EarthBike Bike Share Bicycle Rental Agreement, Waiver of Liability and Release
Effective Date: June 15, 2017.
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE.
In consideration of Your use of any of the Services (defined below) provided by Mearth Technology PTY. LTD., operator of EarthBike Bike Share, EarthBike requires that You (“Rider”, “You”, or “Your”) agree to all terms and conditions in this Bicycle Rental Agreement, Waiver of Liability, and Release (“Agreement”), as applicable. The “Services” provided by EarthBike are composed of several elements, including (1) EarthBike Bike Share bicycle parking locations (“Locations”), (2) EarthBike Bike Share bicycles (“Bike” or “Bikes”), and (3) all other related equipment, personnel, and information provided or made available by EarthBike.
You should CAREFULLY READ all terms and conditions before entering into this Agreement, but here is a partial list of some of the terms that EarthBike wants to bring to your initial attention in the event you are on a smartphone or other device with a small screen. Capitalized terms have the meanings given to them where defined in this Agreement.
- The Bike must be locked at the conclusion of the ride. If the Bike is not locked, the trip will continue and you will continue to be charged. The max charge for a single trip is $96 for 24 hours. For more details, please refer to the term 2.3 below.
- Upon conclusion of your ride, the Bike must be parked at a lawful parking spot, i.e. the Bike cannot be parked on private property or in a locked area or in any other non-public space.
- All traffic and bicycling laws must be obeyed, including any helmet laws in your area.
- You must promptly report any damaged or malfunctioning Bikes to EarthBike via the App or via e-mail.
EarthBike expressly agrees to let, and the Rider expressly agrees to take on, rental of the Bike subject to the terms and conditions set out herein. Unless otherwise indicated, all monetary values set forth in this Agreement shall be deemed to be denominated in Australian dollars.
- GENERAL RENTAL AND USE OF BIKE.
1.1 Rider is Sole User: EarthBike and the Rider are the only parties to this Agreement. The Rider is the sole renter and is solely responsible for compliance with all terms and conditions contained herein. You understand that when You activate a Bike from the Location, the Bike must be used only by You. You must not allow others to use a Bike that You have activated from the Location.
1.2 Rider is At Least 18 Years Old: Rider represents and certifies that Rider is at least 18 years old. Minors who are at least 13 years of age may use EarthBike Bike Share, but only if the Service is subscribed for by and under the responsibility of the minor’s parent or legal guardian. By authorizing use of the Service by a minor, the parent or legal guardian agrees s/he is fully responsible and liable for all injuries, damages, and costs and expenses arising from or related to the minor’s use of the Service and guarantees, represents, and warrants: (i) the parent’s or legal guardian’s; and (ii) the minor’s acceptance of and agreement and compliance with all terms and conditions of this Agreement as a Rider.
1.3 Rider is a Competent Bike Operator: Rider represents and certifies that he/she is familiar with the operation of the Bike, and is reasonably competent and physically fit to ride the Bike. By choosing to ride a Bike, Rider assumes all responsibilities and risks for any injuries or medical conditions. You are responsible for determining whether conditions, including snow, hail, ice or electrical storms, make it dangerous to operate a Bike. You are advised to adjust Your riding behavior and braking distance to suit the weather and traffic conditions.
1.4 Bike is the Exclusive Property of EarthBike: Rider agrees that the Bike and any EarthBike equipment attached thereto, at all times, remain the exclusive property of EarthBike. You must not dismantle, write on, or otherwise modify, repair or deface a Bike, any part of a Bike, or other EarthBike equipment in any way. You must not write on, peel, or otherwise modify or deface any sticker on a Bike in any way. You must not use a Bike, or other EarthBike Cycle Share equipment for any advertising or similar commercial purpose.
1.5 Bike Operating Hours and Bike Availability: Rider agrees and acknowledges that the Bikes are available 24 hours a day, 7 days/week, 365 days per year, except in the case of events outlined in section 4.6. Bikes must be rented within the maximum rental time limits set forth below. The number of Bikes are limited and Bike availability is never guaranteed.
1.6 Bike May be Used and/or Operated only in Metropolitan Areas: Rider agrees to only use, operate and/or ride the Bike in metropolitan areas.
