THIS IS THE RIDER’S RENTAL AGREEMENT, GENERAL TERMS AND CONDITIONS OF USE, RELEASE OF LIABILITY & ASSUMPTION OF RISK INDEMNITY AND HOLD HARMLESS
THIS IS A LEGALLY BINDING AGREEMENT. RIDER SHOULD READ ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE ACCEPTING THIS AGREEMENT OR USING THE SYSTEM. BY ACCEPTING THIS AGREEMENT, RIDER IS PERMITTED TO USE BIKES PROVIDED BY BIKE SHARE PITTSBURGH, AS PART OF THE BIKE SHARE SYSTEM, WITH CERTAIN USE RESTRICTIONS AS A CONDITION FOR USE OF THE SYSTEM. ADDITIONALLY, RIDER RELEASES AND WAIVES CERTAIN RIGHTS AND CLAIMS AND ACCEPTS CERTAIN RESPONSIBILITIES.THE BIKE SHARE SYSTEM IS AN AUTOMATED PUBLIC BICYCLE SHARING PROGRAM OPERATED BY BIKE SHARE PITTSBURGH IN THE PITTSBURGH, PENNSYLVANIA REGION (THE “SYSTEM”). IT DIFFERS FROM A TYPICAL PRIVATE BICYCLE RENTAL. FOR ALL TYPES OF SYSTEM MEMBERSHIPS AND RENTALS, ALL BIKES ARE REQUIRED TO BE RETURNED AND DOCKED INTO APPROVED BIKE SHARE PITTSBURGH STATION LOCATIONS AT SPECIFIC TIME INTERVALS (WHICH VARY DEPENDING ON MEMBERSHIP TYPE) OR ADDITIONAL CHARGES/LATE FEES MAY APPLY PER THE RATES POSTED ON THE SYSTEM WEBSITE. A BIKE IS NOT TO BE KEPT FOR LONGER THAN ONE DAY. A MAXIMUM DAILY RATE OF $120 PER DAY WILL APPLY FOR ANY BIKE NOT RETURNED IN THE PRESCRIBED MEMBERSHIP USE PERIOD. IF RIDER FAILS TO RETURN BIKE WITHIN 25 HOURS OF THE EXPIRATION OF HIS/HER ORIGINAL MEMBERSHIP USE PERIOD, RIDER WILL BE CHARGED A FEE OF $2400. ALL MEMBERSHIPS HAVE A REGISTRATION AND CONFIRMATION PROCESS.FROM TIME TO TIME, BIKE SHARE PITTSBURGH MAY PARTICIPATE IN “SPECIAL EVENTS” IN A NON-AUTOMATED FORMAT AND PROVIDE BIKES TO USE ON A COMPLIMENTARY BASIS OR FOR A FEE, WITHOUT USING AUTOMATED BIKE SHARE PITTSBURGH STATIONS FOR BIKE CHECKOUT OR RETURN. REGARDLESS OF WHETHER RIDER PAYS FOR USE OF THE BIKE OR THE BIKE IS PROVIDED ON A COMPLIMENTARY BASIS, ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, RELEASE OF LIABILITY, ASSUMPTION OF RISK, INDEMNITY AND HOLD HARMLESS PROVISIONS, WILL APPLY TO RIDER’S USE OF THE BIKE (WITH THE EXCEPTION OF BILLING PROVISIONS SPECIFIC TO MEMBERSHIPS AND AUTOMATED RENTALS). IF THE BIKE IS NOT RETURNED PRIOR TO THE END OF THE INITIAL SPECIAL EVENT RENTAL PERIOD, ADDITIONAL CHARGES/FEES WILL APPLY. IF RIDER FAILS TO RETURN BIKE WITHIN 25 HOURS OF THE EXPIRATION OF HIS/HER ORIGINAL SPECIAL EVENT RENTAL TERM, RIDER WILL BE CHARGED A FEE OF UP TO $2400.
