USER AGREEMENT

WE-CYCLE USER AGREEMENT,LIABILITY WAIVER AND RELEASE

THIS IS A LEGAL DOCUMENT AND BINDING AGREEMENT BETWEEN USER AND WE-CYCLE.  USER IS ADVISED TO REVIEW THIS DOCUMENT CAREFULLY BEFORE ENTERING INTO THIS AGREEMENT.

 

            THIS WE-CYCLE USER AGREEMENT, LIABILITY WAIVER AND RELEASE (this “Agreement”) is made by and between the participant executing this Agreement (“You” or “User”) and WE-CYCLE, a Colorado nonprofit corporation (“WE-cycle”) as of the date User first participates in the Program (defined below) or uses any of the Program Equipment (defined below).  By participating in the Program and using the Program Equipment, User hereby agrees to the terms and conditions of this Agreement.

 

RECITALS

A.  WE-cycle is a Colorado nonprofit corporation operating a Bicycle sharing program intended to promote the use of Bicycles as a flexible, independent and environmental means of transportation, an alternative to motorized vehicular transport, within the City of Aspen, Pitkin County, the Town of Basalt, Eagle County, and Town of Snowmass Village, Colorado (the “Program”).

B.  Bicycle sharing stations (each, a “Station” and collectively, the “Stations”) are or will be located at various locations in the City of Aspen, Pitkin County, Town of Basalt, Eagle County, and Town of Snowmass Village, and such Stations will park Bicycles, including traditional pedal style Bicycles and Class I electric pedal-assist Bicycles, available for check out (each, a “Bicycle” and collectively, the “Bicycles”) in accordance with the terms and conditions of this Agreement.  The Stations and Bicycles, and any other items or equipment associated therewith are collectively referred to herein as the “Program Equipment”.

C.  User intends to participate in the Program and use the Program Equipment and, therefore, agrees to the terms and conditions of this Agreement, with the understanding that User’s acceptance and agreement of the terms and conditions of this Agreement is a material requirement and condition precedent to User’s participation in the Program and use of the Program Equipment.

AGREEMENT

1. Acceptance of Agreement; Parties.  By acknowledging or accepting the terms and conditions of this Agreement, whether by electronic means or otherwise communicated by WE-cycle, User agrees to all of the terms and conditions contained herein.  User expressly agrees to use a Bicycle subject to the terms and conditions of this Agreement.  WE-cycle and User are the only parties to this Agreement.  User is the sole lessee of a Bicycle and is solely responsible for compliance with all terms and conditions contained herein.

2. User is 18 or Older and a Competent Bicycle Rider.  User hereby swears, affirms and represents that he or she is 18 years old or older, or User is the parent or legal guardian of a rider whom is at least 16 years old.  For purposes of this Agreement, if User is the parent or legal guardian of a rider whom is at least 16 years old, User agrees that (i) the terms and conditions of this Agreement shall govern use of a Bicycle by such rider; (ii) User shall be responsible for such rider’s compliance with the terms of this Agreement and any applicable rules, regulations and laws with respect to rider’s use of the Bicycle; (iii) and the term “User” as used herein shall mean such rider together with the parent or legal guardian of such rider.  User further swears, affirms and represents that User is a competent Bicycle operator (including electric Bicycles if used by User); that User is physically fit to ride a Bicycle and also that User is familiar with the operation of a Bicycle and is reasonably competent to ride a Bicycle.  User understands that the Program includes both pedal Bicycles and electric pedal-assist Bicycles which amplify User’s efforts with a motor.  User understands how electric-assist Bicycles work and represents that User is competent to use an electric Bicycle.

3.   If User intentionally or unintentionally misrepresents User’s age or ability to operate a Bicycle, User accepts full responsibility and is liable for any consequence, claims, demands, causes of action, losses, liabilities, damages, injuries, costs and expenses, penalties, attorney’s fees, judgments, suits or disbursements of any kind or nature whatsoever related to any such intentional or unintentional misrepresentation.

4. Changes to Terms.  WE-cycle may modify this Agreement from time to time, and such modification will be effective upon its posting on the WE-cycle internet website at localhost/wp-wecycle/useragreement (the “Website”).  User agrees to be bound by any modification to this Agreement when using the Program Equipment or Website after any such modification is posted; it is therefore important that User reviews this Agreement regularly.

5. Bicycle Check Out.  Provided that User fully complies with the terms and conditions of this Agreement and pays WE-cycle the fees described herein, User shall have the right to use a Bicycle for the allotted check out period.

