Last Updated: May 06, 2022
E-Bike Subscription AgreementI. INTRODUCTION
My Device Inc., a Delaware corporation, d/b/a Whizz (“Whizz
,” or “we
”) welcomes you (“you
” or the “User
”) to use our subscription based rental services for bicycles with electric pedal assistance. You can find information regarding our bicycles on our website getwhizz.com
, as well as in the Whizz mobile application. This e-Bike Subscription Agreement (“Agreement
”) describes the terms and conditions that govern your use of or access to our Service. All capitalized terms used in the Agreement have the meaning assigned to them in Annex A, unless otherwise stated.
PLEASE READ EACH PROVISION OF THIS AGREEMENT CAREFULLY. IT CONTAINS RELEASES, WAIVERS, DISCLAIMERS, ASSUMPTION-OF-RISK PROVISIONS, DESCRIPTION OF PAYMENTS AND LATE FEES. IT ALSO SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF OUR SERVICES.
You represent and warrant that you have the right, authority, and capacity to accept the terms of this Agreement. You agree that you have fully read and understood its terms without any impairment in judgment resulting from (but not limited to) mental illness, intoxication, medication, or any other health or general problem that could impair judgment. Your use of the Services constitutes your acceptance of the Agreement. CONSEQUENTLY, IF YOU DO NOT ACCEPT OR UNDERSTAND THE AGREEMENT, PLEASE DO NOT USE, INSTALL, ACCESS, OR REGISTER WITH THE SERVICES. If your agreement to this Agreement is required in connection with or after the installation process of any software or application forming part of the Services, and you do not agree to any provision of this Agreement, you are not entitled to use the Services.
II. SUBSCRIPTIONA. Eligibility.
The Service is only available with a Subscription. To be eligible for the initial and continued Subscription, User must contemporaneously meet all criteria provided below:
o Obtain at its own expense all necessary equipment and services needed to use the App (including a mobile device and wireless service). User is solely responsible for the payment of all related to such obtainment costs and fees, such as internet service provider or airtime charges.
o Be at least 18 years old
o Provide Company with a valid: (i) Government ID and Social Security number, (ii) phone number, (iii) address; (iv) email address, (v) credit or debit card information, including card number, card holder’s name, billing zip code, and expiration date
o Have the physical ability, capacity, and skill to safely, cautiously, and comfortably operate the selected e-Bike
o Always agree to wear a Helmet when operating the e-Bike
o Agree to store the e-Bike indoors or in a safe place outside securely attached to a fixed object with a Lock
o Agree for Company to perform a background check on User
o User must agree to remove and store the battery each time the bike is not in use in order to ensure its safe keeping.B. Background Check.
Company reserves the right to decline the Subscription application at the time of pick-up for any or no reason, including, but not limited to any negative results from User’s background check, prior violations of this Agreement, or any indebtedness to Company. Company will not run a credit report.C. No Discrimination.
Company recognizes its responsibilities under federal, state and local laws pertaining to fair credit and billing practices, as well as the moral principles regarding civil rights. Company will not deny services or discriminate against any persons due to race, creed, color, religion, national origin, marital status, physical handicap (excluding such handicap that would adversely interfere with User’s ability to use the e-Bike in a safe manner), gender, sexual orientation, or political beliefs.D. Ownership Rights.
Company retains the sole ownership of the e-Bike, Battery, Lock, and any other items made available to User under this Agreement. The Agreement does not convey any rights of ownership or property interest in, to, or over Company, Company’s operations or finances, App, Site, or e-Bike, Battery, Lock, or any other items provided to Users by Whizz under this Agreement.E. Term of Agreement.
This Agreement will be in force between Company and User from the Effective Date through the duration of the Term unless terminated by either User or Company. See Section X.F. Changes to Agreement.
The Company may amend this Agreement in its sole discretion. Company will reasonably notify Users of any changes via email, notification through the App, or by other means. Company will post the revised Agreement on the Site and/or on the App. The revised Agreement is effective immediately upon notification. Continuous use of the Services following any changes to the Agreement automatically constitutes User’s acceptance of the amended Agreement.G. Availability.
Company does not represent, warrant, or always guarantee the availability of any of its Services; as weather conditions, unforeseen events, or other extraordinary circumstances might prevent Company from providing the Services. Supplies are limited, and access to the Services is conditioned on the availability of personnel, e-Bikes, or Batteries.H. Location.
