ELETTRIFY Ltd. USER AGREEMENT
Last Updates to Our User Agreement: June 17, 2021
YOU HAVE A RIGHT TO OPT-OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN THE "RIGHT TO OPT OUT" SECTION.
1. SCOPE OF AGREEMENT
ELETTRIFY provides powerful micro-mobility solutions for urban areas around the world. Since we know that small trips add up, we are proud that our eco-friendly electric scooters and electric city bikes help to reduce our collective carbon footprint while offering a convenient transportation solution.
This User Agreement and Terms of Service (collectively, the “Agreement”) is a legally binding agreement between you (“you,” “your,” or “Rider”) and ELETTRIFY Ltd, (“ELETTRIFY” “we,” “us,” or “our”).
This Agreement states the material terms and conditions that governs your use of ELETTRIFY Services (defined below).
This Agreement, together with all updates, supplements, additional terms, and all of Our rules and policies collectively constitute this “Agreement” between you and us. Our services are comprised of the following:
(1) ELETTRIFY mobile application (“ELETTRIFY App”) and related website,
(2) Our electronic scooters and electric city bikes (collectively referred to as “Vehicle” or “Vehicles”),
and (3) all other related equipment, personnel, services, applications, websites, and information provided or made available by ELETTRIFY (collectively referred to as “ELETTRIFY Services” or “Services”).
The Additional Terms are incorporated into this Agreement by this reference.
2. RENTAL AND USE OF PRODUCTS
2.1 Rider is Sole User.
ELETTRIFY and Rider are the only parties to this Agreement. 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, the Vehicle must be used only by you. You must not allow others to use a Vehicle that you have activated.
2.2 Rider is At Least 18 Years Old.
Rider represents and certifies that Rider is at least 18 years old and that Rider is thus legally able to enter this contractual Agreement. ELETTRIFY does not authorize or agree to the use of the Vehicle by persons under the age of 18, even if the Service is subscribed for by and under the responsibility of the minor’s parent or legal guardian. By authorizing use of the Service by a minor, the parent or legal guardian agrees s/he is fully responsible and liable for all injuries, damages, and costs and expenses arising from or related to the minor’s use of the Service. Operation or use of Vehicle product by any minors not at least 18 years old is expressly prohibited under this Agreement, as use of electric scooter products by younger riders on public streets or around traffic has long been recommended against by ELETTRIFY, which advises and recommends that any rider must check local laws applicable to scooter use, avoid public streets and vehicular traffic, and avoid use in reduced visibility conditions.
2.3 Rider is a competent operator, physically and mentally fit to ride Vehicle.
Rider represents and certifies that he/she is familiar with the operation of the Vehicle and is reasonably competent and physically fit to ride the Vehicle. Persons with any mental or physical conditions that may make them susceptible to injury, impair their physical dexterity or mental capabilities to recognize, understand and follow safety instructions and to understand the hazards inherent in the product’s use, should not use or be permitted to use products inappropriate for their abilities. Persons with heart conditions, head, back or neck ailments (or prior surgeries to these areas of the body), or pregnant women, should not operate Vehicles or similar products.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 darkness or impaired visibility, fog, rain, snow, hail, ice 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 and traffic conditions, and are also advised to recognize that riding in low visibility conditions decreases your ability to see and be seen, thus enhancing risks of injury associated with the use of riding products, especially on public streets and around vehicles or pedestrians.
2.4 The Vehicle is the Exclusive Property of ELETTRIFY.
Rider agrees that the Vehicle and any equipment attached thereto, at all times, remains the exclusive property of ELETTRIFY. You must not dismantle, write on, or otherwise modify, repair or deface a Vehicle, any part of a Vehicle, or other equipment of ELETTRIFY 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 equipment of ELETTRIFY for any advertising or similar commercial purpose.
2.5 Operating Hours and Availability.
Rider agrees and acknowledges that the Vehicles are available during specific operating hours established for each market in which Vehicles are offered. Such operating hours will be communicated clearly in ELETTRIFY App within each market. Vehicles must be rented within the maximum rental time limits set forth below. The number of Vehicles is limited and availability is never guaranteed.
2.6 Use and/or Operation only in electronically restricted areas.
Rider agrees to only use, operate and/or ride the Vehicle in electronically restricted areas. Vehicles may be equipped with capabilities which restrict usage to limited geographic areas and may cease to operate if ridden or removed from the Vehicle’s electronically restricted range.
