Bicycle Rental Agreement (the “Rental Agreement”)

  1. Subscription
  2. Directions and Additional Terms of Use
  3. Miscellaneous

In consideration of Your use of any of the Bay Wheels Services (defined below), You ("Subscriber", "You", or "Your") agree to all terms and conditions in this Rental Agreement. In order to rent a Bicycle, You must also agree to the terms of the Liability Waiver, Release, Indemnification, and Voluntary Assumption of the Risk ("Release"). The Bay Wheels "Services" are operated and provided by Bay Area Motivate, LLC ("Motivate") and are composed of several elements, including (1) Bay Wheels bicycle stations and associated street treatments such as wheel stops, kiosks, flexible delineators and pavement markings ("Stations"), (2) automated Bay Wheels pay stations ("Pay Stations"), (3) separate stands that allow the docking of Bicycles ("Bike Docks"), (4) Bay Wheels bicycles, including Bay Wheels electric bicycles and Bay Wheels dockless or hybrid bicycles (collectively, “Bay Wheels Bicycles” or “Bicycles”), (5) Bay Wheels mobile application ("Mobile Application") and Bay Wheels website, baywheels.com ("Website") (the Mobile Application and the Website, collectively, the "Platform"), and (6) all related equipment, personnel, and information.

I. Subscription

Section 1 Subscription Fees.

Long-Term Subscriptions. You may subscribe to a one-year membership ("Annual Membership"), a 30-day trial membership if and as offered from time to time ("Trial Membership"), or as described below a short-term subscription. When You subscribe, You agree to be charged the membership fee plus any usage or surcharge fees as described in Section 2 that You incur. The Annual and Trial Membership fee amounts are listed on the Platform and are subject to applicable sales taxes and other local government charges, which may be charged and collected by Motivate. Your subscription becomes valid and active upon purchase.

All Annual Memberships will be enrolled in the Auto-Renew feature by default unless You opt out of the Auto-Renew feature by logging into Account Settings or calling 1-855-480-BIKE(2453). Any other Annual Membership subscriber who wishes to be enrolled in Auto-Renew may do so by logging into Account Settings or calling 1-855-480-BIKE(2453).

At the end of Your 30-Day Trial Membership period, You may apply Your 30-Day Trial Membership Fee toward an Annual Membership expiring one year after the activation of the 30-Day Trial Membership. You will then have an Annual Membership subject to the terms of this Rental Agreement (including auto-renewal) for the remaining balance of the one-year term.

Short-Term Subscriptions. When You purchase access to the Service at a Pay Station, Motivate may place a security deposit hold on Your credit or debit card of $101. The short-term subscription fee amounts are listed on the Platform and on the Pay Station and are subject to applicable sales taxes and other local government charges, which may be charged and collected by Motivate. The costs for a short-term subscription and any additional overtime fees will be charged at the end of the subscription period. The amount of the security deposit could remain on Your credit or debit card account for an amount of time to be determined by Your bank's policies regarding holds. You may purchase up to four short-term subscriptions (providing access to four subscribers) on each credit or debit card. Motivate may place additional $101 security deposit holds on Your credit or debit card for each additional short-term subscription and You will be charged all applicable fees for the use of the Bicycles with the short-term subscriptions purchased with your credit or debit card. Your subscription becomes valid and active upon purchase.

Section 2 Usage and Surcharge Fees.

Your Ride Time will be calculated beginning when You unlock a Bicycle. If You end Your rental by returning the Bicycle to a Bike Dock or engaging the on-board lock (if any) within the initial free ride period applicable to Your subscription type (“Initial Free Ride Period”), no usage fee will be charged. If You do not end Your rental within the Initial Free Ride Period, You will be charged the applicable usage fees on the Platform or displayed at the Pay Stations, which are subject to applicable sales taxes and other local government charges. After ending Your rental, You may rent another Bicycle, but only after a waiting period of up to 2 minutes.

Use of certain Bicycle types, such electric bicycles, may incur surcharges at amounts listed on the Platform and on the Pay Station. If You ride a Bicycle that incurs a surcharge, You will be charged the surcharge in addition to any other applicable subscription and usage fees.

