Bicycle Rental Agreement, Liability Waiver, and Release

TORONTO PARKING AUTHORITY (“TPA”) is the owner of a self-serve bicycle rental system (“Service”), managed by Shift Transit Inc. (“Company,” “Our,” or “We”).  In consideration of your use of Service, Company requires that you (“User”, “You”, or “Your”) agree to all terms and conditions in this Bicycle Rental Agreement, Liability Waiver, and Release (“Agreement”), which are intended to promote the safe use of Bike Share Toronto’s bicycles, and which apply to all Long-Term Users as well as to all Daily Users, as defined below.  In this Agreement, “User” means and includes both Long-Term Users and Daily Users.

 

Section 1.  Modifications to Agreement

 

Company reserves the right to unilaterally amend, modify, or change this Agreement, at any time and from time to time in its sole discretion, without notice and without User’s consent.  By continuing to use any Service after any amendment, modification, or change, User has agreed to be bound by all such amendments, modifications, and changes.  User 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, Company will post a notification on www.bikesharetoronto.com (“Website”).

 

Section 2.  Term of Agreement

 

This Agreement shall remain in full force and effect beginning with Your first use of any Service, and as otherwise provided in this Agreement; provided, however, that Your personal financial responsibility under Section 15 of this Agreement, titled “Credit Card Matters”, expires one year after the later of (i) Your last use of any Service, or (ii) the expiration of any pass purchased for the use of any Service (each a “Pass” or “User Pass”).  At any time and from time to time, and without User's consent, Company may unilaterally terminate Your right to use any Service, in Company’s sole discretion and without any notice or cause.  This Agreement remains in full force and effect after any termination of Your right to use any Service.

 

Section 3.  Service System

 

The Service is comprised of Bike Share Toronto bicycle stations (“Stations”), which sometimes include an automated pay station (“Pay Station”), and separate stands that allow the docking of Bike Share Toronto bicycles (“Bike Docks”).  The Stations are for the purposes of the renting, docking, and locking of Bike Share Toronto bicycles, as well as the identification of the User.  Under the Service, Bike Share Toronto bicycles may be rented from any Station and must be returned to any Station.

 

Section 4.  User Passes

 

Section 4.1  Long-Term Pass.         User may purchase a long-term User Pass for the use of the Service, which may be for a period of either (i) one year ( a “Long-Term Pass”).  To purchase a Long-Term Pass, User must complete a registration form and create an account ("Account") on the Website to become a Long-Term User (“Long-Term User(s)”).  When a Long-Term User subscribes to the Service, Company will charge the Long-Term User’s credit card the amount for the Pass, as described in Section 5.  Once Long-Term User’s credit card payment clears, Company will mail a system card or key (“system key”) with a welcome packet to the mailing address listed by Long-Term User.  Welcome packets are typically received by Long-Term User within one (1) week.  Long-Term Users who elect the annual option will also have the option to select “auto-renewal” authorizing Bike Share Toronto to charge a subsequent monthly fee until Long-Term User contacts Bike Share Toronto to terminate such monthly automatic renewals of the monthly Long-Term Pass.  User must activate the system key on the Website, under the “Login” heading, before using the Service for the first time.  A Long-Term Pass becomes valid and active once the system key is activated on the Website.

All users, including Long-Term Users, must still pay the rates as set forth in Section 7 for all trips in excess of 30 minutes.  Within one year after the expiration of a Long-Term Pass, User may renew (if the “auto-renewal option was not already selected) the Long-Term Pass on the Website, under the “Login” heading.  If the Long-Term Pass is not renewed within this period of time, then User may be required to (i) take certain actions to reactivate Long-Term User's Account, or (ii) create an entirely new Account for a new Long-Term Pass.  The Long-Term Pass, and the personal identification number and system key related thereto, are non-transferable and may be terminated if User breaches this Agreement, as decided by Company in its sole discretion.  If a Pass is terminated for any reason, then no refund shall be provided.

