Beach E-Biking Rental Agreement
This Beach E-Biking Rental Agreement is entered into as of the date set forth herein between the undersigned (“Rider”) and Electric Rides LLC, a California limited liability company, dba Beach E Biking (the “Company”) in relation to the rental, operation, and use (the “Rental”) by Rider of electric bicycles (including the frame, tires, wheels, seat, motor, brakes, battery, keys, theft remote control, LCD panel, basket, rack, lock, helmet, collectively the “E-Bike(s)”) and any related equipment supplied to Rider by the Company. The terms and conditions set forth herein, together with the attached Assumption of Risk and Waiver of Liability Agreement establish the rights and obligations of the Company and Rider in relation to the Rental and together may be referred to herein as the "Agreement". Each of Rider and the Company may be referred to herein as a “Party” and together as the “Parties”.
(1) Rental Payment. In consideration of the Rental and the use of the E-Bike as set forth herein, Rider hereby expressly agrees that the Company shall be entitled to charge the payment method provided by Rider (the “Payment Method”) at the rates and in the amounts set forth during the online reservation process (the “Rental Fees”). Rider hereby acknowledges and agrees that the Rental shall not commence without full execution of this Agreement and payment of the Rental Fees in full by Rider to the Company, and Rider’s execution of this Agreement shall constitute Rider’s acceptance of and agreement to pay such Rental Fees as set forth herein. Rider hereby acknowledges that the Rental Fees are not subject to sales tax but are subject to a non-refundable booking fee in the amount of six percent (6%) of the Rental Fees and a non-refundable processing fee in the amount of three percent (3%) of the Rental Fees (together the “Booking Fee”).
(2) Loss or Damage to E-Bike. Rider hereby acknowledges and agrees that in lieu of a security deposit, the Company shall be entitled to charge the Payment Method for any loss of or damage to the E-Bike and any related equipment, including, but not limited to, resulting from accident, collision, operator error, theft, vandalism, or otherwise, regardless of fault, in any amount up to the full replacement value of the E-Bike and any related equipment supplied to Rider by the Company. Prior to the Company charging the Payment Method for any amount beyond the Rental Fees in relation to any loss or damage to the E-Bike as set forth herein, the Company shall provide Rider with an invoice indicating the additional amount charged and the basis therefor (“Additional Invoice”). The Additional Invoice will be provided to Rider via e-mail at an e-mail address or other means of contact provided by Rider. Notwithstanding anything herein to the contrary, Rider hereby expressly authorizes the Company to charge the Payment Method in the amount set forth in the Additional Invoice, and Rider releases and forever discharges the Company of any liability on account of such charges.
(3) Cancellation. Rider hereby acknowledges and agrees that Rental reservations must be canceled fourteen (14) days prior to the scheduled Rental date and time in order to receive a full refund, less the amount of the non-refundable Booking Fee. In the event of any cancellation of the Rental between thirteen (13) and seven (7) days prior to the scheduled date and time of the Rental, Rider shall receive a fifty percent (50%) refund of the Rental Fees, less the amount of the non-refundable Booking Fee. Reservations cancelled less than seven (7) days prior to the scheduled Rental date and time will not receive a refund. In no event shall Rider’s failure to receive delivery of the E-Bike for any reason without prior notice to the Company entitle Rider to any refund of the Rental Fees. The Company and Rider hereby acknowledge and agree that the Company’s withholding of any portion of the Rental Fees in the event of a cancellation by Rider as set forth above shall not be deemed a penalty, but shall constitute the payment of liquidated damages, it being understood that actual damages to the Company caused thereby would extremely difficult, if not impossible, to ascertain. Subject to the foregoing, Rider may cancel the Rental at any time.
(4) Authorized Riders. Any user of the E-Bike under this Agreement must be at least eighteen (18) years old with government-issued identification, cell phone number, e-mail address, and a major credit card. Rider hereby acknowledges and agrees that the E-Bike is for the exclusive use of the Rider under this Agreement, and no other person may use, operate, or ride the E-Bike. Rider may not carry any passengers on the E-Bike at any time, and Rider is prohibited from pulling or towing any passenger or object with the E-Bike. Riders under the age of eighteen (18) must be accompanied by a legal guardian and have this Agreement, including the attached Assumption of Risk and Waiver of Liability Agreement, signed by an authorized parent/guardian. Rider hereby acknowledges that there is a three hundred fifty pound (350 lb.) weight limit for the E-Bikes. The Company reserves the right to cancel a Rental reservation or end a Rental if the Rider is not able to safely operate the bicycle as determined in the Company’s sole and absolute discretion.
