Subscription & Waiver Agreement
This Subscription & Waiver Agreement (this “Agreement”) is entered into by and between you ("You", or "Your", or “the Subscriber”) and Friiway and sets forth the terms and conditions under which you may subscribe to the products and services offered by Friiway.
This Agreement is effective on the date You agree to the terms and conditions as provided herein (“Effective Date”). You agree as follows:
1.1 Agreement to Rent. By accepting this Agreement, Friiway agrees to rent the Equipment to You, and You agree to rent the Equipment from Friiway, on the terms and subjects to the conditions set forth herein.
1.2 Condition of The Equipment. By making the Equipment available for rent hereunder, and agreeing to the terms of this Agreement, Friiway represents and warrants that:
(a) Friiway is the sole owner of the Equipment,
(b) the Equipment is in proper working condition, has been professionally assembled & maintained.
2.1 You shall keep and maintain the Equipment in a good state of repair, normal wear and tear excepted, and shall use the Equipment only for its intended purpose and follow Friiway’s instructions regarding the use and maintenance of the Bike.
2.2 You are also responsible for maintaining proper adjustments to the Equipment. This includes adjustments if any, to match Your height & weight. You are advised to seek professional assistance with these adjustments. Without limiting the assumption of risk and waivers set forth in Section 3, You knowingly and voluntarily waive any claim You may have against Friiway with respect to the proper adjustment helmets, pedals, seat posts and other equipment.
2.3 You will wear a helmet at all times during operation
2.4 You are responsible for securing the Bike at all times when not in operation. At night, Bikes must be locked and stored in a covered, enclosed area.
2.5 You will not operate the Bike for courier or delivery services.
2.6 You will not alter or change parts and accessories related to battery, charger, motor or other electronic systems without explicit written authorization from Friiway.
3. Assumption of Risk & Release Of Liability
3.1 You understand and acknowledge that bicycling (the “Activity”) is a hazardous activity that entails known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to self, to property, or to third parties.
3.2 You understand that such risks cannot be eliminated by Friiway and that any injuries You sustain may result from or be compounded by the actions, omissions or negligence of Friiway. Notwithstanding, You acknowledge that You are voluntarily participating in the activity with knowledge of the risks involved and hereby agree to accept and assume any and all risks of physical or emotional injury, paralysis, death, or damage to self, to property, or to third parties.
3.3 You hereby expressly waive and release any and all claims, now known or hereafter known, against Friiway, and its officers, directors, manager(s), contractors, subcontractors, landlords, indemnitees, employees, agents, affiliates, shareholders, successors, and assigns (collectively, “Releasees”), out of or attributable to the Activity, whether arising out of the ordinary negligence of Friiway or any Releasees or otherwise. You covenant not to make or bring any such claim against Friiway or any other Releasee, and forever releases and discharges Friiway and all other Releases from liability under such claims.
3.4 You shall defend, indemnify, and hold harmless Friiway and all other Releasees against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorney fees, fees, the costs of enforcing any right to indemnification under this Release, and the cost of pursuing any insurance providers, arising out or resulting from any claim of a third party related to the Activity.
3.5 You hereby consent to receive medical treatment deemed necessary if You are injured or require medical attention during Your participation in the Activity. You understand and agree that You are solely responsible for all costs related to such medical treatment and any related medical transportation and/or evacuation. You hereby release, forever discharge, and hold harmless Friiway from any claim based on such treatment or other medical services.
4. Representations and Warranties
4.1 You hereby represent and warrant to Friiway that:
- You are at least eighteen (18) years of age;
- You are physically fit to operate the Bike;
- You will wear a helmet at all times during operation
- You will not carry any passengers on the Bike at any time except on cargo bikes fitted with passenger seats by Friiway;
- You may allow other adults to use the Bike so long as you share the relevant terms of this Agreement with them. For clarification, you will ensure that all users will wear a helmet during operation. You will remain liable for anyone you allow to use the Bike
- You will not pull or tow any passenger or object with the Bike at any time except with the use of a bike trailer, when provided by and authorized by Friiway. You will ensure that all such passengers wear a helmet and follow provided safety guidelines
5.1 In consideration of Your right to possess and use the Equipment during the Term (as defined below), as well as access the accompanying services, You shall:
- Make the payments at the periodic rate specified in the selected subscription plan (“Payments”) or as otherwise provided by Friiway, in advance, with the first Payment prorated, if necessary, due on the date of this Agreement first above written, without any set-off, offset, abatement, or deduction whatsoever in US dollars and in accordance with any third party payment processors utilized by Friiway. You shall reimburse Friiway for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Payment of any late charge does not excuse You of any default under this Agreement.