 

Section 4.2   Daily Pass.      If User elects not to purchase a Long-Term Pass and merely uses the Service for 24 hours, then User may elect to purchase a Pass for a period of 24 hours (“Daily Pass”) and User shall be considered a Daily User (“Daily User”).  To purchase a Daily Pass, User will either be prompted for payment (1) at the Station, or (2) via the mobile app “Transit App”; provided; however, that Daily User must in addition pay the rates as set forth in Section 7 and all users, including Daily Users, must still pay the rates as set forth in Section 7 for all trips in excess of 30 minutes.

 

Section 5.  Long-Term User Rates and Benefits

 

A one-year Long-Term Pass may be purchased for $90  plus additional charges pursuant to the rates set forth in Section 7.  User may purchase a Pass by using a Visa, MasterCard or American Express credit card. On the 10th day of each month, the total amount of chargeable trips (i.e., those trips in excess of 30 minutes, as the case may be) will be charged to Long-Term User’s credit card.  If Long-Term User has any claim or dispute regarding a chargeable trip, then Long-Term User must, within 10 business days from the end of the prior month with the disputed claim, provide to Company the corresponding trip number to identify the place and time the Bike Share Toronto bicycle was rented and returned.

 

Section 6.  Daily Pass User Rates and Benefits

 

A Daily User must pay an $7 flat fee for a Daily Pass or a $15 flat fee for a Three-Day Pass, plus additional charges pursuant to the rates set forth in Section 7, and when a Daily User signs up for the Service either (1) at the Station, or (2) via the mobile app “Transit App,” the charge will appear on Daily User’s credit card statement.

 

Section 7.  Usage Rates

 

In addition to the Long-Term and Daily Pass rates outlined in Sections 4 through 6, all Users are subject to usage rates as set forth in the chart below.  So long as User returns the Bike Share Toronto bicycle to a Bike Dock within 30 minutes, no usage charge applies. User may remove another Bike Share Toronto bicycle from a Bike Dock after returning and docking the previous Bike Share Toronto bicycle. If the bicycle is not returned within 30 minutes, Users will be charged usage rates based on the Pass Type:

Pass Type Pass Rate Usage Fees (for trips longer than 30 minutes)
Daily Pass $7 $1.50 for each additional 30-minute period, $4 for the next 30 minutes, and $7 for each 30 minutes thereafter
Three Day Pass $15 $1.50 for each additional 30-minute period, $4 for the next 30 minutes, and $7 for each 30 minutes thereafter
Annual Pass $90 $1.50 for each additional 30-minute period, $4 for the next 30 minutes, and $7 for each 30 minutes thereafter

 

Ride Time Total Overtime Fee – For Annual Members
00:01-30:00 minutes (00:00:01 – 00:30:00 hours) $0.00
30:01-60:00 minutes (00:30:01 – 01:00:00 hours) $1.50
60:01 – 90:00 minutes (01:00:01 – 01:30:00 hours) $4.00
90:01 – 120:00 minutes (01:30:01 – 02:00:00 hours) $7.00
120:01 – 150:00 minutes (02:00:01 – 02:30:00 hours) $14.00
150:01 – 180:00 minutes (02:30:01 – 03:00:00 hours) $21.00
180:01 – 210:00 minutes (03:00:01 – 03:30:00 hours) $28.00
210:01 – 240:00 minutes (03:30:01 – 04:00:00 hours) $35.00
240:01 – 270:00 minutes (04:00:01 – 04:30:00 hours) $42.00
270:01 – 300:00 minutes (04:30:01 – 05:00:00 hours) $49.00
300:01 – 330:00 minutes (05:00:01 – 05:30:00 hours) $56.00
330:01 – 360:00 minutes (05:30:01 – 06:00:00 hours) $63.00
> 360:01 - 390:00 minutes (06:00:01 – 06:30:00 hours) $70.00
> 390:01 - 420:00 minutes (06:30:01 – 07:00:00 hours) $77.00
> 420:01 - 1440:00 minutes (07:00:01 – 24:00:00 hours) $84.00
> 24:00:00 hours up to $1,200.00

 

Section 8. Availability of Service

 

Company makes every effort to provide the Service for 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 Company from providing the Service.  Access to the Service also is conditioned on the availability of Bike Share Toronto bicycles at each Station.  Company does not represent or warrant the availability of any Service or the availability of any Bike Share Toronto bicycle at any Station.  User may use the Website or either the Transit App or CycleFinder, which may be downloaded from the iTunes Store or Google Play, to consult the inventory of Bike Share Toronto bicycles available at a Station.

