WE-CYCLE USER AGREEMENT

RECITALS

A. WE-cycle is a Colorado nonprofit corporation operating a Bicycle sharing program (the “Program”) intended to promote and provide the use of Bicycles as a flexible, independent and environmental means of transportation, an alternative to motorized vehicular transport, within certain set geographical area (outlined in Website content and known as “Territory”), as outlined below.

B. Bicycle sharing stations, including any and all fixtures and appurtenances (each, a “Station” and collectively, the “Stations”) are, or will be, located at various locations within the Program Territory and such Stations will be where Users access and return Bicycles, including traditional pedal style Bicycles, Class I electric pedal-assist Bicycles, and all components and equipment and accessories thereon, (each, a “Bicycle” and collectively, the “Bicycles”) in accordance with the terms and conditions of this Agreement.  The Stations and Bicycles, and any other items or Program provided or used equipment associated, such as User accessories, are collectively referred to herein as the “Program Equipment”.

C. Undersigned intends to participate in the Program itself or be the responsible party for any other User that is not Undersigned, but is either a Minor User over which Undersigned has legal parent/guardian authority or other individuals that use Undersigned’s Annual Pass.  The Annual Pass is the defined cumulative term for both a WE-cycle Pass for Adults (18+ years old) or WE-cycle Minor Pass for youth under 18 years old. Undersigned agrees to the terms and conditions of this Agreement for itself and any such Users under its authority as described herein, with the understanding that Undersigned’s acceptance and agreement of the terms and conditions of this Agreement is a material requirement and condition precedent to any such User’s participation in the Program and use of the Program Equipment.  Undersigned hereby agrees and is responsible to share this Agreement with any User for which Undersigned has authority as to and under this Agreement and/or the Program, and that any User is responsible and jointly and severally liable for the terms of this Agreement just like Undersigned.

AGREEMENT

1. Acceptance of Agreement; Parties.  By acknowledging and accepting the terms and conditions of this Agreement, whether by electronic means or otherwise communicated to WE-cycle, Undersigned agrees to all of the terms and conditions contained herein and otherwise shared with and communicated to Undersigned by WE-cycle.  Undersigned and Users expressly agree to use the Program and Bicycles subject to this Agreement and all Policies, including User Program Rules and Regulations attached as Exhibit A. Undersigned and, if applicable, User are the lessee(s) of a Bicycle(s) and are responsible for compliance with all terms and conditions contained herein, including, but not limited to, joint and several liability for any related obligations, damages, and/or costs.

2. Undersigned cannot be a minor (under the age of 18).  Minor Users must be at least 14 years old.  Undersigned hereby swears, affirms and represents that User is at least 14 years old or older, and if User is under 18 (“Minor User”), that Undersigned is the parent or legal guardian of any such User for which it is completing this Agreement. If potential Minor User is attempting to sign up, it will need its parent or legal guardian to review, understand, and accept this Agreement on behalf of the potential Minor User.  Once the potential Minor User’s parent/legal guardian assents to this Agreement, then applicable potential Minor User will be able to complete the Account sign up, review, understand and accept this Agreement, and receive a WE-cycle Minor Pass to use the Program and Program Equipment.  Undersigned herein gives WE-cycle the authority to contact and communicate with any Minor User for which it has legal authority for any issue relating to the Minor User’s use of Program Equipment or the Program. For purposes of this Agreement, if Undersigned is the parent or legal guardian of a Minor User, Undersigned agrees that (i) the terms and conditions of this Agreement shall govern use of a Bicycle by such Minor User; (ii) Undersigned shall be responsible for such Minor User’s compliance with the terms of this Agreement and any applicable rules, regulations and laws with respect to Minor User’s use of the Bicycle; (iii) and the term “User” as used herein shall mean any person who uses the Program, Program Equipment, and/or Bicycle at any time or point, whether Undersigned or other under Undersigned’s authority as outlined herein.

3. User(s) must be a Competent Bicycle Rider.   Undersigned swears, affirms, and represents that any and every User, whether itself or under its legal authority as a parent/legal guardian or an individual using Undersigned’s Annual Pass is a competent Bicycle operator (including of electric Bicycles if used by User), that User is physically fit to ride a Bicycle, is familiar with the operation of a Bicycle, and knows and understands all laws, regulations, conduct, standards, and safety protocols of riding a Bicycle in general and doing so on public streets and roads, and related thoroughfares.  Undersigned understands that the Program includes both pedal Bicycles and electric pedal-assist Bicycles which amplify User’s efforts with a motor.  Undersigned for itself and with respect to any User for which it has authority as outlined herein, confirms that they each understand how electric pedal-assist Bicycles work and represents that User is competent to use an electric Bicycle if so desired and done.   

