BIKETOWNpdx Rental Agreement & Waiver
Bicycle Rental Agreement, Liability Waiver, Release, Indemnification, and Voluntary Assumption of Risk (the “Rental Agreement”)
THIS RENTAL AGREEMENT CONTAINS RELEASES, WARRANTY LIMITATIONS, ASSUMPTION OF RISK PROVISIONS, AND INDEMNITY PROVISIONS, ALL OF WHICH LIMIT YOUR LEGAL RIGHTS AND REMEDIES. YOU SHOULD READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS BINDING EFFECTS.
I. Bicycle Rentals
- Section 1 Subscription Fees
- Section 2 Additional Fees
- Section 3 Lost or Damaged Bicycles; Services Card
- Section 4 Credit/Debit Card Matters
- Section 5 Prohibited Acts
II. Releases; No Warranties; Assumption of Risk; Indemnification
- Section 6 Releases; No Warranties
- Section 7 Assumption of Risk; Indemnification
- Section 8 Bicycle Safety Inspection
- Section 9 Returning Bicycle
- Section 10 Helmets; Safety
- Section 12 Limitations on Availability of Services
- Section 13 Term and Termination
- Section 14 Notices
- Section 15 Binding Arbitration; Class Action Waiver
- Section 16 Waivers
- Section 18 Cumulative Remedies
- Section 19 Final Agreement; Modification by Motivate
- Section 20 Severability
In consideration of Your use of any of the BIKETOWN® Services (defined below), You (“Rider”, “Subscriber”, “You”, or “Your”) agree to all terms and conditions in this Rental Agreement. The BIKETOWN “Services” are composed of several elements, including (1) BIKETOWN bicycle stations (“Stations”), (2) automated pay stations (“Pay Stations”), (3) separate racks that allow the locking of BIKETOWN bicycles (“Racks”), (4) electronically controlled locks (“Locks”), (5) BIKETOWN bicycles, (6) a mobile application (“Mobile App”) and (7) all related equipment, personnel, and information. The Services are provided by Motivate International Inc. (“Motivate”) and Social Bicycles Inc.
I. Bicycle Rentals
Section 1 Subscription Fees.
When you purchase a BIKETOWN membership or short-term pass, You agree to be charged the subscription fee plus any additional fees You incur, as described in Section 2 below. The fee amounts are listed on the Services’ website at “www.biketownpdx.com” (“Website”). These fees may be modified from time to time at Our sole discretion. You may purchase up to four short-term passes (to remove up to four BIKETOWN bicycles) on each account. You will be charged all applicable fees described in Section 1 and Section 2 of this Rental Agreement for the use of BIKETOWN bicycles with the short-term passes purchased on Your account.
Section 2 Additional Fees.
In addition to the subscription fee, You may incur additional fees, such as usage fees, out-of-Hub fees, out-of-Network fees, or others.
If Your ride time exceeds the free ride time allotted to Your subscription type (“Free Ride Time”), you will incur usage fees at the rates set forth on the Website at https://biketownpdx.com/pricing. Your Ride Time will be calculated beginning when You unlock a BIKETOWN bicycle and ending when you properly lock a BIKETOWN bicycle to end Your trip.
The Services map, available on the Website and Mobile App, defines and displays a distinct area around each Station (each such area, a “Hub”). The Services map also defines and displays a distinct boundary around the entire Services area (the “Network”). If You end a trip by locking a BIKETOWN bicycle within the Network, but outside of a Hub, You will incur out-of-Hub fees at the rates set forth on the Website at https://biketownpdx.com/pricing. If You end a trip outside of the Network, You will incur out-of-Network fees at the rates set forth on the Website at https://biketownpdx.com/pricing, subject to applicable sales taxes and other local government charges, if any. Fees for other services such as valet or reservations may be charged from time to time as set forth on the Website.
