Liability Waiver, Release, Indemnification, and Voluntary Assumption of Risk (the "Release")
THIS RELEASE CONTAINS RELEASES, WARRANTY LIMITATIONS, ASSUMPTION OF RISK PROVISIONS, AND INDEMNITY PROVISIONS, ALL OF WHICH LIMIT YOUR LEGAL RIGHTS AND REMEDIES. YOU SHOULD READ THIS RELEASE CAREFULLY AND UNDERSTAND ITS BINDING EFFECTS.
As provided in greater detail in this Release (and without limiting the express language of this Release), You acknowledge the following:
● You fully release the operators, sponsors and host municipalities of the CoGo Services from all Claims You have or may have against them arising out of Your use of the Services;
● Your use of the Services is at your sole risk;
● The Services, including the bicycles, are provided "as-is" and we make no promises that they will be in good repair or error or defect-free;
● You will perform a safety inspection before riding, and are competent to do so, and You will not ride a bike share bicycle that is damaged or defective;
● There are significant risks and dangers inherent in riding a bike share bicycle and You assume those risks;
● You understand that electric bicycles provide a different user experience and may pose different risks and dangers, and You assume those risks with respect to electric bicycles in the CoGo program;
● You are responsible for all injuries or damages that You cause to other people or property;
● We recommend You wear a helmet, but we cannot guarantee its effectiveness;
● You agree to resolve any dispute with us by binding arbitration and individually not as a member of a class; and
● You give us Your consent to use photos or videos of You that are taken while You are using a bike share bicycle.
I. Releases; No Warranties; Assumption of Risk; Indemnification by You
o Section 1 Releases; No Warranties
o Section 2 Assumption of Risk; Indemnification by You
o Section 3 Helmets; Safety
o Section 4 E-Bikes
o Section 5 Term and Termination
o Section 6 Notices
o Section 7 Mandatory Arbitration; Class Action Waiver
o Section 8 Waivers
o Section 9 Cumulative Remedies
o Section 10 Final Agreement; Modification by Motivate
o Section 11 Severability
o Section 12 Definitions
In consideration of Your use of any of the Services (defined below), You ("Subscriber", "You", or "Your") agree to all terms and conditions in this Release. In order to rent a Bicycle, You must also agree to the terms of the Bicycle Rental Agreement ("Rental Agreement").
I. Releases; No Warranties; Assumption of Risk; Indemnification
Section 1 Releases; No Warranties.
IN EXCHANGE FOR YOUR BEING ALLOWED TO USE ANY OF THE SERVICES, 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 RELEASE OR THE RENTAL AGREEMENT, (B) YOUR USE OF, OR INABILITY TO USE, ANY OF THE SERVICES, BICYCLES, STATIONS, OR BIKE DOCKS, (C) YOUR BREACH OF THIS RELEASE OR THE RENTAL AGREEMENT, INCLUDING BUT NOT LIMITED TO YOUR VIOLATION OF ANY PROHIBITED ACT SET OUT IN THE RENTAL AGREEMENT, 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 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, BICYCLES, STATIONS, OR BIKE DOCKS IS AT YOUR SOLE RISK. To the fullest extent permitted by law, and with respect to Your use of any of the Service, Bicycles, Stations, Bike Docks, or related information, 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, 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, Bicycles, Stations, Bike Docks, or related information will be in good repair or error or defect-free. You acknowledge and agree that delays, omissions, interruptions, defects, or inaccuracies could exist with respect to any of the Services, Bicycles, Stations, or Bike Docks. You assume full responsibility and risk of loss for using any of the Services, 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 Bicycle or system key.
Section 2 Assumption of Risk; Indemnification
YOU ARE SOLELY AND FULLY RESPONSIBLE FOR THE SAFE OPERATION OF THE BICYCLE AT ALL TIMES. YOU UNDERSTAND THAT THIS AND OTHER SECTIONS IN THIS RELEASE AND THE 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 RELEASE AND THE 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 THE RENTAL AGREEMENT, AND YOU WILL NOT USE A BICYCLE THAT FAILS THE SAFETY INSPECTION AND WILL NOTIFY MOTIVATE OF SUCH FAILURE. YOU AGREE THAT RIDING A 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
● other third parties
● docking plates
● pavement cracks
● uneven or unstable roadways or bike paths
● light rail or rail road tracks
● weather conditions
● road conditions
● road kill
● 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
● electric bicycle motors
● electric bicycle batteries
● 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 further 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 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 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 RISING OUT OF OR IN ANY WAY CONNECTED TO YOUR USE OF THE SERVICES.