Undersigned and, if applicable, Minor User, agrees that all information provided to WE-cycle, including User’s age or ability to operate a Bicycle, is truthful, accurate, and honest at the time of provision and will be updated accordingly if such information changes.  Undersigned may not impersonate someone else to create an Account, create or use an Account and/or Annual Pass for anyone other than oneself, permit anyone else to use someone’s Annual Pass, or provide someone else’s personal information for purposes of Account registration. Undersigned and Minor Users may not permit another person to use their Annual Pass(es), to permit such use is a material breach of this Agreement.  If Undersigned or, if applicable, Minor User, intentionally or unintentionally provides incorrect, false, or dishonest information, Undersigned accepts full responsibility and is liable for any consequence, 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 any such intentional or unintentional misrepresentation.

4. Program Signup and Use.  Undersigned understands that to access the Program and use a Bicycle, User must have an Account fully completed, which includes, but may not be limited to, completing action assent to all related terms and conditions, including this Agreement, and complete adding a credit or debit card for authorization for any future potential purchases, damage or costs coverage, and/or reimbursements.  By completing all required signup content and action items, User will have an active Account for itself (i.e., each User will have its own Account and Annual Pass thereunder, whether a WE-cycle Minor Pass or WE-cycle Pass).  Each individual that desires to use the Program, shall have an Account setup in their name and then Annual Passes thereunder. The Annual Passes will be named a WE-cycle Minor Pass for individuals between 14 and 18 years of age and WE-cycle Pass for individuals 18 years and older. Having an active Account and then Annual Pass thereunder shall entitle User to check-out a Bicycle at no charge for an initial 30-minute period for each separate use (each, a “Free Period” and collectively, the “Free Periods”).  User shall have unlimited Free Periods while its applicable Account and Annual Pass is active, but User shall incur Fees for use of the Bicycle in excess of any Free Period. Any Bicycle not returned within 24 hours after check-out shall be deemed lost or stolen, subject to replacement charges, repair costs, fees and/or fines as described herein and in Exhibit B attached hereto.  Notwithstanding the foregoing, User understands and agrees that (i) use of Bicycles are subject to WE-cycle’s operating hours, seasonal closures, minimum and maximum check out periods and other limitations as determined and amended by WE-cycle, in its sole discretion; (ii) Bicycles are limited and subject to availability; and (iii) Stations, from time to time, may not have Bicycles available for check-out, or available docks for Bicycle check-in/return. 

5. Term of Agreement.  This Agreement shall be effective upon Undersigned’s acceptance of this Agreement or User’s use of the Program Equipment and shall remain in effect until terminated by either party.  However, should WE-cycle terminate or suspend User’s Account and/or Annual Pass, such action shall not relieve Undersigned of the legal obligations, legalities or enforcement of terms herein that may remain, and all such terms shall survive any termination or expiration of this Agreement as to amounts owed or other obligations of Undersigned and/or User.  Annual Passes are intended to be good for one year and then be renewed, either through the “Auto-Renew” feature by the Program or annual renewal action required by Users, or until otherwise terminated.  Should a Minor User turn 18, but not then yet complete its own assent to the User Agreement, then Undersigned as previously on record as Minor User’s parent/legal guardian and Minor User itself, now as an adult for contract enforcement purposes, shall both be jointly and severally liable the terms of this Agreement.  Notwithstanding the foregoing, WE-cycle may suspend and/or terminate Undersigned’s and/or User’s Account, Annual Pass, and/or this Agreement for any reason at any time without Undersigned’s and/or User’s consent.

6. Changes to Terms.  WE-cycle may modify this Agreement from time to time, and such modification will be effective upon its posting on the WE-cycle internet website at www.we-cycle.org/user-agreement (the “Website”).  Undersigned and any User agree to be bound by any modification to this Agreement when using the Program, Program Equipment, or Website before and after any such modification is posted. It is therefore important that Undersigned reviews this Agreement (as publicly available on WE-cycle’s Website) and the WE-cycle Website and content upon annual renewal and, otherwise, with regularity for the most up-to-date details and terms and conditions.