If You have subscribed to an Annual Membership, on the 2nd day of each month, (a) the total of all of Your overage fees will be applied to Your member account ("Account") and charged against Your credit or debit card (with the Visa or MasterCard, or other participating payment network logo) and (b) a statement describing such charges will be emailed to You. For 30-Day Trial Memberships, such fees will be charged at the end of 30 days, or upon return of the bicycle, whichever is later. At any time, You may access a statement of Your trip history for Your Annual or Trial Membership, and associated charges, by logging into Your Account profile page on the Platform. If You have any dispute regarding a chargeable trip, then You must, within 10 business days from the end of the prior month with the disputed charge, provide to Motivate all trip information that is necessary to identify the disputed charge, such as the date of the trip and the approximate starting and ending times. Your trip receipt, if any, indicating the date and time Your Bicycle was returned would be additional proof that the Bicycle had been properly returned.

Section 3 Lost or Damaged Bicycles; Key; Clipper Card; Additional Fees.

The Ride Time data generated by the Services’ computer is conclusive evidence of the period of Your use of a Bicycle. Your use of a Bicycle is limited to a period of 24 consecutive hours. Any use that exceeds a period of 24 consecutive hours is deemed a disappearance of the Bicycle, until the Bicycle is found or returned to a Bike Dock. If a Bicycle rental is not ended within a period of 24 consecutive hours, then the Bicycle is deemed lost or stolen, Your credit or debit card will be charged a fee of up to $1,200, and a police report may be filed with local authorities. You must return the Bicycle in the same condition in which You rented it. If You return the Bicycle to a Station damaged or in a state of disrepair, then You will be charged a fee that is equal to the cost of repair. Such fees may be charged as soon as 24 hours after the Bicycle is not returned or is returned in a damaged state. Motivate will attempt to contact You via telephone and email before charging Your credit or debit card, by using the contact information You provided when subscribing to the Services. Motivate will waive any charges for unreturned or damaged bicycles if You are not at fault for such missing or damaged bicycle. For any disappearance of a Bicycle that was released on Your Account, You must report the disappearance to the local police department and to Motivate within 24 hours following the disappearance.

If You use Your Clipper Card to access the Services, You are solely responsible for any and all charges to Your Account made through Your Clipper Card, even if Your Clipper Card is lost or stolen. You must regularly monitor Your Account to ensure that all charges are Your own. If You notice any charges that are not Your own, You must notify Motivate immediately.

Section 4 Credit and Debit Card Matters.

You must input a valid credit or debit card number and expiration date before You will be registered to use the Services, and you must maintain a valid credit or debit card throughout the duration of Your Annual Membership. Participating card networks are shown on kiosks and the Platform. You represent and warrant to Motivate that You are authorized to use the credit or debit card. You authorize Motivate to charge Your credit or debit card for all fees incurred by You, subject to applicable sales taxes and other local government charges. If You dispute any charge on Your credit or debit card account, then You must contact Motivate within 10 days of Your receipt of Your statement containing the disputed charge. You agree to immediately inform Motivate of all changes relating to Your credit or debit card and update Your member profile on the Platform. If the credit or debit card connected to Your Annual Membership becomes invalid at any time and You do not replace it on Your member profile with a valid credit or debit card, Motivate may suspend Your Annual Membership.

Motivate uses www.authorize.net ("Processor") as Motivate's transaction payment processor. The transmission of data to Processor and the approval of a credit or debit card should take less than 10 seconds; however, a credit card might not allow for an overcharge/overdraft, which means that Your transaction request could be denied. All denials of a transaction by Your bank, all holds, and all other similar issues are Your sole responsibility. Motivate takes reasonable steps to ensure that all data transmitted by Motivate is done safely and privately; however, despite those steps, We cannot guarantee the complete security of all credit or debit card and other data transmitted by Motivate or Processor. Please review the DISCLAIMERS and LIMITED LIABILITY sections set forth in the Platform Terms of Use at https://assets.baywheels.com/web-terms-of-use.html, which are applicable to Your use of the Platform and the Service, including the transmission of credit card and other data.

Section 5 Prohibited Acts.

II. Directions and Additional Terms of Use.

Section 6 Bicycle Safety Inspection.

Before each use of a Bicycle, You must conduct a safety inspection of the Bicycle, which you acknowledge you are competent to do, and which includes inspecting for all of the following: (i) proper tire pressure; (ii) trueness of the wheels; (iii) safe operation of all brakes and lights; (iv) proper attachment of the seat, pedals, and basket; (v) alignment of the fender and the metal rods that hold the fender in place; (vi) good condition of the frame; and (vii) no sign of damage, unusual or excessive wear, or other mechanical problem or maintenance need. If the Bicycle You are using is an electric bicycle, You must also confirm that the battery is locked securely in place in the frame of the Bicycle and that the cover of the disc brake mount is securely in place. You may not ride the Bicycle if You notice any mechanical or other problem or safety issue; and, in such case, You must promptly notify Motivate of all problems and issues and use a different Bicycle. You agree to press the “Faulty Bike” button within 1 minute after docking or locking any Bicycle that You notice has any mechanical or other problem or safety issue. You must not attempt to repair any Bicycle.

