WHITE FOX Vehicle Share Rental Agreement, Waiver of Liability and Release
Effective Date: August 20, 2018.
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE.
In consideration of Your use of any of the Services (defined below) provided by WHITE FOX SCOOTERS, INC., d/b/a WHITE FOX (“WHITE FOX”), operator of WHITE FOX Vehicle Share, WHITE FOX requires that You (“Rider”, “You”, or “Your”) agree to all terms and conditions in this Vehicle Rental Agreement, Waiver of Liability, and Release (“Agreement”), as applicable. The “Services” provided by WHITE FOX are composed of several elements, including (1) WHITE FOX Vehicle Share Vehicle parking locations (“Locations”), (2) WHITE FOX Vehicles (“Vehicle” or “Vehicles”), (3) discretionary charging of the Vehicle by Rider per term 1.15 below, and (4) all other related equipment, personnel, services and information provided or made available by WHITE FOX.
You should CAREFULLY READ all terms and conditions before entering into this Agreement, but here is a partial list of some of the terms that WHITE FOX wants to bring to your initial attention in the event you are on a smartphone or other device with a small screen. Capitalized terms have the meanings given to them where defined in this Agreement.
· The Vehicle must be docked at the conclusion of the ride. If the Vehicle is not docked, the trip will continue and you will continue to be charged. The max charge for a single trip is $100 for 24 hours. For more details, please refer to the term 2.3 below.
· Upon conclusion of your ride, the Vehicle must be parked at a WHITE FOX dock, i.e. the Vehicle cannot be parked on private property, in a locked area, on the sidewalk or street, in any other non-public space that is not partnered with WHITE FOX.
· All applicable laws (including, without limitation, those applicable to traffic, pedestrians, parking, charging and electric scooters) must be obeyed, including any helmet laws in your area.
· You must promptly report any damaged or malfunctioning Vehicles to WHITE FOX via the App or via e-mail.
WHITE FOX expressly agrees to let, and the Rider expressly agrees to take on, rental of the Vehicle subject to the terms and conditions set out herein. Unless otherwise indicated, all monetary values set forth in this Agreement shall be deemed to be denominated in U.S. dollars.
1. GENERAL RENTAL AND USE OF VEHICLE.
1.1 Rider is Sole User.
WHITE FOX and the Rider are the only parties to this Agreement. The Rider is the sole renter and is solely responsible for compliance with all terms and conditions contained herein. You understand that when You activate a Vehicle from the Location, the Vehicle must be used only by You. You must not allow others to use a Vehicle that You have activated from the Location.
1.2 Rider is At Least 18 Years Old.
Rider represents and certifies that Rider is at least 18 years old.
1.3 Rider is a Competent Vehicle Operator.
Rider represents and certifies that he/she is familiar with the operation of theVehicle, and is reasonably competent and physically fit to ride the Vehicle. By choosing to ride a Vehicle, Rider assumes all responsibilities and risks for any injuries or medical conditions. You are responsible for determining whether conditions, including, without limitation, rain, fog, snow, hail, ice, heat or electrical storms, make it dangerous to operate a Vehicle. You are advised to adjust Your riding behavior and braking distance to suit the weather, visibility, surrounding environment, and traffic conditions.
1.4 Vehicle is the Exclusive Property of WHITE FOX.
Rider agrees that the Vehicle and any WHITE FOX equipment attached thereto, at all times, remain the exclusive property of WHITE FOX. You must not dismantle, write on, or otherwise modify, repair or deface a Vehicle, any part of a Vehicle, or other WHITE FOX equipment in any way. You must not write on, peel, or otherwise modify or deface any sticker on a Vehicle in any way. You must not use a Vehicle, or other WHITE FOX equipment for any advertising or similar commercial purpose.
The number of Vehicles are limited and Vehicle availability is never guaranteed.
1.6 Vehicle May be Used and/or Operated only in Metropolitan Areas.
Rider agrees to only use, operate and/or ride the Vehicle in metropolitan areas.