6. Program Equipment; Use of Bicycles.  User agrees that the Program Equipment, including the Stations and Bicycles, are the property of WE-cycle and User’s right to use the Program Equipment arises solely from the terms and conditions of this Agreement.  User shall not modify, alter, deface or intentionally damage the Program Equipment and shall not use the Program Equipment for any illegal, reckless or grossly negligent purpose or a purpose for which such equipment is not intended.  User specifically agrees not to remove, alter or replace components of any Bicycle including, without limitation, any batteries, motors or electrical components of any electric Bicycle.  User will not use the Bicycle for hire or reward, nor use a Bicycle in violation of any law, ordinance or regulation.  User shall never use or operate a Bicycle while under the influence of alcohol or drugs.  It is strongly recommended that User wear a safe and appropriate helmet when operating a Bicycle.  User shall also fully comply with the Program Rules and Regulations attached hereto as Exhibit A, as amended from time to time (the “Rules and Regulations”).

7. Accidents; Stolen or Lost Bicycles.  User agrees to immediately report to WE-cycle and the appropriate police, any accident involving a Bicycle.  User understands and agrees that he or she is responsible and liable for any misuse, consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, costs and expenses, penalties, attorney’s fees, judgments, suits or disbursements of any kind or nature whatsoever related to a stolen or lost Bicycle, whether or not the direct fault of User.

8. Return of Bicycle.  User agrees to return the Bicycle to a Station in the same condition received, ordinary wear and tear expected.  User must secure the Bicycle to the Station dock, in accordance with any posted guidelines or rules.  User will ensure that the Bicycle is always locked and secured when unattended. Bicycles may be equipped with accessory locks; however, WE-cycle will not be responsible for any lost, stolen, destroyed and/or damaged Bicycle under any circumstances, regardless of whether the Bicycle lock provided, if any, are used, broken and/or not properly functioning.  User agrees to pay for any damage, including replacement parts (including batteries on any electric Bicycle), to and/or destruction or loss of the Bicycle (even if caused by someone else).  All repairs needed as a result of any such loss, destruction or damage, will be performed at prevailing labor rates.  In the event the Bicycle is lost, destroyed or damaged beyond repair, regardless of fault or cause, Rider agrees to pay WE-cycle the full replacement value of the equipment.  The current fee for replacement of a lost, stolen, unreturned or totaled Bicycle is up to $2,200.00.

9. Bicycle Fees.  For the check out or use of a Bicycle, User is required to pay WE-cycle the applicable fees, (“Fees”).  The Fees may include a “Pass Fee”, “Fees”, “extra charges”, “additional charges”, and any other charges that might be assessed from time to time. User understands that the Pass Fee will be charged to the User’s credit card at the time of sign-up. Fees, incurred only for rides exceeding the Free Period will be billed at the rates described herein, will be charged within 24 hours – 72 hours of their being incurred. The current Fees are described on Exhibit B attached hereto and/or posted at the Stations and/or the Website, as the same may be revised or updated from time to time at the discretion of WE-cycle. WE-cycle Fee Policies and Procedures are described on Exhibit C attached hereto and User shall comply with such Policies and Procedures, as the same may be updated from time to time by WE-cycle. Upon check out of a Bicycle, User will pay the Pass Fee, either at the Station, on the Website, or on the mobile app. Upon return of the Bicycle into the docking mechanism, User may have accumulated Fees, or the maximum day charge; whichever is less. If the Bicycle is not returned within 24 hours, the Bicycle will be considered stolen, and User will be charged up to $2,200.00, depending on the type of Bicycle. All applicable governmental or quasi-governmental taxes, fees or assessments are included in the Fees.  User expressly agrees to a Bicycle replacement charge of up to $2,200.00, and agrees that such amount is reasonable in light of the actual cost of a Bicycle.

10. Maximum Check Out Period, Operating Hours and Bicycle Availability.   User agrees and acknowledges that the check out of a Bicycle is subject to WE-cycle’s operating hours, seasonal closures, minimum and maximum check out periods and other limitations as determined by WE-cycle, in its sole discretion.  Bicycles are limited and Stations may not have available Bicycles for check out at all times.  Bicycles are intended to be checked out for short, point-to-point transportation. In the event that the Bicycle is not returned to a Station within the Free Period, Fees will accrue per the fee schedule described in Exhibit B. The maximum check out time before a Bicycle is considered lost or stolen is 24 hours.  User agrees to return the Bicycle to a designated Station within no more than 24 hours from the time the check out began. User is encouraged to check out a Bicycle repeated times throughout the duration of the User’s pass. User agrees that he/she is solely responsible for being aware of any elapsed time related to the timely return.