1. PURPOSE OF AGREEMENT
This document constitutes the entire Agreement (“Agreement”) between Bike Share Pittsburgh, Inc., d/b/a Pittsburgh Bike Share, and d/b/a as POGOH a Pennsylvania nonprofit corporation (“Bike Share”) and the individual (“Rider”) agreeing to be bound by the terms of this document and to use of a bicycle (“the Bike”) in the System. The City of Pittsburgh (the “City”) shall be considered a third-party beneficiary of this Agreement. For purposes of this Agreement, wherever Bike Share or the City are referred to below, such term shall include all of Bike Share’s and the City’s agents, directors, officers, employees, successors, assigns, subsidiaries, parent organizations and affiliates, as applicable. In consideration of his/her use of the System, Bike Share requires that Rider agree to all terms and conditions in this Agreement, which is intended to promote the safe use of the Bikes, and which applies to any and all use of the System. Use of the System by any Rider or individual shall be deemed an acceptance of the terms of this Agreement.
2. GENERAL RULES & RESTRICTIONS FOR BIKE AND SYSTEM USE
2.1 Age Restriction: Except as provided in this section, Rider must be 18 years of age or older. Rider certifies and agrees that he/she meets this requirement. If Rider falsifies or misrepresents, unintentionally or intentionally, Rider’s age, Rider and his/her legal guardian accept full responsibility for any and all claims, liabilities, disputes, obligations, debts, liens, charges, expenses, damages, demands, consequences, causes of action, losses (whether known, unknown, asserted, unasserted, fixed, conditional, or contingent), injuries, costs (including court and litigation costs), attorney’s fees, penalties, fines, legal actions of any kind, judgments, or expenditures of any type or nature whatsoever (collectively, “Claims”) related to such misrepresentations. Minors who are 14 years of age or older may use the System if accompanied by a parent or legal guardian. By authorizing use of the System by a minor, the parent or legal guardian (a) agrees that he/she is fully and completely responsible and liable for all Claims arising from or related to the minor’s use of the System, and (b) represents, warrants, and agrees that he/she is the minor’s parent or legal guardian and that he/she and the minor have all accepted and agreed, as a Rider, to all terms and conditions of this Agreement.2.2 Helmet Warning: Failing to wear a helmet while using a Bike could result in serious bodily injury or death in the event of an accident or collision. As a preventive measure, Bike Share strongly recommends that all Riders use a properly sized, fitted, fastened, and safety-certified helmet according to the manufacturer’s instructions at all times when operating the Bike. Proper use of a helmet 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. It is Rider’s sole responsibility to utilize a helmet. Bike Share does not represent or warrant the quality or safety characteristics of any helmet, and Rider agrees that in consideration of his/her use of the System and rental of the Bike, Bike Share and the City shall not be liable or responsible for any damages, injuries, or Claims caused or suffered by Rider while using the System, whether or not Rider is wearing a helmet at the time of injury. Rider agrees that, when using the System, Rider may need to take additional safety measures and precautions that are not specifically addressed in this Agreement.2.3 Bike Inspection Prior to Operation: Rider agrees that the Bike is a machine that may malfunction, even if it is properly maintained, and that such malfunction may cause injury. Rider agrees to carefully inspect the Bike he/she wishes to ride prior to riding the Bike, and shall, while within 15 feet of the place of rental, test the Bike’s operating components including but not limited to: the chain, brakes, pedals, lights, tires, frame and seat. This is not intended to be an extensive or exhaustive list. Rider should adjust seat height to fit his/her body frame prior to operating the Bike. Rider agrees, prior to operating the Bike, that if there appears to be any issues with the Bike, he/she will not ride the Bike, and will notify Bike Share of any observed mechanical or other problem or safety issue. If Rider rides any Bike that Rider later determines is not operating properly, Rider will immediately stop riding the Bike, return the Bike and notify Bike Share.2.4 Requirement to Discontinue Use: Rider expressly agrees that (a) he/she shall discontinue use of the Bike immediately and return it to a designated docking station within the System (a “Station”) if it, or any component of it, should become defective or malfunction during any use or operation of the Bike, and (b) Rider shall notify Bike Share customer service of such defect or malfunction. Bike Share may, at its sole discretion, issue another Bike to Rider, pick up the Bike at issue, or provide any other related services. If a bike is left unlocked a fee will be assessed. 