1.7 Rider Must Follow Laws Regarding Use and/or Operation of Vehicle.
Rider agrees to follow all laws pertaining to the use, riding, parking, charging and/or operation of the Vehicle, including all state and local laws and the rules and regulations pertaining to Vehicles in the area where You are operating the Vehicle, including any helmet laws.
1.8 Prohibited Acts.
Rider agrees to the following:
· You must not ride a Vehicle while carrying any briefcase, backpack, bag, orother item if it impedes Your ability to operate safely the Vehicle.
· While riding a Vehicle, You must not use any cellular telephone, text messaging device, portable music player, or other device that may distract You from safely operating the Vehicle.
· You must not operate a Vehicle while under the influence of any alcohol, drugs, medication, or other substance that may impair Your ability to safely operate a Vehicle.
· You must not carry a second person or child on a Vehicle.
· You may only use locking mechanisms provided by WHITE FOX. You may not add another lock to the Vehicle or to lock a Vehicle to anything.
· The Vehicle must be parked at a lawful parking spot, i.e. the Vehicle cannot be parked on private property or in a locked area or in any other non-public space.
· The Vehicle must be parked in a space that is visible.
1.9 Vehicle is Intended for Only Limited Types of Use.
Rider agrees that he/she will not use the Vehicle for racing, mountain Vehicle riding, stunt or trick riding. Rider agrees that he/she will not operate and/or use the Vehicle on unpaved roads, through water (beyond normal urban riding), or in any location that is prohibited, illegal and/or a nuisance to others. Rider agrees that he/she will not use the Vehicle for hire or reward, nor use it in violation of any law, ordinance or regulation.
1.10 Weight and Cargo Limits.
You must not exceed the maximum weight limit for the Vehicle (200 pounds).
1.11 No Tampering.
You must not tamper with, attempt to gain unauthorized access using, or otherwise use The WHITE FOX System or other WHITE FOX equipment other than for purposes of using a Vehicle pursuant to this Agreement.
1.12 Reporting of Damage or Crashes.
Rider must report any accident, crash, damage, personal injury, stolen or lost Vehicle, to WHITE FOX as soon as possible. If a crash involves personal injury, property damage, or a stolen Vehicle, Rider shall file a report with the local police department within 24 hours. Rider agrees that he/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 Vehicle.
1.13 Rider Responsibility for Vehicle Use and Damage.
Rider agrees to return the Vehicle to WHITE FOX in the same condition in which it was rented. Rider will not be responsible for normal wear and tear.
1.14 Electric Vehicle.
The Vehicle is an electric vehicle that requires periodic charging of its battery in order to operate. Rider agrees to use and operate the Vehicle safely and prudently in light of Vehicle being an electric vehicle and all of the limitations and requirements associated therewith. Rider understands and agrees with each of the following:
· The level of charge power remaining in the Vehicle will decrease with useof the Vehicle (over both time and distance), and that as the level of charge power of the Vehicle decreases, the speed and other operational capabilities of the Vehicle may decrease (or cease in their entirety).
· The level of charging power in the Vehicle at the time Rider initiates the rental or operation of Vehicle is not guaranteed and will vary with each rental use.
· The rate of loss of charging power during the use of the Vehicle is not guaranteed and will vary based on the Vehicle, road conditions, weather conditions and other factors.
· It is Rider’s responsibility to check the level of charge power in the Vehicle and to ensure that it is adequate before initiating operation of the Vehicle.
· The distance and/or time that Rider may operate the Vehicle before it loses charging power is never guaranteed.
· The Vehicle may run out of charging power and cease to operate at any time during Rider’s rental of the Vehicle, including before reaching Rider’s desired destination.