The Service is currently available only in New York City, New York.
III. SUBSCRIPTION, SUPPLEMENTAL EQUIPMENT, AND SERVICE FEESA. Subscription Fees.
User agrees to pay the Subscription Fee, in the amount indicated on the Site getwhizz.com
, on a monthly basis for the duration of the Subscription. Company reserves the right to change the Subscription Fee at any time and without notice, including after User’s Subscription has started. Users should visit the Site periodically for up-to-date information about the Subscription Fees.
- Company will charge User the initial Subscription Fee immediately upon acceptance of User’s registration for a Subscription. Subscription fees are charged on a prospective basis, meaning that the subsequent charges will occur monthly from the date of the first charge.
- If the User decides to add on Supplemental Equipment, such as Helmet or delivery bag, Company will also charge the User for the items until Supplemental Equipment are returned.
- Subscription Fees and other services offered by Company are subject to state, and city taxes, as well as any other local government charges. Company will charge User for any applicable taxes.B. Payment Terms.
User represents and warrants to Company that User is authorized to use any credit or debit card User furnishes to Company. User authorizes Company to charge the card for all Subscription Fees and other applicable fees incurred by User, and to transmit User’s credit card information to Company’s third-party vendors for the sole purpose of processing such charges. All fees and costs are due when they are incurred, including but not limited to Subscription Fees and Damage Fees. Temporary or prepaid credit/debit cards are not an acceptable form of payment.
Early or advance payments are welcomed and will not be penalized.C. Disputed Charges.
If User disputes any charge on User’s credit or debit card account, then User must notify Company no later than 7 days of the date of the disputed charge. Company will promptly investigate the matter and report back to User as soon as possible. If no notice is given by User to Company within the foregoing 7-day period, the charge will be final. In the event it is found by Company that there has been a mistake, Company will reverse the electronic transaction. Company’s findings and the investigation on disputed charges will be final and binding.D. Returned Payments.
Users are billed automatically for amounts due via credit/debit card, or other means. If payment of any amount due, including but not limited to Subscription Fee or Damage Fees, is rejected by the credit/debit card provided by User, Company may
suspend or terminate User’s Subscription and/or use of the Services, in Company’s sole discretion. Users are required to keep their payment method information current and accurate (e.g., a billing address, credit card number, or expiration date) and to notify Company if User’s credit or debit card is no longer available. Ongoing issues with credit/debit card billings may result in termination of use of Services. Under no circumstances will Company be responsible for any overdraft or other fees charged by User’s credit/debit card bank.E. No Refunds.
Except as set forth in Section III. (C), once charged all fees are final and not refundable in whole or in part.
- User may return the e-Bike prior to the expiration of the billing period; however, Company will not refund any Subscription Fee in the event of early return of the e-Bike.
IV. DISCOUNTS, PROMOTIONS AND OFFERS.
If the User benefitted from a special discount, promotion, or any other promoted offer that resulted in a reduction of standard fees, Company may discontinue that discount, promotion or offer without written notice. In that case, User will begin paying standard charges consistent with Company’s general fees after promotion has ended. Offers are specific to User, independent of other Users. A. Selecting a Specified Duration of Agreement. A User may benefit from increasing discounts if they choose to rent an e-bike for a specified duration (example/ two or three months, instead of month-to-month) The monthly fees will be reduced in this event. The longer the specified duration, the more discounted the monthly fee. The minimum rental period for a specified discounted rate is two months. B.
Delinquency in Specified Agreement. If a User fails to make a payment, or returns the e-Bike and equipment before the end of their specified agreement, the User will be responsible to compensate for the difference between the running rate of the non-discounted monthly subscription fee and their promotional offer.
V. PICK UP OF E-BIKE AND SUPPLEMENTAL EQUIPMENT.A. e-Bike Pick-up.
e-Bikes and Supplemental Equipment can be picked up at Company’s office located at 29 East 10th Street, New York, NY 10003, during business hours as it disclosed on the website getwhizz.com
To receive an e-Bike User must provide one of the following:
o Government ID, (ex/State Driver’s License, Passport, or U.S. ID Card)
o Permanent Resident Card or Alien Registration Receipt Card
o an unexpired Employment Authorization Document displaying User’s photograph
For avoidance of doubt, “unexpired” for purposes of this Section means having a validity period exceeding 2 months from the pick-up date.B. Sound Mind.
