As provided in greater detail in this Release (and without limiting the express language of this Release), You acknowledge the following:
In consideration of Your use of any of the Services (defined below), You ("You", "Your" or "Yourself") agree to all terms and conditions in this Release. In order to rent a Bicycle, You must also agree to the terms of the Bicycle Rental Agreement ("Rental Agreement").
IN EXCHANGE FOR YOUR BEING ALLOWED TO USE ANY OF THE SERVICES, BICYCLES, STATIONS, OR BIKE DOCKS YOU (ACTING FOR YOURSELF AND FOR ALL OF YOUR FAMILY, HEIRS, AGENTS, AFFILIATES, REPRESENTATIVES, SUCCESSORS, AND ASSIGNS) DO FULLY AND FOREVER RELEASE, HOLD HARMLESS, PROMISE NOT TO SUE, AND DISCHARGE ALL RELEASED PERSONS 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 OR EXPANDED BY APPLICABLE LAW, MOTIVATE 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 RELEASE OR THE RENTAL AGREEMENT, (B) YOUR USE OF, OR INABILITY TO USE, ANY OF THE SERVICES, BICYCLES, STATIONS, OR BIKE DOCKS, (C) YOUR BREACH OF THIS RELEASE OR THE RENTAL AGREEMENT, INCLUDING BUT NOT LIMITED TO YOUR VIOLATION OF ANY PROHIBITED ACT SET OUT IN THE RENTAL AGREEMENT, OR YOUR VIOLATION OF ANY LAW, OR OF GOOD SAFETY PRACTICES, (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 A 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.
WITHOUT LIMITING THE BREADTH OF THE FOREGOING, YOU AGREE TO RELEASE MOTIVATE AND ALL OTHER RELEASED PERSONS FOR ANY INJURY, DAMAGES OR LOSSES CAUSED BY THE ALLEGED NEGLIGENCE OF MOTIVATE OR ANY OTHER RELEASED PERSON.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF ANY OF THE SERVICES, BICYCLES, STATIONS, OR BIKE DOCKS IS AT YOUR SOLE RISK. To the fullest extent permitted by law, and with respect to Your use of any of the Services, Bicycles, Stations, or Bike Docks, 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, BICYCLES, STATIONS, AND BIKE DOCKS 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, Bicycles, Stations, Bike Docks, or related information will be in good repair or error or defect-free. YOU ACKNOWLEDGE AND AGREE THAT DELAYS, OMISSIONS, INTERRUPTIONS, DEFECTS, OR INACCURACIES COULD EXIST WITH RESPECT TO ANY OF THE SERVICES, BICYCLES, STATIONS, OR BIKE DOCKS. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS FOR USING ANY OF THE SERVICES, NICE RIDE BICYCLES, STATIONS, OR BIKE DOCKS, 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 NICE RIDE BICYCLE OR SYSTEM KEY.
YOU ARE SOLELY AND FULLY RESPONSIBLE FOR THE SAFE OPERATION OF THE BICYCLE AT ALL TIMES. YOU UNDERSTAND THAT THIS AND OTHER SECTIONS IN THIS RELEASE AND THE 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 RELEASE AND THE 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 THE RENTAL AGREEMENT, AND YOU WILL NOT USE A BICYCLE THAT FAILS THE SAFETY INSPECTION AND WILL NOTIFY MOTIVATE OF SUCH FAILURE. YOU AGREE THAT RIDING A BICYCLE INVOLVES MANY INHERENT, 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 CANNOT ALWAYS BE PREDICTED OR AVOIDED. Such risks, dangers, and hazards include and relate to, but are not limited to:
|
|
YOU AGREE THAT ALL SUCH RISKS, DANGERS, AND HAZARDS, WHETHER KNOWN OR UNKNOWN, ARE YOUR SOLE RESPONSIBILITY INCLUDING, BUT NOT LIMITED TO, CHOOSING WHETHER TO WEAR A BICYCLE HELMET OR UTILIZE OTHER PROTECTIVE GEAR, 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, and You agree to indemnify the Released Persons with respect to any such Claims. By choosing to ride a 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 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.
Motivate strongly recommends that all users of the Services 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 does not provide helmets and it is Your sole responsibility to utilize a bicycle helmet or other protective gear. 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 OR OTHER PROTECTIVE GEAR 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 Release.