2.7 Rider Must Follow Laws Regarding Use and/or Operation of Motorized Scooters on Public Land. Rider agrees to follow all laws pertaining to the use, riding and/or operation of motorized scooters, including all state and local laws and the rules and regulations pertaining to such motorized scooters in the area where you are operating the Vehicle, including without limitation any helmet laws. There is no “universally applicable” federal law governing operation of motorized scooters and laws therefore can and do differ in different locales.
2.8 Prohibited Acts.
Rider agrees to the following:Both hands are required to safely operate a Vehicle – you must not ride a Vehicle while carrying any briefcase, backpack, bag, or other 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 ride with a second person on a Vehicle.You may not do anything to the Vehicle that impedes a subsequent authorized rider from using it.The Vehicle must be parked at a lawful parking spot. Vehicle cannot be parked on private property or in a locked area or in any other non-public space. It must be visible to ELETTRIFY’s service staff for collection, recharging, etc.
2.9 Vehicle is Intended for Only Limited Types of Use.
The Vehicle is intended for use on flat, dry surfaces such as pavement or level ground, without loose debris such as sand, leaves, rocks or gravel. Wet, slick, bumpy, uneven or rough surfaces may impair traction and contribute to possible accidents. Watch out for potential obstacles that could catch your wheel or force you to swerve suddenly or lose control. Avoid sharp bumps, drainage grates, or sudden surface changes.
2.10 Weight Limit.
You must not exceed the maximum weight limit for the Vehicle of 135 Kilograms.
2.11 No Tampering.
You must not tamper with, disassemble, or attempt to gain unauthorized access to the Vehicle. You must not use the AA or other equipment of ELETTRIFY other than for purposes of using a Vehicle pursuant to this Agreement.
2.12 Reporting of Damage or Crashes.
Rider must report any accident, crash, damage, personal injury, stolen or lost Vehicle, to ELETTRIFY 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 may be held 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.
2.13 Rider Responsibility for Use and Damage.
Rider agrees to return the Vehicle to ELETTRIFY in the same condition in which it was rented. Rider will not be responsible for normal wear and tear.
2.14 Rider Responsibility to lock the Vehicle.
If the Vehicle has a retractable or removable lock, Rider is responsible for securing the Vehicle to a bicycle rack or other appropriate and lawful location using the lock to protect against theft of the Vehicle unless another method of locking is explicitly permitted by the system rules applicable in Rider’s market. Rider agrees to ensure that when a Vehicle is not in use the retractable or removable lock is at all times securely attached to the Vehicle, if removable, and a proper rack or other appropriate and lawful location and not only to the Vehicle. You shall not leave any Vehicle unattended at any location at any time for any reason, unless it is secured as specified above. Rider shall not use any other locking mechanism other than what is provided by ELETTRIFY. Rider shall not lock and/or leave the Vehicle in a location where it cannot be accessed by ELETTRIFY, nor in a location outside the designated service area or in violation of any applicable law.
2.15 Availability and Usage of Vehicle.
Rider agrees and acknowledges that Vehicles are not available all the time. Vehicles require periodic charging of their batteries in order to operate. Rider agrees to use and operate the Vehicle safely and prudently and comply with all restrictions and requirements associated with the Vehicles provided by ELETTRIFY from time to time. Rider understands and agrees with each of the following:The level of charge power remaining will decrease with use (over both time and distance), and that as the level of charge power decreases, the speed and other operational capabilities may decrease (or cease in their entirety).The level of charging power at the time Rider initiates the rental or operation is not guaranteed and will vary with each rental use.The rate of loss of charging power during use is not guaranteed and will vary based on the particular scooter road conditions, weather conditions and other factors.It is Rider’s responsibility to check the level of charge power in ELETTRIFY App and to ensure that it is adequate for the ride before initiating operation.ELETTRIFY does not guarantee the distance and/or time that Rider may operate the Vehicle before it loses charging power completely. A Vehicle may run out of charging power and cease to operate at any time during Rider’s rental, including before reaching Rider’s desired destination.
