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 RENTAL AGREEMENT CAREFULLY AND UNDERSTAND ITS BINDING EFFECTS.
- RELEASES; NO WARRANTIES; ASSUMPTION OF RISK; INDEMNIFICATION BY YOU
In consideration of Your use of any of the Divvy Services (defined below), Motivate International Inc. ("Motivate") requires that You ("Member", "You", or "Your") agree to all terms and conditions in this Rental Agreement. The "Services" provided by Motivate are composed of several elements, including (1) Divvy bicycle stations and associated street treatments such as wheel stops, flexible delineators and pavement markings ("Stations"), (2) automated kiosks ("Kiosks"), (3) separate stands that allow the docking of Divvy bicycles ("Bike Docks"), (4) Divvy bicycles, and (5) all related equipment, personnel, and information.
- SECTION 1 SUBSCRIPTION FEES.
Annual Subscription. If you subscribe for an annual membership (“Annual Membership”), You agree to be charged the membership fee plus any usage fees set forth in Section 2 that You incur. The membership fee amount is listed on the Services' website at "www.divvybikes.com" ("Website") and is subject to applicable sales taxes and other local government charges, which may be charged and collected by Motivate.
Short-Term Subscriptions. If You purchase a single ride pass, 24-hour pass, or other short-term subscription (each, an “Access Pass”) granting You access to the Services, Motivate will place a security deposit hold of $1 on Your acceptable credit or debit card, and you agree to be charged the fee for the Access Pass selected by you plus any usage fees set forth in Section 2 that You incur, each subject to applicable sales taxes and other local government charges. The amount of the security deposit could remain on Your credit or debit card account for an amount of time to be determined by Your bank's policies regarding holds. You may purchase up to four Access Passes (to remove up to four Divvy bicycles) on each credit or debit card. Motivate will place an additional $1 security deposit hold on Your credit or debit card for each additional Divvy bicycle and You will be charged all applicable fees for the use of Divvy bicycles with the Access Pass purchased with Your credit or debit card.
- SECTION 2 USAGE FEES.
Your Ride Time will be calculated beginning when You unlock and remove a Divvy bicycle from a Bike Dock. If You return the Divvy bicycle to a Bike Dock before the end of the time period during which usage fees are not applicable, as indicated on the Website or displayed at the Kiosks for Your subscription type (such time period, the “Initial Free Ride Period”), no usage fee will be charged. If You do not return the Divvy bicycle to a Bike Dock within the Initial Free Ride Period, You will be charged the applicable usage fees set forth on the Website or displayed at the Kiosks, which fees are subject to applicable sales taxes and other local government charges. After returning a Divvy bicycle to a Bike Dock, You may rent another Divvy bicycle, but only after waiting 15 seconds.
If You have subscribed to an Annual Membership, on the 12th day of each month, the total amount of all of Your usage fees will be charged to Your Account and charged against Your acceptable credit or debit card. For short-term subscriptions, such fees will be charged upon expiration of Your subscription. At any time, You may access a statement of Your trip history for Your Annual Membership and associated charges by logging into Your Account profile 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. Your trip receipt, if any, indicating the date and time Your Divvy bicycle was returned would be additional proof that the Divvy bicycle had been properly returned. You are encouraged to maintain all trip receipts.
- SECTION 3 LOST OR DAMAGED BICYCLES; KEY; ADDITIONAL FEES.
The data generated by the Services' computer is conclusive evidence of Your period of use of a Divvy bicycle. Your use of the Services is limited to a period of 24 consecutive hours. Any use that exceeds a period of 24 consecutive hours is deemed a disappearance of the Divvy bicycle, until the Divvy bicycle is found or returned to a Bike Dock. If the Divvy bicycle is not returned to a Bike Dock within a period of 24 consecutive hours, then the Divvy bicycle is deemed lost or stolen and Your credit or debit card will be charged a lost bike fee of up to $1,200, and a police report may be filed by Motivate with local authorities. You must return the Divvy bicycle in the same condition in which it was rented. If the Divvy bicycle is returned to a Bike Dock 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 Divvy 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 Divvy bicycle that was released on Your account or Access Pass, You must report the disappearance by filing a formal police report with the local police department and also notify Motivate within 24 hours following the disappearance.