1.7 Rider Must Follow Laws Regarding Use and/or Operation of Bike: Rider agrees to follow all laws pertaining to the use, riding and/or operation of the Bike, including all state and local laws and the rules and regulations pertaining to bicycles in the area where you are operating the Bike, including without limitation any helmet laws.
1.8 Prohibited Acts: Rider agrees to the following:
- You must not ride a Bike while carrying any briefcase, backpack, bag, or other item if it impedes Your ability to operate safely the Bike.
- While riding a Bike, You must not use any cellular telephone, text messaging device, portable music player, or other device that may distract You from safely operating the bicycle.
- You must not operate a Bike while under the influence of any alcohol, drugs, medication, or other substance that may impair Your ability to safely operate a Bike.
- You must not carry a second person on a Bike.
- You may only use locking mechanisms provided by EarthBike. You may not add another lock to the Bike or to lock a Bike to anything.
- The Bike must be parked at a lawful parking spot, i.e. the Bike cannot be parked on private property or in a locked area or in any other non-public space.
- The Bike must be parked in a space that is visible
1.9 Bike is Intended for Only Limited Types of Use: Rider agrees that he/she will not use the Bike for racing, mountain bike riding, stunt or trick riding. Rider agrees that he/she will not operate and/or use the Bike on unpaved roads, through water (beyond normal urban riding), or in any location that is prohibited, illegal and/or a nuisance to others. Rider agrees that he/she will not use the Bike for hire or reward, nor use it in violation of any law, ordinance or regulation.
1.10 Weight and Cargo Limits: You must not exceed the maximum weight limit for the Bike (130 kilogram) or the cargo carrier/basket on the Bike (5 kilogram), and You must not otherwise use the cargo carrier improperly with regard to type of contents or any visual obstruction or riding impediment. Rider acknowledges that the front carrier/basket and back basket of the Bike is intended for light goods only, and that he/she will not carry people or animals anywhere on the bicycle.
1.11 No Tampering: You must not tamper with, attempt to gain unauthorized access using, or otherwise use EarthBike Cycle Share system or other EarthBike Cycle Share equipment other than for purposes of using a Bike pursuant to this Agreement.
1.12 Reporting of Damage or Crashes: Rider must report any accident, crash, damage, personal injury, stolen or lost Bike, to EarthBike as soon as possible. If a crash involves personal injury, property damage, or a stolen Bike, Rider shall file a report with the local police department within 24 hours. Rider agrees that he/she is responsible and liable for any misuse, consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, costs and expenses, penalties, attorney’s fees, judgments, suits or disbursements of any kind or nature whatsoever related to a stolen or lost Bike.
1.13 Rider Responsibility for Bike Use and Damage: Rider agrees to return the Bike to EarthBike in the same condition in which it was rented. Rider will not be responsible for normal wear and tear.
2 PAYMENT AND FEES.
2.1 Fees. Rider may use the Bike on a pay per ride basis or as otherwise in accordance with the pricing described in the app. In each case, fees and other charges may be subject to applicable taxes and other local government charges, which may be charged and collected by EarthBike. EarthBike will charge the Rider’s credit, debit card or other agreed payment methods the amount of the fees as described in this Agreement.
2.2 Promo Codes. Promo codes (discounts) are one-time offers and can only be redeemed via EarthBike App. EarthBike reserves the right to modify or cancel discounts at any time. Discounts are limited to one per customer and account and may not be combined with other offers. Discounts are non-transferable and may not be resold.
2.3 Maximum Rental Time and Charges. Maximum rental time is 24 hours. Rider agrees that Rider will deactivate the Bike rental within 24 hours of time that rental of the Bike began. Rider may then rent again. Rider agrees that he/she is solely responsible for being aware of any elapsed time related to the timely locking the bike. The maximum day charge is $96 and is based on a calendar day. After return of the Bike, the rider will be charged the accumulated rental charges, or the maximum day charge; whichever is less. Bikes not returned (locked and a ride concluded) within 48 hours will be considered lost or stolen, and Rider may be charged up to $600 and a police report may be filed. EarthBike may also charge a service fee of $50 for rentals in excess of 24 hours where the Bike is not lost or stolen.