3. MESSAGING, SMS OR TEXT MESSAGES
By creating a ELETTRIFY Account, you agree that ELETTRIFY may send you text (SMS) messages and/or email messages as part of the normal business operation and your use of the ELETTRIFY Services or ELETTRIFY Services. Such uses include, without limitation, to provide you with information you requested from ELETTRIFY, to let you know about features, functions, improvements or changes to the ELETTRIFY Services, or other aspects of your ELETTRIFY Account. These text (SMS) messages and/or email addresses may be automated or non-automated, and while ELETTRIFY does not charge you to send or receive such messages, other message and data rates may still apply by your carrier or other provider. You may opt-out of receiving text (SMS) messages and/or email messages from ELETTRIFY at any time by contacting our team at support@ELETTRIFY.com, though we may still send you messages that are required for the proper functioning of the ELETTRIFY Services. If you do not wish to receive any messages from ELETTRIFY, you must terminate your ELETTRIFY Account and cease using the ELETTRIFY Services. You acknowledge that opting out of receiving text (SMS) and/or email messages may impact your use of and ability to fully use the ELETTRIFY Services.
4.YOUR LICENSE TO USE THE ELETTRIFY SERVICES
Subject to your continuing compliance with these Terms, ELETTRIFY grants you a limited, non-exclusive, revocable, non-transferable, and non-sublicensable license to reproduce and display content (excluding any software source code) solely for your personal and non-commercial use and only in connection with your access to and participation in the ELETTRIFY Services. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the ELETTRIFY Services or any content contained on ELETTRIFY App ore related website, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by ELETTRIFY or its licensors, except for the licenses and rights expressly granted in these Terms.
5. PROHIBITED USES OF THE VEHICLES
You agree that the following conduct relating to Vehicle is prohibited:Using a Vehicle in connection with a criminal act;Using a Vehicle with the intent to destroy public or private property or to cause injury or damage to persons or private property;
Using a Vehicle with passengers or more than one person;
Placing any bags or other tangible things on the handlebars which interferes with the proper and safe operation of a Vehicle;
Failing to yield to pedestrians on the public right of way;
Parking a Vehicle in any area that is prohibited by law or which interferes with the public use of public right of way;
Parking a Vehicle in private areas without the permission of the owner or authorized representative of the private property;
Taking a Vehicle out of a public area, for example, taking a Vehicle into a building or other structure without our express permission;
Interfering or attempting to interfere, either directly or indirectly, with a Vehicle’s GPS, wireless or other technology;
Removing or attempting to remove any ELETTRIFY system designed to track Vehicle location or ride duration;
Attempting to or riding a Vehicle without payment through any device, scheme or artifice;
Using a Vehicle to propel or tow any vehicle, trailer, or other object;
Using a Vehicle to transport animals of any kind or nature or any other persons;
Using a Vehicle to in any type of race or competition, or to perform tricks;
Using a Vehicle while under the influence of drugs, alcohol, medication or any other substance capable of interfering with your judgment, reflexes or safe use of the Scooter;
Using a Vehicle in a negligent or abusive manner or in a manner that is outside the scope of a Scooter’s ordinary and intended functionality and purpose (violating a traffic law, or receiving a ticket in an accident is not automatically a violation of this provision, but may be an indication that a violation of this provision has occurred);
Using a Vehicle in inclement weather, including heavy rain, snow, electrical storms or strong wind, which make it more dangerous to operate a Scooter;
Using a Vehicle to while texting, emailing, using a cell phone, or otherwise using a mobile device other than to operate the Vehicle that may distract from driving safely;
Carrying any briefcase, backpack, bag or other item if that item impedes your ability to operate the Vehicle safely;
Using any lock on a Vehicle other than the lock that ELETTRIFY provides to you;
Using a Vehicle in violation of any law;
The foregoing list is not intended to be exhaustive and ELETTRIFY expressly retains discretion to prohibit any unreasonable, unlawful or inappropriate use of a Vehicle.
6. ASSUMPTION OF RISK, RELEASES, AND DISCLAIMERS OF WARRANTIESTHIS SECTION CONTAINS PROVISIONS THAT AFFECT YOUR LEGAL RIGHTS.
PLEASE READ IT CAREFULLY.