1.15 Charging of Vehicle.
If the Vehicle runs out of charging power during a rental, Rider shall conclude the ride in compliance with all terms of this Agreement and return the Vehicle to a WHITE FOX dock. Alternatively, in Rider’s sole discretion, Rider may charge the Vehicle by plugging its charging cord into an outlet that may be lawfully used for such purpose. Rider agrees to follow all laws and rules pertaining to the charging of the Vehicle, including all state and local laws and all public and private rules and regulations pertaining to the area and to the property where Rider is charging the Vehicle. Rider agrees that he/she is responsible for all costs, charges, fees, expenses, penalties and fines associated with the charging of the Vehicle, and that WHITE FOX will not reimburse Rider for such. Rider agrees that he/she is responsible and liable for any misuse, consequences, claims, demands, causes of action, losses, liabilities, property or fire or other damages, injuries, costs and expenses, penalties, attorney’s fees, judgments, suits or disbursements of any kind or nature whatsoever related to charging of the Vehicle. By choosing to charge a Vehicle, Rider assumes full and complete responsibility for all related risks, dangers, and hazards, and Rider agrees that WHITE FOX and all other Released Persons (as defined below in Section 3.1) are not responsible for any injury, damage, or cost caused by Rider with respect to any person or property, including the Vehicle itself, directly or indirectly related to the charging of the Vehicle.
2. PAYMENT AND FEES.
Rider may use the Vehicle on a pay per ride basis or as otherwise in accordance with the pricing described in the app. In each case, fees and other charges may be subject to applicable taxes and other local government charges, which may be charged and collected by WHITE FOX. WHITE FOX will charge the Rider’s credit, debit card or other agreed payment methods the amount of the fees as described in this Agreement.
2.2 Promo Codes.
Promo codes (discounts) are one-time offers and can only be redeemed via WHITE FOX App. WHITE FOX reserves the right to modify or cancel discounts at any time. Discounts are limited to one per customer and account and may not be combined with other offers. Discounts are non-transferable and may not be resold.
2.3 Maximum Rental Time and Charges.
Maximum rental time is 24 hours. Rider agrees that Rider will deactivate the Vehicle rental within 24 hours of time that rental of the Vehicle began. Ridermay then rent again. Rider agrees that he/she is solely responsible for being aware of any elapsed time related to the timely locking the Vehicle. The maximum day charge is $100 and is based on a calendar day. After return of the Vehicle, the rider will be charged the accumulated rental charges, or the maximum day charge; whichever is less. Vehicles not returned (locked and a ride concluded) within 48 hours will be considered lost or stolen, and Rider may be charged up to $500 and a police report may be filed. WHITE FOX may also charge a service fee of $25 for rentals in excess of 24 hours where the Vehicle is not lost or stolen.
2.4 Valid Credit Card or Debit Card.
Rider must input a valid credit or debit card number and expiration date before Rider will be registered to use the Service. Rider represents and warrants to WHITE FOX that Rider is authorized to use any cards Rider furnishes to WHITE FOX. Rider authorizes WHITE FOX to charge the card for all fees incurred by Rider. All fees are subject to applicable sales taxes and other local government charges, which may be charged and collected by WHITE FOX. If Rider disputes any charge on credit or debit card account, then Rider must contact WHITE FOX within 10 business days from the end of the month with the disputed charge, provide to WHITE FOX 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. Rider agrees to immediately inform WHITE FOX of all changes relating to the card.
2.6 Pick Up Fees.
If You are unable to return a Vehicle to a WHITE FOX dock (i.e. You deactivate the Vehicle on private property, a locked community, or another unreachable area), and request that the Vehicle be picked up by WHITE FOX staff, WHITE FOX, at its sole discretion, may choose to charge You a pick-up fee up to $120. If any Vehicle accessed under Your account is abandoned without notice, You will be responsible for all Trip Fees until the Vehicle is recovered and deactivated, plus a service charge (currently $120.00) to recover the Vehicle. Fees are subject to change.
3. RELEASES; DISCLAIMERS; LIMITATION OF LIABILITY; ASSUMPTION OF RISK.
“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 trial, on appeal, 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 Vehicles, equipment or related information, or (b) Rider’s use of any of the foregoing. “Released Persons” means, collectively WHITE FOX and all of its owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, the owner/landlord of the property at which the scooter is located/rented, and assigns, and (ii) every sponsor of any of the Services and all of the sponsor’s owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, and assigns. In exchange for Rider being allowed to use any of the Services, Vehicles, and other equipment or related information provided by WHITE FOX, Rider (acting for Rider and for all of Rider’s family, heirs, agents, affiliates, representatives, successors, and assigns) (collectively, the “Releasing Parties” and each a “Releasing Party”) do hereby fully and forever release and discharge all Released Persons for all Claims that Rider ever had, now has, or may claim to have against any Released Person. Such releases are intended to be general and complete releases of all Claims. The Released Persons may plead such releases as a complete and sufficient defense to any Claim, as intended third-party beneficiaries of such releases.