If Your system key is lost or damaged, a replacement may be obtained by calling 1-855-55-DIVVY (1-855-553-4889) or by emailing firstname.lastname@example.org and reporting the loss or damage. A replacement fee of $10 for the lost or damaged key will be charged, and a replacement system key will be mailed to Your mailing address of record. All fees are subject to applicable sales taxes and other local government charges.
- SECTION 4 CREDIT AND 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, and You must maintain a valid credit or debit card throughout the duration of Your subscription. 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 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 profile on the Website. If the credit or debit card connected to Your Membership becomes invalid at any time and You do not replace it on Your Membership profile with a valid credit or debit card, Motivate may suspend Your Membership.
- SECTION 5 PROHIBITED ACTS.
- You may not ride a Divvy bicycle if You are under 16 years of age. A minor who is 16 years of age or older may only use the Services if the minor’s subscription is purchased by, and the minor is under the responsibility of, the minor’s parent or legal guardian. By authorizing use of the Services by a minor, the parent or legal guardian (i) agrees that he or she is fully and completely responsible and liable for all injuries, damages, costs, and expenses arising from or related to the minor’s use of the Services, and (ii) represents, warrants, and agrees that he or she is the minor’s parent or legal guardian and that he or she and the minor have all accepted and agreed to all terms and conditions of this Rental Agreement.
- You may not ride a Divvy bicycle while carrying any briefcase, backpack, bag, or other item if it impedes Your ability to safely operate the Divvy 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 Divvy bicycle.
- You may not operate a Divvy bicycle while under the influence of any alcohol, drugs, medication, or other substance that may impair Your ability to safely operate a Divvy bicycle.
- Each Divvy 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 Divvy bicycle or in the basket.
- You may not dock or lock any bicycle other than a Divvy bicycle in any Station.
- You may not bring a Divvy bicycle in a car, ferry or train, or ride or transport a Divvy bicycle outside of the greater Chicago metropolitan area.
- You may not use any locking mechanism, other than the locking mechanism provided by Motivate at the Bike Dock, to lock a Divvy bicycle to a Bike Dock.
- 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 Divvy bicycle or any part of a Divvy bicycle in any way. You may not write on, peel, or otherwise modify or deface any sticker on a Divvy bicycle in any way. You may not use a Divvy bicycle for any advertising or similar commercial purpose.
- You may not attach anything to a Divvy 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 Divvy bicycle (260 pounds) or the cargo carrier (17 pounds), and You may not otherwise use the cargo carrier improperly with regard to type of contents or any visual obstruction or riding impediment.
- You may not operate a Divvy 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 Divvy 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 Divvy bicycle to an available Bike Dock.
- You may not allow others to use a Divvy bicycle that You have removed from a Bike Dock. You understand that when You remove a Divvy bicycle from a Bike Dock, the Divvy bicycle may be used only by You. You may not transfer Your system key, 7-digit code on the system key, or any other unique Member 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 BY YOU.
- SECTION 6 RELEASES; NO WARRANTIES.
IN EXCHANGE FOR YOUR BEING ALLOWED TO USE ANY OF THE SERVICES, DIVVY 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 RENTAL AGREEMENT, (B) YOUR USE OF, OR INABILITY TO USE, ANY OF THE SERVICES, DIVVY BICYCLES, STATIONS, OR BIKE DOCKS, (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, 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 DIVVY 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, DIVVY BICYCLES, STATIONS, OR BIKE DOCKSIS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, AND WITH RESPECT TO YOUR USE OF ANY OF THE SERVICES, DIVVY 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, DIVVY 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, DIVVY BICYCLES, STATIONS, OR BIKE DOCKS WILL BE IN GOOD REPAIR OR ERROR-FREE. YOU ACKNOWLEDGE AND AGREE THAT DELAYS, OMISSIONS, INTERRUPTIONS, DEFECTS, OR INACCURACIES COULD EXIST WITH RESPECT TO ANY OF THE SERVICES, DIVVY BICYCLES, STATIONS, OR BIKE DOCKS. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS FOR USING ANY OF THE SERVICES, DIVVY 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 DIVVY BICYCLE OR SYSTEM KEY.
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 Divvy bicycles, Stations, or Bike Docks, 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 Chicago and all of its elected and appointed officers, officials, employees, and agents, (iii) every sponsor of any of the Services and all of the sponsor's owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns, and (iv) 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 BY YOU.