 

Section 9.  Directions for Using Service

 

Section 9.1  Removing Bicycle.

 

Section 9.1(a) Removing Bicycle by Long-Term User.  Long-Term User must insert his/her system key or card into the reader slot on the Bike Dock keyboard, to remove the Bike Share Toronto bicycle from the Bike Dock.  After the system key has been inserted into the reader slot, Long-Term User will have 20 seconds to remove the Bike Share Toronto bicycle from the Bike Dock.  The signal light remains yellow during the validation of Long-Term User’s system key, and the signal light turns green when the Bike Share Toronto bicycle can be removed.  Two sound signals are also emitted.  If the Bike Share Toronto bicycle is not removed within 20 second period, the Bike Dock locks and Long-Term User must repeat the process described above.

 

Section 9.1(b)  Removing Bicycle by Daily User.  A Daily User must insert a credit card or cash into the Pay Station or, if using the Transit App, obtain a 5-digit code after completing the payment process.  The Daily User must then type the 5-digit code into the Bike Dock keyboard, to remove the Bike Share Toronto bicycle from the Bike Dock.  After the 5-digit code has been entered, the Daily User has 20 seconds to remove the Bike Share Toronto bicycle from the Bike Dock.  The signal light remains yellow during the validation of the Daily User’s 5-digit code, and the signal light turns green when the Bike Share Toronto bicycle can be removed.  Two sound signals are also emitted.  If the Bike Share Toronto bicycle is not removed within 20 seconds, the Bike Dock locks and the Daily User must repeat the process described above.  Each time a Daily User would like to remove a new Bike Share Toronto bicycle from a Bike Dock, Daily User must insert a credit card into the Pay Station, insert the applicable cash payment or renew using the Transit App and obtain a new 5-digit code, to remove the next Bike Share Toronto bicycle.  A Daily User may remove up to four Bike Share Toronto bicycles on each credit card account, and Daily User will be charged for the use of four Bike Share Toronto bicycles.  Note that if a Daily User rents multiple bicycles in one transaction, only one (1) 5-digit code will be issued for removal of the Bike Share Toronto bicycles from the Bike Dock.

 

Section 9.2  Returning Bicycle.  To return the Bike Share Toronto bicycle, User must secure it into an available Bike Dock.  A sound signal is emitted, and the signal light turns yellow, then green, confirming that the Bike Share Toronto bicycle has been properly secured to the Bike Dock.  If the Bike Share Toronto bicycle is not properly secured in the Bike Dock, then the signal light turns red, and a longer signal sound is emitted.  If the signal light turns red, User must repeat the operation until the signal light turns green, and the Bike Share Toronto bicycle is properly secured in the Bike Dock.  If the signal light does not turn green, User must return the Bike Share Toronto bicycle to another available Bike Dock.  If there is no available Bike Dock at the Station, then Users must push the “Time Credit” icon on the Pay Station screen under the “More Options” menu.  Long-Term Users must insert their key into the reader slot on the Pay Station and Daily Users must swipe their credit card at the Pay Station, to obtain an additional 15-minute credit in which to return the Bike Share Toronto bicycle to another Station.  No fee is charged to User for the additional 15-minute credit.  User may immediately remove another Bike Share Toronto bicycle from a Bike Dock.  Any Bike Share Toronto bicycle that is not properly secured remains the sole responsibility of User, and the usage rates set forth in Section 4 will be charged until the Bike Share Toronto bicycle is properly secured.