Rider expressly agrees to indemnify, release and hold harmless Released Persons from all liability for any such property loss or damage, personal injury or loss of life, whether caused by the sole or partial negligence of WHITE FOX and/or the negligence of others, whether based upon breach of contract, breach of warranty, active or passive negligence or any other legal theory, in consideration for using and/or operating the Vehicle.
YOU DO HEREBY ACKNOWLEDGE AND AGREE THAT YOUR USE OF ANY OF THE SERVICES, WHITE FOX VEHICLES, OR RELATED EQUIPMENT IS AT YOUR SOLE RISK.
TO THE FULLEST EXTENT PERMITTED BY LAW, AND WITH RESPECT TO YOUR USE OF ANY OF THE SERVICES, WHITE FOX VEHICLES, OR RELATED EQUIPMENT, WHITE FOX 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, WHITE FOX VEHICLES, AND RELATED EQUIPMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” (AND YOU RELY ON THEM SOLELY AT YOUR OWN RISK).
WHITE FOX AND ALL OTHER RELEASED PERSONS DO NOT REPRESENT OR WARRANT THAT ANY OF THE SERVICES, WHITE FOX VEHICLES, OR RELATED EQUIPMENT WILL BE IN GOOD REPAIR OR ERROR-FREE, AND DELAYS, OMISSIONS, INTERRUPTIONS, OR INACCURACIES COULD EXIST WITH RESPECT TO ANY OF THE SERVICES, WHITE FOX VEHICLES, OR RELATED EQUIPMENT.
3.3 Limited Liability.
RIDER DOES HEREBY ACKNOWLEDGE AND AGREE THAT, EXCEPT AS MAY OTHERWISE BE LIMITED BY LAW, WHITE FOX 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 AGREEMENT, (B) RIDER’S USE OF, OR INABILITY TO USE, ANY OF THE SERVICES, VEHICLES, OR RELATED INFORMATION, (C) RIDER’S BREACH OF THIS AGREEMENT OR RIDER’S VIOLATION OF ANY LAW, (D) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION BY RIDER,(E) RIDER’S FAILURE TO WEAR A VEHICLE HELMET WHILE USING A VEHICLE, OR (F) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION OF ANY THIRD PARTY.
RIDER DOES HEREBY WAIVE ALL CLAIMS WITH RESPECT TO ANY OF THE FOREGOING, INCLUDING THOSE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER GROUNDS, EVEN IF WHITE FOX OR ANY OF THE OTHER RELEASED PERSONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS.
THE TOTAL LIABILITY OF WHITE FOX AND ALL OTHER RELEASED PERSONS FOR ALL CLAIMS, INCLUDING THOSE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHER GROUNDS, IS LIMITED TO THE SUM OF $100.
SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF IMPLIED WARRANTIES; AND, IF ANY OF THOSE LAWS APPLY TO RIDER, THEN SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MIGHT NOT APPLY TO RIDER, AND RIDER MIGHT HAVE ADDITIONAL RIGHTS.
3.4 Assumption of Risk by Rider.
Rider is solely and fully responsible for the safe operation of the Vehicle at all times. Rider agrees that Vehicles are machines that may malfunction, even if the Vehicle is properly maintained, and that such malfunction may cause injury. Rider agrees that riding a Vehicle and the Services involve many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death to Rider or others, as well as damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. Rider agrees that such risks, dangers, and hazards are Rider’s sole responsibility, including, but not limited to, choosing whether to wear a Vehicle helmet as required by law or utilize other protective gear. Rider agrees that if Rider’s use of any of the Services causes any injury or damage to another person or property, then Rider may be liable for all resulting injuries, damages, and related costs. By choosing to ride a Vehicle, Rider assumes full and complete responsibility for all related risks, dangers, and hazards, and Rider agrees that WHITE FOX and all other Released Persons are not responsible for any injury, damage, or cost caused by Rider with respect to any person or property, including the Vehicle itself.