2.4 Valid Credit Card or Debit Card. Rider must input a valid credit or debit card number and expiration date before Rider will be registered to use the Service. Rider represents and warrants to EarthBike that Rider is authorized to use any cards Rider furnishes to EarthBike. Rider authorizes EarthBike to charge the card for all fees incurred by Rider. All fees are subject to applicable sales taxes and other local government charges, which may be charged and collected by EarthBike. If Rider disputes any charge on credit or debit card account, then Rider must contact EarthBike within 10 business days from the end of the month with the disputed charge, provide to EarthBike 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. Rider agrees to immediately inform EarthBike of all changes relating to the card.
2.6 Pick Up Fees. If You are unable to return a Bike to a valid area (i.e. You deactivate the Bike on private property, a locked community, or another unreachable area), and request that the bicycle be picked up by EarthBike staff, EarthBike, at its sole discretion, may choose to charge You a pick-up fee up to $240. If any Bike accessed under Your account is abandoned without notice, You will be responsible for all Trip Fees until the Bike is recovered and deactivated, plus a service charge (currently $240.00) to recover the Bike. Fees are subject to change.
3 RELEASES; DISCLAIMERS; LIMITATION OF LIABILITY; ASSUMPTION OF RISK.
3.1 Releases. “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 trial, on appeal, 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 Bikes, equipment or related information, or (b) Rider’s use of any of the foregoing. “Released Persons” means, collectively EarthBike and all of its owners, managers, affiliates, employees, agents, representatives, successors, and assigns, and (ii) every sponsor of any of the Services and all of the sponsor’s owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns. In exchange for Rider being allowed to use any of the Services, Bikes, and other equipment or related information provided by EarthBike, Rider (acting for Rider and for all of Rider’s family, heirs, agents, affiliates, representatives, successors, and assigns) do hereby fully and forever release and discharge all Released Persons for all Claims that Rider has or may have against any Released Person, except for Claims caused by the Released Person’s gross negligence or willful misconduct. Such releases are intended to be general and complete releases of all Claims. The Released Persons may plead such releases as a complete and sufficient defense to any Claim, as intended third party beneficiaries of such releases. Rider expressly agrees to indemnify, release and hold harmless Released Persons from all liability for any such property loss or damage, personal injury or loss of life, whether caused by the sole or partial negligence of EarthBike and/or the negligence of others, whether based upon breach of contract, breach of warranty, active or passive negligence or any other legal theory, in consideration for using and/or operating the Bike.
YOU DO HEREBY ACKNOWLEDGE AND AGREE THAT YOUR USE OF ANY OF THE SERVICES, EARTHBIKE BIKES, OR RELATED EQUIPMENT IS AT YOUR SOLE RISK.
TO THE FULLEST EXTENT PERMITTED BY LAW, AND WITH RESPECT TO YOUR USE OF ANY OF THE SERVICES, EARTHBIKE BIKES, OR RELATED EQUIPMENT, EARTHBIKE 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, EARTHBIKE BIKES, AND RELATED EQUIPMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” (AND YOU RELY ON THEM SOLELY AT YOUR OWN RISK).
EARTHBIKE AND ALL OTHER RELEASED PERSONS DO NOT REPRESENT OR WARRANT THAT ANY OF THE SERVICES, EARTHBIKE BIKES, OR RELATED EQUIPMENT WILL BE IN GOOD REPAIR OR ERROR-FREE, AND DELAYS, OMISSIONS, INTERRUPTIONS, OR INACCURACIES COULD EXIST WITH RESPECT TO ANY OF THE SERVICES, EARTHBIKE BIKES, OR RELATED EQUIPMENT.
3.3 Limited Liability.
RIDER DOES HEREBY ACKNOWLEDGE AND AGREE THAT, EXCEPT AS MAY OTHERWISE BE LIMITED BY LAW, EARTHBIKE 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 AGREEMENT, (B) RIDER’S USE OF, OR INABILITY TO USE, ANY OF THE SERVICES, BIKES, OR RELATED INFORMATION, (C) RIDER’S BREACH OF THIS AGREEMENT OR RIDER’S VIOLATION OF ANY LAW, (D) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION BY RIDER,(E) RIDER’S FAILURE TO WEAR A BICYCLE HELMET WHILE USING A BIKE, OR (F) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION OF ANY THIRD PARTY.