7. Program Equipment; Use of Bicycles.  Undersigned agrees that the Program Equipment, including the Stations and Bicycles, are the property of WE-cycle and User’s ability to use the Program Equipment is not a right, but a privilege, and arises solely from and applicable to the terms and conditions of this Agreement.  User shall not modify, alter, deface, or intentionally damage the Program Equipment and shall not use the Program Equipment for any illegal, reckless, or grossly negligent purpose or a purpose for which such equipment is not intended.  User specifically agrees not to remove, alter, or replace components of any Bicycle including, without limitation, any batteries, motors, or electrical components of any electric Bicycle.  User will not use the Bicycle for hire or reward, nor use a Bicycle in violation of any law, ordinance, or regulation.  User shall never use or operate a Bicycle while under the influence of alcohol, drugs, medication and/or any other substance that may impair User’s ability to ride and operate a Bicycle.  Further, User shall never use or operate a Bicycle if it feels that its abilities, physical, mental, or other, are not fully intact to do so.  It is strongly recommended that User wear a safe and appropriate helmet when operating a Bicycle.  Further it is recommended that User wear bright and, potentially, reflective clothing while operating a Bicycle, particularly in twilight or dark, but also in general as it may be around vehicular traffic when using a Bicycle. Also, User should wear clothing appropriate to its planned use and abilities for its operation of a Bicycle each time User does so.  Undersigned and all Users agree with and shall also fully comply with the User Program Rules and Regulations attached hereto as Exhibit A, as may be amended from time to time.  Undersigned shall and agrees to provide, share, and make any and all Users, for which it has authority per the terms of this Agreement aware of and familiar with the WE-cycle User Program Rules and Regulations.

8. Program and Program Equipment provided AS-IS and as available and should be inspected prior to use.  The Program and Program Equipment are provided for use on “as-is” and “as available” basis and User uses them solely at its own risk. WE-cycle does not promise, represent, or warrant the functionality of any of the Bicycles, the Program, or that any Bicycle or anything relating to User’s use of a Bicycle or the Program will be in good repair or error-free or free from delays, defects, omissions, interruptions or inaccuracies. All representations, warranties, and conditions, whether express, implied, statutory, or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party rights, are hereby disclaimed by WE-cycle and the Released Parties (defined below) to the maximum extent permitted by applicable law.

9. Accidents; Damaged; Stolen or Lost Bicycles.  User agrees to immediately report to WE-cycle any injury, accident, or damage to Program Equipment or other personal or public property related to and/or as a result of User’s use and operation of a Bicycle.  User agrees to immediately report to WE-cycle and the appropriate authority (such as police or sheriff), any incident that may involve claims, actions, citations, fines, or other penalties, criminal and/or civil, involving a Bicycle.  Undersigned understands and agrees that Undersigned and User are jointly and severally 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 User’s use and operation of a Bicycle, including, but not limited to any damaged, stolen or lost Bicycle, whether or not the direct fault of User and/or any other third-party and done so under Undersigned’s Account, Annual Pass, and/or payment method.  All repairs or other work necessary as a result of any such loss, destruction or damage, or other use and operation of a Bicycle, including locks, will be performed at prevailing labor rates. In the event the Bicycle is lost, destroyed or damaged beyond repair, regardless of fault or cause, Undersigned agrees to pay WE-cycle the full replacement value of the equipment. The current fee for replacement of a lost, stolen, unreturned or totaled Bicycle is up to $2,200.00, depending on the type of Bicycle, but this amount can change based upon the market.

10. Securement and Return of Bicycle.  Undersigned agrees that all Users will return the Bicycle to a Station in the same condition received, ordinary wear and tear expected.  User must secure the Bicycle to the Station dock, in accordance with any guidelines or rules.  User will ensure that during User’s use and operation of the Bicycle that if User leaves the Bicycle unattended it is always locked and secured. Bicycles may be equipped with accessory locks, but this is not guaranteed; however, User, not WE-cycle, will be responsible for any lost, stolen, destroyed and/or damaged Bicycle under any circumstances, regardless of whether the Bicycle lock provided, if any, are used, broken and/or not properly functioning.  Undersigned is responsible for any cost related to WE-cycle removing a private lock from the Bicycle and Undersigned agrees that WE-cycle is not liable or responsible for any damage, destruction, and/or replacement of any private lock that is left on or with a Bicycle.  Further, Undersigned agrees to pay for any damage, including replacement parts (including batteries on any electric Bicycle), to and/or destruction or loss of the Bicycle (even if caused by someone else) for a Bicycle checked out by and under subject User, for which it has authority, Annual Pass.  