If User shows signs that the User is not capable to use the e-Bike safely due to drug, alcohol, or other kind of intoxication then they will be prohibited from Services. Upon pick-up, User must inspect the e-Bike, and sign the Property Receipt Act prior to taking the e-Bike which will be provided to User.
VI. RETURN OF E-BIKE AND SUPPLEMENTAL EQUIPMENTA. e-Bike Return.
No later than 48 hours after the end of the Subscription, User must personally (or through a representative with a valid Power of Attorney issued in accordance with New York laws) return to Company the e-Bike, Supplemental Equipment, and any other materials provided by Company.B. Return Condition
. User agrees to return the e-Bike to Company in a clean condition, the same as received, except for ordinary wear and tear.C. Property Return Act.
On return, Company’s representative will examine the e-Bike and Supplemental Equipment for any items that do not constitute normal wear and tear. User must be present at the inspection and sign the Property Return Act after examination. User specifically agrees and authorizes Company to automatically charge User for damages listed in the Property Return Act.
If the e-Bike is damaged beyond reasonable repair (as determined by Company), and the battery is not returned, User will be responsible for the full price of the e-Bike, with the value dependent upon the model being rented. In addition, User will also be responsible for the loss of use, administrative fees, as determined by Company or specified by law, plus any towing, pick-up, and/or storage charges.D. Failure to Inspect.
If for any reason a full inspection cannot be undertaken on e-Bike’s return or User refused to be present during the inspection or to sign the Property Return Act, Company reserves the right to invoice User for any damages to the e-Bike as determined by the Company.E. Future Damages
. Company also reserves the right to inform User within 15 days of the return of any damage not listed in the Property Return Act that was identified later during technical examination or that could not be identified at the time of the return (due to external circumstances, including, but not limited to dirt on the e-Bike, preventing proper inspection on return). User specifically agrees and authorizes Company to automatically charge User for such damage.F. Failure to Return.
e-Bike will be considered returned only when it is returned to a representative of Company at the office with a battery inside. Failure to return the e-Bike and battery, without prior notice or without proven exceptional circumstances, will be considered an act of theft and User will be subject to proceedings as outlined in Section XIV.
VII. REPAIR, DAMAGES, ACCIDENTS, LOSS, OR THEFTA. E-Bike Repair and Replacement.
Subscription includes e-Bike repair services to be provided by Company upon request. If the e-Bike needs repair, User must submit a repair request via e-mail, Messengers, App, or in person by visiting Company’s office during working hours. Company will contact User to arrange the date and time for repair services to be provided by Company’s employee on-site at the Company’s location. Company will endeavor to schedule a repair appointment within 48 hours of receiving a repair request but does not guarantee any specific time for addressing or resolving repairs. If the e-Bike cannot be repaired on-site, Company will provide a replacement e-Bike if available.B. Third-Party Repair.
User shall not allow another person or entity to perform repair on the Company e-Bike. User may perform minor routine e-Bike upkeep or maintenance on their own, such as adjusting seat height or inflating a tire. If User attempts to repair an e-Bike instead of requesting a repair from Company, User expressly assumes all risks thereof, including risk of personal injury, and may be charged a Damage Fee.C. Accidents.
In the event of an accident or crash involving an e-Bike,
User should immediately call 911 and seek any medical assistance if necessary. User must report the incident to Company as soon as it is possible and safe to do. User must also cooperate with Company and its representatives to investigate the incident. User should provide to Company all available information from the list below, or any other information that at User’s view might be helpful for accident investigation:
o details, circumstances, and location of the incident, including time, address, and other relevant details
o relevant information about any vehicles or third parties involved in the accident, including the license plate, names, phone numbers, and driver’s license number of any persons involved, VIN, vehicle brand, color and model
o insurance information of all parties involved, including insurance provider and policy number
o witness contact information, including names, addresses, phone number, or other contact information
o photographs of any damage to the e-Bike or of other vehicles involved; and
o a copy of the police report for the incident, if anyD. Responsibility for Damage or Injury to Third Parties.