6.1 Assumption of Risk.
You acknowledge and agree that riding a Vehicle and use of the ELETTRIFY Service is an inherently dangerous activity that involves both obvious and non-obvious risks of physical harm, including the risk of death to you and others, as well as damage to property, and that these types of risks can be unforeseeable and sometimes cannot be avoided. You are solely responsible for any and all injury or damage caused by your use of a Vehicle, the ELETTRIFY Services and/or any related equipment or services that are a part of, relate to or concern your use of a Vehicle, regardless of whether the injury or damage is caused to yourself or to others. You therefore assume full and complete responsibility for your use of a Vehicles or the ELETTRIFY Services and agree that ELETTRIFY is not responsible for any injury, damage, harm or cost that you cause that is related to or arises out of your use of a Vehicles, the ELETTRIFY Services and/or any equipment or services that are a part of, relate to or concern your use of a Vehicle or the ELETTRIFY Services including damage to the Vehicle itself.
6.2. Limitation on Liability.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE ELETTRIFY SERVICES OR ANYTHING THAT RELATES TO OR CONCERNS YOUR USE OF A VEHICLE OR THE ELETTRIFY SERVICES, REMAINS WITH YOU. NEITHER ELETTRIFY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE ELETTRIFY SERVICES, INCLUDING THE VEHICLES, WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH (I) THIS AGREEMENT;
(II) THE USE OF OR INABILITY TO USE THE ELETTRIFY SERVICES AND/OR ANYTHING THAT RELATES TO OR CONCERNS YOUR USE OF A VEHICLE;
(III) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OR OTHER PERSONS WITH WHOM YOU COMMUNICATE, INTERACT OR MEET WITH AS A RESULT OF YOUR USE OF THE ELETTRIFY SERVICES;
(IV) ANY AND ALL USES OF THE ELETTRIFY SERVICES INCLUDING THE WEBSITE, MOBILE APPLICATION, PRODUCTS AND SERVICES (INCLUDING THE VEHICLES) AND/OR
(V) YOUR MISCONDUCT OR NEGLIGENT USE OF THE ELETTRIFY SERVICES INCLUDING THE VEHICLES, OR THE NEGLIGENCE OR MISCONDUCT OF A THIRD PARTY WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ELETTRIFY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.IN NO EVENT WILL ELETTRIFY’S AGGREGATE LIABILITY ARISING OUT OF, RELATING TO YOUR RELATIONSHIP WITH ELETTRIFY, THIS AGREEMENT, YOUR USE OF THE ELETTRIFY SERVICES OR ANYTHING RELATING TO OR CONCERNING YOUR USE OF A SCOOTER, EXCEED THE AMOUNTS YOU HAVE PAID TO ELETTRIFY IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENT HAS BEEN MADE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ELETTRIFY AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
6.3. Disclaimer of Express and Implied Warranties.
ELETTRIFY’S WEBSITE AND MOBILE APPLICATION, ALL OF THE SERVICES, VEHICLES AND ANYTHING RELATING TO YOUR USE OF A VEHICLE ARE PROVIDED ON “AS-IS” AND “AS AVAILABLE” AND YOU USE THEM SOLELY AT YOUR OWN RISK. ELETTRIFY DOES NOT REPRESENT OR WARRANT THE FUNCTIONALITY OF ANY VEHICLE, ANY ELETTRIFY SERVICE OR THAT ANY VEHICLE OR ANYTHING RELATING TO YOUR USE OF A VEHICLE WILL BE IN GOOD REPAIR OR ERROR-FREE OR FREE FROM DELAYS, DEFECTS, OMISSIONS, INTERRUPTIONS OR INACCURACIES.TO THE FULLEST EXTENT PERMITTED BY LAW, ELETTRIFY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF IMPLIED WARRANTIES. 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.
6.4. Release of Liability.
You acknowledge that use of ELETTRIFY’s Vehicles and any related equipment or materials, is an inherently dangerous recreational activity. You, on behalf of yourself, your family, your heirs, your agents, your affiliates, your representatives, your successors, your guardians and your assigns (collectively the “Releasing Parties”), agree to release ELETTRIFY and the Released Parties (as defined below) from any and all injuries, demands, losses, damages, costs, loss of service, expenses, compensation, claims, suits, causes of action, obligations, rights, and liabilities of any nature, type, or description, whether known or unknown, contingent or vested, in law or in equity, including but not limited to, property loss or damage, personal injury or loss of life, based on direct or vicarious liability, and regardless of legal theory, that:
(a) relate to, are based on, concern, or arise out of your use of a scooter, any ELETTRIFY Service, ELETTRIFY website and/or ELETTRIFY Materials;
(b) relate to, are based on, concern, or arise out of any of the equipment that ELETTRIFY provides to You (collectively the “Claims”). “Released Parties” as used herein means ELETTRIFY, Ltd, and each of their respective current and former parents, subsidiaries, divisions, and current and former affiliated individuals and entities, legal successors, predecessors (including companies they have acquired, purchased, or absorbed), assigns, joint ventures, and each and all of their respective officers, investors, partners, directors, servants, agents, shareholders, members, managers, principals, investment advisors, consultants, employees, representatives, attorneys, accountants, lenders, underwriters, and insurers.