2.5 Experience with Bicycle Operation; Not a Common Carrier: Rider asserts, represents and certifies that he/she is experienced and familiar with the safe and competent operation of a bicycle, and further, that he/she is physically and mentally fit to ride the Bike safely. Like any physical activity, riding a Bike may cause minor or major injuries or discomfort and may worsen or complicate underlying medical conditions or diseases. Rider is solely responsible for any injury, damages or Claims resulting from improper or unsafe operation of the Bike. If Rider has any existing physical or mental condition that would prohibit Rider from safely operating the Bike, he/she is prohibited from riding the Bike. By choosing to ride a Bike, Rider assumes all responsibility for all such injuries or other medical conditions. Rider further agrees that Bike Share 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, taxis, and pedestrian paths. Bike Share provides the System and its Bikes only as a convenience, and such availability is intended by Bike Share 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.2.6 No Riding in Adverse Weather Conditions: Rider agrees that he/she will not ride, operate or use a Bike in any manner during adverse weather conditions, including but not limited to: tornados, snow, hail, hurricanes, fog, heavy rains, heavy winds, or lightning storms. Rider agrees to adjust his/her riding behavior and braking distance to suit the weather conditions.2.7 No Operation of Bike While Impaired: Rider expressly agrees that he/she shall not ride or attempt to operate a Bike if he/she is under the influence of drugs, alcohol, or other substance that may impair Rider’s ability to safely operate a Bike. Rider assumes all risks and liabilities resulting from any and all use or attempted use of a Bike while impaired. Rider agrees that operating a Bike while impaired or under the influence can cause death or serious bodily injury as well as endangering the safety of others.2.8 Compliance with All Applicable Laws: Rider agrees to comply with all applicable local, state, and county rules, regulations, codes and laws that relate to the safe operation of a bicycle. Rider certifies he/she has familiarized himself/herself with such laws, including the laws pertaining to bicycles operated within the Commonwealth of Pennsylvania, prior to riding or operating a Bike.2.9 Restrictions on Use of Bike: Rider agrees not to use the Bike for racing, trick riding, jumping, stunt riding and/or off-road riding. Rider further agrees not to use the Bike for any commercial purposes. Rider shall not ride the Bike on unpaved roads, through puddles or water, or any other uses/places prohibited by law. Rider agrees not to tow, pull, carry or push any person or object with Bike as such can create an unsafe condition. Rider agrees to be seated at all times while pedaling and shall not pedal the Bike while in a standing position. Pedaling the Bike from an upright, standing position may create a dangerous condition and increase Rider’s chance of an injury. Rider agrees to keep control of the handlebars at all times and shall not ride in a “hands free” manner.2.10 Exclusive Property: The Bike is and shall remain the exclusive property of Bike Share at all times. Rider shall not remove or modify any accessories, parts or components of the Bike, and Rider understands that to do so shall be a criminal act.2.11 No Additional Riders: Rider is expressly prohibited from carrying additional riders on the Bike, and is prohibited from allowing any other person or animal upon any part of the Bike at any time.2.12 Restricted Use of Front Basket: Rider agrees that he/she will not use the Bike’s basket for any purpose other than carrying small and light items while riding the Bike. Rider acknowledges the basket is for light items only and that he/she should not overfill the basket with too many items or heavy items, which can cause an unsafe condition and may impair the balance, visibility, steering and/or stability of the Bike and result in injury to Rider or others. Bike Share and the City are not responsible for damage or loss to any items or property being transported, carried or left in the Bike basket, and Rider is solely responsible for such items at all times.2.13 Reporting of Accidents or Incidents: Rider must contact Bike Share and local police immediately following the occurrence of any lost or stolen Bike; any crash, accident, loss, or personal injury that occurred during Rider’s use of Bike resulting in bodily injury; or any other accident. In such events, a police report should be obtained and provided to Bike Share upon request, containing the facts surrounding the incident including contact information for witnesses and anyone else involved in the accident/incident. Rider agrees that if Rider is unable to report identifying information due to a medical emergency, Bike Share may, at its discretion, provide personal and contact information to the authorities upon their request.2.14 Rider Liability in the Event of Theft, Loss, or Damage of Bike: Rider’s use of the Bike is limited to the time periods as described in the Preamble to this Agreement and in accordance with his/her membership or rental status. Rider agrees that the data generated by the System is conclusive evidence of the period of use of a Bike by Rider. Failure to return the Bike within 25 hours of the expiration of Rider’s use period shall result in the Bike being deemed lost or stolen, Rider’s credit