YOU ARE SOLELY AND FULLY RESPONSIBLE FOR THE SAFE OPERATION OF THE DIVVY 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 DIVVY BICYCLE INVOLVES MANY INHERENT, OBVIOUS AND NOT-SO-OBVIOUS RISKS, DANGERS, AND HAZARDS, WHICH MAY RESULT IN INJURY OR DEATH TO YOU 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, OTHER VEHICLES, BICYCLES, PEDESTRIANS, OTHER THIRD PARTIES, BUILDINGS, OBJECTS, POTHOLES, WHEELSTOPS, CURBS, DOCKING PLATES, DELINEATORS, PAVEMENT CRACKS, RUTS, UNEVEN OR UNSTABLE ROADWAYS OR BIKE PATHS, LIGHT RAIL OR RAIL ROAD TRACKS, WEATHER CONDITIONS, ROAD CONDITIONS, ANIMALS, ROAD KILL, VEGETATION, AND 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 AGREE THAT SUCH RISKS, DANGERS, AND HAZARDS ARE YOUR SOLE RESPONSIBILITY INCLUDING, BUT NOT LIMITED TO, CHOOSING WHETHER TO WEAR A BICYCLE HELMET OR UTILIZE OTHER PROTECTIVE GEAR. YOU 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 DIVVY 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 DIVVY 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 Divvy bicycle, You must conduct a safety inspection of the Divvy 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 Divvy bicycle if You notice any mechanical or other problem or safety issue; and, in such case, You must promptly notify Motivate of all problems and issues and You must use a different Divvy bicycle. You agree to press the "Faulty Bike" button within 1 minute after docking any Divvy bicycle that You notice has any mechanical or other problem or safety issue.
- SECTION 9 ACTIVATION OF SYSTEM KEY.
Your subscription becomes valid and active upon purchase. If You have purchased an Annual Membership, Motivate will mail a system key to the mailing address listed by You. You must activate the system key on the Website, under the "Member Login" heading, before using the system key for the first time.
- SECTION 10 REMOVING BICYCLE WITH SYSTEM KEY.
To remove a Divvy bicycle with Your system key, You must insert Your system key into the reader slot on the Bike Dock. After the system key has been inserted into the reader slot, You have 15 seconds to remove the Divvy bicycle from the Bike Dock. The signal light remains yellow during the validation of the Your system key, and the signal light turns green when the Divvy bicycle can be removed. Two sound signals are also emitted. If the Divvy bicycle is not removed within 15 seconds, the Bike Dock locks and You must repeat the process described above.
- SECTION 11 RETURNING BICYCLE.
To return a Divvy bicycle, You must secure it into an available Bike Dock. When the Divvy bicycle is correctly docked, a sound signal will be emitted, and the signal light will turn yellow and then green to confirm that the Divvy bicycle has been properly secured to the Bike Dock. If the Divvy bicycle is not properly secured to the Bike Dock, then the signal light will turn red, and a longer sound signal will be emitted. If the signal light turns red, then You must repeat the operation until the signal light turns green and the Divvy bicycle is properly secured in the Bike Dock; however, if after several attempts the signal light does not turn green, then You must return the Divvy bicycle to another available Bike Dock. If there is no available Bike Dock at the Station, then You must push the "Request Time Credit" icon on the Kiosk screen to obtain an additional 15-minute credit in which to return the Divvy bicycle to another Station. No fee is charged to You for the additional 15-minute credit. Any Divvy bicycle that is not properly secured remains Your sole responsibility, and the usage fees set forth in Section 2 will be charged until the Divvy bicycle is properly secured.
- SECTION 12 OBTAINING RECEIPT.
You may print a receipt to confirm that the Divvy bicycle has been properly returned to the Bike Dock, by pushing the "Print Receipts" icon on the Kiosk screen. The date and time of return are indicated on the receipt, and the receipt may be used to dispute a chargeable trip.
- SECTION 13 HELMETS; SAFETY.
Motivate strongly recommends that You 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 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 Chicago. Like any physical activity, riding a Divvy bicycle may cause minor or major injuries or discomfort and may worsen or complicate underlying medical conditions or diseases. By choosing to ride a Divvy 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 Divvy bicycles, and that Motivate and the other Released Persons do not guarantee that there will always be a safe place to ride a Divvy bicycle. Roads, bicycle lanes, and bicycle routes may become dangerous due to weather, traffic, or other hazards. You must not use a Divvy 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 Divvy bicycles 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 Divvy 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 Divvy Customer Services at 1-855-55-DIVVY (1-855-553-4889) 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 Divvy bicycle, (ii) any vandalism of any of the Services, (iii) any stolen or lost Divvy bicycle, and (iv) any stolen or lost system key.