You will indemnify and hold the Released Persons harmless from all losses, suits, claims or other proceedings arising out of or relating to Your use of Vehicles and any breach of the terms of this Agreement; provided, however, that Released Persons must notify You as soon as practicable after the date notice of such loss, suit, claim or other proceeding is served on Released Persons directly (as opposed to service on a statutory agent for service of process) or otherwise brought to the attention of Released Persons.
4.1 Safety Check.
Before each use of a Vehicle, Rider shall conduct a basic safety inspection of the Vehicle, which includes inspecting the following: (i) trueness of the wheels; (ii) safe operation of all brakes and lights; (iv) good condition of the frame; (v) sufficient battery charge power; and (vi) any sign of damage, unusual or excessive wear, or other mechanical problem or maintenance need. Rider agrees not to ride the Vehicle if there are any noticeable issues, and to immediately notify customer service to alert WHITE FOX of any problems.
4.2 Lost or Stolen Vehicle.
A Vehicle may be deemed lost or stolen if (a) Vehicle is not returned within 24 consecutive hours, (b) Vehicle’s GPS unit is disabled, (c) Vehicle is parked on private property, in a locked area, or in any other non-public space for more than ten minutes after a ride ends, (d) Vehicle moved from the dock after a rental has ended and WHITE FOX believes such movement was not caused by another Rider or authorized third party, or (d) other facts and circumstances that suggest to WHITE FOX in its reasonable, good faith determination that a Vehicle has been lost or stolen. WHITE FOX and You agree that the last Rider of a Vehicle shall be responsible for a lost or stolen Vehicle unless facts and circumstances suggest otherwise to WHITE FOX in its reasonable, good faith determination. If WHITE FOX deems a Vehicle lost or stolen, WHITE FOX shall have the authority to take any and all actions it deems appropriate (with respect to the last Rider of a Vehicle or otherwise), including (without limitation) obtaining restitution and other appropriate compensation and damages and filing a police report with local authorities. The data generated by the Service’s computer is conclusive evidence of the period of use of a Vehicle by a Rider. Rider must report Vehicle disappearance or theft to WHITE FOX immediately or as soon as possible.
4.3 Helmets; Safety.
WHITE FOX recommends that all Riders wear a Snell, CPSC, ANSI or ASTM approved helmet that has been properly sized, fitted and fastened according to the manufacturer’s instructions. Rider agrees that none of WHITE FOX and its Released Parties are liable for any injury suffered by Rider while using the Service, whether or not Rider is wearing a helmet at the time of injury. Ridermay need to take additional safety measures or precautions not specifically addressed in this Agreement.
4.4 Vehicle Routes.
Rider agrees that WHITE FOX does not provide or maintain places to rideVehicles, and that WHITE FOX does not guarantee that there will always be a safe place to ride a Vehicle. Roads, sidewalks, Vehicle lanes, and Vehicle routes may become dangerous due to weather, traffic, or other hazards.
4.5 Limitations on Vehicle Rental.
Rider agrees that WHITE FOX is not a common carrier. Alternative means of public and private transportation are available to the general public and to Rider individually, including public buses and rail service, taxis, and pedestrian paths. WHITE FOX provides Vehicles 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 Vehicle on their own and who have agreed to all terms and conditions of this Agreement.
4.6 Limitations on Availability of Service.
WHITE FOX makes every effort to provide the Service 365 days per year, but does not guarantee that the Service will be available at all times, as force majeure events or other circumstances might prevent WHITE FOX from providing the Service. Access to the Service is also conditioned on the availability of Vehicles. WHITE FOX does not represent or warrant the availability of any Service or the availability of any Vehicle at any time. Rider agrees that WHITE FOX may require Rider to return a Vehicle at any time.
5 Term and Termination.
The term of this Agreement begins when Rider first uses the Service, and the term ends 10 years after Rider’s last use of the Service; provided, however, that Rider’s personal financial responsibility under this Agreement expires one year after the Rider’s last use of the Service.