This Release is intended to a general and complete release of all Claims and all Released Parties may plead the existence of this Release as a full and complete defense to any Claim.
YOU ACKNOWLEDGE THAT YOU ENTER INTO THIS RELEASE FREELY, KNOWINGLY, AND VOLUNTARILY, AND THAT YOU INTEND IT TO BE A COMPLETE AND UNCONDITIONAL RELEASE AND WAIVER OF ALL CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF THE SERVICES.
You agree to indemnify and hold ELETTRIFY, its predecessors, successors, subsidiaries, affiliates, and each of its directors, shareholders, investors, employees and authorized agents harmless from and against all third-party claims arising out of or in any way relating to any injury, illness, death or loss of or damage to property allegedly suffered as a result of your use of the ELETTRIFY Services including the Vehicles or anything that relates to or concerns your use of ELETTRIFY Services, including the Vehicles.
7. BINDING ARBITRATION and CLASS ACTION WAIVERPLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
7.1 Initial Dispute Resolution.
The application contains means to receive support and address any concerns you may have regarding your use of Rental Services. 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.
7.2 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 these Terms of Service, and the parties’ relationship with each other shall be finally settled by binding arbitration administered by a mutually agreed upon arbitrator or arbitration service.
The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including, but not limited to any claim that all or any part of these Terms of Service are void 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, ELETTRIFY 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.LocationThe arbitration will take place in London, UK or a mutually agreed upon location.
Class Action WaiverThe 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 ELETTRIFY 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.
Litigation of Intellectual Property and Small Claims Court ClaimsNotwithstanding 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.
Right to Opt OutYou 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: 24B, Brooke Road, N16 7LS, London, UK. The notice must be sent within 30 days of your first use of Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt-out of these arbitration provisions, ELETTRIFY also will not be bound by them.Changes to this Section ELETTRIFY 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.
By sending ELETTRIFY any feedback, comments, questions, or suggestions concerning ELETTRIFY or ELETTRIFY Services (collectively, “Feedback”) you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute, sublicense or otherwise exploit the Feedback, and (iv) irrevocably waive, and cause to be waived, against ELETTRIFY and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your ELETTRIFY Account or termination of the ELETTRIFY Services, if any.
9.1 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;
(iii) good condition of the frame;
(iv) sufficient battery charge power;
and (v) 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 ELETTRIFY of any problems.
9.2 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 ELETTRIFY believes such movement was not caused by another Rider or authorized third party, or (d) other facts and circumstances that suggest to ELETTRIFY in its reasonable, good faith determination that a Vehicle has been lost or stolen. ELETTRIFY 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 ELETTRIFY in its reasonable, good faith determination. If ELETTRIFY deems a Vehicle lost or stolen, ELETTRIFY 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 ELETTRIFY immediately or as soon as possible.
9.3 Helmets; Safety.
ELETTRIFY 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 ELETTRIFY 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. Rider may need to take additional safety measures or precautions not specifically addressed in this Agreement.
9.4 Vehicle Routes.
Rider agrees that ELETTRIFY does not provide or maintain places to ride Vehicles, and that ELETTRIFY 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.
9.5 Limitations on Vehicle Rental.
Rider agrees that ELETTRIFY 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. ELETTRIFY 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.
9.6 Limitations on Availability of Service.
ELETTRIFY 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 ELETTRIFY from providing the Service. Access to the Service is also conditioned on the availability of Vehicles. ELETTRIFY does not represent or warrant the availability of any Service or the availability of any Vehicle at any time. Rider agrees that ELETTRIFY may require Rider to return a Vehicle at any time.
9.7. 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 ELETTRIFY 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 ELETTRIFY 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 ELETTRIFY may decide in its sole and absolute 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 ELETTRIFY and all Released Parties 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.
