This User Agreement (the “Agreement”) between you and UBike Technologies North America Inc. (“UBike”, “we”, “our” or “us”) sets forth the terms and conditions that apply to your use of the internet website located at <www.u-bicycle.com> and the UBike mobile software application (collectively, the “Platform”), as well as the bike share rental services provided by UBike (collectively, the “Services”) which include the following:
(i) the UBike bicycles (each a “Bike” and collectively, the “Bikes”);
(ii) the UBike helmets (each a “Helmet” and collectively, the “Helmets”); and
(iii) all other related equipment, personnel and information provided or made available by UBike (together with the Bikes and the Helmets, collectively, the “UBike Equipment”).
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE PLATFORM AND SERVICES.
By accessing or using the platform or services you are indicating your acceptance to be bound by this agreement. If you do not accept this agreement, you must not access or use the platform or the services. If you are dissatisfied with this agreement or any rules, policies, guidelines or practices applicable to the platform or services, your sole and exclusive remedy is to discontinue use of the platform and services.
Assumption of Risk
YOU ACKNOWLEDGE, UNDERSTAND AND ACCEPT THAT YOUR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO YOUR RENTAL AND USE OF THE BIKE, IS AT YOUR OWN RISK. YOU ACCEPT THE BIKE FOR USE AFTER EXERCISING YOUR OWN FREE CHOICE TO PARTICIPATE VOLUNTARILY IN THIS ACTIVITY AND AFTER HAVING INSPECTED THE BIKE AND CERTIFYING THAT IT IS IN GOOD OPERATING CONDITION.
YOU ACKNOWLEDGE, UNDERSTAND AND ACCEPT THAT BICYCLING IS A HAZARDOUS ACTIVITY WHICH INVOLVES INHERENT RISKS AND DANGERS TO YOU AND OTHERS INCLUDING PHYSICAL AND BODILY INJURY, PARTIAL OR TOTAL DISABILITY, PARALYSIS AND DEATH TO YOU OR OTHERS. YOU FURTHER UNDERSTAND AND ACCEPT ALL RISKS, DANGERS AND INJURIES ARISING FROM YOUR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO, RISKS, DANGERS AND INJURIES THAT MAY ARISE FROM: (I) YOUR USE AND OPERATION OF THE BIKE; (II) THE ACTS, OMISSIONS, FAULT OR NEGLIGENCE OF UBIKE IN PROVIDING THE SERVICES; (III) THE ACTS, OMISSIONS, FAULT OR NEGLIGENCE OF OTHERS; AND/OR (IV) ROADWAY OR ENVIRONMENTAL CONDITIONS.
YOU ACKNOWLEDGE, UNDERSTAND AND ACCEPT ALL RISKS, DANGERS AND INJURIES RELATING TO OR ARISING FROM THE USE OF THE PLATFORM AND THE SERVICES (INCLUDING BUT NOT LIMITED TO, ALL RISKS, DANGERS AND INJURIES RELATED TO OR ARISING FROM THE MAINTENANCE, DESIGN, MANUFACTURE, SUITABILITY, USE AND/OR OPERATION OF THE BIKES AND OTHER UBIKE EQUIPMENT).
YOU ACKNOWLEDGE, UNDERSTAND AND ACCEPT THAT THIS AGREEMENT CONTAINS WAIVERS, RELEASES AND LIMITATIONS OF LIABILITY WHICH MAY PREVENT OR LIMIT YOUR ABILITY TO CLAIM AGAINST UBIKE OR OTHERS WITH RESPECT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, CLAIMS FOR DAMAGES FOR PERSONAL INJURIES OR DEATH RELATED TO OR ARISING FROM YOUR USE AND OPERATION OF THE SERVICES.
Ability to Enter into this Agreement
In order to enter into this Agreement and to use the Services, you must be at least nineteen (19) years of age or have reached the legal age of majority in your jurisdiction of residence, if such legal age of majority is older, and be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you. If you accept this Agreement, you represent that you have the capacity to be bound by it. Minors who are at least 16 years of age may use the Services, 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.
Your right to access and use the Services is personal to you and is not transferable by you to any other person or entity. You agree not to disclose your User ID to any third party. You are solely responsible for all activities that occur under your Account or under your Profile Information. If you become aware of any unauthorized use of your Account or Profile Information, you are responsible for notifying UBike immediately. It is your responsibility to update or change any Account or Profile Information, as appropriate.