11. Bicycle Fees.  For use of a Bicycle in excess of any Free Period and/or the failure of User to return a Bicycle within 24 hours after check-out, Undersigned agrees that each User is responsible for and that it is responsible to ultimately pay WE-cycle certain fees and charges as described in this Agreement and Exhibit B attached hereto (the “Fees”).  Fees are intended to be paid out of the payment method(s) put on file with the Account and WE-cycle will debit amounts due from those methods; however, ultimately, Undersigned is fully responsible for any and all Fees and costs related to User’s use and operation of a Bicycle and Program Equipment.  Should the payment method on file not work when attempted, the Annual Pass thereunder will be suspended and Undersigned or User will have to complete payment of related fees and costs and add an updated working payment method before the Annual Pass can become active again. The Fees shall include Bicycle Use Fees (outlined in Exhibit B) and any and all charges requested, accepted, and/or incurred by User, including, but not limited to, the fees for Bicycle or other Program or Program Equipment Use, purchases from WE-cycle, or otherwise incurred under the terms of this Agreement. Undersigned understands that the User’s credit or debit card will be verified upon Undersigned’s acceptance of this Agreement and User’s submission of payment method, and upon the commencement of any renewal term. The term “Late Fees” shall mean charges incurred for rides exceeding the Free Period, billed at the rates described on Exhibit B, plus all applicable governmental or quasi-governmental taxes, fees, or assessments. WE-cycle reserves the right to revise the Fees, this Agreement, and Program Rules and Regulations at any time at its sole discretion, and such revised Fees shall be reflected in an updated Exhibit B and may be posted on the Program Equipment and/or the Website. In addition to any terms included in this Agreement, User shall at all times comply with any posted rules, regulations, policies, requirements, instructions and guidelines of WE-cycle, as the same may be updated from time to time (collectively, the “Policies”), including instructions and requirements for the use, operation and return of the Bicycles.  Within 24-48 hours from the return of a Bicycle into the docking mechanism following use, Fees incurred, if any, shall be assessed. If the Bicycle is not returned within 24 hours, the Bicycle will be considered lost or stolen, and User or, if necessary, Undersigned will be charged WE-cycle’s replacement cost to purchase a new Bicycle of the same type and quality, which cost is currently up to $2,200.00, depending on the type of Bicycle, but this amount can change based on the market.

12. Credit or Debit Card Authorization.  User shall be required to provide a credit or debit card upon signing up and accepting this Agreement and thereby before using any Program Equipment and agrees that such credit or debit card will be charged any Fees or other amounts owed hereunder including, without limitation, any amounts for damage to, or replacement of, a Bicycle.  User represents and warrants that User is authorized to use the credit or debit card, or credit or debit card number provided to WE-cycle, and hereby authorizes WE-cycle to charge such credit or debit card any amounts owed hereunder.  If User disputes any charge to his or her credit or debit card, User must contact WE-cycle within ten (10) days after receipt by User of User’s statement containing the disputed charge.  Should User use a payment method for which it does not have authorization, the User, or Undersigned with authority over such User, is ultimately responsible for any owed Fees and costs and agrees to indemnify, defend, and hold harmless any third-party claims against WE-cycle that emanate out of such unauthorized payment method.

User must provide accurate, current, and complete information when adding a debit or credit card and it is User’s obligation to keep such information up-to-date at all times. Expired or unavailable debit or credit card will result in suspension of an applicable Account and any Annual Pass thereunder until there is an active approved debit or credit card on file.  Undersigned or, if applicable, User represents and warrants that it is authorized to use the debit or credit card.  Undersigned authorizes WE-cycle and/or its third-party payment providers to store information about the Account debit or credit card for the purpose of charging Fees for use of the Program, including any potential damage or replacement fees or costs.  If Account payment details change, a debit or credit card provider may provide WE-cycle with updated debit or credit card details. WE-cycle may use these new details in order to help prevent any interruption to the use of the Program. If User would like to use a different payment method or if there is a change in payment method, please visit the applicable Account settings to update the billing information.