11. Credit Card Authorization.  User shall be required to provide a credit or debit card before using any Program Equipment, and agrees that such credit or debit card will be charged any Fees or other amounts owed hereunder including, without limitation, any amounts for damage to, or replacement of, a Bicycle.  User represents and warrants that User is authorized to use the credit or debit card or credit or debit card number provided to WE-cycle and hereby authorizes WE-cycle to charge such credit or debit card any amounts owed hereunder.  If User disputes any charge to his or her credit or debit card, User must contact WE-cycle within ten (10) days after receipt by User of User’s statement containing the disputed charge.

12.  Waiver and Release of Liability.  For and in consideration of check out and use of a Bicycle, to the maximum extent permitted by law, User hereby forever releases and relinquishes and discharges WE-cycle, the City of Aspen, Colorado, Pitkin County, Colorado, Town of Basalt, Colorado, Eagle County, Town of Snowmass Village, Colorado, all Program sponsors and advertisers, grantors, and directors, as well as owners of property upon or near which Stations are located (collectively, the “Released Parties”) from any and all claims, liabilities, causes of action, judgments, costs, expenses, damages or wrongful death, injury to others and/or third parties, which arise out of, result from or relate to this Agreement, the check out or use of a Bicycle, the participation in the Program, and/or the maintenance, design, use and/or operation of the Bicycle, including any and all claims, liabilities, causes of action and/or damages related to the sole or partial negligence of Released Parties and/or the negligence of others.  By this Agreement any such claims, rights, and causes of action that User (and User’s legal guardian(s), if applicable) may have are hereby waived, released and relinquished, and User (and guardian(s), if applicable) does(do) so on behalf of User’s heirs, executors, administrators and assigns.  User knowingly and voluntarily agrees, understands and recognizes that User will have no right to make a claim or file a lawsuit against the Released Parties arising out of this Agreement, the check out, maintenance, design, use and/or operation of the Bicycle, the Program, and/or the Website.  USER ACKNOWLEDGES AND AGREES THAT NONE OF THE RELEASED PARTIES ARE RESPONSIBLE OR LIABLE FOR ANY CLAIM, INCLUDING THOSE THAT ARISE OUT OF OR RELATE TO (A) ANY RISK, DANGER, OR HAZARD DESCRIBED IN THIS AGREEMENT, (B) THE USE OF, OR INABILITY TO USE, ANY OF THE PROGRAM EQUIPMENT, (C) THE BREACH OF THIS AGREEMENT OR YOUR VIOLATION OF ANY LAW, (D) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION BY YOU, (E) THE FAILURE TO WEAR A BICYCLE HELMET WHILE USING A BICYCLE, OR (F) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION OF ANY THIRD PARTY.  THE TOTAL LIABILITY OF WE-CYCLE FOR ALL CLAIMS BY YOU, INCLUDING THOSE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER GROUNDS, SHALL NOT EXCEED THE FEES PAID TO WE-CYCLE.  THE TERMS OF THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

13. Assumption of Risk.  User agrees that riding a Bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death to User or others, as well as damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. User agrees that such risks, dangers, and hazards are User’s sole responsibility.  User agrees that if User’s use of any of the Program Equipment causes injury or damage to another person or property, then User shall be liable for all resulting injuries, damages, and related costs.  By choosing to ride a Bicycle provided through the Program, User assumes all responsibility for all related risks, dangers, and hazards, and User agrees that WE-cycle and the other Released Parties are not responsible for any injury, damage, or cost caused by User with respect to any person or property, including the Bicycle itself.  User is solely and fully responsible for the safe operation of the Bicycle at all times.  User understands and agrees that a Bicycle is a machine that may malfunction even if properly maintained, that such malfunction may cause injury and that WE-cycle shall not be responsible for the malfunction of any Program Equipment including the Bicycles.  User understands and agrees that WE-cycle is not a common carrier, and that the opportunity to check out a Bicycle is for convenience and/or transportation only, and such opportunity is intended for those persons who are able and qualified to operate a Bicycle.  User understands that the Program Equipment, including the Bicycles, will be used by multiple individuals, such equipment will not be disinfected or cleaned after each use and the foregoing assumption of risk includes the risks associated with contracting communicable or transmittable illnesses, such as COVID 19.  The terms of this Section shall survive termination of this Agreement.