(5) Use of E-Bike. Rider hereby acknowledges and agrees that the Rental and the use of the E-Bike are subject to all applicable local, state, and federal laws and regulations, and Rider will at all times operate the E-Bike at a speed of twenty (20) miles per hour or less only where permitted pursuant to applicable laws and regulations, and Rider will use the E-Bike only in a cautious, defensive, and prudent fashion and in compliance with such applicable laws. Rider further acknowledges and agrees that Rider is capable of operating the E-Bike in a competent manner and only for its intended use and operation. In addition, Rider acknowledges and agrees that Rider will use the E-Bike only during such times that he/she is not under the influence of alcohol or other substances which may cause an impairment in reactions or judgment. Rider agrees that the E-Bike will be safely stored and locked when not in use and in a covered area if kept overnight by Rider. Any user of the E-Bike under this Agreement will wear a properly fitted and fastened bicycle helmet while riding. The Rental includes a CPSC approved bicycle helmet, which is strongly recommended for all users eighteen (18) years and over and required for all users under eighteen (18) years of age. Rider hereby acknowledges and agrees that the Company reserves the right to refuse to provide service for any reason permitted by applicable law.
(6) Condition. Rider hereby agrees to accept the E-Bike in its current, as-is condition, without warranty or representation of any kind by the Company except as may be expressly set forth herein. Rider agrees to accept the E-Bike as being in good and satisfactory condition unless Rider provides the Company with notice of any defect prior to the completion of delivery of the E-Bike by the Company. Rider agrees that failure to provide such notice shall be conclusive that no defects existed in the E-Bike at the time of commencement of the Rental. Rider hereby acknowledges and agrees that some of the E-Bikes and components thereof in the Company’s inventory may need to be replaced or changed over time and may not be the specific E-Bikes shown in any picture or video provided or advertised by the Company. Rider hereby acknowledges and agrees that circumstances may exist in relation to the Rental that are beyond the reasonable control of the Company, and that despite its best efforts, the Company cannot guarantee the quality of Rider’s enjoyment of or experience during the Rental. Accordingly, no refunds, credits, or discounts, or offsets of any kind shall be granted to Rider arising out of any circumstance related to Rider’s enjoyment or the quality of Rider’s experience which is beyond the Company’s reasonable control. In the event of a mechanical malfunction, the Company will take reasonable action to resolve such issues quickly and arrange for repairs, if any, to be accomplished as soon as possible, taking into consideration service personnel workload, parts availability, and the nature of the repair. However, Rider hereby acknowledges and agrees that, except as expressly set forth herein, the Company will not offer credits, discounts, refunds, or offsets of any kind for any amounts paid or payable to the Company in relation to the Rental.
(7) Theft Prevention. Rider acknowledges that the Rental includes a lock and instructions on how to use it, and Rider agrees to take reasonable precautions to prevent theft of the E-Bike, including that Rider shall lock the E-Bike when it is not in use by securing a wheel and the frame to a secure bike rack with the lock provided. In the event of a theft or damage constituting a total loss of the E-Bike or any related equipment, Rider will be required to file a police report and provide the Company with a copy thereof, and the Company shall be authorized to charge the Payment Method for the full current replacement value of the E-Bike and any equipment as set forth herein.
(8) Bicycle Return. Rider hereby agrees to return the E-Bike and any related equipment to the Company in the same condition in which it was delivered. Rider agrees to return the E-Bike to the Company by the due date and time specified in the Rental reservation and at the same location where it was delivered, unless otherwise designated by the Company. Late returns will be charged additional rental rate until the bike is returned. Any E-Bikes and related equipment returned after the due and date and time specified in the Rental reservation shall be subject to a late fee (the “Late Fee”), in an amount of the Rental Fees prorated in proportion to the length of Rider’s delay in returning the E-Bike and equipment. Rider hereby authorizes the Company to charge the Payment Method for any Late Fee, and releases and forever discharges the Company of any liability on account of the same.
(9) Personal Property. The Company is not responsible for any damage to or loss of personal property of Rider during the Rental, except to the extent arising out of the gross negligence or willful misconduct of the Company and its agents, employees, or contractors. All personal property of Rider maintained in Rider’s possession or stored during the Rental shall be possessed or stored at Rider’s sole risk, and except to the extent arising out of the gross negligence or willful misconduct by the Company, its agents, employees, or contractors, Rider shall hold the Company harmless from any claims arising out of damage to or loss of the same.