User explicitly agrees that any damage, injury, or harm to third parties or third-party property caused by User’s use of the e-Bike or Service is exclusively User’s responsibility. It is User’s sole responsibility to check with User’s insurance company whether the use of the Service is covered by such insurance policy.E. Damage or Injury to User.
User expressly agrees that User is solely responsible to any damage or injury to User, or User’s property caused by User’s use of the e-Bike or Service. It is the sole responsibility of User to check with User’s insurance company to see if the use of the Service is covered under the User’s insurance policy.F. Lost or Stolen e-Bike.
If the e-Bike is lost or stolen, User agrees to pay Company the full value of the e-Bike with such value dependent upon the model being rented. In such event, the Company is entitled to charge User’s designated payment method for such amount. User expressly agrees and authorizes Company to make such charges.G. Reporting Damage, Loss, or Theft.
User must report any damage, loss, or theft of the e-Bike or Supplemental Equipment to Company within 24 hours of the incident or as soon as it is safe to do so by contacting Company’s customer service team. If User fails to report damage, loss, or theft, timely and properly, Company may charge reasonable fees and/or terminate User’s Subscription. In the case that the e-Bike is stolen, User must file a police report within 72 hours of discovering such theft and provide Company with a copy of such police report immediately.
The plan reduces User’s financial liability for loss of, or damage to the e-Bike, provided that:
o the e-Bike is used in accordance with the terms and conditions of this Agreement.
o and the User has notified Company and/or police if applicable.
o the loss or damage occurred within New York City
o the e-Bike battery is returned. Per this Agreement, User must remove and store the battery each time the bike is not in use in order to ensure its safe keeping.B.
If the amount of applicable Damage Fees exceeds $100, Protection Plan allows User to pay only 50% of such Damage Fees (as listed in Table 1 of Annex B). Damages caused by User’s intentional actions or negligence are not covered by the Protection Plan.C.
If the e-Bike was stolen, Protection Plan will allow User to only be responsible for Damage Fees (as listed in Table 2 of Annex B) once over the life of a User’s subscription
, if User complied with the requirements of Section VIID.
Protection Plan is offered as an extra agreement per each rented e-Bike, if User decides to opt in for the Protection Plan, User will be charged an additional monthly $29 fee.
IX. OVERNIGHT STORAGE AGREEMENT
This plan is offered as an extra agreement per each rented e-Bike. The agreement allows the User to host the e-Bike overnight at a preferred location for an additional monthly $29 fee. The User must agree to the following terms:A.
Users may only pick up, or drop off their bikes within the business hours of the desired location, and should be courteous in arriving thirty minutes before the business closes.B.
Users should not expect the e-Bikes to be charged outside of the preferred location’s business hours.C.
Users understand that the storage of their e-Bike may not always be available due to demand.D.
The storage location, or Company, reserves the right to terminate this agreement at any time. The User will be notified, but may not refunded, in this scenario.
X. USE OF THE E-BIKEA. Operation of e-Bike.
Instructions for safe operation of the e-Bike, and Supplemental Equipment, are provided by Company at the time of e-Bike pick-up and/or posted the Site and/or App.
Users must carefully listen to or read and become familiar with these instructions prior to commencing use of the e-Bike.B. Preservation of e-Bike Condition.
User must not dismantle, write on, or otherwise modify, repair, or deface an e-Bike, any part of an e-Bike, Supplementary Equipment, or other items provided by Company in any way.C. Prohibition of Unauthorized Commercial Use.
User must not use an e-Bike, Supplementary Equipment, or other items provided by Company, for any advertising or other commercial purpose without the prior express written permission of Company.D. Battery Use.
Batteries used in e-Bikes are electric power batteries that require periodic charging in order to operate and power the e-Bike. User understands that in case the level of Battery charging power decreases, the operational capabilities of the Battery may decrease accordingly or cease in their entirety. It is User’s responsibility to make sure that the Battery is properly charged before commencing an e-Bike ride. User must remove and store the battery each time the bike is not in use in order to ensure its safe keeping.E. Battery Repair.
User must not attempt to charge the Battery with any charging device other than that provided by Company in the Supplemental Equipment. In no circumstances should User attempt to repair the Battery on their own. User understands and agrees that any Battery repair attempt constitutes a violation of this Agreement, and that Company will not be in any circumstances liable of any harmful outcomes of such repair.F. Helmets; Safety.