5.2 If by the expiration of the Term, You do not return the Equipment to Friiway in the condition and on the terms and conditions of Section 8, You shall continue to comply with all the terms and conditions of this Agreement, including the obligation to pay the prorated daily Payment for each day from the expiration of the Term until the date on which You return such Equipment to Friiway in the manner required under Section 8 (“Holdover Payment”). You shall not construe anything contained in this Section, including Your payment of Holdover Payment, as Friiway’s:
- a) waiver of Your failure to perform any obligation under this Agreement; or
- b) assent to any renewal of this Agreement.
6. Limited Warranty
6.1 Friiway shall replace the Equipment with identical or similar Equipment if the Equipment fails to operate in accordance with the manufacturer’s specifications and operation instructions. Such replacement shall be made as soon as practicable after You return the non-conforming Equipment. You shall return all non-conforming Equipment at your expense and risk of loss to Friiway to the destination specified by Friiway. Products manufactured by a third party (“Third-Party Products”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Equipment. Third-Party Products are not covered by the above limited warranty.
6.2 The limited warranty above does not apply where the Equipment has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Friiway, or used with any Third-Party Product, hardware, software, or product that has not been previously approved in writing by Friiway.
6.3 Other than as set forth above, Friiway makes no warranty whatsoever, Including any
(a) warranty of merchantability
(b) warranty of fitness for a particular purpose
(c) warranty against interference
(d) warranty against infringement of any patent. Copyright, trademark, trade secret, or other proprietary rights of a third party; whether arising by law, course of dealing, course of performance, usage of trade or otherwise.
6.4 The remedies set forth in this section are the Your sole and exclusive remedies and Friiway’s entire liability for any breach of the limited warranty set forth herein.
7. Title & Risk of Loss
7.1 Title to the Equipment remains with Friiway throughout the Term, and You shall acquire no right, title, or interest in the Equipment. You shall not pledge or encumber the Equipment in any way. You shall bear all risk of loss, damage, destruction, theft, and condemnation to or of the Equipment from any cause whatsoever (“Loss”) until the Equipment has been returned to Friiway as specified in Section 8.1.
7.2 You shall immediately notify Friiway in writing of any such Loss.
7.3 You acknowledge and agree to reimburse Friiway in accordance with Friiway’s updated Loss fee plan.
- Return of Equipment
8.1 Obligation to Return Equipment. You shall, at Your risk and expense, no later than the expiration of the Term (a) inspect and properly secure the Equipment; and (b) (i) return the Equipment to Friiway’s facility as Friiway may specify.
8.2 Condition of Equipment Upon Return. You shall ensure the Equipment returned for any reason under this Agreement to
(a) be free and clear of all liens (other than liens of Friiway) and rights of third parties;
(b) be in the same condition as when delivered to You, ordinary wear and tear excepted;
(c) have all Subscribers insignia or markings removed or painted over and the areas where such markings were removed or painted over refurbished as necessary to blend with adjacent areas; and
(d) be in compliance with applicable law.
8.3 Lost Equipment. In the event that the Equipment is lost or stolen, You covenant You will, as soon as reasonably possible, file a police report to report the lost or stolen Equipment. Provided that You have filed a police report, in the event that the Equipment cannot be recovered, Friiway will charge you its then current lost Equipment fee.
9. Compliance with Law
9.1 You shall
(a) comply with all applicable laws, regulations, and ordinances and
(b) maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
10. Limitation of Liability
10.1 IN NO EVENT SHALL Friiway BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF ANY PROVISION OF THIS AGREEMENT, REGARDLESS OF
(A) WHETHER SUCH DAMAGES WERE FORESEEABLE,
(B) WHETHER OR NOT Friiway WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
- C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH
THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL FRIIWAY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL OF THE AMOUNTS PAID TO Friiway HEREUNDER.