9.8. Access License.
Subject to your strict compliance with this Agreement and the Additional Terms, ELETTRIFY grants you a limited, revocable, non-exclusive, non-assignable, non-transferable license to download (temporary storage only), display, view, use, play, and/or print one copy of the content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless Device, or other Internet enabled Device (each, a “Device”) for Your personal, non-commercial use only. This license does not include any resale or commercial use of the Services or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of the Services or their contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. Except as expressly permitted herein, the Services and/or any portion of the Services may not be reproduced, sold, resold, visited or otherwise exploited for any purpose without ELETTRIFY’s express written consent. Any unauthorized use automatically terminates the permissions and/or licenses granted by us to you. The foregoing limited license: (i) does not give You any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in ELETTRIFY’s sole and absolute discretion, and without advance notice or liability.
9.9. Copyright and Ownership.
All of the content featured or displayed on the Services, including, without limitation, text, graphics, photographs, images, moving images, sound, and illustrations (“Content”), is owned by ELETTRIFY, its licensors, vendors, agents and/or its Content providers. All elements of the Services, including, without limitation, the general design and the Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. The Services may only be used for the intended purpose for which such Services is being made available. Except as permitted by copyright law, you may not modify any of the materials and you may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information or work contained on the Services. Except as authorized under the copyright laws, you are responsible for obtaining permission before reusing any copyrighted material that is available on the Services. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Services. The Services, its Content and all related rights shall remain the exclusive property of ELETTRIFY or its licensors, vendors, agents, and/or its Content providers unless otherwise expressly agreed. You will not remove any copyright, trademark or other proprietary notices from material found on the Services.
9.10. Trademarks/No Endorsement.
All trademarks, service marks and trade names of ELETTRIFY used herein (including but not limited to: ELETTRIFY name, ELETTRIFY corporate logo, the Services name, the Services design, and/or any logos) (collectively “Marks”) are trademarks or registered trademarks of ELETTRIFY or its affiliates, partners, vendors or licensors. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify ELETTRIFY trademarks in any way, including in advertising or publicity pertaining to distribution of materials on the Services, without ELETTRIFY’s prior written consent. You shall not use ELETTRIFY’s name or any language, pictures or symbols which could, in ELETTRIFY’s judgment, imply ELETTRIFY’s endorsement in any (i) written or oral advertising or presentation, or (ii) brochure, newsletter, book, or other written material of whatever nature, without prior written consent.9.11. Solicited Submission Policy. Where ELETTRIFY has specifically invited or requested submissions or comments, ELETTRIFY encourages you to submit content (e.g., comments to blog posts, participation in communities, tips, etc.) to ELETTRIFY that they have created for consideration in connection with the ELETTRIFY Website and ELETTRIFY App (“User Submissions”). User Submissions remains the intellectual property of the individual user. By posting content on ELETTRIFY Website and ELETTRIFY App, you expressly grant ELETTRIFY a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide, fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, perform and display such content and your name, voice, and/or likeness as contained in your User Submission, in whole or in part, and in any form throughout the world in any media or technology, whether now known or hereafter discovered, including all promotion, advertising, marketing, merchandising, publicity and any other ancillary uses thereof, and including the unfettered right to sublicense such rights, in perpetuity throughout the universe. Any such User Submissions are deemed non-confidential and ELETTRIFY shall be under no obligation to maintain the confidentiality of any information, in whatever form, contained in any User Submission.
9.12. Inappropriate User Submissions.
ELETTRIFY does not encourage, and does not seek, User Submissions that result from any activity that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
(ii) may create a risk of any other loss or damage to any person or property; or
(iii) may constitute a crime or tort.
You agree that you have not and will not engage in any of the foregoing activities in connection with producing your User Submission. Without limiting the foregoing, you agree that in conjunction with your submission, you will not inflict emotional distress on other people, will not humiliate other people (publicly or otherwise), will not assault or threaten other people, will not enter onto private property without permission, will not impersonate any other person or misrepresent your affiliation, title, or authority, and will not otherwise engage in any activity that may result in injury, death, property damage, and/or liability of any kind. ELETTRIFY will reject any User Submissions in which ELETTRIFY believes, in its sole and absolute discretion, that any such activities have occurred. If notified by you of a submission that allegedly violates any provision of this Agreement, ELETTRIFY reserves the right to determine, in its sole and absolute discretion, if such a violation has occurred, and to remove any such submission from the Services at any time and without notice.