5.2 Termination by WHITE FOX.
At any time and from time to time, and without Rider’s consent, WHITE FOX may unilaterally terminate Rider’s right to use the Service, in WHITE FOX’s sole discretion and without any notice or cause. Rider may terminate Rider’s use of the Service at any time; provided, however, that (i) no refund will be provided by WHITE FOX, (ii) the term of this Agreement continues in accordance with this Agreement, (iii) Rider may still be charged any applicable additional fees in accordance with this Agreement. This Agreement remains in full force and effect, in accordance with its terms and conditions, after any termination of Rider’s right to use any of the Service, regardless of how the Agreement is terminated.
6. Confidentiality of Information; Privacy Policies.
7. License to Image and Likeness.
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 WHITE FOX 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 related to Your use of the Services, 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 WHITE FOX and its affiliates, successors, and assigns (a) the right to photograph, videotape, and otherwise record Your appearance and voice related to Your use of the Services, 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 WHITE FOX may decide in its sole discretion, such 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.
WHITE FOX may be contacted at email@example.com
8.1 Choice of Law; Dispute Resolution.
This Agreement is governed by, and must be construed and enforced in accordance with, the laws of the State of Delaware, excluding principles of conflicts of laws. For every dispute regarding this Agreement: (i) the prevailing party is entitled to its costs, expenses, and reasonable attorney fees (whether incurred at trial, on appeal, or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which the party may be entitled; (ii) each party consents to the jurisdiction of the courts of the State of California and agrees that those courts have personal jurisdiction over each party; (iii) venue must be in Wilmington, Delaware.
9. Binding Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
9.1 Initial Dispute Resolution
Rider Support is available via the app to address any concerns you may have regarding your use of a Vehicle and/or this Agreement. The parties shall use their best efforts through this support process to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating mediation, arbitration, or a lawsuit.
9.2 Binding Arbitration
If the parties do not reach an agreed upon solution through the support process, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to use and rental of a Vehicle, this Agreement, and the parties' relationship with each other shall be finally settled by binding arbitration administered by JAMS, or alternatively a mutually agreed upon arbitrator or arbitration service, under the applicable commercial arbitration rules for JAMS or the mutually agreed upon arbitration service, excluding any rules or procedures governing or permitting class actions.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement arevoid or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, White Fox will pay the additional cost. The arbitration rules also permit you to recover attorney's fees in certain cases. The parties understand that,absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
The arbitration will take place in Wilmington, Delaware or a mutually agreed upon location.
9.4 Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND WHITE FOX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
9.5 Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
9.6 Right to Opt Out
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 the following address: White Fox Scooters, Inc., 175 Varick Street, New York, New York 10013. The notice must be sent within 30 days of the effective date or your first use of the Service, whichever is later,otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, White Fox also will not be bound by them.
9.7 Changes to this Section
White Fox will provide prior written notice of any changes to this section. Changes will become effective only after prior written notice and will apply prospectively only to any claims arising after the notice period.
For any dispute not subject to arbitration you and White Fox agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Wilmington, Delaware. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
10. Waiver and Severability.
No waiver of any breach of any provision of this Agreement is a waiver of any other breach or of any other provision of this Agreement. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
11. Cumulative Remedies.
All rights and remedies granted under or referred to in this 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.
12. Final Agreement; Modification by WHITE FOX.
This Agreement contains the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. 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 Rider’s consent, WHITE FOX may unilaterally amend, modify, or change this Agreement, in its sole discretion and without any notice or cause. By continuing to use any Service after any amendment, modification, or change, Rider has agreed to be bound by all such amendments, modifications, and changes. Rider must carefully review this Agreement on a regular basis to maintain awareness of all amendments, modifications, and changes. Whenever a change is made to this Agreement, WHITE FOX will post a notification on the Website. The pricing set forth on the Website supersedes all pricing set forth in this Agreement.
13. Contract Interpretation.
The headings in this Agreement do not affect the interpretation of this Agreement. “Or” is not be exclusive in its meaning. “Including” means “including, but not limited to.” 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.