The Services may include both pedal bicycles and electric bicycles which amplify Your effort with a motor. You agree that You understand how electric-assist works and that You are competent to use an electric bicycle.
The term of this Release begins when You first access the Services, and ends 10 years after Your last use of the Services. For the avoidance of doubt, the terms of this Release apply to any renewal of Your Annual Membership and to any short-term subscriptions You purchase subsequent to Your initial subscription.
You may terminate Your use of the Services at any time; provided, however, that the term of this Release continues in accordance with this Section. This Release 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 Your use of the Services is terminated.
You may contact Motivate by writing, calling or emailing at the address listed below:
185 Berry Street, Suite 5000
San Francisco, CA 94107
Customer Service: 1-877-551-6423
customerservice@niceridemn.org
This Release is governed by, and must be construed and enforced in accordance with, the laws of the State of Minnesota, 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 Release.
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 Release as a court would.
To begin an arbitration proceeding, You must send a letter requesting arbitration and describing Your claim to Motivate Minnesota, LLC at 185 Berry Street, Suite 5000, San Francisco, CA 94107, Attn: LBS Legal. 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 lbs-legal@lyft.com with the subject line, "NICE RIDE 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 Hennepin County, Minnesota. You and Motivate agree to submit to the personal jurisdiction of the courts located within Hennepin County, Minnesota for the purpose of litigating all such claims or disputes.
Further, if Motivate prevails in litigation against You to enforce its rights under this Release, 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.
No waiver of any breach of any provision of this Release is a waiver of any other breach or of any other provision of this Release. The terms of this Release 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 hereby knowingly, voluntarily, and irrevocably: (1) give Your full and unconditional consent to Motivate, the Released Persons, and their respective 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, but in each such instance only to the extent recorded during Your use of the Services (a) for purposes of maintaining the safety and functionality of the Services and (b) for purposes of promoting or marketing the use of the Services; (2) grant to Motivate, the Released Persons, and their respective affiliates, successors, and assigns (a) the right to photograph, videotape, and otherwise record Your appearance and voice, at any time that You are using the Services, (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 or the Released Persons may decide in their sole discretion in connection with the promotion or marketing of the Services, 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.
All rights and remedies granted under or referred to in this Release are cumulative and nonexclusive, and resort to one does not preclude the availability or applicability of another or to any other right, remedy or defense provided by law.
This Release and the Rental Agreement contain the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Release and the Rental Agreement supersede 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 Release, in its sole discretion and without any notice or cause, and 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 Release on a regular basis to maintain awareness of all amendments, modifications, and changes. Whenever a change is made to this Release, Motivate will post a notification on the Platform.
If a court deems any provision of this Release, including the binding arbitration and class action waiver provisions, illegal or otherwise unenforceable for any reason, You agree that that provision shall be severed from the Release and shall be inoperative, and the remainder of the Release shall remain operative and shall be binding on the parties.
"Bike Docks" means the separate stands that allow the docking of Bicycles
"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 Bicycles, Stations, or Bike Docks, or (b) Your use of any of the foregoing.
"Motivate" means Motivate Minnesota, LLC and its affiliates.
"Pay Stations" means the automated Nice Ride pay stations
"Released Persons" or "RELEASED PERSONS" means, collectively, (i) Motivate and all of its owners, managers, affiliates, employees, agents, representatives, successors, and assigns, (ii) Nice Ride Minnesota, a Minnesota non-profit corporation and all of its owners, managers, affiliates, employees, agents, representatives, successors, and assigns, (iii) the City of Minneapolis and all of its elected and appointed officers, officials, employees, and agents, (iv) every sponsor of any of the Services and all of the sponsor's owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns, and (v) 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.
"Services" means the Nice Ride mobile application ("Mobile Application"), the Nice Ride websites, niceridemn.org and niceridemn.com (together, the "Website") (the Mobile Application and the Website, collectively, the "Platform"), and the Nice Ride services which are composed of several elements, including the Stations, Pay Stations, Bike Docks, Nice Ride bicycles, including Nice Ride electric bicycles and Nice Ride dockless bicycles (collectively, "Bicycles"), and all related equipment, personnel, and information.
"Stations" means the Bicycle stations and associated street treatments such as wheel stops, kiosks, flexible delineators and pavement markings.
I certify that I am the person renting a Bicycle, I am 18 years of age or older, and I have read and agreed to all of the terms and conditions set forth in this Release.
March 19, 2019