13. Usage and Data Fees. Internet service provider(s) or mobile carrier may charge access, software or data fees for any network use or data transmission by the Program. Contact the applicable internet service provider or mobile carrier for more information regarding usage rates and fees.

14. Confidentiality.  Undersigned and User(s) are solely responsible for maintaining the confidentiality of its/their log-in credentials in order to use the Program and are fully responsible for all activities that occur through the use of such credentials and Account. Undesigned agrees to notify WE-cycle immediately of any unauthorized use of one’s log-in credentials or any other breach of security with respect to an Account. WE-cycle will not be liable for any loss or damage arising from unauthorized use of one’s credentials or Account, regardless of whether one has notified WE-cycle of such unauthorized use or loss of credentials. If Undersigned or User has reason to believe that its Account is no longer secure, it must immediately notify WE-cycle. Undersigned and User understand and agree that WE-cycle may require User to provide information that may be used to confirm an Account identity and help ensure the security of an Account.

15. Insurance.  WE-cycle has insurance for its commercial operations and risk; however, WE-cycle does not carry or provide insurance that will cover any injury or damaged incurred to or caused by the User.  User and/or Undersigned will be responsible for funding of any injury or damage incurred or caused by User, whether through their own insurance or otherwise.

16. Waiver and Release of Liability.  Undersigned and User acknowledge that use of the Bicycles, as well as any other Program Equipment and the Program that relates to or concerns the use of a Bicycle (“Activities”) is an inherently dangerous recreational activity that involves both obvious and non-obvious risks of physical harm, including the risk of serious injury, paralysis, or death to User and others, as well as damage to property, and that these types of risks (some of which are listed below) can be unforeseeable and sometimes cannot be avoided.  User is solely and fully responsible for the safe operation of the Bicycles at all times. Undersigned and User agree that the Bicycles are machines that may malfunction, even if properly maintained and that such malfunction may cause injury. Undersigned and User assume full and complete responsibility for all related risks, dangers, and hazards.

Risks, dangers, and hazards, include, but are not limited to: injuries, serious injuries, paralysis, and even death; vehicles and other objects, pedestrians, traffic, and potential impact, crashes, or accident with such things; falls; used equipment, equipment not in perfect working condition, and/or Bicycle or component malfunction; road conditions and defects, including cracks, potholes, or other sidewalk/pavement defects; weather conditions; automated reductions in vehicle speed in “no-ride” or “low-speed” zones to 0 mph or slow speeds as designated by local authorities or requested by local businesses; failure to follow applicable laws regarding use and/or operation of a Bicycle; commission of any of the prohibited acts listed herein; failure to perform the required safety check pursuant to inspection terms herein; failure to wear a helmet, particularly, where required by law, and resulting injuries; and negligent acts or omissions by WE-cycle, any other Released Parties, or third parties.

UNDERSIGNED UNDERSTANDS AND AGREES THAT THE ACTIVITIES ENGAGED IN ARE OUTDOORS AND, IF SO, INVOLVE CERTAIN INHERENT DANGERS AND RISKS THAT CAN LEAD TO SERIOUS INJURY AND EVEN DEATH. Such additional outdoor dangers and risks include, without limitation, rapidly changing weather conditions, exposure to the weather and elements (including, but not limited to, sun, rain, lightning, snow, hail, sleet), natural objects and features, the risks involved with rescue operations and/or medical care conducted by personnel, wildlife encounters, flora and fauna contact and potential related dangers or allergic reactions, dangerous roadways and surfaces.  Released Parties (defined below) are not responsible or liable for the applicable water, land, surface, or weather elements and conditions.