UBike deems the person under whose name appears on the credit or charge card that pays the charges for the Services to be the owner and controller of the User ID, Profile Information and Account for all purposes under this Agreement. If any dispute arises as to who owns or controls a User ID, Profile Information or Account, the credit or charge card will continue to be charged and you will be responsible to pay for the Services until UBike receives written confirmation from the Account email address confirming a change in ownership and control of the Account.
In the case of any newsletter or other marketing initiatives, you can withdraw your consent to receiving those communications and unsubscribe to any UBike subscriptions at any time by clicking “Unsubscribe” at the bottom of such communication or by contacting <www.u-bicycle.com>. Doing so may have a material impact on our ability to provide any Services to you, and we are not responsible if you do so.
How to Rent a Bike
More information describing how to rent a Bike is available at <www.u-bicycle.com>.
Requirements and Restrictions
By entering into this Agreement, by using the Services and each time you rent a Bike, you represent, warrant, covenant, acknowledge and agree that:
(a) you are familiar with the operation of the Bike and are reasonably competent and sufficiently physically and mentally fit to operate the Bike;
(b) you are familiar with all applicable laws that apply to the use and operation of the Bike, including all local laws and the rules and regulations pertaining to bicycles in the area in which you operate the Bike, and you are solely responsible for any violations or fines incurred while using, operating or parking the Bike in a manner that is prohibited by law;
(c) you are required to wear a helmet while using the Bike under British Columbia law and you will wear a helmet at all times while operating the Bike. You may either wear the Helmet provided by UBike or you may use your own helmet, provided that it complies with all applicable safety regulations and other applicable British Columbia laws;
(d) you are solely responsible for obtaining and wearing proper clothing and shoes while operating the Bike;
(e) riding a bicycle may result in an accident and, as between you and UBike, you are solely responsible for any injuries, medical conditions, property damage or any other damages, costs and expenses which may arise from or related to your use or misuse of the Bike, the Helmet and the Services;
(f) failure to use a helmet or operate the Bike in a careful and reasonably competent manner may result in bodily injury or death;
(g) you will take care to determine whether there are any weather, traffic or other conditions which would make it unsafe to operate a Bike and you will either refrain from operating the Bike or adjust your riding behaviour to suit such conditions;
(h) the Bikes and Helmets are and shall remain the exclusive property of UBike and you will ensure that you return the Bike and Helmet to UBike in the same condition as they were received;
(i) you will report any accident, crash, damage or personal injury or theft or loss of a Bike that occurs during your use of the Services to UBike, and the local police department if required by law, as soon as possible;
(j) you will not exceed the maximum weight limit for the Bike (<240> pounds) or the cargo basket on the Bike (<11> pounds), and you will not overfill the cargo basket or use it for any purpose other than stowage of light goods; and
(k) you will not tamper with, attempt to gain unauthorized access to or otherwise use the Bikes and the other equipment made available by UBike through the Services for any purpose other than renting and operating a Bike pursuant to this Agreement.
Each time you rent a Bike, you agree that:
(a) prior to operating the Bike, you will:
i.put on a helmet provided it is required by the local laws and adjust it so it fits properly on your head;
ii. inspect the Bike carefully and test the Bike’s components, including without limitation its brakes, tires, gears, pedals, lights frame and saddle, to ensure the Bike and its components are in good operating condition;
iii. inspect the locking mechanism to ensure that it is in the unlocked position;
iv. adjust the saddle to the appropriate height; and
v. if you choose to wear your own helmet instead of the Helmet supplied by UBike, place the Helmet in the Bike’s cargo basket;
(b) while operating the Bike, you will:
i. adjust your riding behaviour as necessary to safely operate the Bike in the current weather and traffic conditions;
ii. always wear a properly fitting helmet;
iii. avoid using any cellular telephone or other electronic device in a manner that distracts you, including but not limited to for the purpose of making phone calls, texting, listening to music or any other use;
iv. ensure that you are not under the influence of alcohol, drugs, medication or any other substance that impairs your ability to safely operate the Bike;
v. not carry any persons or animals on the Bike other than yourself;
vi. not tow, pull or push any person or object with the Bike;
vii. stop riding and return the Bike if you suspect the Bike is no longer functioning properly; and
viii.notify UBike if the Bike is damaged or is no longer functioning properly;
(c) at all times during your rental of the Bike, you will:
i. avoid using any lock or locking mechanism other than the locking mechanism provided on the Bike;
ii. ensure that you only park the Bike at lawful parking spots and not on private property or in an area that is inaccessible to the public;
iii. i. avoid using the Bike during poor weather conditions, including without limitation during hail, snow, dust storms, fog, heavy rains or lightning storms;
iv. abide by all applicable laws;
v. avoid using the Bike for racing, trick riding, jumping, stunt riding or off-road riding; and
vi. avoid using the Bike for any commercial purposes; and
(d) upon completion of your rental of the Bike, you must park the Bike at a lawful parking spot and not on private property or in an area that is inaccessible to the public and lock the Bike and the Helmet using the locking mechanism provided on the Bike, if such locking mechanism is provided on the Bike you have rented.