14. Voluntary Execution of this Agreement.
This Agreement is entered into voluntarily and without any duress or undue influence on the part or behalf of WHITE FOX. Rider acknowledge that he/she (a) has read this Agreement; (b) understands the terms and consequences of this Agreement, including the releases it contains; and (c) is fully aware of the legal and binding effect of this Agreement.
15. RELEASES; DISCLAIMERS; ASSUMPTION OF RISK.
In exchange for Rider being allowed to use White Fox Services, Vehicles, and other equipment or related information provided by White Fox, Rider agrees to fully release, indemnify, and hold harmless White Fox and all of its owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, assigns, and to the fullest extent permitted by law any Municipality (including its elected and appointed officials, officers, employees, agents, contractors, and volunteers) with which the operators have contracted with to provide White Fox Services, and every sponsor of any of the White Fox Services and all of the sponsor's owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, and assigns (collectively, the "Released Persons") from liability for all "Claims" arising out of or in any way related to Rider's use of the White Fox Services, Vehicles, or related equipment, including, but not limited to, those Claims based on Released Persons' alleged negligence, breach of contract, and/or breach of express or implied warranty, except for Claims based on Released Persons' gross negligence or willful misconduct. Such released are intended to be general and complete releases of all Claims.
"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 attorney's fees, whether incurred at trial, on appeal, or otherwise), damages (including but not limited to, for personal injury, wrongful death, property damage, and injury to rider or to third parties, 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 White Fox Services, including any of the Vehicles, placement, equipment, maintenance, related information, this agreement or (b) Rider's use of any of the foregoing.
To the fullest extent permitted by law, and as to Rider's use of any of the White Fox Services, Vehicles, or related equipment, White Fox and all other Released Persons disclaim all express and implied warranties, including warranties of merchantability and fitness for a particular purpose. All of the White Fox Services, Vehicles, and related equipment are provided "as is" and "as available," and Rider relies on them at Rider's own risk.
Rider is aware that Rider's use of any of the White Fox Services, Vehicles, and related equipment involves obvious and not-so-obvious risks, dangers, and hazards that may result in injury or death to Rider or others and damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. Risks, dangers, and hazards, include, but are not limited to:
· vehicles and other objects;
· Vehicle or component malfunction;
· road conditions;
· weather conditions;
· failure to follow applicable laws regarding use and/or operation of the Vehicle pursuant to Section 1.7;
· commission of any of the prohibited acts listed in Section 1.8;
· failure to perform the required safety check pursuant to Section 3.1;
· failure to wear a helmet where required by law; and
· negligent acts or omissions by White Fox, any other Released Person, Rider, or third party.
Rider is solely and fully responsible for the safe operation of Vehicle at all times. Rider agrees that Vehicles are machines that may malfunction, even if the Vehicle is properly maintained and that such malfunction may cause injury. Rider assumes full and complete responsibility for all related risks, dangers, and hazards.
To the fullest extent permitted by law, this release and hold harmless agreement includes any and all Claims related to or arising from the sole or partial negligence of White FOx, the Released Parties, any Municipality or any other party. Rider hereby expressly waives any claims against the Released Parties, any Municipality or any other party which Rider does not know or suspect to exist in his or her favor at the time of use of White Fox Services, and expressly waives Rider's rights under any statutes that purport to preserve Rider's unknown claims.
RIDER ACCEPTANCE OF AGREEMENT
I certify that I have read and expressly agree to the terms and conditions of Section 15 Releases; Disclaimers; Assumption of Risk, and I acknowledge that this section limits my legal rights and remedies. I intend my assent to this Agreement to be a complete and unconditional release of all liability to the greatest extent permitted by law. I represent and certify that I am familiar with the operation of the Vehicle, and am reasonably competent and physically fit to ride the Vehicle.
I certify that I am the Rider, I am 18 years old or over, I will wear a helmet where required by law, I will not ride a White Fox with another occupant, I will obey all traffic laws, I will ride at my own risk, and I have read and expressly agree to the terms and conditions set forth in this Agreement.