The total amount of all of Your additional fees will be applied to Your Account and charged against Your credit or acceptable debit card (with the Visa or MasterCard logo). You may access a statement of Your trip history and associated charges by logging into Your member usage billing page on the Website. If You have any dispute regarding a chargeable trip, then You must, within 10 business days from the end of the prior month with the disputed charge, provide to Motivate all trip information that is necessary to identify the disputed charge, such as the date of the trip and the approximate starting and ending times.
Section 3 Lost or Damaged Bicycles; Services Card.
The ride time data generated by the Services’ computer is conclusive evidence of the period of Your use of a BIKETOWN bicycle (“Ride Time”). Your Ride Time is limited to a period of 24 consecutive hours. Any Ride Time that exceeds a period of 24 consecutive hours is deemed a disappearance of the BIKETOWN bicycle, until the BIKETOWN bicycle is found or returned to a Rack. If the BIKETOWN bicycle is not returned to a Rack within a period of 24 consecutive hours, then the BIKETOWN bicycle is deemed lost or stolen, Your credit or debit card will be charged a fee of up to $1,500, and a police report may be filed with local authorities. You must return the BIKETOWN bicycle in the same condition in which it was rented. If the BIKETOWN bicycle is returned to a Rack damaged or in a state of disrepair, then You will be charged a fee that is equal to the cost of repair. Such fees may be charged as soon as 24 hours after the BIKETOWN bicycle is not returned or is returned in a damaged state. Motivate will attempt to contact You via telephone and email before charging the Your credit or debit card, by using the contact information You provided when subscribing to the Services. For any disappearance of a BIKETOWN bicycle that was released on Your account, You must report the disappearance to the local police department and to Motivate within 24 hours following the disappearance.
If Your Services card is lost or damaged, a replacement may be obtained by calling 1-(866) 512-BIKE or by emailing firstname.lastname@example.org and reporting the loss or damage. A replacement fee of $2 for the lost or damaged Services card will be charged, and a replacement Services card will be mailed to Your mailing address of record.
Section 4 Credit/Debit Card Matters.
You must input a valid credit or debit card number and expiration date before You will be registered to use the Services. You represent and warrant to Motivate that You are authorized to use the credit or debit card. You authorize Motivate to charge Your credit or debit card for all fees incurred by You, subject to applicable sales taxes and other local government charges, if any. If You dispute any charge on Your credit or debit card account, then You must contact Motivate within 10 days of Your receipt of Your statement containing the disputed charge. You agree to immediately inform Motivate of all changes relating to Your credit or debit card and update Your member usage billing page on the Website.
Section 5 Prohibited Acts.
- You may not ride a BIKETOWN bicycle if You are under 18 years of age.
- You may not ride a BIKETOWN bicycle while carrying any briefcase, backpack, bag, or other item if it impedes Your ability to operate safely the BIKETOWN bicycle.
- You may not use or wear any cellular telephone, tablet, laptop, text messaging device, portable music player, or other device that may distract You from safely operating a BIKETOWN bicycle.
- You may not operate a BIKETOWN bicycle while under the influence of any alcohol, drugs, medication, or other substance that may impair Your ability to safely operate a BIKETOWN bicycle.
- Each BIKETOWN bicycle is intended for use by one person only; You may not carry, tow, or otherwise transport a second person (including a child or pet) using a BIKETOWN bicycle or in the basket.
- You may not dock or lock any bicycle in any Station other than BIKETOWN bicycles.
- You may not bring a BIKETOWN bicycle in a car, ferry, bus, streetcar, MAX or train, or ride or take a BIKETOWN bicycle outside of the City of Portland.
- You may not use any locking mechanism, other than the Lock, to lock a BIKETOWN bicycle to a Rack.
- You may not violate any applicable federal, state, or local law, or any command or instruction from law enforcement personnel, including those for bicycle riders.
- You may not modify, dismantle, write on, or otherwise alter or deface a BIKETOWN bicycle or any part of a BIKETOWN bicycle in any way. You may not write on, peel, or otherwise modify or deface any sticker on a BIKETOWN bicycle in any way. You may not use a BIKETOWN bicycle for any advertising or similar commercial purpose.