Payment and Fees
You may use the Services on a pay per ride basis or otherwise in accordance with the pricing described on the Platform. Current pricing for the Services is available at <www.u-bicycle.com>. If you subscribe for a monthly or annual usage plan (a “Plan”), unless otherwise agreed to by UBike, fees for the Plan will be billed in advance for the applicable subscription period of the Plan (the “Subscription Period”) and are non-refundable. There will be no refunds or credits for partial months or years of service or for periods in which your Plan remains open but you do not use the Services.
We reserve the right to modify our billing rates at any time without notice by posting such fee changes to the Platform or through email notification to you. You will be liable to pay such modified billing rates.
Subject to your payment of applicable fees for a Plan, we will provide the Services to you for the Subscription Period. At the end of the Subscription Period, your Plan subscription will automatically renew for an additional Subscription Period until explicitly cancelled by you as described in the “Cancellation and Termination” section below.
You agree that UBike, or our third party service providers, including but not limited to PayPal, may store your credit or charge card information. You expressly agree that we are authorized to charge you
(i) if you have not subscribed for a Plan and are using your Account on a pay per ride basis, the applicable pay per ride fee each time you rent a Bike,
(ii) if you have subscribed for a Plan, the applicable fee for the Plan that you have subscribed for, billed on a basis of the Subscription Period,
(iii) any other fees for Services you may purchase,
(iv) any charges for use of the Services in excess of the usage or other limits placed on your use of the Services (and you hereby consent to such charges and agree we are not required to notify you of any such charge in advance) and
(v) any applicable taxes in connection with your use of the Services to the credit or charge card you provide and to reimburse us for all collection costs and interest for any overdue amounts. If the credit or charge card you provide expires and you do not provide new credit or charge card information or cancel your account, you authorize us to continue billing you and you agree to remain responsible for any uncollected fees.
UBike may charge you additional fees if you violate this Agreement or if you violate any other Bike rental rules as may be set forth by UBike from time to time at <www.u-bicycle.com>, including but not limited to doing any of the following:
(a) exceed the applicable maximum rental time set for rental of the Bike;
(b) park the Bike in an invalid parking location; or
(c) operate the Bike or park the Bike outside of the applicable territory in which you commenced your rental of the Bike.
The additional fees that may be charged for such violations are available at <www.u-bicycle.com>.
Trial Programs and Promo Codes
From time to time and at our sole discretion, we may offer free or discounted pricing for you to evaluate the use of the current Services that are generally available to customers for a limited period of time (the “Trial Program”). If you register for a Trial Program, you must decide to purchase the Services within the term of the Trial Program specified by us (the “Trial Period”) in order to continue to use the Services provided as part of the Trial Program. If you do not purchase the Services by the end of the Trial Period, such Services will cease to be available to you at the end of the Trial Period. Once the Trial Period has expired, you agree that our normal billing rates will apply. You agree to comply with any additional terms, restrictions or limitations (including limitations on the total amount of usage) we impose in connection with any Trial Program. You may not sign-up for multiple Accounts in order to receive additional benefits under any Trial Programs. We may terminate or suspend any Trial Program at any time without notice or liability and in our sole discretion. We reserve the right to charge or charge more for any Services or products offered through any Trial Program.