14. Indemnification.  To the maximum extent permitted by law, User expressly agrees to indemnify, release and hold harmless WE-cycle (including WE-cycle’s employees, agents, representatives, attorneys, members, directors, principals and affiliates) and the Released Parties from all claims, damages, liabilities, actions and/or judgments (including property loss or damage, personal injury or loss of life), whether caused by the sole or partial negligence of the Released Parties and/or the negligence of others, whether based upon breach of contract, breach of warranty, active or passive negligence or any other legal theory, arising from, or related to, this Agreement, User’s check out of a Bicycle, User’s use of the Program Equipment and/or User’s participation in the Program.  The terms of this Section shall survive termination of this Agreement.

15. Term of Agreement.  This Agreement shall be effective upon User’s acceptance of this Agreement or User’s use of the Program Equipment and shall terminate upon expiration of any User pass: provided, however, Users assumption of risk, indemnification obligations and Bicycle damage fees under this agreement shall survive termination of this agreement.  Notwithstanding the foregoing, WE-cycle may terminate this Agreement for any reason (or no reason) at any time without User’s consent.

16. Governing Law. This Agreement will be governed by the laws of the State of Colorado, excluding the choice of law rules thereof.

17. Waiver.    No waiver of any default or breach of any provision of this Agreement is a waiver of any other default or breach of any other provision of this Agreement. The terms of this 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.

18. Final Agreement; Modification. This Agreement contains the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter, except that if User accepts this Agreement through the Website, the Website Terms of Use and Privacy Policy shall be included in this Agreement.  This Agreement supersedes all other prior agreements, written or oral, relating to such subject matter. At any time and from time to time, and without User’s consent, WE-cycle may unilaterally amend, modify, or change this Agreement, in its sole discretion and without any notice or cause. By continuing to use the Program after any amendment, modification, or change, User has agreed to be bound by all such amendments, modifications, and changes.

19. Contract Interpretation; Survival.  The headings in this Agreement do not affect the interpretation of this Agreement.  Unless the context otherwise requires, words in the singular number or in the plural number shall each include the singular number or the plural number.  All pronouns include the masculine, feminine, and neuter pronoun forms.  All User acknowledgements and indemnities including, without limitation, those contained in Sections 11, 12, 13 and 23 hereof, shall survive the expiration or earlier termination of this Agreement.

20. Trademarks and Logos. “WE-cycle,” and any names, marks, logos, symbols, tag lines, graphics, intellectual property and marketing materials associated with the Program (the “Program Marks”) are the exclusive property of WE-cycle.  User has no right, title or interest in or to the Program Marks and use of the Program Marks without the prior written consent of WE-cycle is strictly prohibited.

21. Notice.  Any and all notices or other communications required or permitted by this Agreement shall be in writing and will be deemed delivered when personally delivered to the party to whom it is addressed, or in lieu of such personal services, two (2) business days after deposit with an internationally-recognized express courier service with instructions to deliver on the following business day, postage pre-paid, addressed to such party.  Notices and other communications may also be properly given by facsimile or electronic mail but shall be deemed to be received upon mechanical or electronic confirmation of receipt thereof.  Either party may change its address for the purpose of this provision by giving written notice of such change to the other.

22. Attorneys’ Fees.  Notwithstanding anything to the contrary contained in this Agreement, if either party institutes legal proceedings against the other in any manner related to this Agreement or the check out or use of a Bicycle, the substantially non-prevailing party shall pay to the substantially prevailing party an amount equal to all attorneys’ fees and disbursements and all other costs and expenses incurred by the prevailing party in connection therewith.

23. Acceptance of Agreement and Terms and Conditions by User.  User expressly acknowledges that he or she has carefully read this entire Agreement and understands this Agreement and expressly agrees to be bound by this Agreement.  After careful deliberation, User voluntarily gives his or her consent and expressly agrees to all the conditions included in this Agreement as set forth above.  USER ACKNOWLEDGES, UNDERSTANDS AND AGREES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND FURTHER UNDERSTANDS THAT THIS AGREEMENT CONTAINS PROVISIONS WHICH RELEASE AND INDEMNIFY WE-CYCLE AND OTHER PARTIES FROM ANY COSTS, LIABILITIES OR INJURIES ASSOCIATED WITH USE OF A BICYCLE BY USER.  USER FURTHER UNDERSTANDS THAT THE TERMS OF THIS AGREEMENT REQUIRE USER TO PAY FOR ANY LOST, STOLEN OR DAMAGED BICYCLE OR PROGRAM EQUIPMENT, WHETHER OR NOT CAUSED BY THE FAULT OF THE USER.