For and in consideration of check out and use of a Bicycle, to the maximum extent permitted by law, Undersigned hereby forever releases and relinquishes and discharges WE-cycle, Roaring Fork Transportation Authority, the City of Aspen, Colorado, Pitkin County, Colorado, Town of Basalt, Colorado, Eagle County, Colorado, Town of Snowmass Village, Colorado, Town of Carbondale, Colorado, any other Territory governments, officials, and jurisdictions, all Program sponsors and advertisers, vendors, and service providers, grantors, and directors, landlords, licensors, employees, contractors, consultants, volunteers, as well as owners of property upon or near which Stations are located (collectively, the “Released Parties”) from any and all claims, liabilities, causes of action, injury, serious injury, and death, judgments, costs, expenses, damages or wrongful death, injury to others and/or third-parties, which arise out of, result from or relate to this Agreement, User’s check out or use of a Bicycle, User’s participation in the Program, and/or the maintenance, design, use and/or operation of the Bicycle, including any and all claims, liabilities, causes of action and/or damages related to the sole or partial negligence of Released Parties and/or the negligence of others.  By this Agreement any such claims, rights, and causes of action that Undersigned and/or User (and User’s parent/legal guardian(s), if applicable) may have hereby waived, released and relinquished, and User (and guardian(s), if applicable) does(do) so on behalf of Undersigned’s and/or User’s heirs, executors, administrators and assigns.  Undersigned knowingly and voluntarily agrees, understands and recognizes that neither Undersigned or User will have a right to make a claim or file a lawsuit against the Released Parties arising out of this Agreement, the check out, maintenance, design, use and/or operation of the Bicycle, the Program, and/or the Website by Undersigned or User.  UNDERSIGNED ACKNOWLEDGES AND AGREES THAT NONE OF THE RELEASED PARTIES ARE RESPONSIBLE OR LIABLE FOR ANY CLAIM, INCLUDING THOSE THAT ARISE OUT OF OR RELATE TO (A) ANY RISK, DANGER, OR HAZARD DESCRIBED IN THIS AGREEMENT, (B) THE USE OF, OR INABILITY TO USE, ANY OF THE PROGRAM EQUIPMENT BY USER, (C) THE BREACH OF THIS AGREEMENT OR UNDERSIGNED’S OR USER’S VIOLATION OF ANY LAW, (D) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION BY USER, (E) THE FAILURE TO WEAR A BICYCLE HELMET WHILE USING A BICYCLE, OR (F) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION OF ANY THIRD PARTY.  THE TERMS OF THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT. 

Assumption of Risk.  Undersigned agrees that the Activities, including riding a Bicycle, involves many obvious and not-so-obvious risks, dangers, and hazards (many outlined above, but that list is not conclusive), which may result in injury, serious injury or death to User or others, as well as damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. Undersigned agrees that such risks, dangers, and hazards are User’s sole responsibility.  In addition, Undersigned agrees that if User’s use of any of the Program Equipment causes injury or damage to another person or property, then Undersigned and User shall be jointly and severally liable for all resulting injuries, damages, and related costs.  By choosing to ride a Bicycle provided through the Program, Undersigned and User assumes responsibility for all related risks, dangers, and hazards related to User’s use, and Undersigned agrees that WE-cycle and the other Released Parties are not responsible for any injury, damage, or cost caused to or by User with respect to any person or property, including the Bicycle itself.  User is solely and fully responsible for the safe operation of the Bicycle at all times.  Undersigned and, if other person, User understand and agree that a Bicycle is a machine that may malfunction even if properly maintained, that such malfunction may cause injury and that WE-cycle shall not be responsible for the malfunction of any Program Equipment including the Bicycles.  Undersigned and, if other person, User understand and agree that WE-cycle is not a common carrier, and that the opportunity to check out a Bicycle is for convenience and/or transportation only, and such opportunity is intended for those persons who are able and qualified to operate a Bicycle.  Undersigned and, if other person, User understand that the Program Equipment, including the Bicycles, will be used by multiple individuals, such equipment may not be in perfect working condition and will not be disinfected or cleaned after each use, and the foregoing assumption of risk includes the risks associated with Bicycle use including contracting communicable or transmittable illnesses, such as COVID 19 or other.  The terms of this Section shall survive termination of this Agreement. 

17. Indemnification.  To the maximum extent permitted by law, Undersigned expressly agrees to indemnify, defend, release and hold harmless WE-cycle (including WE-cycle’s employees, agents, representatives, attorneys, members, directors, principals and affiliates), including the Released Parties, from all claims, damages, liabilities, actions and/or judgments (including property loss or damage, personal injury or loss of life), whether caused by the sole or partial negligence of the Released Parties and/or other third-parties, whether based upon breach of contract, breach of warranty, active or passive negligence or any other legal theory, arising from, or related to, this Agreement, User’s check out of a Bicycle, User’s use of the Program Equipment and/or User’s participation in the Program.  The terms of this Section shall survive termination of this Agreement. 