From time to time and at our sole discretion, we may offer one-time offers and discounts for the Services that can be redeemed via the Platform (“Promo Codes”). We reserve the right to modify or cancel Promo Codes at any time. Promo Codes are limited to one per customer and account and may not be combined with other offers. Promo Codes are non-transferable and may not be resold.
You take full responsibility for all taxes and fees of any nature associated with the Services, including any sales tax related to any purchase or sale of services or goods under this Agreement. When purchasing or selling services or goods under this Agreement, it is your responsibility to determine whether or not sales taxes apply to a transaction and to collect, report and remit the correct amounts to the appropriate authority. Any tools provided in connection with the Services indicating estimated taxes due are for illustration purposes only. You take full responsibility for all taxes and fees of any nature associated with the Services, including any sales tax related to the purchase or sale of services or goods under this Agreement.
Intellectual Property Rights
All material available on the Platform and all materials and services provided by or through UBike, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to, software, all informational text, software documentation, design of and “look and feel”, layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the “Materials”), are owned by us or our licensors or service providers, and are protected by copyright, trademark, trade secret and other intellectual property laws.
Subject to your compliance with all of the terms and conditions of this Agreement, during the term of this Agreement, UBike grants to you a non-transferable, non-sublicensable, non-exclusive, revocable, limited-purpose right to access and use the Materials that we make available to you.
If UBike, in its sole discretion and without notice, considers that there is an immediate security or operational risk to the Platform or any of its, yours or a third party system, then UBike may immediately suspend access to or use of the Platform. The suspension of use and access is not a breach of this Agreement. You acknowledge that the preservation of security, confidentiality and data is paramount. UBike has no liability to you for suspending access to the Platform under this provision.
You agree that any ideas, suggestions, concepts, processes or techniques which you provide to UBike related to the Services, the Platform or UBike or its business (“Feedback”) are and will be UBike’s exclusive property without any compensation or other consideration payable to you by UBike, and you do so of your own free will and volition. UBike may or may not, in its sole discretion, use or incorporate the Feedback in whatever form or derivative UBike may decide into the Platform, its services, documentation, business or other products, or any future versions or derivatives of the foregoing. You hereby assign all rights on a worldwide basis in perpetuity to UBike in any Feedback and, as applicable, waive any moral rights.
UBike retains the right to use or share any Aggregated Data generated by anyone using our Platform, including our users, for the purpose of enhancing and providing the Platform and the Services. “Aggregated Data” means data does not contain personal information and which has been manipulated or combined to provide generalized, anonymous information. Where you choose to utilize or connect certain services from third parties with the Platform, you agree that UBike may share your lead data with such designated third parties.
Acceptable Conduct and Use of the Platform
You agree that you will not use the Platform in a manner that:
(a) infringes, violates or misappropriates any third party’s intellectual property or proprietary rights;
(b) contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(d) is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
(e) is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;
(f) is harmful to minors in any way;
(g) is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by UBike;
(h) impersonates a UBike employee, or any other person, or falsely states or otherwise misrepresents your affiliation with any person or entity, or to obtain access to the Platform or Services or a portion thereof without proper authorization;
(i) interferes or attempts to interfere with the proper working of the Platform or prevents others from using the Platform, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Platform, or that otherwise negatively affects other persons’ ability to use the Platform;
(j) uses any manual or automated means, including agents, robots, scripts, or spiders, to monitor or copy the Platform or the content contained therein;
(k) includes personal or identifying information about another person in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of content transmitted through the Platform to users;
(l) constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests;
(m) stalks or otherwise harasses anyone on the Platform or using the Services or with information obtained from the Platform or Services;
(n) collects, uses or discloses data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;
(o) requests, solicits or otherwise obtains access to usernames, passwords or other authentication credentials from any user of the Platform or Services for the purposes of automating logins to the Platform;
(p) attempts to gain unauthorized access to the computer systems of UBike or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Platform;
(q) posts adult or pornographic content;
(r) decompiles or reverse engineers or attempts to access the source code of the software underlying the Platform or any other UBike technology;
(s) copies, archives, stores, reproduces, rearranges, modifies, downloads, uploads, creates derivate works from, displays, performs, publishes, distributes, redistributes or disseminates all or any part of the Platform;
(t) accesses the Platform for the purposes of building a product using similar ideas, features, functions, interface or graphics as those found in the Platform;
(u) accesses the Platform for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or
(v) accesses the Platform to upload any content or computer code for the purposes of:
(i) causing a breach or override of security to the Platform;
(ii) interfering with the proper working, functionality or performance of the Platform; or
(iii) preventing others from accessing or using the Platform.