RIDER DOES HEREBY WAIVE ALL CLAIMS WITH RESPECT TO ANY OF THE FOREGOING, INCLUDING THOSE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER GROUNDS, EVEN IF EARTHBIKE OR ANY OF THE OTHER RELEASED PERSONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS.
THE TOTAL LIABILITY OF EARTHBIKE AND ALL OTHER RELEASED PERSONS FOR ALL CLAIMS, INCLUDING THOSE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHER GROUNDS, IS LIMITED TO THE SUM OF $100.
SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF IMPLIED WARRANTIES; AND, IF ANY OF THOSE LAWS APPLY TO RIDER, THEN SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MIGHT NOT APPLY TO RIDER, AND RIDER MIGHT HAVE ADDITIONAL RIGHTS.
3.4 Assumption of Risk by Rider. Rider is solely and fully responsible for the safe operation of the Bike at all times. Rider agrees that Bikes are machines that may malfunction, even if the Bike is properly maintained, and that such malfunction may cause injury. Rider agrees that riding a Bike involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death to Rider or others, as well as damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. Rider agrees that such risks, dangers, and hazards are Rider’s sole responsibility, including, but not limited to, choosing whether to wear a bicycle helmet as required by law or utilize other protective gear. Rider agrees that if Rider’s use of
any of the Services causes any injury or damage to another person or property, then Rider may be liable for all resulting injuries, damages, and related costs. By choosing to ride a Bike, Rider assumes full and complete responsibility for all related risks, dangers, and hazards, and Rider agrees that EarthBike and all other Released Persons are not responsible for any injury, damage, or cost caused by Rider with respect to any person or property, including the Bike itself.
3.5 Indemnification. You will indemnify and hold the Released Persons harmless from all losses, suits, claims or other proceedings arising out of or relating to Your use of Bikes and any breach of the terms of this Agreement; provided, however, that Released Persons must notify You as soon as practicable after the date notice of such loss, suit, claim or other proceeding is served on Released Persons directly (as opposed to service on a statutory agent for service of process) or otherwise brought to the attention of Released Persons.
4.1 Safety Check. Before each use of a Bike, Rider shall conduct a basic safety inspection of the bicycle, which includes inspecting the following: (i) trueness of the wheels; (ii) safe operation of all brakes and lights; (iii) proper attachment of the seat, pedals, and basket; (iv) good condition of the frame; and (v) any sign of damage, unusual or excessive wear, or other mechanical problem or maintenance need. Rider agrees not to ride the Bike if there are any noticeable issues, and to immediately notify customer service to alert EarthBike of any problems.
4.2 Lost or Stolen Bicycle. If a Bike is not returned within 48 consecutive hours, then the Bike is deemed lost or stolen and a police report may be filed with local authorities. The data generated by the Service’s computer is conclusive evidence of the period of use of a Bike by a Rider. Rider must report Bike disappearance or theft to EarthBike immediately or as soon as possible.
4.3 Helmets; Safety. All Riders must wear a local government approved helmet (AS 2067) that has been properly sized, fitted and fastened at all times. Rider agrees that none of EarthBike and its Released Parties are liable for any injury suffered by Rider while using the Service, whether or not Rider is wearing a helmet at the time of injury. Rider may need to take additional safety measures or precautions not specifically addressed in this Agreement.
4.4 Bicycle Routes. Rider agrees that EarthBike does not provide or maintain places to ride Bikes, and that EarthBike does not guarantee that there will always be a safe place to ride a Bike. Roads, bicycle lanes, and bicycle routes may become dangerous due to weather, traffic, or other hazards.
4.5 Limitations on Bike Rental. Rider agrees that EarthBike is not a common carrier. Alternative means of public and private transportation are available to the general public and to Rider individually, including public buses and rail service, taxis, and pedestrian paths. EarthBike provides Bikes only 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.
