functioning properly.
- Notify Operator if the Bike is damaged or not working properly.
- Contact Operator and local Police immediately in the event of theft of the Bike or an accident that occurred during Rider’s use of the Bike resulting in bodily injury.
- Use any Bike if Rider is not wearing a helmet.
- Allow anyone who is younger than 16 years of age to use a Bike.
- Use any Bike if Rider has any existing physical or mental condition that would prohibit Rider from safely operating the Bike.
- Operate a Bike while carrying any item that impedes Rider’s ability to safely operate the Bike.
- Operate a Bike while under the influence of alcohol, drugs, or any other substance that impair Rider’s ability to safely operate the Bike.
- Use any cell phone or electronic device, including, but not limited to, for the purposes of phone calls, text messages, music or any other use that distracts Rider from the safe operation of the Bike.
- Allow any other person to use the Bike at the same time as Rider or allow more than one person to be carried on the Bike.
- Overfill the Bike basket or place objects weighing in total more 9 kilograms (20 pounds) in the Bike basket.
- Violate any applicable law.
- 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 or modify any accessories, parts or components of any Bike.
- Ride the Bike without paying applicable user fees at the time they become due.
4. SERVICE LIMITATIONS.
Rider acknowledges and agrees that from and after the date that Operator makes Bikes available to the public for rental, Operator may suspend all or part of its Bike Share Program at any time, may relocate Stations, reduce the number of Bikes available for rent and otherwise operate its Bike rental program in its sole discretion. Rider further acknowledges that Operator may suspend the availability of Bikes during adverse weather conditions, or may be required to suspend the rental of Bikes by the city in which the Bikes are located. Rider shall not be entitled to a refund of any fees for unused rental periods unless Operator’s Bike rental service shall have been suspended for a total of more than 15 days over the course of a twelve month period. Operator does not represent or warrant that Bikes will be available for rental at any Station at any time. Operator may require the return of its Bikes at any time.
5. RELEASE AND LIMITATION OF LIABILITY
5.1. FOR AND IN CONSIDERATION OF RENTAL AND USE OF THE BIKE, RIDER, FOR HIMSELF OR HERSELF AND ON BEHALF OF RIDER’S HEIRS, EXECUTORS, ADMINISTRATORS AND ASSIGNS, FOREVER RELEASES AND RELINQUISHES AND DISCHARGES (i) OPERATOR AND OPERATOR’S OFFICERS, BOARDS AND COMMISSIONS, MEMBERS, MANAGERS, EMPLOYEES, SUPPLIERS, AGENTS, REPRESENTATIVES, (ii) ANY MUNICIPALITY WITH WHICH OPERATOR HAS CONTRACTED WITH TO PROVIDE A BIKE SHARE PROGRAM, AND (iii) ANY OWNER OF PROPERTY WITH WHICH CITY OR VBS 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. RIDER HEREBY EXPRESSLY WAIVES ANY CLAIMS AGAINST THE OPERATOR PARTIES WHICH RIDER DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF RENTING A BIKE, AND EXPRESSLY WAIVES RIDER'S RIGHTS UNDER ANY STATUTES THAT PURPORT TO PRESERVE RIDER'S UNKNOWN CLAIMS.
5.2. IF OPERATOR OR THE OPERATOR PARTIES ARE DEEMED TO HAVE ANY LIABILITY UNDER THIS AGREEMENT OR ARISING OUT OF RIDER’S USE OF THE OPERATOR EQUIPMENT, INCLUDING THE BIKES, OR THE OPERATOR WEBSITE, SUCH LIABILITY SHALL NOT EXCEED THE AMOUNT OF THE MEMBERSHIP OR RENTAL PAID TO OPERATOR BY RIDER.