YOU AGREE THAT, OTHER THAN AS SET FORTH IN THIS AGREEMENT, (I) NO STATEMENTS OR REPRESENTATIONS HAVE BEEN MADE TO YOU BY UBIKE AND (II) IN ENTERING INTO THIS AGREEMENT, YOU ARE NOT RELYING UPON ANY STATEMENT OR REPRESENTATION MADE BY OR ON BEHALF OF UBIKE RELATING TO THIS AGREEMENT OR THE SERVICES PROVIDED UNDER IT. WITHOUT LIMITING THE FORGOING, UBIKE MAKES NO REPRESENTATIONS RELATING TO THE QUALITY, SAFETY, SUITABILITY, DESIGN, MANUFACTURE, MAINTENANCE OR CONDITION OF THE BIKES AND THE UBIKE EQUIPMENT. ALL BIKES AND UBIKE EQUIPMENT ARE RENTED AND PROVIDED “AS IS” AND “WHERE IS”.
Disclaimer of Warranties
THE PLATFORM, SERVICES, BIKES AND OTHER UBIKE EQUIPMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, WITHOUT LIMITATION, ANY STATUTORY OR COMMON LAW WARRANTY OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT. UBIKE AND THE UBIKE PARTIES HEREBY DISCLAIM ANY CLAIM IN TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY). WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT THE IMPLIED WARRANTIES AND CONDITIONS IN THE SALE OF GOODS ACT, RSBC 1996, C. 410 AND THE INTERNATIONAL SALE OF GOODS ACT, RSBC 1996, C. 236 SHALL NOT APPLY TO THIS AGREEMENT AND THE SERVICES AND GOODS PROVIDED UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, UBIKE DISCLAIMS ANY WARRANTY RELATING TO THE QUALITY, SAFETY, SUITABILITY, DESIGN, MANUFACTURE, MAINTENANCE OR CONDITION OF THE BIKES AND THE UBIKE EQUIPMENT. ALL BIKES AND UBIKE EQUIPMENT ARE RENTED AND PROVIDED “AS IS” AND “WHERE IS”.
UBIKE DISCLAIMS ANY WARRANTY THAT THE PLATFORM, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY SOFTWARE AND CONTENT, WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM OR THE SERVERS THAT MAKES THE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT FROM TIME TO TIME UBIKE MAY REMOVE THE PLATFORM OR CEASE PROVIDING THE PLATFORM FOR INDEFINITE PERIODS OF TIME WITHOUT NOTICE TO YOU. YOUR ACCESS AND USE OF THE PLATFORM MAY BE INTERRUPTED FROM TIME TO TIME FOR ANY OF SEVERAL REASONS, INCLUDING, WITHOUT LIMITATION, THE MALFUNCTION OF EQUIPMENT, PERIODIC UPDATING, MAINTENANCE OR REPAIR OF THE PLATFORM OR OTHER ACTIONS THAT UBIKE, IN ITS SOLE DISCRETION, MAY ELECT TO TAKE. UBIKE MAKES NO GUARANTEE REGARDING THE COMPATIBILITY OF ANY SOFTWARE OR HARDWARE WITH THE PLATFORM.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM UBIKE OR THROUGH OR FROM THE PLATFORM OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Waiver and Release of Liability
YOU AGREE THAT FOR AND IN CONSIDERATION OF YOUR USE OF THE PLATFORM AND THE SERVICES, YOU, FOR YOURSELF AND ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS AND ASSIGNS, FOREVER WAIVE, RELEASE AND RELINQUISH AND DISCHARGE (I) UBIKE AND UBIKE’S OWNERS, OFFICERS, DIRECTORS, AFFILIATES, CONTRACTORS, EMPLOYEES AND AGENTS, (II) ANY MUNICIPALITY WITH WHICH UBIKE HAS CONTRACTED WITH TO PROVIDE THE SERVICES, AND (III) ANY OWNER OF PROPERTY WITH WHICH UBIKE HAS CONTRACTED WITH TO PROVIDE REAL PROPERTY ON WHICH A PARKING LOCATION IS LOCATED (COLLECTIVELY, THE “UBIKE PARTIES”) FROM ANY AND ALL CLAIMS, DEMANDS, DISPUTES, LOSSES, LIABILITIES, DEBTS, LIENS, CHARGES, PENALTIES, PROCEEDINGS, CAUSES