Users must always wear a Helmet while using an e-Bike. Any injuries caused by User’s failure to obey the Rules, relevant traffic or cycling laws, or otherwise act wisely and prudently, including failure to wear a helmet when riding an e-Bike, are exclusively the responsibility of User. User acknowledges all risks associated with the absence of a Helmet or other protective equipment while operating an e-Bike. User may need to take additional safety measures or precautions not specifically addressed in this Agreement, for example with regards to clothing to be put on in order to operate the e-Bike safely.G. E-Bike Intended Use.
The e-Bike is intended for use only by User engaged in the Subscription. The e-Bike must not be shared with others. The e-Bike is not designed to transport passengers or cargo, except for a bag, backpack, or other small items that may be worn by User at the time of e-Bike operation without interfering with the safe e-Bike functioning.H. Storage of e-Bike.
It is User’s sole responsibility to lock and store the e-Bike reasonably and properly during the Subscription. User must use the Lock and Supplemental Equipment provided by Company to securely lock the e-Bike when not in use. User agrees to store the e-Bike indoors whenever possible. If indoor storage is not possible, User must store the e-Bike in an area in which public bicycle parking is permitted by law by securing the e-Bike to a fixed immovable object using the Lock. User must remove and store the battery each time the bike is not in use in order to ensure its safe keeping.
XI. USER RESPONSIBILITIESA. Pre-Ride Safety Check.
Before each use of an e-Bike, User must conduct a safety inspection of the e-Bike, which includes inspecting the e-Bike for the following:
o body damage
o low tire pressure
o properly functioning brakes
o good condition of the frame
o sufficient battery power
o any sign of damage, unusual or excessive wear, or other open and obvious mechanical problems/maintenance needed.
If the e-Bike has signs of any damage, User must not use the e-Bike and instead must contact Company immediately by submitting a repair request.B. User’s State while Operating an e-Bike.
Users must not operate an e-Bike while being under the influence of alcohol, substances such as drugs, stimulants, thinners, or medications that affect the safe e-Bike operation.C. Fines and Administrative Fees.
User is solely responsible for any violations, including but not limited to traffic violations or parking violations, incurred during the use of the Service. Company reserves the right to charge User’s payment method on record for any violations, tickets, or fees that may be assessed on Company by appropriate authorities as a result of User’s use of the Service. Users must exercise prudent and reasonable judgment when parking an e-Bike.D. E-Bike Operation Exclusively for Intended Use.
User acknowledges that the e-Bike will not be used in violation of any law, ordinance, or regulation (e.g., for speed competitions, mountain biking, tricks, illegal trade purposes, or transporting contraband). User undertakes that the e-Bike will not be operated or used in any Prohibited Area. When using an e-Bike on a sidewalk, the e-Bike must be walked by User’s side, not ridden. User undertakes not to use the e-Bike for the purpose of transporting people for a fee or for any other reason.
XII. TERMINATION OF SUBSCRIPTIONA. Termination by User.
User may terminate the Subscription immediately for no reason, subject to payment of any Subscription Fees or Damages due at the time of User’s request for termination and e-Bike’s and Supplemental Equipment return.
o User must notify Company with a notice of the intent to cancel the Subscription at least 1 day prior to the end of the term.
o User must return the e-Bike and any other Supplemental Equipment within 48 hours after the end of their Subscription term. Failure to return the equipment will result in an automatic renewal of the Subscription for the following months, indefinitely until equipment is returned.
The Subscription will cease on the date on which the Subscription Fee for the next period would have been charged, provided that User gave timely and proper notice of intent to discontinue the Subscription and returned the e-Bike and Supplemental Equipment in accordance with this Agreement.B.
Termination by Company. Company may terminate this Agreement and User’s Subscription upon notice to User at any time with, or without cause. While Company does not require any cause to terminate this Agreement and User’s Subscription, some common causes for the termination are as follows:
• failure to pay any fees due, including Damage Fees
• failure to comply with any provision of the Legal Terms
• involvement in an unreasonable incident, rendering User ineligible or inappropriate for continued use of the Service
• engagement in any conduct that Company determines to be unsafe, reckless, inappropriate, negligent, offensive, fraudulent, or otherwise unacceptable, including, but not limited to, failing to observe any safety requirement set forth in this Agreement or applicable law whether observed by Company or Company’s representatives directly or as reported to Company by a third party along with credible evidence, which credibility will be determined by Company in its sole discretion
• initiation of insolvency/bankruptcy proceedings against User
• dishonest, untruthful, or incomplete in User’s disclosure of required information
• failure to comply with e-Bike rules and guidelines, including leaving the e-Bike unlocked/unattended on the streetC. No Reimbursements