(10) Use of Image and Likeness. Rider hereby expressly consents to the Company capturing, displaying, or otherwise using Rider’s image and likeness in the Company’s marketing materials, including photographs, videos, websites, brochures, posters, social media posts, or in any other medium, provided that such display or other use of Rider’s image and likeness shall be for the sole purpose of marketing the Company’s business and for no other purpose, and the Rider’s identity, address and personal information will remain strictly confidential. The provisions of this paragraph shall survive the termination of this Agreement, and Rider hereby agrees to release and forever discharge the Company of any and all claims arising out of the display or other use of Rider’s image and likeness.
(11) Dispute Resolution. The Company and Rider hereby agree to use commercially reasonable and good faith efforts to promptly resolve any disputes related to this Agreement prior to initiating arbitration as discussed below. The Parties agree to mediate any such matter before proceeding with any arbitration and as a requisite precursor to any such action. The failure of either Party to attend mediation before proceeding with any arbitration will result in the loss of that Party’s ability to recoup attorney’s fees, costs of suit and any other remedies available by law.
In the event of any dispute with regard to this Agreement not resolved by commercially reasonable and good faith efforts, including mediation, discussed above, the Parties agree to resolve the dispute pursuant to the “Expedited Arbitration Procedure”, as follows:
11.1. Within three (3) business days after a Party’s request to invoke the Expedited Arbitration Procedures, the Parties or their counsel will schedule and conduct a conference call with the Los Angeles office of JAMS during which they will either agree upon an arbitrator or JAMS will designate an arbitrator to determine the dispute. The Parties will seek designation of an arbitrator experienced with business disputes.
11.2. The Parties agree to utilize the Optional Expedited Arbitration Procedures of JAMS, subject to the following exceptions: (i) a Preliminary Conference with the arbitrator will be scheduled at the earliest possible date, which conference may be conducted by conference call; (ii) any requests for discovery are to be submitted within five (5) business days after said Preliminary Conference and will be completed by the recipient and submitted to the requesting Party within ten (10) business days thereafter; (iii) the arbitration is to be scheduled at the earliest possible date following the Preliminary Conference. Additionally, the arbitrator shall be entitled to establish further rules or procedures to allow short extensions of the above time limitations as the arbitrator may determine to be equitable, recognizing the Parties’ intent to resolve the dispute at the earliest possible date.
11.3. If a Party fails to participate in the arbitration as described above for any matter to be decided pursuant to the “Expedited Arbitration Procedure”, then for purposes of exercising its rights to remedies under this Agreement, the participating Party shall be deemed to have prevailed in the arbitration and shall be entitled to exercise the rights and remedies resulting therefrom.
11.4 Any matter otherwise subject to the Expedited Arbitration Procedure which involves a monetary dispute within the jurisdiction of a small claims court will instead be determined by that court.
THE FOLLOWING NOTICE APPLIES ONLY TO MATTERS TO BE DECIDED PURSUANT TO THE “EXPEDITED ARBITRATION PROCEDURE” PROVIDED FOR IN THIS AGREEMENT.
NOTICE: BY SIGNING THIS AGREEMENT YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE “EXPEDITED ARBITRATION PROCEDURE” PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE “EXPEDITED ARBITRATION PROCEDURE” PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF APPLICABLE CALIFORNIA LAW. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE “EXPEDITED ARBITRATION PROCEDURE” PROVISION TO NEUTRAL ARBITRATION.
(12) Miscellaneous. This Agreement shall be construed under the laws of the State of California in effect at the time of the signing of this Agreement. If any term or provision of this Agreement, or its application to any Party or set of circumstances, shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term or provision to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and each shall be valid and enforceable to the fullest extent permitted by law. All exhibits, including the Assumption of Risk and Release of Liability Agreement attached hereto are incorporated in this Agreement by this reference. Signatures sent by electronic means shall be valid as original wet ink signatures.
November 30, 2022
ASSUMPTION OF RISK AND WAIVER OF LIABILITY AGREEMENT
The undersigned (“Rider”) hereby acknowledges and agrees that the rental and/or purchase, operation, and use of electric bicycles (or “E-Bikes”) and any related equipment (collectively the “Activities”) may involve risks of injury to persons and property, and Rider hereby fully assumes responsibility for any such risks, and hereby releases Electric Rides LLC, a California limited liability company, dba Beach E Biking (“Electric Rides”), as well as its members, managers, officers, directors, shareholders, agents, and employees from any liability whatsoever arising out of the Activities as set forth herein.