Section 7 Returning Bicycle.

To return a Bicycle that is not equipped with an on-board lock, You must secure it into an available Bike Dock. When the Bicycle is correctly docked, a sound signal will be emitted, and the signal light will turn yellow and then green, to confirm that the Bicycle has been properly secured to the Bike Dock. If the Bicycle is not properly secured to the Bike Dock, then the signal light will turn red, and a longer signal sound will be emitted. If the signal light turns red, then You must repeat the operation until the signal light turns green and the Bicycle is properly secured in the Bike Dock. If after several attempts the signal light does not turn green, then You must return the Bicycle to another available Bike Dock. Any Bicycle that is not properly secured remains Your sole responsibility, and the usage fees described in Section 2 will be charged until the Bicycle is properly secured.

To return a Bicycle that is equipped with an on-board lock, You must park the Bicycle by engaging the on-board lock while the Bicycle is within any boundaries identified on the map in the Mobile Application, and in an area accessible by the public at all hours, where bicycle parking is permitted in accordance with applicable laws and regulations, in an upright position and out of the way of pedestrian and vehicle traffic. You may not park a Bicycle in any place that is inaccessible to the public, such as your home or office, or in any place that is unsafe. You will be solely responsible for any damage to a Bicycle that is damaged or confiscated as a result of improper or illegal parking of a Bicycle.

Section 8 Helmets; Safety.

Motivate strongly recommends that all users of the Services wear a Snell, CPSC, ANSI, or ASTM approved helmet that has been properly sized, fitted, and fastened, according to the manufacturer’s instructions. Wearing a Snell, CPSC, ANSI, or ASTM approved helmet, properly sized, fitted, and fastened, while cycling may protect against an injury or may lessen the severity of an injury caused by an impact to the head; however, bicycle helmets are not 100% effective, do not protect against all head injuries, and do not protect against other injuries. MOTIVATE AND THE OTHER RELEASED PERSONS DO NOT REPRESENT OR WARRANT THE QUALITY OR SAFETY CHARACTERISTICS OF ANY HELMET, AND YOU AGREES THAT MOTIVATE AND THE OTHER RELEASED PERSONS ARE NOT LIABLE FOR ANY INJURY SUFFERED BY MEMBER WHILE USING ANY OF THE SERVICES, WHETHER OR NOT YOU ARE WEARING A HELMET AT THE TIME OF INJURY. YOU ASSUME ALL RISK OF NOT WEARING A HELMET OR OTHER PROTECTIVE CLOTHING AND GEAR. You agree that, when using any of the Services, You might need to take additional safety measures and precautions that are not specifically addressed in this Rental Agreement.

"Released Persons" or “RELEASED PERSONS” means, collectively, (i) Motivate and all of its owners, managers, affiliates, employees, agents, representatives, successors, and assigns, (ii) the Metropolitan Transportation Commission and its commissioners, officers, agencies, departments, agents, and employees, (iii) the Bay Area Air Quality Management District and its commissioners, officers, agencies, departments, agents, and employees, (iv) Ford Motor Company and all of its owner, officers, directors, affiliates, employees, agents, representatives, successors, and assigns, (v) the City of San Francisco and its commissioners, officers, agencies, departments, agents, and employees, (vi) the City of Berkeley and its commissioners, officers, agencies, departments, agents, and employees, (vii) the City of Oakland and its commissioners, officers, agencies, departments, agents, and employees, (viii) the City of Emeryville and its commissioners, officers, agencies, departments, agents, and employees, (ix) the City of San Jose and its commissioners, officers, agencies, departments, agents, and employees, (x) the City of Palo Alto and its officers, officials, departments, agencies, agents, and employees, (xi) the City of Redwood City and its officers, officials, departments, agencies, agents, and employees, (xii) the City of Mountain View and its officers, officials, departments, agencies, agents, and employees, (xiii) every sponsor of any of the Services, including Ford Motor Company, and all of their affiliates, dealers, and any of their respective owners, officers, directors, employees, agents, representatives, successors, and assigns, and (xiv) every holder of property on which is located a Station and all of the property holder’s owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns.