No payments will be reimbursed to User if Company terminates User’s Subscription
XIII. FAILURE TO PAY SUBSCRIPTION, DAMAGES, AND LATE FEESA. Failure to Pay Subscription.
If User does not pay the standard monthly fee, or return the e-Bike, Supplemental Equipment, all/any other materials to Company within 48 hours of the missed payment, the User agrees to be contacted by Company at the telephone number and/or email provided by User and charged additional fees.B. Additional Fees.
On the third day following a missed payment and no return of all equipment(s), there will be an automatic renewal of the standard monthly Subscription amount, and a late fee equaling to 16%
of all goods and services provided.
Federal, State, and Local taxes apply.
Company agrees to warn User of incoming late fees prior to charging the additional fees.C. Continued Failure to Pay
If the User does not pay for all original and additional fees, on the tenth day following the original missed payment, the User will be charged a onetime $150 administrative fee, and Company may initiate legal action against User. User will be notified and reasonably contacted to resolve the issue prior to Legal Ramifications, See Section IV.D. Failure to Return Equipment
If the User does not pay Subscription and Service fees and does not return all equipment within a reasonable time frame, Company may charge User Damage Fees up to the full replacement value of the items not returned in addition to additional fees and administrative fee. Company will consider the e-Bike/Supplemental Equipment stolen and may pursue all legal remedies, including attempting to collect monetary losses and filing a police report.E. Collections.
Company uses a third party credit reporting agency to retrieve outstanding debts such as unpaid subscription fees, fines, administrative and late fees, court costs, forfeited bonds and ordered restitution. Users understand and accept that delinquent payments may be placed into collections at any time, and this act may negatively impact User’s credit score. Users understand and accept that the collections agency will contact User until debts are paid.
XIV. INDEMNIFICATION, LIMITATION OF LIABILITYA. Indemnification.
User agrees to defend, indemnify, and hold Company, its affiliates, and its and their respective, officers, directors, shareholders, partners, employees and agents (collectively, “Company Parties”) from and against any claims, losses, obligations, damages, or expenses arising from User’s use of or access to the Services, use of the Services or any e-Bike or Supplemental Equipment, breach of the Legal Terms, or violation of any law or the rights of a third party. This provision will continue to be effective after the termination of this Agreement.B. Waiver and Release.
In consideration of Company providing Services, User specifically releases and forever discharges Company Parties from any and all liability or claims for injury, illness, death or loss of or damage to property which User may suffer while using Services and participating in associated activities. This discharge specifically includes, but is not limited to, liability or claims for injury, illness, death or damage caused by the negligence of Company Parties. It is the express intent of this Agreement that User release Company Parties and hold them harmless from all liability for any such property loss or damage, personal injury or loss of life, whether caused by the negligence of Company Parties or whether based upon breach of contract, breach of warranty, or any other legal theory. In agreeing to this Agreement, User fully recognizes that if injury, illness, death or damage occurs while engaged in using Services or participating in bicycling, or any other activity associated with the e-Bike, User will have no right to make a claim or file a lawsuit against Company Parties, even if any of them negligently cause any injury, illness, death or damage.C. Limitation of Liability.
(i) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM ANY USE OF, OR INABILITY TO USE, THE SERVICES.
(ii) IF ANY OF COMPANY PARTIES ARE FOUND TO BE LIABLE, SUCH LIABILITY TO USER OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (A) THE TOTAL FEES PAID HEREUNDER AND (B) $100.
(iii) HIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION .D. No Warranty.
THE BIKE IS PROVIDED TO USER ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER INCLUDING, WITHOUT LIMITATION, THE CONDITION OF AN E-BIKE, HELMET, OR ANY ITEM PROVIDED IN THE SUPPLEMENTAL EQUIPMENT, OR THEIR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.E. Assumption of High-Risk Activity.