 

Section 9.3   Permitted Period of Continuous Use; Lost or Stolen Bicycle.  Use of the Service is limited to a period of 24 consecutive hours (“Permitted Period of Continuous Use”).  If User maintains possession of the Bike Share Toronto bicycle beyond the Permitted Period of Continuous Use, then the Bike Share Toronto bicycle is deemed lost or stolen, User’s credit card may be charged a fee of $1,200, and a police report may be filed with local authorities.  Company will first attempt to contact the User via telephone and email prior to charging the credit card, using the contact information provided by the User upon subscribing, in an attempt to locate the Bike Share Toronto bicycle.  The data generated by the Service’s computer is conclusive evidence of the period of use of a Bike Share Toronto bicycle by User.  User must report the disappearance of a Bike Share Toronto bicycle to Company within 24 hours following the disappearance and must report the disappearance to the local police department within 48 hours.  If User promptly files a police report and forwards the police report to Company, then Company may, in its sole discretion, choose to charge User a reduced fee based on theft or damage to the Bike Share Toronto bicycle.  Any use that exceeds the Permitted Period of Continuous Use is deemed a disappearance of the Bike Share Toronto bicycle, until the Bike Share Toronto bicycle is found or returned to a Bike Dock.

 

Section 9.4 Lost or Damaged System Key.  If User’s system key has been lost or damaged, a replacement may be purchased by calling (855) 898-2378 or by emailing customerservice@bikesharetoronto.com and reporting that the system key has been lost or damaged.  A replacement charge of $10 for the lost or damaged service key will be charged, and a replacement system key will be mailed to User’s mailing address of record.

 

Section 10.  General Assumption of Risk by User.

 

User agrees that riding a Bike Share Toronto 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 Service causes injury or damage to another person or property, then User may be liable for all resulting injuries, damages, and related costs.  By choosing to ride a Bike Share Toronto bicycle, User assumes all responsibility for all related risks, dangers, and hazards, and User agrees that Company is not responsible for any injury, damage, or cost caused by User with respect to any person or property, including the Bike Share Toronto bicycle itself.  User is solely and fully responsible for the safe operation of the Bike Share Toronto bicycle at all times.  User may need to take additional safety measures or precautions not specifically addressed in this Agreement.

 

Section 11.  Prohibited Acts.

 

User must not ride a Bike Share Toronto bicycle while carrying any briefcase, backpack, bag, or other item else, if it impedes User’s ability to operate a Bike Share Toronto bicycle safely.

 

User must not use any cellular telephone, text messaging device, portable music player, or other device that may distract User from safely operating a Bike Share Toronto bicycle.

 

User must not operate a Bike Share Toronto bicycle while under the influence of any alcohol, drugs, or other substance that may impair User’s ability to safely operate a Bike Share Toronto bicycle.

 

User must not carry a second person on a Bike Share Toronto bicycle.

 

User must not dock or lock any bicycle in any Station other than Bike Share Toronto bicycles.

 

User must not use any locking mechanism, other than the locking mechanism provided by Company at the Bike Dock, to lock a Bike Share Toronto bicycle to a Bike Dock.   No Bike Share Toronto bicycle should be left unattended unless securely returned to and lock in a Bike Dock.

 

User must not violate any applicable federal, provincial, or local law, including those for bicycle riders.

 

User must not dismantle or modify a Bike Share Toronto bicycle in any way.  This rule does not apply to the use of the seat height adjustment feature on Bike Share Toronto bicycles.

 

User must not exceed the maximum weight limit for the Bike Share Toronto bicycle 135kg (298 pounds) or the cargo carrier 10kg (22 pounds).

 

User must not operate a Bike Share Toronto bicycle in extreme weather conditions, including snow, hail, and electrical storms, which make it more dangerous to operate a Bike Share Toronto bicycle.  User is advised to adjust User's riding behavior and braking distance to suit the weather conditions.

 

User must not allow others to use a Bike Share Toronto bicycle that User has removed from a Bike Dock.  User understands that when User removes from a Bike Share Toronto bicycle from a Bike Dock, it is to be used only by User.  User must not transfer User’s system key, 5-digit code at the Pay Station or any other Account information to any other person.

 

Section 12.  Additional User Obligations.