or debit card may be charged a fee of up to $2,400, and a police report may be filed with local authorities. Rider will be billed a fee for bike recovery and replacement in the event of a lost or stolen bike. Rider shall be liable and responsible for any costs and Claims of any kind relating to a stolen, lost or damaged Bike. Rider is liable for any and all damages or Claims resulting from improper use or abuse of the Bike, and the cost of such shall become due and payable at standard labor and parts rates upon invoicing by Bike Share to Rider. If Bike is permanently damaged and must be removed from circulation, Rider shall be responsible for paying to Bike Share the replacement cost of the Bike, due and payable upon invoicing by Bike Share to Rider. Should Rider cause damage to the property of another party while operating or in possession of the Bike, Rider is solely liable for such damage.2.15 Lost Membership Cards and Replacement Fees: Should Rider lose or misplace his/her membership card, Rider agrees to immediately log into his/her account via the internet and report the card as lost. Rider is fully and completely responsible for all Claims, including replacement costs for any checked out Bike, that arise from or relate to any use of his/her membership card before (a) he/she reports his/her membership card to Bike Share as lost or stolen, or (b) Bike Share deactivates the membership card upon expiration of Rider’s membership. A card replacement fee may be assessed for each new membership card.2.16 Rider will Secure the Bike During Rental and at Return: Rider agrees to maintain the Bike in a secure manner at all times. Bikes should be returned to a Station. If no available bike rack is available at a Station, Rider will return Bike to an alternate Station with open bike racks. Under any and all circumstances, Bike Share and the City are not responsible for any lost, stolen, destroyed or damaged Bikes regardless of whether locks are utilized and/or properly functioning. Rider expressly agrees to lock each Bike into an official POGOH station at the end of each rental. The Rider will be charged a fee if a Bike is discovered unlocked. Rider expressly agrees that they shall pay for any damages to the Bike caused by Rider or anyone else during the Rider’s rental or use period of the Bikes.2.17 No Insurance Provided: Rider expressly acknowledges and agrees that Bike Share does not provide insurance of any kind to Rider, including but not limited to coverage for: property damage, liability, personal injury, injury to others, damages, penalties, fines, Claims, and/or expenses of any kind whatsoever.2.18 Participation in a Bicycle Sharing System: Rider understands that he/she is participating in a public bicycle sharing system, and that unlike a traditional private bicycle rental, Rider is required to check the Bike in and out of Stations periodically so that the Bike is available to the next user. When not in use, Rider should always dock the Bike at a Station location, and Rider may select any other available Bike when ready to ride again. Rider is prohibited from keeping or possessing a specific Bike for an entire day or multiple days when accessing the System via a membership. If Rider selects a System membership, Rider shall be permitted to take an unlimited number of trips from Station to Station during such membership period. The duration of each trip shall be limited to the type of membership selected by Rider. If Rider selects to access the System via a rental, rather than a membership, Rider shall promptly return such Bike to a Station at the end of the rental period, or he/she shall incur additional charges at the posted rate and as otherwise described herein.2.19 Rider Responsibility for Acts of Destruction; Recovery of Costs; Prosecution: Rider agrees that any willful or negligent act of destruction of the Bike and/or System property will result in prosecution to the fullest extent of the law, and Bike Share will seek the recovery of all costs and Claims from Rider, including attorney’s fees and costs.2.20 Rider Responsibility for Tickets, Fees and Fines: Rider agrees that he/she is solely responsible and will not hold Bike Share or the City liable for any moving violation, fines, and/or illegal activities incurred by Rider while using, riding and/or operating the Bike. Rider agrees to pay on demand all fines and court costs, including administrative fees for parking, bus lane, traffic or other legal and/or moving violations or Claims assessed against the Bike, Rider or Bike Share during the rental or use of the Bike by Rider. Rider agrees to reimburse Bike Share and/or the City for any costs, expenses and/or attorney’s fees for processing, pursuing and/or defending any such Claims.2.21 Membership Account Billing: Riders with an ongoing membership subscription are responsible for timely payment of membership fees and/or any additional usage fees on the prescribed due date. It is Rider’s responsibility to maintain updated and accurate billing information and method of payment in his/her membership account online. Should a Rider’s payment method on file be declined for any reason, a $5.00 reinstatement fee will be added to Rider’s membership account balance, a temporary hold will be placed on Rider’s