18. Image Release.  Undersigned gives WE-cycle permission to take and use photographs, video recordings, or other images or recordings of User in relation to any and all use of the Program by User, and use and sublicense such material for any purpose, commercial or other, in promoting in print, brochures, online, social media, advertisements, films or videos and/or presentations of any sort (“Content”). Undersigned waives any claims for current or future compensation for such taking and use.  Undersigned understands that WE-cycle and its partners, agents, vendors, employees, and Released Parties do not have ultimate control of future use of such materials and content.  Undersigned hereby releases, discharges, and holds harmless the Released Parties from any and all claims, actions, demands, liabilities, costs, and expenses arising out of or in connection with the taking of and/or use of the Content, including but not limited to any claims for defamation, invasion of privacy, or infringement of intellectual property rights.

19. Governing Law and Venue. This Agreement will be governed by the laws of the State of Colorado, excluding the choice of law rules thereof.  Venue for any claims brought must be in the State or Federal Courts of Pitkin County, Colorado.

20. Waiver. No waiver of any default or breach of any provision of this Agreement is a waiver of any other default or breach of any other provision of this Agreement. The terms of this Agreement may be waived or amended only in writing and only by the party that is entitled to the benefits of the term being waived or amended. The failure of WE-cycle to enforce any right or remedy under this Agreement shall not constitute a waiver of the right to enforce such right or remedy at any time.

21. Severability. In the event that any one or more provisions of this Agreement is held invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby. 

22. Final Agreement; Modification. This Agreement, including any and all Exhibits and other terms and conditions provided through sign up and thereafter, contains the complete, final, and exclusive integrated Agreement between the parties with respect to its subject matter, except that if User accepts this Agreement through the Website, the Website Privacy Policy shall be deemed incorporated herein.  This Agreement supersedes all other prior agreements, written or oral, relating to such subject matter. At any time and from time to time, and without User’s consent, WE-cycle may unilaterally amend, modify, or change this Agreement, in its sole discretion and without any notice or cause. By continuing to use the Program after any amendment, modification, or change, User has agreed to be bound by all such amendments, modifications, and changes. 

23. Contract Interpretation; Survival. The headings in this Agreement do not affect the interpretation of this Agreement.  Unless the context otherwise requires, words in the singular number or in the plural number shall each include the singular number or the plural number.  All pronouns include the masculine, feminine, and neuter pronoun forms.  All of Undersigned’s acknowledgements, obligations, and indemnities shall survive the expiration or earlier termination of this Agreement and any termination or suspension of Undersigned’s or User’s Account. 

24. Trademarks and Logos. “WE-cycle,” and any names, marks, logos, symbols, tag lines, graphics, intellectual property and marketing materials associated with the Program (the “Program Marks”) are the exclusive property of WE-cycle.  User has no right, title or interest in or to the Program Marks and use of the Program Marks without the prior written consent of WE-cycle is strictly prohibited. 

25. Notice. Any and all notices or other communications required or permitted by this Agreement may be in writing and will be deemed delivered when personally delivered to the party to whom it is addressed at a known, publicized, or registered email address (upon recognition of receipt) or mailing address, or by personal service.

26. Attorneys’ Fees.  Notwithstanding anything to the contrary contained in this Agreement, if either party institutes legal proceedings against the other in any manner related to this Agreement or the checkout, use or operation of a Bicycle, the substantially non-prevailing party shall pay to the substantially prevailing party an amount equal to all attorneys’ fees and disbursements and all other costs and expenses incurred by the prevailing party in connection therewith.  Undersigned and, if other person, User agree to be jointly and severally liable and responsible for any and all fees or other costs, including, but not limited to attorney’s fees and costs, incurred by WE-cycle in collecting any delinquent amount owed by Undersigned and, if other person, User to WE-cycle.

27. Force Majeure. Except for outstanding payment obligations, either 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, pandemic, government requirement, civil disturbances, or civil or military authority.

28. Independent Contractors. WE-cycle is an independent contractor and neither party is an agent of the other and neither party has the right to bind the other on any agreement with a third party.  WE-cycle may use third-party vendors and service providers to make the Program work and function.  Undersigned assumes the risk related to any third-party service providers or vendors and agrees that should it have any claims due to their services, acts, or omissions, that it will pursue recovery and rights solely against those responsible parties.