 

User agrees that User is a competent bicycle operator, is sufficiently fit to safely operate a Bike Share Toronto bicycle, and has taken all precautions necessary to ensure that User is capable of engaging in such physical activity.  Like any physical activity, riding a Bike Share Toronto bicycle may cause minor or major injuries or discomfort and may worsen or complicate underlying medical conditions or diseases.  By choosing to ride a Bike Share Toronto bicycle, User assumes all responsibility for all such injuries or other medical conditions.

 

User agrees that bicycles are machines that may malfunction, even if the bicycle is properly maintained, and that such malfunction may cause injury.  User agrees that before using a Bike Share Toronto bicycle, User will inspect the Bike Share Toronto bicycle to determine the following: (i) adequate tire pressure; (ii) operation of all brakes and lights; (iii) proper attachment of the seat, pedals, and basket; (iv) good condition of the frame; and (v) any sign of damage, unusual or excessive wear, or other mechanical problem or maintenance need.  User agrees not to ride the Bike Share Toronto bicycle if User notices any mechanical or other problem or safety issue, and User agrees to promptly notify Company of all problems and issues and to use a different Bike Share Toronto bicycle.  User agrees to press the “Faulty Bike” button within 1 minute of docking a Bike Share Toronto bicycle that User notices has any mechanical or other problem or safety issue.

 

User agrees that Company does not provide or maintain riding paths or other locations for riding Bike Share Toronto bicycles, and that Company does not guarantee that there will always be a safe place to ride a Bike Share Toronto bicycle.  Roads, bicycle lanes, and bicycle routes may become dangerous due to weather, traffic, or other hazards.  User must not use a Bike Share Toronto bicycle for racing, riding off-road, or any other use, besides safe operation on public or private roads or property and designated bicycle routes.

 

User agrees that Company is not a common carrier.  Alternative means of public and private transportation are available to the general public and to User individually, including public bus, taxis, and pedestrian paths.  Company provides Bike Share Toronto bicycles only as a convenience, and such rental availability is intended by Company to be used only by those persons who are able and qualified to operate a Bike Share Toronto bicycle on their own and who have agreed to all terms and conditions of this Agreement.

 

User must return the Bike Share Toronto bicycle to a Station and must insert the Bike Share Toronto bicycle into a Bike Dock, within 24 hours from the time the Bike Share Toronto bicycle was originally removed from a Bike Dock.  User agrees that if the Bike Share Toronto bicycle is not returned to a Station and inserted into a Bike Dock within 24 hours, then the Bike Share Toronto bicycle is deemed missing or stolen, and User does hereby authorize Company to charge User’s credit card as provided in Section 9.3.

 

User agrees that Company may require User to return a Bike Share Toronto bicycle at any time.

 

User agrees that access to the Service is denied to any person less than 16 years of age, whether or not accompanied by a parent or guardian.  Minors who are at least 16 years of age may use the Service, but only if the Service is subscribed for by or under the responsibility of the minor’s parent or guardian; and, the parent or guardian is fully liable for all injuries, damages, and costs caused by the minor’s use of the Service.

 

MEMBERS AGED 16 AND 17 YEARS MUST WEAR AN APPROVED BICYCLE HELMET WHEN USING A BICYCLE.

 

User must report all accidents and injuries involving a Bike Share Toronto bicycle to the local authorities and to Bike Share Toronto's Customer Service at (855) 898-2378 as soon as possible, but in no event later than 24 hours after the occurrence of the accident or injury.

 

User agrees if User is unable to report identifying information due to a medical emergency, Company may, at its discretion, provide personal and contact information to the authorities upon their request.

 

Section 13.  Additional Fees.

 

If the Bike Share Toronto bicycle is not returned to a Bike Dock within the Permitted Period of Continuous Use, then User will be charged a fee as provided in Section 9.3 of this Agreement.  If the Bike Share Toronto bicycle is returned to a Bike Dock damaged or in a state of disrepair arising out of User’s negligence, except for normal wear and tear, then User will be charged a fee that is equal to the cost of repair.  Such fees may be charged as soon as 24 hours after the Bike Share Toronto bicycle is not returned or is returned in a damaged state.  Company will attempt to contact the User via telephone and email before charging the User's credit card, by using the contact information provided by the User when subscribing to the Service.