9.13. Inappropriate Material.
You are prohibited from using the Services to post or send any unlawful, infringing, threatening, defamatory, libelous, obscene, pornographic or profane material or any material that infringes or misappropriates third party intellectual property or could constitute or encourage conduct that would be considered a criminal offense or otherwise violate any law. You further agree that sending or posting unsolicited advertisements or “spam” on or through the Services is expressly prohibited by this Agreement. In addition to any remedies that we may have at law or in equity, if we determine, in our sole and absolute discretion, that you have violated or are likely to violate the foregoing prohibitions or any applicable rules or policies linked to in these Agreement, we may take any action we deem necessary to cure or prevent the violation, including, without limitation, banning you from using the Services and/or the immediate removal of the related materials from the Services at any time without notice. We will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.
9.14. Access and Interference.
You agree that you will not use any robot, spider, scraper or other automated means to access the Services for any purpose without our express written permission. Additionally, you agree that you will not:
(i) take any action that imposes, or may impose, in our sole and absolute discretion an unreasonable or disproportionately large load on our infrastructure;
(ii) interfere or attempt to interfere with the proper working of the site or any activities conducted on the Services; or
(iii) bypass any measures we may use to prevent or restrict access to the Services.
9.15. Right to Takedown Content.
(1) comply with the law or comply with legal process served on ELETTRIFY or the Services;
(2) protect and defend the rights or property of ELETTRIFY, the Services, or the users of the Services; or
(3) act in an emergency to protect the personal safety of our users, the Services, or the public. Users shall remain solely responsible for the content of their messages and ELETTRIFY shall have no obligation to prescreen any such content. However, we shall have the right in your sole and absolute discretion to edit, refuse to post or remove any material submitted to or posted on the Services at any time without notice. Without limiting the foregoing, we shall have the right to remove any material that wwe find to be in violation of the provisions hereof or otherwise objectionable, and the additional right to deny any user who fails to conform to any provision of these Agreement access to the Services or any part thereof.
9.16. User Published Content.
User published Content and User Submissions do not represent the views of ELETTRIFY or any individual associated with ELETTRIFY, and we do not control this Content. In no event shall you represent or suggest, directly or indirectly, ELETTRIFY’s endorsement of user published Content. ELETTRIFY does not vouch for the accuracy or credibility of any user published Content on our Services or User Submissions published through our Services, and do not take any responsibility or assume any liability for any actions you may take as a result of reviewing any such user published Content or User Submission. Through your use of the Services and Services, you may be exposed to Content that you may find offensive, objectionable, harmful, inaccurate or deceptive. There may also be risks of dealing with underage persons, people acting under false pretense, international trade issues and foreign nationals. By using our Services, You assume all associated risks.
9.17. Third Party Links.
From time to time, the Services may contain links to websites that are not owned, operated or controlled by ELETTRIFY or its affiliates. All such links are provided solely as a convenience to you. If you use these links, you will leave the Services. Neither we nor any of our respective affiliates are responsible for any content, materials or other information located on or accessible from any other website. Neither we nor any of our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other websites, or any content, materials or other information located or accessible from any other websites, or the results that you may obtain from using any other websites. If you decide to access any other websites linked to or from the Services, you do so entirely at your own risk.
9.18. Transactional Partners.
In some cases, we partner with another company to co-promote their services within our Services. In these cases, you are transacting directly with the other party. On those pages or locations, the transactional partners’ brand is clearly visible and their Agreement are posted. When using these partner pages, you are bound by the partner Agreement in addition to remaining bound by this Agreement. When there is a conflict between this Agreement and the partner’s agreement, our Agreement will prevail.
9.19. Representations and Warranties.
You represent that you are over the age of 18, have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein, and your use of the Services is and will be in compliance with all applicable laws. you represent that you have read, understood, agree with, and will abide by the terms of this Agreement. In addition, you represent and warrant that your User Submissions and all elements thereof are
(a) owned or controlled solely and exclusively by you, you have prior written permission from the rightful owner of the content included in your User Submissions, or you are otherwise legally entitled to grant ELETTRIFY all of the rights granted herein; and
(b) ELETTRIFY’s use of your User Submissions as described or contemplated herein do not and will not infringe on the copyrights, trademark rights, publicity rights or other rights of any person or entity, violate any law, regulation or right of any kind whatsoever, or otherwise give rise to any actionable claim or liability, including, without limitation, rights of publicity and privacy, and defamation. Furthermore, you shall be solely responsible for your own User Submissions and the consequences of posting or publishing them.