11.1 You shall indemnify, defend, and hold harmless Friiway and its officers, directors, managers, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Party relating to any claim of a third party or Friiway arising out of or occurring in connection with the Equipment or Your negligence, willful misconduct, or breach of this Agreement. You shall not enter into any settlement without Friiway’s or Indemnified Party’s prior written consent.
12.1 YOU ACKNOWLEDGES THAT AUTOMOTIVE INSURANCE POLICIES MAY NOT PROVIDE COVERAGE FOR ACCIDENTS INVOLVING OR DAMAGE TO FRIIWAY’S VEHICLE. TO DETERMINE IF COVERAGE IS PROVIDED, YOU ACKNOWLEDGE THAT YOU SHOULD CONTACT YOUR AUTOMOTIVE INSURANCE COMPANY OR AGENT. TO THE EXTENT YOU HAVE AUTOMOTIVE OR ANY OTHER INSURANCE THAT WOULD COVER ANY CLAIMS, YOU AGREE THAT SUCH INSURANCE WOULD BE PRIMARY AND NONCONTRIBUTORY.
13. Term and Termination
13.1 The term of this Agreement commences on the date of this Agreement and for the period set forth in the selected subscription plan (the “Term”), unless and until earlier terminated as provided under this Agreement. In addition to any remedies that may be provided in this Agreement, either Party may terminate this Agreement with immediate effect upon notice to the other Party, if the other Party:
(a) fails to pay any amount when due under this Agreement and such failure continues for twenty-four (24) hours after the other Party’s receipt of notice of nonpayment;
(b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
(c) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
If You are in default of any of the terms and conditions of this Agreement, Friiway, and its agents, at Your risk, cost, and expense may enter Your premises where the Equipment is stored or used and recover the Equipment.
14. Confidential Information
14.1 All non-public, confidential, or proprietary information of Friiway, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Friiway to You, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Friiway in writing. Upon Friiway’s request, You shall promptly return all documents and other materials received from Friiway. Friiway shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is:
(a) in the public domain;
(b) known to Friiway at the time of disclosure; or
(c) rightfully obtained by You on a non-confidential basis from a third party.
15.1 Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
15.2 Survival. Subject to the limitations and other provisions of this Agreement:
(a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and
(b) any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
15.3 Notices. All notices, requests, consents, claims, demands, waivers, summons, and other legal process, and other similar types of communications hereunder must be in writing and addressed to the relevant Party at the address set forth on the first page of this Agreement (or to such other address that may be designated by the receiving Party from time to time in accordance with this Section). All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), or certified or registered mail (in each case, return receipt requested, postage prepaid). A notice is effective only (a) upon receipt by the receiving Party and (b) if the Party giving the notice has complied with the requirements of this Section.
15.4 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
15.5 Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party.
15.6 Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15.7 Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Your rights under Section 6 are Your exclusive remedies for the events specified therein.
15.8 Assignment; Successors and Assigns. You shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Friiway. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve You of any of its obligations hereunder. Friiway may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without Your prior written consent. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
15.9 No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
15.10 Choice of Law and Choice of Forum. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of California, without regard to the conflict of laws provisions of such State. Any legal suit, action, or proceeding arising out of or relating to this Agreement must be instituted in the federal courts of the United States of America or the courts of the State of California, in each case located in the City of San Francisco and County of San Francisco, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
15.11 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
15.12 Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Subscriber to make payments to Friiway hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party.
15.13 Notification Procedures and Changes to this Agreement. Friiway may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to Subscriber via email notice, written or hard copy notice, or through posting of such notice on Friiway’s website, as determined by Friiway in its sole discretion. Freeway reserves the right to determine the form and means of providing notifications to its users, provided that Subscriber may opt out of certain means of notification as described in this Agreement. When Friiway changes this Agreement in a material manner, Friiway will update the ‘last modified’ date at the top of this page and notify Subscriber that material changes have been made to this Agreement. Subscriber's continued use of the Equipment after any such change constitutes your acceptance of the new Agreement. If Subscriber does not agree to any of these terms or any future Agreement, Subscriber should not use the Equipment and should return it pursuant to Section 8.
15.14 Headings. Headings in this Agreement are for convenience of reference only, and are not to be used in any interpretation of the agreement between the Parties.