 

Section 14.  Helmets.

 

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.  Although some provincial and local laws do not require bicycle riders to wear helmets, Company does not provide helmets to Users, but 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.  Company does not represent or warrant the quality or safety characteristics of any helmet, and User agrees that Company must not be held liable for any injury suffered by User while using the Service, whether or not User is wearing a helmet at the time of injury.

 

Section 15.  Credit Card Matters.

 

You must input a valid credit card number and expiration date before You will be allowed to use the Service, and You do hereby represent and warrant that You are authorized to use the credit card (Company accepts only Visa, Mastercard, or American Express).  You do hereby authorize Company to charge Your credit card for all expenses incurred on Your Account, including all additional fees and repair charges.  If You dispute any charge on Your Account, then you must contact Company within 10 days of Your receipt of Your statement containing the disputed charge.  Users have an on-going duty to update all changes relating to their credit card.  If a Daily User removes another Bike Share Toronto bicycle from a Bike Dock while the previous hold is still in effect, then an additional hold will not be placed on the User’s credit card.  If the Bike Share Toronto bicycle is returned within the 24-hour maximum period of allowed use, then the hold may be released within ten days, depending on the User’s bank’s policies regarding holds.  Company uses Authorize.Net (“Processor”) as Our transaction payment processor.  The transmission of data to Processor and the approval of a credit card should take less than 10 seconds; however, a credit card might not allow for an overcharge/overdraft, which means that a User’s transaction request could be denied.  All denials of a transaction by a User’s bank, all holds, and all other similar issues are the User’s sole responsibility and should be dealt with between the User and his or her bank.  Company takes reasonable steps to ensure that all data transmitted by Company is done safely and privately; however, despite those steps, Company cannot guarantee the complete security of all credit card and other data transmitted by Company or Processor.  Please review the DISCLAIMERS and LIMITED LIABILITY sections set forth below, which are applicable to User’s use of the Service, including the transmission of credit card and other data.

 

Section 16.  Termination.

 

User may terminate User's use of the Service at any time, and User may cancel User's Pass at any time; provided, however, that (i) no refund will be provided by Company, (ii) the term of this Agreement continues in accordance with Section 2 of this Agreement, the hold may remain on User’s credit card account for up to 10 days, even if User terminates User's use of the Service, and (iii) User may still be charged any applicable additional fees in accordance with Section 13 of this Agreement.

 

Section 17.  Choice of Law; Dispute Resolution

 

This Agreement is governed by, and must be construed and enforced in accordance with, the laws of the province of Ontario, 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 province of Ontario and agrees that those courts have personal jurisdiction over each party; (iii) venue must be in Toronto, province of Ontario; and the parties may submit the dispute to mediation if they mutually.  Every mediation must be completed within 4 months of the date when the initial notice demanding mediation was provided by any party.  If, for any reason, the dispute is not resolved through mediation within the 4-month period, then the parties may continue seeking to resolve the dispute by use of any process, including litigation by trial.

 

Section 18.  Waiver.

 

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 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.

 

Section 19.  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 resort to another or to any other right or remedy provided by law.

 

Section 20.  Final Agreement.

 

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 User’s consent, Company 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, User has agreed to be bound by all such amendments, modifications, and changes.  User must carefully review this Agreement on a regular basis to maintain awareness of all amendments, modifications, and changes.

 

Section 21.  Representations.

 

Each party (“Promising Party”) represents and warrants to the other party that: (i) the Promising Party has the legal power and authority to enter into this Agreement and to undertake and perform all of its duties and obligations hereunder; (ii) there is no contract or other legal obligation that prevents the Promising Party from entering into this Agreement or from undertaking or performing all of its duties and obligations hereunder; and (iv) this Agreement is the Promising Party’s legally binding and fully enforceable agreement.