6. ASSUMPTIONS OF RISKS; DISCLAIMER.
RIDER EXPRESSLY ACKNOWLEDGES AND ACCEPTS THAT RIDER’S RENTAL AND USE OF THE BIKE IS AT HIS/HER OWN RISK. RIDER ACCEPTS THE BIKE FOR USE AFTER EXERCISING HIS/HER OWN FREE CHOICE TO PARTICIPATE VOLUNTARILY IN THIS ACTIVITY AND AFTER HAVING INSPECTED THE BIKE AND CERTIFYING THAT IS IN GOOD OPERATING CONDITION. RIDER UNDERSTANDS THAT BICYCLING MAY BE A HAZARDOUS ACTIVITY. RIDER ACKNOWLEDGES, UNDERSTANDS AND ASSUMES ALL RISK RELATING TO THE RENTAL, MAINTENANCE, DESIGN, USE AND/OR OPERATION OF THE OPERATOR EQUIPMENT, INCLUDING THE BIKES, AND THE OPERATOR WEBSITE AND UNDERSTANDS THAT BICYCLING INVOLVES RISK TO THE RIDER AND OTHERS INCLUDING DAMAGES, BODILY INJURY, PARTIAL OR TOTAL DISABILITY, PARALYSIS AND DEATH TO RIDER OR OTHERS, AND THAT RIDER HAS FULL KNOWLEDGE OF SAID RISKS AND DANGERS, INCLUDING SUCH RISKS, DAMAGES AND INJURIES THAT MAY ARISE FROM THE NEGLIGENCE OF OTHERS OR AS A RESULT OF ROADWAY CONDITIONS. ALL BIKES AND OTHER OPERATOR EQUIPMENT ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. OPERATOR AND THE OPERATOR PARTIES HEREBY DISCLAIM ANY CLAIM IN TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY).
IN NO EVENT WILL RIDER CLAIM THAT OPERATOR PARTIES INDIVIDUALLY OR COLLECTIVELY FAILED TO ADEQUATELY TRAIN RIDER, OR PROVIDE RIDER WITH ADEQUATE INSTRUCTIONS NECESSARY TO RIDE THE BIKE IN THE SAME MANNER AS A PERSON WHO IS AN EXPERIENCED BIKE RIDER WHO HAS BEEN TRAINED TO RIDE A BIKE IN A SAFE AND CAREFUL MANNER.
7. DISPUTE RESOLUTION.
Rider agrees that Operator, at its sole discretion, may submit any disputes whatsoever arising out of, resulting from, and/or relating to this Agreement, Rider’s use of Operator’s Equipment, including, without limitation, Bikes, and/or the Operator website, to final and binding arbitration under the rules of 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 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 OPERATOR NOT ELECT TO SUBMIT ANY DISPUTE OR CLAIM TO ARBITRATION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, OPERATOR AND RIDER EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LITIGATION OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT OR RIDER’S USE OF OPERATOR’S EQUIPMENT, INCLUDING, WITHOUT LIMITATION, BIKES, AND/OR THE OPERATOR WEBSITE.
Rider shall indemnify, defend and hold harmless Operator and 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 Rider’s breach of any representations, warranties or covenants set forth in this Agreement, and the rental, maintenance, design, use or operation of the Bike, the Locks, the Stations and/or the Operator website, even where caused in whole or in part by Operator’s negligence, and/or the negligence of others, whether presently known or unknown. At Operator’s option, Rider will assume control of the defense and settlement of any Claim subject to indemnification by Rider (provided that, in such event, Operator may at any time elect to take over control of the defense and settlement of any such Claim). In no event may Rider settle any Claim without Operator’s prior written consent.
Operator may assign its rights and duties under this Agreement to any party at any time without notice to Rider.
10. NO WAIVER.
Operator’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any part of this Agreement. No waiver by Operator shall be construed as a waiver of any proceeding or succeeding breach of any provision in this Agreement.
11. TERMINATION OF AGREEMENT.
Operator may terminate this Agreement at any time, without cause, legal process, or notice to the Rider and Rider’s use of the Bike Share Program is “at the will” of Operator. Rider waives all claims, causes of actions, expenses, and/or damages connected and/or related to any such termination. Rider shall not be entitled to a refund of any amount paid for unused rental periods if this Agreement is terminated for cause. Rider may terminate Rider’s rental plan at any time; provided, however, that no refund will be provided by Operator for time already used or not used by 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 Operator and Rider and prevails over any prior or contemporaneous, conflicting or additional, communications, unless otherwise agreed to by the Parties in writing. Operator shall have the right to revise, change and modify the terms and conditions contained in this Agreement at any time without prior written notification by posting the revised Agreement on www.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 Rider following any modifications to this Agreement constitutes Rider’s acceptance of the terms and conditions as modified.