membership card, and Rider will be unable to check out a Bike until Rider’s billing and payment is successfully processed, without proration or discount for the holding period.2.22 Police Authorized to Stop Bike Users: Bike Share has specifically authorized local, county and state Police to stop any person riding or possessing a Bike at their request for safety and/or security purposes. This may include any Bike that appears damaged, altered, is missing any components or bike identification number(s), and/or has been checked out longer than the Bike’s last corresponding rental/membership use period. Police may ask Rider to present any of the following forms of identification to ensure Rider or person in possession of the Bike(s) is authorized to have, or be using, the Bike(s): (a) membership card if Rider is a membership subscriber, (b) the credit or debit card used to rent the Bike if Rider is not a membership subscriber, (c) a form of government issued identification such as a driver’s license or state issued identification card, and/or (d) Rider’s member account using the System’s mobile application.2.23 Application and Registration: Rider may apply and register to use the System via telephone, mobile application, at a rental terminal (where available) or with a cooperating local partner. Following the provision of all relevant personal data, Bike Share has the right to accept or refuse the application. As part of the approval process, Bike Share is authorized to check the available credit on credit or debit cards provided by Rider for registration and payments. Upon successful registration, the applicant shall receive a personal identification number (PIN). This PIN allows for, among other things, logging into the Rider’s account at www.pogoh.com. Approval of the application occurs when Bike Share notifies Rider of activation of his/her account. This notification may be given orally, in written form, by telephone, via email, via SMS, via mobile application or at a Station terminal. The registration process is free of charge for Rider, however, a valid means of payment must be provided before rentals can be made. Bike Share is authorized to charge periodic rental fees in accordance with the chosen rental or membership type. Rider shall update any changes to his/her personal information immediately, including billing and general account information. Bike Share may send additional information to Rider other than that which is necessary for the rental itself (Bike number, lock code, etc.), including without limitation information from System sponsors and Bike Share partners.2.24 Proper Location(s) for Return of Bikes: Rider must return the Bike to official Stations or additional fees will be assessed per the rates posted on the System website or at the Stations.2.25 Private PIN and Password: Rider is responsible for preventing the unauthorized use of his/her personal data by third parties, including any System PIN numbers or passwords. Rider may change System PINs and passwords at any time and as often as desired. Should Rider have reason to believe that this information has been compromised or misused, Rider shall notify Bike Share immediately. Rider may deactivate his/her account at any time online or by calling the customer service hotline.2.26 Account Blocking: Bike Share may block Rider’s access to the System at its sole discretion. 2.27 Charge Disputes: Debiting of Rider’s account occurs automatically. Bike Share reserves the right, however, to demand payment by Rider either by telephone or in written form. Objections to debited charges must be submitted in writing to Bike Share within one week of such charge’s posting date. Any refunds issued will be credited to Rider’s account and used to offset the next due payment unless other instructions are received from Rider.2.28 System Operating Hours and Availability: Rider agrees to comply with the posted hours of System availability. Bikes are limited; Stations may not have available Bikes for rental at all times. To check the availability of Bikes, please refer to the Station locations and Bike availability on www.pogoh.com.2.29 System Region: A Bike may be used and/or operated only in the City of Pittsburgh and Allegheny County, Pennsylvania. Rider agrees to use, operate and/or ride the Bike only in the City of Pittsburgh and Allegheny County, Pennsylvania. Rider will not, under any circumstances, remove the Bike from the City of Pittsburgh and Allegheny County, Pennsylvania.2.30 Multiple Bike Rentals: Rider can rent up to four Bikes at the same time on one account, if available. In such cases, Rider acknowledges and agrees that (a) he/she shall be responsible for each Bike rented under his/her account, and shall be deemed to be the “Rider” under this Agreement with respect to each such rented Bike, regardless of whether another individual operates the Bike; (b) Rider will be responsible for ensuring that any individual operating a Bike rented under Rider’s account shall read and comply with this Agreement (including without limitation the age restrictions set forth in Section 2.1); and (c) Rider is fully and completely responsible and liable for all Claims arising from or related to another individual’s use of a Bike rented under Rider’s account.