 

Section 22.  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.”  “Herein,” “hereunder,” and other similar terms refer to this Agreement as a whole and are not limited to the specific section on paragraph where they appear.  Plural terms refer to all Users of the relevant class, and singular terms refer to one or more Users of the relevant class.  All pronouns include the masculine, feminine, and neuter pronoun forms.  All schedules and exhibits referred to herein are hereby incorporated by reference.

 

Section 23.  Notices.

 

You may contact Company by writing, calling, or emailing Company at the street address, telephone number, and email address listed below:

 

Shift Transit Inc.

 

Customer Service:  (855) 898-2378

customerservice@bikesharetoronto.com

 

Section 24.  Releases.

 

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 any Service, Bike Share Toronto bicycle, Station, Bike Dock, or related information, including User's use of any of the foregoing.  In exchange for being allowed to use any Service, Bike Share Toronto bicycle, Station, Bike Dock, or related information, User (acting for User and for all of User's agents, affiliates, representatives, successors, heirs, and assigns) does hereby (i) fully and forever release and discharge Company and all of its owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns (collectively, “Company and its Related Parties”) from all Claims that User has or may have against Company and its Related Parties, except for Claims caused by Company's gross negligence or willful misconduct, and (ii) User agrees to indemnify and hold harmless Company and its Related Parties from and against all Claims, except for Claims caused by Company's gross negligence or willful misconduct.  Such releases are intended to be general and complete releases of all Claims.  Company and its Related Parties may plead such releases as a complete and sufficient defense to any Claim, as intended third beneficiaries of such releases.

 

Section 25.  DISCLAIMERS.

 

YOU DO HEREBY ACKNOWLEDGE AND AGREE THAT YOUR USE OF ANY SERVICE, BICYCLE, STATION, BIKE DOCK, OR RELATED INFORMATION IS AT YOUR SOLE RISK.  TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY AND ITS RELATED PARTIES DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, NONINFRINGEMENT, AND USEFULNESS, WITH RESPECT TO ANY SERVICE, BICYCLE, STATION, BIKE DOCK, OR RELATED INFORMATION, WHICH ARE ALL PROVIDED “AS IS” AND “AS AVAILABLE” (AND YOU RELY ON THEM SOLELY AT YOUR OWN RISK).  WE DO NOT REPRESENT OR WARRANT THAT ANY SERVICE, BICYCLE, STATION, BIKE DOCK, OR RELATED INFORMATION WILL BE IN GOOD REPAIR OR ERROR-FREE, AND DELAYS, OMISSIONS, INTERRUPTIONS, OR INACCURACIES COULD EXIST IN ANY SERVICE, BICYCLE, STATION, BIKE DOCK, OR INFORMATION. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS FOR USING ANY SERVICE, BICYCLE, STATION, BIKE DOCK, OR RELATED INFORMATION, AND WE ARE NOT LIABLE FOR ANY CLAIM ATTRIBUTABLE TO ANY OF THE FOREGOING.

 

Section 26.  LIMITED LIABILITY.

 

YOU DO HEREBY ACKNOWLEDGE AND AGREE THAT COMPANY AND ITS RELATED PARTIES 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) YOUR USE OF, OR INABILITY TO USE, ANY SERVICE, BICYCLE, STATION, BIKE DOCK, OR RELATED INFORMATION, (C) YOUR BREACH OF THIS AGREEMENT OR YOUR VIOLATION OF ANY LAW, (D) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION BY YOU, (E) YOUR FAILURE TO WEAR A BICYCLE  HELMET WHILE USING A BIKE SHARE TORONTO BICYCLE, OR (F) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION OF ANY THIRD PARTY.  YOU DO 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 WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS.  OUR TOTAL LIABILITY FOR ALL CLAIMS, INCLUDING THOSE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY, 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 YOU, THEN SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MIGHT NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

 

Section 27.  Partial Invalidity.  If any provision of this Agreement, or any paragraph, sentence, clause, phrase or word, or the application thereof, in any circumstances, is adjudicated by a court of competent jurisdiction to be invalid, the validity of the remainder of this Agreement shall be construed as if such invalid part were never included herein.