- You may not attach anything to a BIKETOWN bicycle, including but not limited to baskets, cup-holders, electric drives, child seats, trailers or tandem bicycles.
- You may not exceed the maximum weight limit for the BIKETOWN bicycle (275 pounds) or the basket (20 pounds), and You may not otherwise use the basket improperly with regard to type of contents or any visual obstruction or riding impediment.
- You may not operate a BIKETOWN bicycle in poor or dangerous weather or road conditions, including snow, hail, ice, sleet, freezing rain, or electrical storms, which could make it more dangerous to operate a BIKETOWN bicycle. You must limit or adjust Your riding behavior and braking distance to suit the weather conditions, and You must promptly act in a safe manner and return, if it would be necessary and prudent to do so, Your BIKETOWN bicycle to an available Rack.
- You may not allow others to use a BIKETOWN bicycle that You have unlocked. You understand that when You unlock a BIKETOWN bicycle, the BIKETOWN bicycle may be used only by You. You may not transfer Your Services card, account number, PIN, or other unique Subscriber information to any other person.
- YOU UNDERSTAND AND ASSUME THE RISKS OF YOUR VIOLATION OF ANY PROHIBITED ACT SET OUT IN THIS SECTION. SUCH RISKS INCLUDE INJURY OR DEATH TO YOU AND OTHERS, DAMAGE TO OR DESTRUCTION OF YOUR AND OTHERS’ PROPERTY, AND THE POTENTIAL THAT YOU WILL BE CITED OR ARRESTED FOR VIOLATION OF APPLICABLE LAWS.
II. Releases; No Warranties; Assumption of Risk; Indemnification.
Section 6 Releases; No Warranties.
IN EXCHANGE FOR YOUR BEING ALLOWED TO USE ANY OF THE SERVICES, BIKETOWN BICYCLES, STATIONS, RACKS, LOCKS, OR RELATED INFORMATION, YOU (ACTING FOR YOURSELF AND FOR ALL OF YOUR FAMILY, HEIRS, AGENTS, AFFILIATES, REPRESENTATIVES, SUCCESSORS, AND ASSIGNS) DO FULLY AND FOREVER RELEASE AND DISCHARGE ALL RELEASED PERSONS (AS HEREINAFTER DEFINED) FROM ALL CLAIMS THAT YOU HAVE OR MAY HAVE AGAINST ANY RELEASED PERSON ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF THE SERVICES.Such releases are intended to be general and complete releases and waivers of all Claims arising out of or in any way related to Your use of the Services. The Released Persons may plead such releases as a complete and sufficient defense to any Claim, and may do so as intended third-party beneficiaries of such releases, if appropriate.
WITHOUT LIMITATION OF THE FOREGOING GENERAL RELEASES, YOU ACKNOWLEDGE AND AGREE THAT, EXCEPT AS MAY OTHERWISE BE LIMITED BY APPLICABLE LAW, MOTIVATE, THE CITY OF PORTLAND, THE STATE OF OREGON AND ALL OTHER RELEASED PERSONS ARE NOT RESPONSIBLE OR LIABLE FOR ANY CLAIM, INCLUDING THOSE THAT ARISE OUT OF OR RELATE TO (A) ANY RISK, DANGER, OR HAZARD DESCRIBED IN THIS RENTAL AGREEMENT, (B) YOUR USE OF, OR INABILITY TO USE, ANY OF THE SERVICES, BIKETOWN BICYCLES, STATIONS, RACKS, LOCKS, OR RELATED INFORMATION, (C) YOUR BREACH OF THIS RENTAL AGREEMENT, INCLUDING BUT NOT LIMITED TO YOUR VIOLATION OF ANY PROHIBITED ACT SET OUT IN SECTION 5, OR YOUR VIOLATION OF ANY LAW, (D) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION BY YOU OR BY MOTIVATE OR ANY RELEASED PERSON, (E) YOUR FAILURE TO WEAR A BICYCLE HELMET OR OTHER PROTECTIVE GEAR OR CLOTHING WHILE USING BIKETOWN BICYCLE, OR THE FAILURE OF SUCH HELMET OR PROTECTIVE GEAR OR CLOTHING TO PREVENT DEATH OR INJURY, OR (F) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION OF ANY THIRD PARTY. YOU RELEASE AND WAIVE ALL CLAIMS WITH RESPECT TO ANY OF THE FOREGOING, INCLUDING THOSE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER GROUNDS, EVEN IF MOTIVATE OR ANY OF THE OTHER RELEASED PERSONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF ANY OF THE SERVICES, BIKETOWN BICYCLES, STATIONS, RACKS, LOCKS, OR RELATED INFORMATION IS AT YOUR SOLE RISK. To the fullest extent permitted by law, and with respect to Your use of any of the Service, BIKETOWN bicycles, Stations, Racks, Locks, or related information, Motivate and all other Released Persons disclaim all express and implied warranties, including warranties of merchantability and fitness for a particular purpose. ALL OF THE SERVICES, BIKETOWN BICYCLES, STATIONS, RACKS, LOCKS, AND RELATED INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” (AND YOU RELY ON THEM SOLELY AT YOUR OWN RISK).Motivate and all other Released Persons do not represent or warrant that any of the Services, BIKETOWN bicycles, Stations, Racks, Locks, or related information will be in good repair or error-free. YOU ACKNOWLEDGE AND AGREE THAT DELAYS, OMISSIONS, INTERRUPTIONS, OR INACCURACIES COULD EXIST WITH RESPECT TO ANY OF THE SERVICES, BIKETOWN BICYCLES, STATIONS, RACKS, LOCKS, OR RELATED INFORMATION. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS FOR USING ANY OF THE SERVICES, BIKETOWN BICYCLES, STATIONS, RACKS, LOCKS, OR RELATED INFORMATION, AND MOTIVATE AND ALL OTHER RELEASED PERSONS ARE NOT LIABLE FOR ANY CLAIM ATTRIBUTABLE TO ANY OF THE FOREGOING. YOU ASSUME FULL AND COMPLETE RESPONSIBILITY AND LIABILITY FOR ALL CONSEQUENCES AND CLAIMS OF ANY KIND OR NATURE WHATSOEVER RELATED TO YOUR STOLEN OR LOST BIKETOWN BICYCLE OR SERVICES CARD.
As used in this Part II and elsewhere in this Rental Agreement, “Claims” or “CLAIMS” means, collectively, any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings, obligations, debts, liens, fines, charges, penalties, contracts, promises, costs, expenses (including attorneys’ fees, whether incurred at or in preparation for trial, appeal, mediation, or otherwise), damages (including consequential, compensatory, or punitive damages), or losses (whether known, unknown, asserted, unasserted, fixed, conditional, or contingent) that arise from or relate to (a) any of the Services, including any of the BIKETOWN bicycles, Stations, Racks, Locks, or related information, or (b) Your use of any of the foregoing. “Released Persons” or “RELEASED PERSONS” means, collectively, (i) Motivate and all of its owners, managers, affiliates, employees, agents, representatives, successors, and assigns, (ii) the City of Portland, its officers, employees, and agents, (iii) Nike, Inc. and all of its affiliates and all of its and their owners, officers, directors, employees, agents, representatives, successors, and assigns, (iv) Social Bicycles Inc. and all of its owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns, (v) the State of Oregon, its officers, employees, and agents, (vi) every sponsor of any of the Services and all of the sponsor’s owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns, and (vii) every holder of property on which is located a Station and all of the property holder’s owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns.
Section 7 Assumption of Risk; Indemnification.