User understands that using any of Company’s Services, e-Bikes, and/or related equipment exposes User to known and unknown risks, dangers, and hazards that could result in injury, illness, or death to User or others, as well as property damage, and that such risks, dangers, and hazards cannot always be predicted or avoided. User acknowledges and assumes these risks and waives all Company liability. See examples:
o Death or serious injury is possible.
o Head-on collisions are the most common and fatal type of e-Bike crash.
o Accidents also frequently occur on left hand turns or while stopped at a traffic intersection since an e-Bike is more difficult for other drivers to see.
o Other common reasons behind many e-Bike accidents (but not a comprehensive list) include potholes, uneven pavement, riding carelessly in inclement weather, dead animals or debris in the road or sidewalk, or speeding
o Driving under the influence of alcohol, drugs, stimulants, thinners, or medications that affect e-bike operation is prohibited
o An e-Bike accident may cause head and/or brain injury, neck and/or spinal cord injury, back injury, nerve damage, loss of hands, feet, fingers and other limbs, paralysis, and death.F. Prohibited Use
. Any use of an e-Bike prohibited by this Agreement voids all coverages or warranties (including but not limited to insurance, accident, or liability coverages or protection plan); makes an e-Bike subject to immediate confiscation by Company without any notice to User; and makes User responsible for all loss or damage to, or connected with the e-Bike, including company expenses, to the extent that such loss or damage is caused by such prohibited use.
XV. LEGAL RAMIFICATIONS
Failure to pay for the Subscription, late fees, administrative fees, Damage Fees, Loss/Stolen e-Bikes, or all/any other applicable charges incurred by the User as outlined in Annex B, not limited to failure to return Supplemental Equipment, will result in legal action against User. User will be responsible for all legal fees such as court costs, filing fees, the use of an enforcement officer, and any other fees that may be incurred by the Company in collection of the owed balance.
A. Governing Law/Venue.
This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any claim or dispute between User and Company that arises in whole or in part from this Agreement or use of Services shall be decided exclusively by a court of competent jurisdiction located in New York, NY. USER IRREVOCABLY CONSENTS TO PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES THAT THE SERVICE THEREOF MAY BE MADE BY E-MAIL, CERTIFIED OR REGISTERED MAIL DIRECTED TO USER AT THE ADDRESS AND/OR E-MAIL ADDRESS PROVIDED TO COMPANY PURSUANT TO THIS AGREEMENT.
XVI. USER ACCEPTANCE OF AGREEMENTBy filing a Subscription application, you hereby certify the following:
(a) I certify that I have read and expressly agree to the terms and conditions of this Agreement, and I acknowledge that this Agreement 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 e-Bike, am competent and physically fit to ride the e-Bike, will not carry passenger(s) on the e-Bike, and will always wear a Helmet while operating the e-Bike.
(b) I certify that I am User; I am 18 years old or over; I will take all reasonable safety precautions as required by this Agreement; I will not allow any person other than myself to operate or ride an e-Bike provided to me by Company pursuant to a Subscription. I will obey all traffic laws; I will ride at my own risk; I will not operate the e-Bike while being under the influence of alcohol, substances such as drugs, stimulants, thinners, or medications that affect the safe e-Bike operation; I will not use the e-Bike for illegal purposes, including illegal trade purposes, or transporting contraband; and I have read and expressly agree to the terms and conditions set forth in this Agreement.
Any communications and notices from User to Company in relation to this Agreement must be sent to Company by email at firstname.lastname@example.org. Routine Company communications will be sent to the cell phone number, email address, through Messengers, or to the mailing address provided by User in User’s Subscription application. Company communications may also be sent to Users through notifications or messages within the App. Any notices deemed necessary for User’s attention while using the Services will continue to be sent to User even after opting out of communications. To stop receiving notices of any kind from Company, User should terminate the Subscription and this Agreement.
XVIII. MISCELLANEOUS PROVISIONSA. Failure to Enforce Provision.
No waiver by Company of any of the provisions of this Agreement is effective unless set forth in writing and signed by Company. The failure of Company to exercise or enforce any right or provision of the Legal Terms will not constitute a waiver of such right or provision in that or any other instance.B. No Preclusion
. No single or partial exercise of any right, remedy, power or privilege arising from the Legal Terms precludes any other or the exercise of any other right, remedy, power or privilege. Unless stated otherwise, all remedies under this Agreement will be in addition to any other remedies available to either party at law or in equity.C. Validity of Enforcement
. If any provision of the Legal Terms is held invalid, the remainder of the Legal Terms will continue in full force and effect. If any provision of the Legal Terms will be deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from the Legal Terms and will not affect the validity and enforceability of any remaining provisions.D. Non-Transferable.