4.6 Limitations on Availability of Service. EarthBike makes every effort to provide the Service 365 days per year, but does not guarantee that the Service will be available at all times, as force majeure events or other circumstances might prevent EarthBike from providing the Service. Access to the Service is also conditioned on the availability of Bikes. EarthBike does not represent or warrant the availability of any Service or the availability of any Bike at any time. Rider agrees that EarthBike may require Rider to return a Bike at any time.
5 Term and Termination.
5.1 Term. The term of this Agreement begins when Rider first uses the Service, and the term ends 10 years after Rider’s last use of the Service; provided, however, that Rider’s personal financial responsibility under this Agreement expires one year after the Rider’s last use of the Service.
5.2 Termination by EarthBike. At any time and from time to time, and without Rider’s consent, EarthBike may unilaterally terminate Rider’s right to use the Service, in EarthBike’s sole discretion and without any notice or cause. Rider may terminate Rider’s use of the Service at any time; provided, however, that (i) no refund will be provided by EarthBike, (ii) the term of this Agreement continues in accordance with this Agreement, (iii) Rider may still be charged any applicable additional fees in accordance with this Agreement. This Agreement remains in full force and effect, in accordance with its terms and conditions, after any termination of Rider’s right to use any of the Service, regardless of how the Agreement is terminated.
7. License to Image and Likeness. 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 EarthBike 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 related to Your use of the Services, 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 EarthBike and its affiliates, successors, and assigns (a) the right to photograph, videotape, and otherwise record Your appearance and voice related to Your use of the Services, 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 EarthBike may decide in its sole discretion, such 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.
8 Notice. EarthBike may be contacted by emailing contact@EarthBike.com.au Or contact@MearthTech.com
9 Choice of Law; Dispute Resolution. This Agreement is governed by, and must be construed and enforced in accordance with, the laws of the State of NSW, excluding principles of conflicts of laws. For every dispute regarding this Agreement: (i) the prevailing party is entitled to its costs, expenses, and reasonable attorney fees (whether incurred at trial, on appeal, or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which the party may be entitled; (ii) each party consents to the jurisdiction of the courts of the State of NSW and agrees that those courts have personal jurisdiction over each party; (iii) venue must be in Sydney, NSW; and (iv) the parties must submit the dispute to mandatory mediation held in the State of NSW. The parties agree that any dispute will be first subject to mediation. Every mediation must be completed within 6 months of the date when the initial notice demanding mediation was provided by any party. If, for any reason, the dispute is not resolved through mediation within the 6-month period, then the parties may continue seeking to resolve the dispute by use of any process, including litigation by trial.
10 Waiver and Severability. No waiver of any breach of any provision of this Agreement is a waiver of any other breach or of any other provision of this Agreement. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
11 Cumulative Remedies. All rights and remedies granted under or referred to in this 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.
12 Final Agreement; Modification by EarthBike. This Agreement contains the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Agreement supersedes all other prior agreements, written or oral, relating to such subject matter. At any time and from time to time, and without Rider’s consent, EarthBike may unilaterally amend, modify, or change this Agreement, in its sole discretion and without any notice or cause. By continuing to use any Service after any amendment, modification, or change, Rider has agreed to be bound by all such amendments, modifications, and changes. Rider must carefully review this Agreement on a regular basis to maintain awareness of all amendments, modifications, and changes. Whenever a change is made to this Agreement, EarthBike will post a notification on the Website. The pricing set forth on the Website supersedes all pricing set forth in this Agreement.
13 Contract Interpretation. The headings in this Agreement do not affect the interpretation of this Agreement. “Or” is not be exclusive in its meaning. “Including” means “including, but not limited to.” Unless the context otherwise requires, words in the singular number or in the plural number shall each include the singular number or the plural number. All pronouns include the masculine, feminine, and neuter pronoun forms.
RIDER ACCEPTANCE OF AGREEMENT
I certify that I am the Rider, I am 18 years old or over, and I have read and expressly agree to the terms and conditions set forth in this Agreement.
I certify that I am the Parent and/or Legal Guardian of the Rider, who is at least 13 years old, and I am 18 years old or over. I have read, and I expressly agree to, the terms and conditions set forth in this Agreement and authorize use of the Service by the minor Rider.