YOU ARE SOLELY AND FULLY RESPONSIBLE FOR THE SAFE OPERATION OF THE BIKETOWN BICYCLE AT ALL TIMES. YOU UNDERSTAND THAT THIS AND OTHER SECTIONS IN THIS RENTAL AGREEMENT DESCRIBE AND RELATE TO THE RISKS RELATING TO YOUR USE OF THE SERVICES. YOU AFFIRM THAT YOU HAVE READ, UNDERSTAND, AND ACCEPT THE ENTIRE RENTAL AGREEMENT. YOU AGREE THAT BICYCLES ARE MACHINES THAT MAY MALFUNCTION, EVEN IF THE BICYCLE IS PROPERLY MAINTAINED, AND THAT SUCH MALFUNCTION MAY CAUSE INJURY. YOU FURTHER AGREE THAT, BEFORE ANY USE OF THE SERVICES, YOU WILL PERFORM THE SAFETY INSPECTION DESCRIBED IN SECTION 8, AND YOU WILL NOT USE A BICYCLE THAT FAILS THE SAFETY INSPECTION AND WILL NOTIFY MOTIVATE OF SUCH FAILURE. YOU AGREE THAT RIDING A BIKETOWN BICYCLE INVOLVES MANY OBVIOUS AND NOT-SO-OBVIOUS RISKS, DANGERS, AND HAZARDS, WHICH MAY RESULT IN INJURY OR DEATH TO YOURSELF OR OTHERS, AS WELL AS DAMAGE TO PROPERTY, AND THAT such risks, dangers, and hazards include and relate to, but are not limited to:
- other vehicles
- other third parties
- docking plates
- pavement cracks
- uneven or unstable roadways or bike paths
- light rail, streetcar or rail road tracks
- weather conditions
- road conditions
- road kill
- other permanent or temporary obstructions on or near roadways or bike paths
- the possibility of criminal or other third-party acts or omissions
- bicycle or component malfunction
- negligent acts or omissions by any Released Person
- Your or any third person’s negligent acts or omissions, and
- Your underlying known or unknown health conditions
YOU AGREE THAT ALL SUCH RISKS, DANGERS, AND HAZARDS, WHETHER KNOWN OR UNKNOWN, ARE YOUR SOLE RESPONSIBILITY AND YOU ASSUME ALL RELATED RISKS.
You further agree that if Your use of any of the Services causes any injury or damage to another person or property, then You may be liable for all resulting injuries, damages, and related costs. By choosing to ride a BIKETOWN bicycle, You assume full and complete responsibility for all related foreseeable and unforeseeable risks, dangers, and hazards, and You agree that Motivate and all other Released Persons are not responsible for any death, injury, damage, or cost caused by You with respect to any person or property, including the BIKETOWN bicycle itself.
YOU AGREE, WITHOUT LIMITATION, TO INDEMNIFY AND HOLD HARMLESS ALL RELEASED PERSONS FROM ANY DEATH, INJURY, OR DAMAGE TO YOURSELF, ANOTHER PERSON OR PERSONS, OR PROPERTY ARISING OUT OF OR IN ANY WAY CONNECTED TO YOUR USE OF THE SERVICES.
Section 8 Bicycle Safety Inspection.
Before each use of a BIKETOWN bicycle, You must conduct a safety inspection of the BIKETOWN bicycle, which includes inspecting for all of the following: (i) proper tire pressure; (ii) trueness of the wheels; (iii) safe operation of all brakes and lights; (iv) proper attachment of the seat, pedals, and basket; (v) alignment of the fender and the metal rods that hold the fender in place; (vi) good condition of the frame; and (vii) no sign of damage, unusual or excessive wear, or other mechanical problem or maintenance need. You may not ride the BIKETOWN bicycle if You notice any mechanical or other problem or safety issue; and, in such case, You must lock the BIKETOWN bicycle to a public bike rack and place it in repair mode promptly notify Motivate of all problems and issues and use a different BIKETOWN bicycle.
Section 9 Returning Bicycle.