OF ACTION AND DAMAGES INCLUDING DAMAGES FOR PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, AND INJURY TO YOU OR TO THIRD PARTIES, (COLLECTIVELY, “CLAIMS”), INCLUDING UNKNOWN OR UNANTICIPATED CLAIMS, WHICH ARISE FROM OR ARE RELATED DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR YOUR USE OF THE PLATFORM OR THE SERVICES (INCLUDING BUT NOT LIMITED TO, THE RENTAL, MAINTENANCE, DESIGN, MANUFACTURE, SUITABILITY, USE AND/OR OPERATION OF THE BIKES AND OTHER UBIKE EQUIPMENT), INCLUDING ANY AND ALL CLAIMS RELATED TO THE SOLE OR PARTIAL NEGLIGENCE OF THE UBIKE PARTIES OR ANY OTHER PARTY IN PROVIDING THE SERVICES OR IN PERFORMING ANY OTHER OBLIGATION UNDER THIS AGREEMENT.
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT, WILL THE UBIKE PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY ACTING OR CLAIMING ON YOUR BEHALF FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, OR THE COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES (EVEN IF UBIKE OR THE UBIKE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR YOUR INABILITY TO USE THE PLATFORM OR SERVICES, OR FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT.
YOU FURTHER AGREE THAT IN NO EVENT WILL YOU CLAIM THAT THE UBIKE PARTIES INDIVIDUALLY OR COLLECTIVELY FAILED TO REASONABLY TRAIN YOU OR PROVIDE YOU WITH REASONABLE INSTRUCTIONS NECESSARY TO RIDE THE BIKE IN THE SAME MANNER AS A PERSON WHO IS AN EXPERIENCED BIKE RIDER WHO HAS BEEN TRAINED TO RIDE A BIKE IN A SAFE AND CAREFUL MANNER.
UBIKE IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD-PARTY PROVIDER OF ANY CONTENT, SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO, INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY UBIKE, TELECOMMUNICATIONS PROVIDERS OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY UBIKE.
Limitation of Liability
YOU AGREE THAT EACH UBIKE PARTY’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNTS YOU PAID TO UBIKE IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF LOSS OR DAMAGE. TO THE EXTENT ANY PROVINCE, STATE OR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, EACH UBIKE PARTY’S LIABILITY IN SUCH PROVINCE, STATE OR JURISDICTION WILL BE LIMITED TO THE FURTHEST EXTENT PERMITTED BY LAW. NOTWITHSTANDING THE FOREGOING OR ANYTHING ELSE HEREIN TO THE CONTRARY, THE UBIKE PARTIES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF IN ANY WAY WITH RESPECT TO A TRIAL PROGRAM OR YOUR PROVISION OF AN INDIVIDUAL’S PERSONAL INFORMATION TO UBIKE OR THROUGH THE PLATFORM. YOU FURTHER AGREE THAT THE FOREGOING LIMITATIONS WILL APPLY WITH RESPECT TO THIRD PARTY LIABILITY OF ANY KIND.
THE FOREGOING LIMITATIONS WILL ALSO APPLY WITH RESPECT TO ANY DAMAGES INCURRED BY REASON OF ANY CONTENT OR SERVICES PROVIDED ON ANY THIRD PARTY PLATFORMS OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN UBIKE AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE PLATFORM OR RECEIVED BY YOU ON ANY THIRD PARTY PLATFORMS.
Limitation of Time Period for Making Claims
You agree that you will not bring a claim under or related to this Agreement more than twelve (12) months from when your claim first arose.