3. WAIVER, RELEASE AND LIMITATION OF LIABILITY
3.1 For and in consideration of use of the Bike and the System, Rider expressly forever releases, relinquishes, and discharges Bike Share, the City, all owners of property upon or near which Stations are located, and/or any of its/their agents, directors, officers, shareholders, employees, successors, assigns, subsidiaries, parent organizations, sponsors, and/or affiliates (the “Released Parties”) from any and all Claims, including any and all Claims related to the sole or partial negligence of any non-related third party, which arise from, or are related directly or indirectly to, (a) this Agreement; (b) the rental, maintenance, design, use and/or operation of the Bike; (c) the System; or (d) the System website. By accepting this Agreement including through use of the System, any such Claims that Rider (and Rider’s legal guardian(s), if applicable) may have are hereby waived, released and relinquished, and Rider does so on behalf of Rider’s heirs, executors, administrators and assigns. The Released Parties may plead the foregoing general and complete release of Claims as a complete and sufficient defense to any Claim.3.2 In consideration for using the System and/or operating the Bike, Rider expressly agrees to release and hold harmless the Released Parties from all liability for any Claim, property damage or loss, personal injury, or loss of life, 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, the Bikes or the System, (c) Rider’s breach of this Agreement or 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 Bike, or (f) any negligence, misconduct, or other action or inaction of any third party. Rider hereby waives all claims with respect to any of the foregoing, including those based in contract, tort (including negligence), statutory, or other grounds, even if Bike Share or any of the other Released Parties has been advised of the possibility of such Claims. Rider voluntarily and knowingly agrees, understands and acknowledges that Rider will have no right to make a Claim or file a lawsuit against the Released Parties arising out of, or relating directly or indirectly to, (w) this Agreement; (x) the rental, maintenance, design, use and/or operation of the Bike; (y) the System; or (z) the System website.
4. ASSUMPTION OF RISKS AND ACCEPTANCE OF RESPONSIBILITY
4.1 Rider expressly acknowledges and accepts that Rider rides the Bike and uses the System at his/her own risk. Rider accepts the Bike for use, exercising his/her own free choice to participate voluntarily in this activity. Rider represents and agrees to use due care during such rental, use, participation and/or operation of the Bike.Rider acknowledges, understands and assumes all risk relating to the rental, maintenance, design, use and/or operation of the Bike. Rider understands that bicycling may be a hazardous activity and involves risk to Rider and others including bodily injury, partial or total disability, paralysis and death, and damages which may arise therefrom, and Rider agrees that he/she has full knowledge of said risks and dangers. Rider understands that bicycling protective gear such as helmets and gloves are not provided but are recommended as described in Section 2 of this Agreement. Rider expressly understands that such equipment, even when used, does not eliminate the risk of injury in the event of an accident.4.2 Rider acknowledges that there may be risks and dangers not known to Rider or not reasonably foreseeable related to bicycling, maintenance, design, rental, use and/or operation of the Bike, and Rider assumes responsibility for any and all such risks and dangers. Rider acknowledges and understands that risks and dangers related to the rental, maintenance, design, use and/or operation of the Bike may be caused by the negligence of Rider or others including the Released Parties. Rider assumes responsibility for all such risks and dangers.4.3 Rider freely and expressly assumes and accepts any risks and all injuries to Rider, Rider’s personal property, and any others injured or damaged as a result of the rental, maintenance, design, use and/or operation of the Bike. Rider acknowledges, understands and agrees that all of the risk and dangers related to the rental, maintenance, design use and/or operation of the Bike, including those caused by the negligence of others, are included within the waiver, release and relinquishment of liability contained in this Agreement.
Rider expressly agrees that Bike Share, at its sole discretion, may submit any disputes whatsoever arising out of, resulting from, and/or relating to this Agreement, the rental, maintenance, design, use and/or operation of the Bike, the System, and/or the System website, to final and binding arbitration under the Rules of the American Arbitration Association by one or more arbitrators appointed in accordance with the said rules. Notwithstanding these rules, however, such proceeding shall be held in Allegheny County by the laws of the Commonwealth of Pennsylvania. All arbitration proceedings will be conducted in the English language. Further, the arbitrators shall have no authority to award punitive, consequential or other damages not measured by the prevailing party’s actual damages in any arbitration initiated under this section, except as may be required by statute.
6. NO WARRANTY
To the fullest extent permitted by law, Bike Share and the City disclaim all express and implied warranties, including without limitation warranties of merchantability, fitness for a particular purpose, title, compatibility, security, accuracy, noninfringement, and usefulness, with respect to all Bikes, Stations, and System equipment, all of which are provided “As Is” and “As Available” and shall be relied upon by Rider solely at his/her own risk. Bike Share and City do not represent or warrant that any Bike, Station, or System equipment will be in good repair or error-free; acknowledge that delays, omissions, interruptions, or inaccuracies could exist; and shall not be liable for any Claim attributable to any of the foregoing.