At the end of Your rental period, You agree to return the BIKETOWN bicycle to one of the Stations locations listed on the Mobile App or Website and to secure the BIKETOWN bicycle to the Rack using the Lock. If You return of the BIKETOWN bicycle to any bicycle rack that is not at a Station within the Network, as indicated on the Website, additional fees may apply and You agree to secure the BIKETOWN bicycle to a public bicycle rack using the Lock. You agree to refer to the Website for further requirements and instructions for returning the BIKETOWN bicycle and to comply with any and all such requirements and instructions. Any BIKETOWN bicycle that is not properly secured remains Your sole responsibility, and the additional fees described in Section 2 of this Rental Agreement and set forth on the BIKETOWN Website at https://biketownpdx.com/pricing will be charged until the BIKETOWN bicycle is properly secured. If You leave a BIKETOWN bicycle unattended at any time for any reason, You are responsible for placing the BIKETOWN bicycle on a temporary hold and securing the BIKETOWN bicycle to a bicycle rack using the Lock to protect against theft of the Bicycle. You hereby agree to ensure that when a BIKETOWN bicycle is not in use the Lock is at all times securely attached to the BIKETOWN bicycle and a bicycle rack and not only to the BIKETOWN bicycle. You shall not leave any BIKETOWN bicycle unattended or unsecured at any location at any time for any reason.
Section 10 Helmets; Safety.
Motivate strongly recommends that all Riders wear a Snell, CPSC, ANSI, or ASTM approved helmet that has been properly sized, fitted, and fastened, according to the manufacturer’s instructions. Wearing a Snell, CPSC, ANSI, or ASTM approved helmet, properly sized, fitted, and fastened, while cycling may protect against an injury or may lessen the severity of an injury caused by an impact to the head; however, bicycle helmets are not 100% effective, do not protect against all head injuries, and do not protect against other injuries. MOTIVATE AND THE OTHER RELEASED PERSONS DO NOT REPRESENT OR WARRANT THE QUALITY OR SAFETY CHARACTERISTICS OF ANY HELMET, AND YOU AGREE THAT MOTIVATE AND THE OTHER RELEASED PERSONS ARE NOT LIABLE FOR ANY INJURY YOU SUFFER WHILE USING ANY OF THE SERVICES, WHETHER OR NOT YOU ARE WEARING A HELMET AT THE TIME OF INJURY. YOU ASSUME ALL RISK OF NOT WEARING A HELMET OR OTHER PROTECTIVE CLOTHING AND GEAR. You agree that, when using any of the Services, You might need to take additional safety measures and precautions that are not specifically addressed in this Rental Agreement.
You represent, warrant, and agree that You are a safe and competent bicycle operator, You are sufficiently fit and physically capable to safely ride a bicycle without any risk to Your health, You are knowledgeable about the operation of a bicycle, and You are knowledgeable about the laws pertaining to bicycles operated within the City of Portland. LIKE ANY PHYSICAL ACTIVITY, RIDING A BIKETOWN BICYCLE MAY CAUSE MINOR OR MAJOR INJURIES OR DISCOMFORT AND MAY WORSEN OR COMPLICATE UNDERLYING MEDICAL CONDITIONS OR DISEASES. BY CHOOSING TO RIDE A BIKETOWN BICYCLE, YOU ASSUME ALL RESPONSIBILITIES AND RISKS FOR ALL SUCH INJURIES OR OTHER MEDICAL CONDITIONS.
You represent, warrant, and agree that Motivate is not responsible for providing or maintaining bicycle lanes or any other place where You may ride BIKETOWN bicycles, and that Motivate and the other Released Persons do not guarantee that there will always be a safe place to ride a BIKETOWN bicycle. Roads, bicycle lanes, and bicycle routes may become dangerous due to weather, traffic, or other hazards. You must not use a BIKETOWN bicycle for racing, riding off road, or any other use, besides safe operation on public or private roads or property and designated bicycle routes.