24. Disclaimer.  USER ACKNOWLEDGES AND AGREES THAT THE USE OF ANY OF THE PROGRAM EQUIPMENT IS AT USER’S SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE-CYCLE AND THE OTHER RELEASED PARTIES DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PROGRAM AND ANY OF THE PROGRAM EQUIPMENT, WHICH ARE ALL PROVIDED "AS IS" AND "AS AVAILABLE" (AND YOU RELY ON THEM SOLELY AT YOUR OWN RISK). NONE OF THE RELEASED PARTIES REPRESENT OR WARRANT THAT ANY OF THE PROGRAM EQUIPMENT WILL BE IN GOOD REPAIR OR DEFECT-FREE.  USER ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS FOR USING ANY OF THE PROGRAM EQUIPMENT, AND NONE OF THE RELEASED PARTIES ARE LIABLE FOR ANY CLAIM ATTRIBUTABLE TO ANY OF THE FOREGOING. USER ASSUMES FULL RESPONSIBILITY AND LIABILITY FOR ALL CONSEQUENCES, CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, LIABILITIES, DAMAGES, INJURIES, COSTS, EXPENSES, PENALTIES, ATTORNEYS’ FEES, JUDGMENTS, SUITS, OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER RELATED TO A STOLEN OR LOST BICYCLE.

 

EXHIBIT A

Program Rules and Regulations

In addition to the terms and conditions contained in the Agreement, participation in the Program and use of the Program Equipment by User shall at all times be subject to the following rules and regulations, as the same may be amended from time to time in the sole discretion of WE-cycle:

1. User shall be fully liable to WE-cycle for any theft, loss, damage or alteration of the Program Equipment;

2. User shall not alter, service, repair, remove or replace any component of the Program Equipment, including any Bicycle parts such as batteries, motors, gears, hubs, wheels, tires, seats, shifters, brakes, handlebars, etc.

3. User knows how to safely use and operate a Bicycle (including traditional pedal and pedal-assist Bicycles);

4. User understands that the electric Bicycles provide a different user experience and may pose different risks and dangers, and User assumes those risks with respect to electric Bicycles in the We-Cycle program;

5. User will not use a Bicycle for racing, mountain bike riding, stunt or trick riding, riding down stairs;

6. User shall use the Bicycle in accordance with all laws and regulations pertaining to safe bicycling as posted by the City of Aspen, Pitkin County, Town of Basalt, Eagle County, and Town of Snowmass Village including not riding on sidewalks or pedestrian malls, and User understands that such laws and regulations may differ with respect to the use and operation of electric Bicycles;

7. User will not operate and/or use the Bicycle on unpaved roads, through water, or in any location that is prohibited, illegal and/or a nuisance to others;

8. User will not fill the front basket with heavy items as they may create an unsafe condition and affect User’s balance and/or steering control;

9. User agrees that the front basket of the Bicycle is intended to carry light goods only, and User will not carry, or attempt to carry, additional people or animals in the basket or anywhere else on the Bicycle;

10. Bicycles may be used and/or operated only in the City of Aspen, Pitkin County, Town of Basalt, Eagle County, and Town of Snowmass Village and User will not, under any circumstances, remove a Bicycle from the City of Aspen, Pitkin County, Town of Basalt, Eagle County, or Town of Snowmass Village;

11. Bicycles may not be transported between the Program and any other bike sharing or similar program located in other cities;

12. Bicycles may not be transported by any vehicle, private or public, including Roaring Fork Transportation Authority buses;

13. User will not, under any circumstances, use, ride and/or operate a Bicycle if he/she has consumed, ingested and/or used alcohol or drugs and/or has a blood concentration above the jurisdictional limit prescribed;

14. User will not use a cellular phone, text messaging device, portable music player or other device that may distract User from safely operating a Bicycle;

15. User understands that wearing a properly sized, fitted and fastened Snell, CPSC, ANSI or ASTM approved helmet when riding a Bicycle greatly reduces (but does not eliminate) the risk of injury and WE-cycle strongly recommends that User wear a helmet properly while riding a Bicycle;

16. User shall not dock a Bicycle in any station or dock other than a Program Station;

17. User shall not use any lock other than the locking mechanism provided by or through the Program;

18. User shall not allow any other person to use, ride or operate a Bicycle;

19. User shall not operate a Bicycle in dangerous weather conditions which would make it more dangerous to operate a Bicycle.

 

EXHIBIT B

Fees