7. SERVICE INTERRUPTIONS
Bike Share makes every effort to make the System available every day of the year, but does not guarantee daily availability and does not represent or warrant the availability of the System or the availability of any Bike at any Station. Bike Share shall not be liable for, or owe a refund to, Rider for any interruptions in service caused by or reasonably attributed to public unrest, emergencies, labor strikes, adverse weather conditions, criminal acts of others and acts of God, as well as mechanical/technical failures of internet, cellular and data hosts/service providers, both wired and/or wireless.
In consideration for the use of the Bike, Rider expressly agrees to indemnify, defend, protect and hold harmless Bike Share, the City, and/or any of its/their agents, directors, officers, employees, successors, assigns, subsidiaries, parent organizations, and/or affiliates, as applicable, against any and all Claims, including Claims brought by a third party, or disbursements of any kind of nature whatsoever related to, resulting from, regarding or referencing this Agreement, the rental, maintenance, design, and use and/or operation of the Bike, the System and/or the System website.
9. JURISDICTION & GOVERNING LAW
Rider expressly agrees that any Claims or controversy arising out of, resulting from and/or relating to this Agreement, the rental, maintenance, design, use and/or operation of the Bike, the System and/or the System website shall be construed in accordance with and governed in all respects by the laws of the Commonwealth of Pennsylvania, without regard to conflicts of interest principles, and the venue shall be in Allegheny County, Commonwealth of Pennsylvania. Rider expressly agrees to submit to the exclusive jurisdiction of the Commonwealth of Pennsylvania courts. Bike Share may assign its rights and duties under this Agreement to any party at any time without notice to Rider.
10. NO WAIVER
Bike Share’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 Bike Share shall be construed as a waiver of any preceding or succeeding breach of any provision in this Agreement.
11. TERMINATION OF AGREEMENT
Bike Share may terminate this Agreement at any time, without cause, legal process, or notice to Rider. Rider waives all Claims, causes of actions, expenses, and/or damages connected and/or related to any such termination.
Each provision of this Agreement, including any exclusions or limitations of liability, shall be construed separately, applying and surviving even if any provision in this Agreement is held to be inapplicable or unenforceable under any circumstances.
13. ENTIRE AGREEMENT
This Agreement constitutes the final and entire integrated agreement between Bike Share and Rider with respect to its subject matter. This Agreement represents the entire understanding between Bike Share and Rider and prevails over any prior or contemporaneous conflicting or additional communications, unless Bike Share revises or modifies this Agreement. At any time and from time to time, and without Rider’s consent, Bike Share shall have the unilateral right to revise, change and modify the terms and conditions contained in this Agreement without prior written notification by posting the revised Agreement on the System website, Station kiosks, or mobile applications. Rider shall be solely responsible for carefully reviewing this Agreement on a regular basis to maintain awareness of all amendments, modifications, and changes. Use of the System by Rider following any amendment, modification, or change to this Agreement constitutes Rider’s acceptance of the terms and conditions as modified. Notwithstanding any provision in this Agreement to the contrary, the pricing set forth on the System website supersedes all pricing set forth in this Agreement.
14. CONTRACT INTERPRETATION
The headings in this Agreement do not affect the interpretation of this Agreement. “Or” are not meant to be exclusive in meaning. “Including” means “including, but not limited to.” “Herein,” “hereunder,” and other similar terms refer to this Agreement as a whole and are not limited to the specific section on paragraph where they appear. Plural terms refer to all members of the relevant class, and singular terms refer to one or more members of the relevant class. All pronouns include the masculine, feminine, and neuter pronoun forms.
ACCEPTANCE OF AGREEMENT BY RIDER
RIDER HAS READ, UNDERSTANDS AND EXPRESSLY AGREES TO THE AGREEMENT AND ITS TERMS AND CONDITIONS. BY ACCEPTING THIS AGREEMENT AND CHECKING OUT A BIKE FROM THE SYSTEM (EITHER THROUGH A MEMBERSHIP OR RENTAL), RIDER ACKNOWLEDGES THAT HE/SHE HAS READ THIS AGREEMENT AND AFFIRMATIVELY AGREES TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.