- You are fully and completely responsible for all charges, damages, and injuries that arise from or relate to any use of Your system key before (i) a deactivation of the key by Motivate upon the expiration of membership, or (ii) a report to the Divvy Customer Services at 1-855-55-DIVVY (1-855-553-4889) that the system key is lost or stolen.
- SECTION 15 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 will be available at all times, as force majeure events or other circumstances might prevent Motivate from providing the Services from time to time. Access to the Services also is conditioned on the availability of Divvy bicycles and available Bike Docks at each Station. Motivate does not represent or warrant the availability of any Services or the availability of any Divvy bicycles or Bike Docks at any Station. No sponsor of Divvy has any responsibility for providing any Services. You should use the Website to check the inventory of Divvy bicycles and Bike Docks available at a Station. You agree that Motivate may require You to return a Divvy bicycle at any time.
- SECTION 16 TERM AND TERMINATION.
The term of this Rental Agreement begins when You first use the Services, and the term ends 10 years after Your last use of the Services; provided, however, that Your personal financial responsibility under Section 4 of this Rental Agreement, titled Credit and Debit Card Matters, expires one year after the later of (i) Your last use of the Services, or (ii) the expiration of Your subscription. 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 Agreement is terminated.
If You select a monthly billing option, (a) You will be responsible for monthly payments in amounts as listed on the Website at the time you enroll, billed with an annual (12-month) commitment, and (b) if You cancel your Annual Membership before your annual commitment is complete, You will be responsible for paying in full at the time you cancel the balance remaining to complete the annual commitment.
All Annual Memberships may be auto-renewed upon the membership period's expiration. You may prevent Your Annual Membership from auto-renewing by deselecting the "Auto-Renew Membership" box found on the Profile page within the Member Area of the Website. You may enroll into auto-renew by selecting the Auto-Renew Membership box found on the Profile page within the Member Area of the Website.
No sooner than thirty (30) days before and no later than one (1) year after the expiration of Your Annual Membership term, You may renew the Annual Membership on the Website, under the "Member Login" heading. If the Annual Membership is not renewed within this period of time, then You may be required to (i) take certain actions to reactivate Your old account, or (ii) create an entirely new account for a new Annual Membership. The Annual Membership, and the personal identification number and system key related thereto, are non-transferable and may be terminated if You breache this Rental Agreement, as decided by Motivate in its sole discretion.
- SECTION 17 NOTICES.
You may contact Motivate by writing, calling, or emailing Motivate at the street address, telephone number, and email address listed below:
Motivate International Inc.
220 36th Street, Suite 3A
Brooklyn, NY 11232
Customer Service: 1-855-55-DIVVY (1-855-553-4889)
- SECTION 18 MANDATORY 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 Illinois, 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 220 36th Street, Suite 3A, Brooklyn, NY 11232. 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 email@example.com with the subject line, "DIVVY 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 Cook County, Illinois. You and Motivate agree to submit to the personal jurisdiction of the courts located within Cook County, Illinois 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 19 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 hereby 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 21 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 22 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 23 SEVERABILITY.
If a court deems any provision of this Rental Agreement, 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 Rental Agreement and shall be inoperative, and the remainder of the Rental Agreement shall remain operative and shall be binding on the parties.
YOUR AGREEMENT TO BICYCLE RENTAL AGREEMENT
I certify that I am the person renting a Divvy 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 Rental Agreement.
I hereby represent that I am a parent or legal guardian of the below minor who will be riding a Divvy bicycle, who is 16 years of age or older, and that I am fully authorized to execute this Rental Agreement on behalf of myself and all other parents of legal guardians of the minor rider. I hereby give permission and consent to the minor rider’s use of the System within the terms and conditions set forth in this Rental Agreement, and have explained these terms and conditions to the minor rider. It is my decision as the minor rider’s parent or legal guardian that the System is suitable for the minor rider. I further agree to the terms and conditions set forth in this Rental Agreement, and I shall assume any and all responsibility and liability for the minor rider’s use of the System as provided by the terms of this Rental Agreement. I further agree to defend and indemnify any Released Party from any and all Claims by the minor rider arising out or connected to the minor rider’s use of the System whether or not any negligence by any Released Party, in whole or in part, is alleged to have contributed to any Claims.
Updated: January, 12 2018