You represent, warrant, and agree that Motivate and the other Released Persons are not common carriers. Alternative means of public and private transportation are available to the general public and to You, including public buses and rail services, taxis, and pedestrian paths. Motivate provides BIKETOWN bicycles only as a convenience and recreational activity, not as a public service, and such rental availability is intended to be used only by those persons who are able and qualified to operate a BIKETOWN bicycle on their own and who have agreed to all terms and conditions of this Rental Agreement.
You must report to the police and to BIKETOWN Customer Services at 1-(866) 512-BIKE as soon as possible, but in no event later than 24 hours, after the occurrence of (i) any crash, damage, loss, or personal injury while using a BIKETOWN bicycle, (ii) any vandalism of any of the Services, and (iii) any stolen or lost BIKETOWN bicycle., and (iv) any stolen or lost Services Card.
- You are fully and completely responsible for all charges, damages, and injuries that arise from or relate to any use of Your account before (i) a deactivation of your account by Motivate upon the expiration of membership, or (ii) a report to the BIKETOWN Customer Services at 1-(866) 512-BIKE that your account number or PIN have been lost or stolen.
Section 12 Limitations on Availability of Services.
Motivate makes every effort to provide the Services for 365 days per year; however, Motivate does not guarantee that the Services or Website will be available at all times, as force majeure events or other circumstances might prevent Motivate from providing the Services or access to the Website from time to time. Access to the Services also is conditioned on the availability of BIKETOWN bicycles and available Racks at each Station. Motivate does not represent or warrant the availability of any Services or the availability of any BIKETOWN bicycles or Racks at any Station. No sponsor of BIKETOWN has any responsibility for providing any Services. You may use the Website or Mobile App to check the inventory of BIKETOWN bicycles and Racks available at a Station. You agree that Motivate may require You to return a BIKETOWN bicycle at any time.
Section 13 Term and Termination.
The term of this Rental Agreement begins when You first access the Services, and ends 10 years after Your last use of the Services; provided, however, that Your personal financial responsibility under Section 4 of this Rental Agreement expires one year after the later of (i) Your most recent use of the Services, or (ii) the expiration of Your membership. At any time and from time to time, and without Your consent, Motivate may unilaterally terminate Your right to use any of the Services, in Motivate’s sole discretion and without any notice or cause.
You may terminate Your use of the Services at any time; provided, however, that (i) no refund will be provided by Motivate, (ii) the term of this Rental Agreement continues in accordance with this Section, and (iii) You may still be charged any applicable additional fees arising under this Rental Agreement. This Rental Agreement remains in full force and effect, in accordance with its terms and conditions, after any termination of Your right to use any of the Services, regardless of how the Rental Agreement is terminated.
Annual subscriptions may be auto-renewed upon the subscription period’s expiration. If You have enrolled into auto-renew, You may prevent Your subscription from auto-renewing by logging into Your account on the Website and deselecting the “Auto-Renew” box found on the memberships page within the account section of the Website.
If You do not renew Your subscription before its end date, You may be required to (i) take certain actions to reactivate Your account. The subscription, account number, PIN and Services card related thereto, are non-transferable and may be terminated if You breach this Rental Agreement, as decided by Motivate in its sole discretion.
###Section 14 Notices. You may contact Motivate by writing, calling or emailing at the address listed below:
Motivate International Inc. 5202 3rd Avenue Brooklyn, NY 11220 Customer Service: 1-(866) 512-BIKE email@example.com
Section 15 Binding Arbitration; Class Action Waiver.
This Rental Agreement is governed by, and must be construed and enforced in accordance with, the laws of the state of Oregon, excluding principles of conflicts of laws.
You agree that any dispute or Claim relating in any way to Your use of the Services will be resolved by binding arbitration, rather than in court, except that You may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Rental Agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Rental Agreement as a court would.
To begin an arbitration proceeding, You must send a letter requesting arbitration and describing Your claim to Motivate International Inc. at 5202 Third Avenue, Brooklyn, NY 11220. The arbitration will be conducted by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. Payment of all filing, administration and arbitrator fees will be governed by JAMS's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where You live or at another mutually agreed location.