This Agreement, and any rights under it may not be transferred or assigned by User without Company’s express written consent, which may be granted in Company’s sole discretion.E. Binding Agreement
. This Agreement constitutes the entire agreement between the parties regarding its subject matter and is binding upon the parties and their permitted successors and assigns.F. Force Majeure.
Company and User may be released from certain contractual obligations if extraordinary events occur such as death of User, acts of God, hurricanes, earthquakes and other natural disasters, terrorism, conflicting government acts, labor strikes, supply chain disruption, and other events beyond the control of the Company and User. If possible, User and Company will work to mitigate potential losses from force majeure events.
means this e-Bike Subscription Agreement.“App”
means Whizz application available either on Google Play and the Apple App Store (COMING SOON) or website (getwhizz.com
) accessible via mobile device or a desktop browser.“Battery”
means the battery powering an e-Bike and provided by Whizz as part of a Subscription.“Damage Fee”
means the fee or fees that Company may charge for damage, loss, or theft of the e-Bike, or for violation of the terms of this Agreement, in the amount up to the full costs and fees to be paid in order to repair (if possible) or fully replace the item(s) or part(s) damaged, lost, or stolen, and as may be amended by Company from time to time. Damage Fees for certain types of damage to the e-Bike are listed in the Annex B to this Agreement.“e-Bike”
means the bicycle with electric pedal assist and an integrated electric motor powered by Battery provided by Company to Users as part of the Services pursuant to a Subscription and the terms of the Legal Terms, and which can throttle up to 25 miles per hour. The term “e-Bike” includes the Battery and Lock unless otherwise specified.“Effective Date”
means the date on which you accept the terms of this Agreement.“Helmet”
means a safety helmet designed for bicycle use. User may provide their own Helmet, rent a Helmet from the third parties, or purchase a Helmet from Company upon availability. All Users are always obliged to wear Helmet while operating an e-Bike.“Legal Terms”
means the bicycle lock provided by Company to User with an e-Bike for the purpose of securing and fastening the e-Bike to a fixed object when not in use.“User”
means a natural person who both meets the eligibility criteria described and has been approved by Company for a Subscription.“Messengers”
means SMS, WhatsApp, Facebook Messenger, WeChat, QQ Messenger, Telegram, Viber, Line, or other instant messaging services.“Personal Account”
and incorporated in this Agreement, and as may be amended by Company from time to time.“Prohibited Area”
means (i) any area other than streets with a speed limit equal to or lesser than 25 miles per hour or designated bicycle lanes, (ii) any area in which e-Bikes are prohibited under applicable law from being ridden, and (iii) any area outside New York City.
Prohibited Areas include but are not limited to sidewalks, highways, expressways, parks, or greenspaces other than in designated bicycle lanes, and any area that is unpaved or off-road.“Protection Plan”
means an optional paid service that, if accepted, reduces User’s financial liability for loss of, or damage to the e-Bike, due to theft, attempted theft, or vandalism.“Services”
means the services provided by Company which, for the avoidance of doubt, include (i) the App, the Site, and any social media accounts or pages operated or owned by Company, (ii) the e-Bike and the rental, management, and maintenance of the e-Bike, and (iii) all other related equipment, including services, applications, websites, and information provided or made available by Company, as more fully described in the Legal Terms.“Site”
means Company’s website (located at getwhizz.com
) operated by Company and pertaining to the Services.“Subscription”
means a User’s month-to-month rental of an e-Bike from Company pursuant to Legal Terms.“Subscription Fee”
means the fee charged by Company to User on a monthly basis for the Subscription, as described at getwhizz.com
” means the materials other than the e-Bike delivered to User by Company at the beginning of the Subscription, which are provided for the purpose of safe usage and storage of the e-Bike by User, including the following: (i) charger for recharging the Battery; (ii) Lock for securing the e-Bike; (iii) Lock key; (iv) Battery; (v) Battery key; (vi) Other supplemental equipment as may be provided by Company to User at its sole discretion.“Term”
, incorporated in this Agreement, and as may be amended by Company from time to time.