Section 9 Additional Terms of Use.

  1. You represent, warrant, and agree that You are a safe and competent bicycle operator, You are sufficiently fit and physically capable to safely ride a bicycle without any risk to Your health, You are knowledgeable about the operation of a bicycle, and You are knowledgeable about the laws pertaining to bicycles operated within the Counties of San Francisco, Santa Clara, and Alameda. LIKE ANY PHYSICAL ACTIVITY, RIDING A BICYCLE MAY CAUSE MINOR OR MAJOR INJURIES OR DISCOMFORT AND MAY WORSEN OR COMPLICATE UNDERLYING MEDICAL CONDITIONS OR DISEASES. BY CHOOSING TO RIDE A BICYCLE, YOU ASSUME ALL RESPONSIBILITIES AND RISKS FOR ALL SUCH INJURIES OR OTHER MEDICAL CONDITIONS.
  2. You represent, warrant, and agree that Motivate is not responsible for providing or maintaining bicycle lanes or any other place where You may ride Bicycles, and that Motivate and the other Released Persons do not guarantee that there will always be a safe place to ride a Bicycle. Roads, bicycle lanes, and bicycle routes may become dangerous due to weather, traffic, or other hazards. You must not use a Bicycle for racing, riding off road, or any other use, besides safe operation on public or private roads or property and routes designated for bicycles or electric bicycles, as applicable.
  3. You represent, warrant, and agree that Motivate and the other Released Persons are not common carriers. Alternative means of public and private transportation are available to the general public and to You, including public buses and rail services, taxis, and pedestrian paths. Motivate provides Bicycles only as a convenience and recreational activity, not as a public service, and such rental availability is intended to be used only by those persons who are able and qualified to operate a Bicycle on their own and who have agreed to all terms and conditions of this Rental Agreement.
  4. You agree that access to the Services is denied to any person less than 18 years of age.
  5. You must report to the police and to Bay Wheels Customer Services at 1-855-480-BIKE (2453) as soon as possible, but in no event later than 24 hours, after the occurrence of (i) any crash, damage, loss, or personal injury while using a Bicycle, (ii) any vandalism of any of the Services, (iii) any stolen or lost Bicycle, and (iv) any stolen or lost subscription credentials or Clipper Card.
  6. You are fully and completely responsible for all charges, damages, and injuries that arise from or relate to any use of Your subscription before (i) a deactivation of the subscription by Motivate upon expiration, or (ii) a report to the Bay Wheels Customer Services at 1-855-480-BIKE (2453) that Your subscription credentials or Clipper Card are is lost or stolen.

Section 10 Limitations on Availability of Services.

Motivate makes every effort to provide the Services for 365 days per year; however, Motivate does not guarantee that the Services will be available at all times, as force majeure events or other circumstances might prevent Motivate from providing the Services from time to time. Access to the Services also is conditioned on the availability of Bicycles and available Bike Docks at each Station. Motivate does not represent or warrant the availability of any Services or the availability of any Bicycles or Bike Docks at any Station. No sponsor of Bay Wheels has any responsibility for providing any Services. You may use the Platform to check the inventory of Bicycles and Bike Docks available at a Station. You agree that Motivate may require You to return a Bicycle at any time.

III. Miscellaneous.

Section 11 Term and Termination.

The term of this Rental Agreement begins when You first access the Services, and ends 10 years after Your last use of the Services; provided, however, that Your personal financial responsibility under Section 4 of this Rental Agreement, titled Credit and Debit Card Matters, expires one year after the later of (i) Your last use of the Services, or (ii) the expiration of Your membership. At any time and from time to time, and without Your consent, Motivate may unilaterally terminate Your right to use any of the Services, in Motivate’s sole discretion and without any notice or cause.

You may terminate Your use of the Services at any time; provided, however, that (i) no refund will be provided by Motivate, (ii) the term of this Rental Agreement continues in accordance with this Section, and (iii) You may still be charged any applicable additional fees arising under this Rental Agreement. This Rental Agreement remains in full force and effect, in accordance with its terms and conditions, after any termination of Your right to use any of the Services, regardless of how the Rental Agreement is terminated.

If you’ve opted out of auto renewal feature, then starting thirty (30) days before and no later than one (1) year after the expiration of Your membership term, You may renew the membership on the Platform, under the “Member Login” heading. If the membership is not renewed within this period of time, then You may be required to (i) take certain actions to reactivate Your old account, or (ii) create an entirely new account for a new membership. The membership, and the personal identification number related thereto, are non-transferable and may be terminated if You breach this Rental Agreement, as decided by Motivate in its sole discretion.