RIDER’S ASSUMPTION OF RISK AND RELASE OF LIABILITY
As the “Rider” under this Agreement, I understand that the Activities involve inherent anticipated and unanticipated risks that could result in serious bodily injury, permanent disability, or death, including, without limitation: musculoskeletal injury, traumatic brain injury, cardiovascular distress, illness, or complication, and exposure to and infection with COVID-19 or other communicable illness. I further understand that the risks arising out of the Activities may include, but are not limited to: falling from the E-Bike; colliding with other E-Bikes, bicycles, automobiles, motorcycles, motor vehicles, persons, or other objects; and suffering a sudden loss of control, whether from uneven surfaces, irregular road conditions, topography, flat tires, brakes failing, equipment malfunctions, hazards relating to weather conditions, operator error, and other causes, whether similar or dissimilar to the foregoing. I hereby acknowledge and agree that the description of the foregoing risks is not complete, that there are other risks inherent in my participation in the Activities and that these inherent risks cannot be eliminated. By choosing to participate in these Activities, I acknowledge that: a) serious injury, including death, may occur as a result of my participation in the Activities, either by my own actions or inactions, by the actions of others, by the conditions in which the Activities takes place, or by the negligence of the Released Parties named below; and (b) I am assuming responsibility for all risks of injury, death, illness, or other damage arising from the Activities, whether or not such risks have been identified or specified herein.
I hereby acknowledge and agree that my participation in the Activities is purely voluntary and, in consideration of the opportunity for such participation, I, for myself and my heirs, executors, personal representatives, administrators, estate, spouse, marital estate, and assigns, hereby release, discharge, and covenant not to bring any claims, actions or lawsuits against Electric Rides, and its respective affiliated companies, members, managers, owners, officers, agents, employees, contractors, and other persons or entities acting on behalf of Electric Rides or involved therewith (collectively the "Released Parties") for any injuries, losses or damages I may suffer as a result of my participation in any of the Activities, including, to the extent allowed by law, the negligence of such Released Parties. I further acknowledge and agree that the Released Parties do not provide any insurance coverage with regard to any potential injury that I might sustain as a result of my participation in the Activities, and that if I wish to obtain any such insurance coverage it is my sole responsibility to do so, else I must bear such injury or damage at my sole cost and expense. Furthermore, to the extent allowed by law, in no event will Electric Rides or the Released Parties be liable for any indirect, special, implied, incidental, consequential or other damages, however caused, whether for breach of contract, negligence or otherwise, and whether or not Rider or any other individual or entity has been advised of the possibility of such damages occurring.
To the extent permitted under applicable law, I hereby agree to defend, indemnify and hold the Released Parties harmless from any and all losses, liabilities, damages, claims, actions, costs, expenses or proceedings of any kind, including any direct and third-party claims, whether arising out of the negligence of the Released Parties or any other cause whatsoever, which may be initiated by any person, entity, or organization for loss, injury, or damage arising out of my participation in the Activities, including, without limitation, reimbursement of all legal costs and reasonable attorneys' fees and insurance deductibles incurred by the Released Parties in defending against any such claim, action or proceeding.
REPRESENTATIONS OF RIDER
I hereby represent and covenant that I am at least eighteen (18) years old. I have read this document, and I am signing it of my own free will. I understand the legal consequence of signing this document, including that: (1) I am releasing the Released Parties from all liability for all claims arising from the risks associated with the Activities; (2) that I am waiving my right to sue the Released Parties for actions relating to the Activities; (3) that I am assuming all risks inherent in said Activities or in any events incidental to said Activities; and (4) that I am agreeing to indemnify, defend, and hold the Released Parties harmless from any liability arising out of the Activities. I further represent that I am generally in good health and physical condition, I possess the capacity to make informed, objective decisions, and that to the best of my knowledge, I do not have any physical or psychological condition that would be likely to interfere with my participation in the Activities or cause me to pose a risk to others in relation thereto.
I hereby acknowledge and agree that I have been advised to wear approved protective equipment, including, but not limited to, a helmet and highly visible clothing, and to use any lighting or reflective devices in accordance with applicable law at any time during which I am engaged in the Activities. I acknowledge and agree that the Activities are subject to all applicable local, state, and federal laws and regulations, and I will at all times operate the E-Bike at a speed of twenty (20) miles per hour or less only where permitted pursuant to applicable laws and regulations, and I will engage in the Activities in a cautious, defensive, and prudent fashion and in compliance with such applicable laws. I hereby further acknowledge and agree that I am capable of operating the E-Bike in a competent manner and only for its intended use and operation, I have received an instructional safety orientation, and any questions regarding the same have been answered to my full satisfaction. In addition, I acknowledge and agree that I will engage in the Activities only during such times that I am not under the influence of alcohol or other substances which may cause an impairment in reactions or judgment.
I understand that this document is written to be as broad and inclusive as legally permitted by the state in which the Activities occur. I agree that if any portion of this document is held invalid or unenforceable, the remaining terms of the document will continue to apply with full force and effect, and that I will continue to be bound thereby.