29. Acceptance of Agreement and Terms and Conditions by Undersigned.  Undersigned expressly acknowledges that Undersigned has carefully read this entire Agreement and understands this Agreement and expressly agrees to be bound by this Agreement.  After careful deliberation, Undersigned voluntarily gives Undersigned’s consent and expressly agrees to all the conditions included in this Agreement as set forth above.  UNDERSIGNED ACKNOWLEDGES, UNDERSTANDS AND AGREES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND FURTHER UNDERSTANDS THAT THIS AGREEMENT CONTAINS PROVISIONS WHICH RELEASE AND INDEMNIFY WE-CYCLE AND OTHER PARTIES FROM ANY COSTS, LIABILITIES OR INJURIES ASSOCIATED WITH USE OF A BICYCLE BY USER.  UNDERSIGNED FURTHER UNDERSTANDS THAT THE TERMS OF THIS AGREEMENT REQUIRE USER TO PAY FOR ANY LOST, STOLEN OR DAMAGED BICYCLE OR PROGRAM EQUIPMENT, WHETHER OR NOT CAUSED BY THE FAULT OF THE USER.

30. Disclaimer.  UNDERSIGNED ACKNOWLEDGES AND AGREES THAT THE USE OF ANY OF THE PROGRAM EQUIPMENT IS AT UNDERSIGNED’S AND USER’S SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE-CYCLE AND THE OTHER RELEASED PARTIES DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PROGRAM AND ANY OF THE PROGRAM EQUIPMENT, WHICH ARE ALL PROVIDED "AS IS" AND "AS AVAILABLE" (AND USER RELIES ON THEM SOLELY AT USER’S OWN RISK). NONE OF THE RELEASED PARTIES REPRESENT OR WARRANT THAT ANY OF THE PROGRAM EQUIPMENT WILL BE IN GOOD REPAIR OR DEFECT-FREE.  UNDERSIGNED AND USER ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS FOR USING ANY OF THE PROGRAM EQUIPMENT, AND NONE OF THE RELEASED PARTIES ARE LIABLE FOR ANY CLAIM ATTRIBUTABLE TO ANY OF THE FOREGOING. USER ASSUMES FULL RESPONSIBILITY AND LIABILITY FOR ALL CONSEQUENCES, CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, LIABILITIES, DAMAGES, INJURIES, COSTS, EXPENSES, PENALTIES, ATTORNEYS’ FEES, JUDGMENTS, SUITS, OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER RELATED TO A STOLEN OR LOST BICYCLE.

31. LIABILITY AND DAMAGES LIMITATIONS.  UNDERSIGNED ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF USER’S ACCESS TO AND USE OF THE PROGRAM AND PROGRAM EQUIPMENT, OR ANYTHING THAT RELATES TO OR CONCERNS USER’S USE OF A BICYCLE OR THE PROGRAM, REMAINS WITH USER. NEITHER WE-CYCLE NOR ANY RELEASED PARTIES 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) THESE TERMS; (II) THE USE OF OR INABILITY TO USE THE PROGRAM AND/OR ANYTHING THAT RELATES TO OR CONCERNS USER’S USE OF PROGRAM EQUIPMENT AND/OR A BICYCLE; (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 PROGRAM; (IV) ANY AND ALL USES OF THE PROGRAM INCLUDING THE WEBSITE, APP, PRODUCTS AND SERVICES (INCLUDING BICYCLES) AND/OR (V) USER’S MISCONDUCT OR NEGLIGENT USE OF THE PROGRAM INCLUDING THE BICYCLES, 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 WE-CYCLE 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 WE-CYCLE’S AGGREGATE LIABILITY ARISING OUT OF, RELATING TO UNDERSIGNEDS AND, IF OTHER PERSON, USER’S RELATIONSHIP WITH WE-CYCLE, THESE TERMS, USER’S USE OF THE PROGRAM OR ANYTHING RELATING TO OR CONCERNING USER’S USE OF A BICYCLE, EXCEED THE AMOUNTS UNDERSIGNED AND/OR USER HAS PAID TO WE-CYCLE IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100.00), IF NO SUCH PAYMENT HAS BEEN MADE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WE-CYCLE AND UNDERSIGNED.