9.20. Choice of Law; Venue. A
ny dispute that arises out of or relates to this Agreement or the breach thereof that is not governed by the mandatory arbitration agreement, shall be governed by the law of the England without regard to or application of choice of law principles. The parties hereby consent to the exclusive jurisdiction of London courts for all claims and both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue. For any action not subject to mandatory arbitration pursuant to Section 12 above, the prevailing party to such dispute shall be entitled to recover its reasonable costs incurred in prosecuting or defending against such dispute, including its reasonable attorneys’ fees and experts’ fees.
You must provide any notice required in accordance with this Agreement via your Account or the following email address: support@ELETTRIFY.com, except in cases where this Agreement directs communications to a more specific email address. ELETTRIFY’s routine communications regarding the ELETTRIFY Services and any legal notices will be sent to you either electronically (via your Account, your email address on record or by text message to your mobile device using the number you provided), by United States mail or by courier, except that ELETTRIFY may give notice of an amendment to the Agreement by posting the notice on ELETTRIFY Website, your Account, or by email to the email address on record.
9.22. Data Breach Notification.
Notwithstanding your determination to opt-out of receiving electronic messages or cease use of the ELETTRIFY Services, you agree that in the event an incident occurs in which a third party obtains unauthorized access to your personal data provided to ELETTRIFY, you agree that should ELETTRIFY become legally obligated to provide notice of such unauthorized access, then ELETTRIFY may provide such notice to you electronically by using the email address or mobile telephone number provided by you.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by ELETTRIFY without restriction. Any assignment attempted to be made by you in violation of this Section shall be void. This Agreement will be binding upon and inure to the benefit of the parties hereto, and permitted successors and assigns. No delay or omission by ELETTRIFY to exercise any right or power occurring upon any noncompliance or default by you with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by ELETTRIFY of any of the covenants, conditions, or agreements to be performed by you shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise. ELETTRIFY may freely assign this Agreement and all of the policies and other documents incorporated or referenced in it (including all rights, licenses, and obligations under it or them), in whole or in part and without notice.
If any part of this Agreement other than the arbitration provision and class action waiver set forth in Section 12, above, is found invalid or unenforceable by a court of competent jurisdiction, then if practicable, the parties will substitute a valid provision that most closely approximates the intent and economic effect of the invalid provision(s). If a practicable substitution cannot be made, then the parties agree to sever the invalid provision(s), leaving the remainder of the Agreement in full force and effect.
9.25. Force Majeure.
Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including, a significant failure of the Internet, fire, flood, acts of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, or civil or military authority.
9.26. Entire Agreement.
This Agreement constitutes the entire agreement between the parties hereto regarding the subject matter contained herein and the parties acknowledge that they have not relied on any promise, representation, or warranty, express or implied, that is not contained in this Agreement. ELETTRIFY is not obligated under any other agreements unless they are in writing and signed by an authorized representative of ELETTRIFY.
9.27. No Third-Party Beneficiaries.
You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to these terms and conditions contained herein.
The section titles in the Terms are for convenience only and have no legal or contractual effect.
9.29. Contact ELETTRIFY.
We are always here to help, and there are many ways to reach us. you can reach the ELETTRIFY customer support team at +44 7498203935 through email at support@ELETTRIFY.com, through our website at https://ELETTRIFY.com/, or through the “support” section of ELETTRIFY App.
You can even reach us by mail at 24B Brooke Road, N16 7LS, London, UK.RIDER ACCEPTANCE OF AGREEMENTI certify that I have read and expressly agree to the terms and conditions of the Section “ASSUMPTION OF RISK, RELEASES, AND DISCLAIMERS OF WARRANTY”, 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 Vehicle 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.
In addition to the Terms of Service, located at https://www.elettrify.com/terms, You expressly agreed to when you signed up for Elettrify, You should CAREFULLY READ all terms and conditions before entering into this Agreement. Here is a partial list of some of the terms that Bird 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.