YOU AND MOTIVATE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If for any reason a Claim proceeds in court rather than in arbitration You and Motivate each waive any right to a jury trial. We also both agree that You or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of Your decision to opt out to firstname.lastname@example.org with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of Your first use of the Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If You opt out of these arbitration provisions, Motivate also will not be bound by them.
This Arbitration and Class Action Waiver section shall survive any termination of your Account or the Platform.
In the event that the arbitration provisions above are found not to apply to You or to a particular claim or dispute, either as a result of Your decision to opt out of the arbitration provisions or as a result of a decision by the arbitrator or a court order, You agree that any Claim or dispute must be resolved exclusively by a state or federal court located in Multnomah County, Oregon. You and Motivate agree to submit to the personal jurisdiction of the courts located within Multnomah County, Oregon for the purpose of litigating all such claims or disputes.
Further, if Motivate prevails in litigation against You to enforce its rights under this Rental Agreement, Motivate shall be entitled to its costs, expenses, and reasonable attorneys’ fees (whether incurred at or in preparation for trial, appeal, or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which Motivate may be entitled.
Section 16 Waivers.
No waiver of any breach of any provision of this Rental Agreement is a waiver of any other breach or of any other provision of this Rental Agreement. The terms of this Rental Agreement may be waived or amended only in writing and only by the party that is entitled to the benefits of the term being waived or amended.
For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, You do knowingly, voluntarily, and irrevocably: (1) give Your full and unconditional consent to Motivate and its affiliates, successors, and assigns to use at any time and from time to time, without any restriction, Your appearance and voice in photographs, videos, and other recordings, on all websites and for all press, promotional, advertising, publicity, and other commercial purposes, including all formats and media, whether now known or hereafter devised, throughout the world and in perpetuity; (2) grant to Motivate and its affiliates, successors, and assigns (a) the right to photograph, videotape, and otherwise record Your appearance and voice, at any time and from time to time, (b) all rights, copyrights, title, and interests in the results of such photographs, videos, and other recordings, as a work for hire for copyright purposes, and (c) the right to use, reproduce, exhibit, distribute, transmit, alter, and exploit, at any time and from time to time and as Motivate may decide in its sole discretion, the photographs, videos, and other recordings, or any component thereof, and all related merchandising, promotions, advertising, and publicity; and (3) waive, release, and discharge all Released Persons from all Claims that You have or may have for any libel, defamation, invasion of privacy, right of publicity, infringement of copyright, or violation of any right granted by You in this paragraph.
Section 18 Cumulative Remedies.
All rights and remedies granted under or referred to in this Rental Agreement are cumulative and nonexclusive, and resort to one does not preclude the availability or applicability of another or to any other right or remedy provided by law.
Section 19 Final Agreement; Modification by Motivate.
This Rental Agreement contains the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Rental Agreement supersedes all other prior agreements, written or oral, relating to such subject matter. At any time and from time to time, and without Your consent, Motivate may unilaterally amend, modify, or change this Rental Agreement, in its sole discretion and without any notice or cause. By continuing to use any Services after any amendment, modification, or change, You have agreed to be bound by all such amendments, modifications, and changes. You must carefully review this Rental Agreement on a regular basis to maintain awareness of all amendments, modifications, and changes. Whenever a change is made to this Rental Agreement, Motivate will post a notification on the Website. Notwithstanding any provision in this Rental Agreement that may be to the contrary, the pricing set forth on the Website supersedes all pricing set forth in this Rental Agreement.
Section 20 Severability.
If a court deems any provision of this Rental Agreement illegal or otherwise unenforceable for any reason, You agree that that provision shall be severed from the Rental Agreement and shall be inoperative, and the remainder of the Rental Agreement shall remain operative and shall be binding on the parties.
Agreement to Rental Agreement
I certify that I am the Rider, I am 18 years of age or older, and I have read and agreed to the terms and conditions set forth in this Rental Agreement.