Section 12 Notices.

You may contact Motivate by writing, calling or emailing Motivate at the address listed below:

Bay Area Motivate, LLC
185 Berry Street, Suite 5000
San Francisco, CA 94107
Customer Service: 1-(855)-480-BIKE (1-855-480-2453)
customerservice@baywheels.com

Section 13 Mandatory Arbitration; Class Action Waiver.

This Rental Agreement is governed by, and must be construed and enforced in accordance with, the laws of the State of California, excluding principles of conflicts of laws.

You agree that any dispute or Claim relating in any way to Your use of the Services will be resolved by binding arbitration, rather than in court, except that You may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Rental Agreement.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Rental Agreement as a court would.

To begin an arbitration proceeding, You must send a letter requesting arbitration and describing Your claim to Bay Area Motivate, LLC at 185 Berry Street, Suite 5000, San Francisco, CA 94107. The arbitration will be conducted by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. Payment of all filing, administration and arbitrator fees will be governed by JAMS's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. The arbitration shall take place in San Francisco, California or at such other venue (and pursuant to such procedures) as is mutually agreed upon.

YOU AND MOTIVATE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If for any reason a Claim proceeds in court rather than in arbitration You and Motivate each agree that such proceeding shall take place solely by means of judicial reference pursuant to California Code of Civil Procedure section 638. We also both agree that You or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of Your decision to opt out to LBS-legal@lyft.com with the subject line, "BAY WHEELS ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of Your first use of the Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If You opt out of these arbitration provisions, Motivate also will not be bound by them.

This Arbitration and Class Action Waiver section shall survive any termination of your Account or the Platform.

In the event that the arbitration provisions above are found not to apply to You or to a particular claim or dispute, either as a result of Your decision to opt out of the arbitration provisions or as a result of a decision by the arbitrator or a court order, You agree that the venue for any such Claim or dispute is exclusively that of a state or federal court located in San Francisco County, California. You and Motivate agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such claims or disputes.

Further, if Motivate prevails in litigation against You to enforce its rights under this Rental Agreement, Motivate shall be entitled to its costs, expenses, and reasonable attorneys’ fees (whether incurred at or in preparation for trial, appeal, or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which Motivate may be entitled.

Section 14 Waivers.

No waiver of any breach of any provision of this Rental Agreement is a waiver of any other breach or of any other provision of this Rental Agreement. The terms of this Rental Agreement may be waived or amended only in writing and only by the party that is entitled to the benefits of the term being waived or amended.

Section 15 Privacy Policy.

Motivate collects and uses information pursuant to the Bay Wheels Privacy Policy. By using Bay Wheels, You agree to be bound by the Bay Wheels Privacy Policy and all future amendments, modifications, and changes thereto.

Section 16 Cumulative Remedies.

All rights and remedies granted under or referred to in this Rental Agreement are cumulative and nonexclusive, and resort to one does not preclude the availability or applicability of another or to any other right, remedy or defense provided by law.

Section 17 Final Agreement; Modification by Motivate.

This Rental Agreement and the Release contains the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Rental Agreement and the Release supersede all other prior agreements, written or oral, relating to such subject matter, including the Bay Area Bike Share Bicycle User Agreement, Liability Waiver, and Release. At any time and from time to time, and without Your consent, Motivate may unilaterally amend, modify, or change this Rental Agreement, in its sole discretion and without any notice or cause, and by continuing to use any Services after any amendment, modification, or change, You have agreed to be bound by all such amendments, modifications, and changes. You must carefully review this Rental Agreement on a regular basis to maintain awareness of all amendments, modifications, and changes. Whenever a change is made to this Rental Agreement, Motivate will post a notification on the Platform. Notwithstanding any provision in this Rental Agreement that may be to the contrary, the pricing set forth on the Platform supersedes all pricing set forth in this Rental Agreement.

Section 18 Severability.

If a court deems any provision of this Rental Agreement, including but not limited to the binding arbitration and class action waiver provisions, illegal or otherwise unenforceable for any reason, You agree that such provision shall be severed from the Rental Agreement and shall be inoperative, and the remainder of the Rental Agreement shall remain operative and shall be binding on the parties.

Your Agreement to Rental Agreement

I hereby represent that I am the person renting a Bicycle, I am 18 years of age or older, and I have read and agreed to all of the terms and conditions set forth in this Rental Agreement.

June 11, 2019