Section 3 Helmets; Safety.
Motivate strongly recommends that all users of the Services 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 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 SUFFERED BY MEMBER WHILE USING ANY OF THE SERVICES, WHETHER OR NOT YOU ARE WEARING A HELMET 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 Release.
Section 4 E-Bikes.
The Services may include both pedal Bicycles and electric-assist Bicycles which amplify Your effort with a motor. You agree that You understand how electric-assist works and that You are competent to use an electric-assist Bicycle.
Section 5 Term and Termination.
The term of this Release begins when You first access the Services, and ends 10 years after Your last use of the Services.
You may terminate Your use of the Services at any time; provided, however, that the term of this Release continues in accordance with this Section. This Release 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 Release is terminated.
Section 6 Notices.
You may contact Motivate by writing, calling or emailing Motivate at the address listed below:
c/o Lyft, Inc.
548 Market Street, #68514
Francisco, CA 94104
Customer Service: 1-855-877-2646
Section 7 Mandatory Arbitration; Class Action Waiver.
This Release is governed by, and must be construed and enforced in accordance with, the laws of the State of Ohio, 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 Release.
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 Release 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 548 Market Street, #68514, San Francisco, CA 94104. 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. The arbitration shall take place in Columbus, Ohio or at such other venue (and pursuant to such procedures) as is mutually agreed upon.
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. 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 LBSemail@example.com with the subject line, "COGO 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 the venue for any such Claim or dispute is exclusively that of a state or federal court located in Franklin County, Ohio. You and Motivate agree to submit to the personal jurisdiction of the courts located within Franklin County, Ohio for the purpose of litigating all such claims or disputes.
Further, if Motivate prevails in litigation against You to enforce its rights under this Release, 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 8 Waivers.
No waiver of any breach of any provision of this Release is a waiver of any other breach or of any other provision of this Release. The terms of this Release 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, the Released Persons, and their respective 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, the Released Persons, and their respective 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 or the Released Persons may decide in their 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 9 Cumulative Remedies.
All rights and remedies granted under or referred to in this Release are cumulative and nonexclusive, and resort to one does not preclude the availability or applicability of another or to any other right, remedy or defense provided by law.
Section 10 Final Agreement; Modification by Motivate.
This Release and the Rental Agreement contains the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Release and the Rental Agreement supersede 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 Release, in its sole discretion and without any notice or cause, and 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 Release on a regular basis to maintain awareness of all amendments, modifications, and changes. Whenever a change is made to this Release, Motivate will post a notification on the Platform.
Section 11 Severability.
If a court deems any provision of this Release, including but not limited to the binding arbitration and class action waiver provisions, illegal or otherwise unenforceable for any reason, You agree that such provision shall be severed from the Release and shall be inoperative, and the remainder of the Release shall remain operative and shall be binding on the parties.
Section 12 Definitions.
"Bike Docks" means the separate stands that allow the docking of Bicycles
"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 Bicycles, Stations, Bike Docks, or related information, or (b) Your use of any of the foregoing.
"Motivate" or "MOTIVATE" means, collectively, Motivate International Inc., the provider of the Services, and its parents and affiliates, including Lyft, Inc. (“Lyft”).
"Pay Stations" means the automated CoGo pay stations.
"Released Persons" or "RELEASED PERSONS" means, collectively, (i) Motivate and all of its owners, managers, affiliates, employees, agents, representatives, successors, and assigns, including Lyft, Inc. (ii) the City of Columbus and all of their respective elected and appointed officers, officials, employees, and agents, (iii) every sponsor of any of the Services, and all of their affiliates, dealers, and any of their respective owners, officers, directors, 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.
“Services” means the Lyft mobile application (“Mobile Application”), the CoGo website, cogobikeshare.com (“Website”) (the Mobile Application and the Website, collectively, the “Platform”), and the CoGo services which are composed of several elements, including the Stations; Pay Stations; Bike Docks; CoGo bicycles, including CoGo electric bicycles and CoGo dockless or hybrid bicycles (collectively, “Bicycles”); and all related equipment, personnel, and information.
"Stations" means the CoGo bicycle stations and associated street treatments such as wheel stops, kiosks, flexible delineators and pavement markings.
Your Agreement to Release
I hereby represent that I am the person renting a 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 Release.
I certify that I am the Parent or Legal Guardian of the person renting a Bicycle, who is 16 years of age or older, and I have read and agreed to the terms and conditions set forth in this Rental Agreement on behalf of myself and the person renting a Bicycle, and I authorize the use of the Services by such minor person.