Defence and Indemnity
You agree to defend, indemnify and hold harmless the UBike Parties for, from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys’ fees) (collectively and individually, “Third Party Claim(s)”) incurred by or made against the UBike Parties in connection with, arising out of or relating to this Agreement, the Platform or the Services, including but without limitation in relation to:
(i) your use, non-use or misuse of, or connection to, the Platform and the Services, including but not limited to, your use and operation of the Bike;
(ii) your violation or alleged violation of this Agreement; and
(iii) your violation of any rights, including intellectual property rights, of a third party and otherwise as set out herein, even where caused in whole or in part by UBike’s negligence or the negligence of others, whether presently known or unknown. UBike will use reasonable efforts to notify you of any such Third Party Claims upon becoming aware of them. Where you agree to assume the defence and indemnity of a UBike Party in a Third Party Claim, you agree that you will not admit liability or settle any Third Party Claim without the prior written consent of UBike. Where you fail or refuse to defend and indemnify a UBike Party in a Third Party Claim, the UBike Parties reserve the right, at your sole expense, to defend the Third Party Claim and seek indemnity from you for all costs and expenses incurred by the UBike Party in defending and/or resolving the Third Party Claim, including but not limited to:
(i) all actual solicitor’s fees and disbursements reasonably incurred by the UBike Party in defending the Third Party Claim;
(ii) all amounts reasonably paid by the UBike Party to settle or resolve the Third Party Claim; and
(iii) all amounts and judgments awarded against the UBike Party after the trial of a Third Party Claim.
Cancellation and Termination
You may cancel your Account at any time through the web interface provided as part of the Platform. Cancellation must be issued via your web interface or via UBike’s support addresses. Any cancellation issued to the web interface must be done at least five (5) business day prior to the end of the term of your then-current Subscription Period. This is the only way to cancel your Account and you will not be provided with a refund, in whole or in part, of any pre-paid amount. Email requests or phone requests to cancel your Account will not be accepted.
You will remain liable for all charges accrued on your Account up to the time of cancellation, including full fees for the then current Subscription Period in which you cancelled your Account. UBike may delete your Account immediately upon cancellation or may keep your Account for up to ninety (90) days following the last day of the month of cancellation.
UBike reserves the right at any time, and without cost, charge or liability, to terminate this Agreement at its sole discretion for any reason, including, but not limited to, a failure to comply with the terms of this Agreement. UBike reserves the right to modify, suspend or discontinue the Platform and/or Services, or any portion thereof, at any time and for any reason, with or without notice.
If there is any dispute between you and UBike about or involving this Agreement, the Platform or the Services, you hereby agree that the dispute will be governed by and construed in accordance with the laws of the Province of British Columbia, Canada, and the federal laws of Canada applicable therein without regard to its conflict of law provisions.
Except for any claim involving the ownership of intellectual property, all disputes arising out of or in connection with this Agreement will be referred to and finally resolved by arbitration under the rules of the British Columbia International Commercial Arbitration Centre. The appointing authority will be the British Columbia International Commercial Arbitration Centre. The case will be adjudicated by a single arbitrator and will be administered by the British Columbia International Commercial Arbitration Centre in accordance with its rules. The place of arbitration will be Vancouver, British Columbia, Canada. The language of the arbitration will be English. Notwithstanding the foregoing, UBike may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by UBike through injunctive relief and other equitable remedies without proof of monetary damages.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole will not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable will be stricken from this Agreement.
You agree that if UBike does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which UBike has the benefit of under any applicable law), this will not be taken to be a formal waiver of UBike’s rights and that those rights or remedies will still be available to UBike.
The sections titled “Taxes”, “Intellectual Property Rights”, “Waiver and Release of Liability”, “Limitation of Liability”, “Assumption of Risks” and “Disclaimer of Warranties”, “Waiver of Jury Trial and Class Action Rights”, “Limitation of Time”, “Indemnity” and “Miscellaneous” will survive any actual or purported termination or expiry of this Agreement and continue in full force and effect.
This Agreement is the entire agreement between us related to the subject matter in this Agreement. This Agreement replaces and supersedes any other prior or contemporaneous agreement, representation or discussion, oral or written, and may not be changed except in writing signed by us, regardless of whether or not the parties act under an unsigned “electronic” agreement or rely on such an unsigned agreement.
You may contact UBike by email at <email@example.com>