Last updated: January 1, 2019
BEFORE YOU CLICK “I ACCEPT” BELOW, PLEASE READ EACH PROVISION OF THIS AGREEMENT CAREFULLY. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICES, HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL LIMIT OR ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS. BY CLICKING “I ACCEPT” OR BY SIGNING UP, CHECKING A BOX, REGISTERING FOR, ACCESSING, VISITING, BROWSING, USING OR ATTEMPTING TO INTERACT WITH OR USE ANY PART OF THE WEBSITE, BY DOWNLOADING THE APP, OR OTHERWISE PROVIDE CONSENT TO AN APPLICATION SCREEN OR USER FORM WHICH REFERENCES THESE TERMS, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE LEGALLY BOUND AND TO ABIDE BY THIS AGREEMENT AND ANY POLICIES, GUIDELINES OR RULES APPLICABLE TO THE SERVICES AND POSTED ON THE WEBSITE OR IN THE MOBILE APPLICATION. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICES.
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS FURTHER DETAILED IN SECTION 8 BELOW. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. BY AGREEING TO WAIVE CLASS ACTION RIGHTS, EACH PARTY AGREES THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION.
This User Agreement (“Agreement”) contains the terms and conditions between you (“You”, “Your”, or User), and Gotcha Mobility, LLC and any of its affiliates with offices at 7 Radcliffe St. Charleston, SC 29403 (“Our”, “We”, or “Gotcha”), which You will submit information to, rent asset(s) from, and participate in a shared mobility system operated by Gotcha.
- Services. We offer a service comprised of the following: (a) an automated self-serve shared mobility rental system, that includes our bicycles (“Bike”), e-bicycles (“E-Bike”), e-scooters (“E-Scooter”) and other similar shared mobility assets (individually or collectively, the “Asset(s)”); (b) hub station(s) (“Station(s)”) where the Assets may be docked at a designated rack (“Rack”) or parking locations (“Locations”) using an electronically controlled lock (“Lock”); (c) our proprietary maintenance, charging, and operation system, along with all related equipment; (d) the mobile application (“App”), the Gotcha provided website, ridegotcha.com, and any related system specific website (individually and collectively “Website(s)”) related software and technologies; and (e) all information made available by us.
2. Rental and Use of Assets.
- Sole You agree and acknowledge that You are renting the Asset and that except as provided in Section 8.2, You are the sole user and You are responsible for compliance with the terms and conditions found in this Agreement. You acknowledge that ownership of the Asset(s) remains with Gotcha at all times. A valid credit card is required to rent an Asset through the APP or Website.
- User Age. The Asset(s) must be rented by individuals at least 18 years of You certify by accepting this Agreement that you are at least 18 years of age. Minors who are 16 years of age or older may use the Bike only if: (a) local law does not prevent a minor from riding an Asset on public property; (b) if the use of the Service is subscribed for and supervised by the minor’s parent or legal guardian; (c) the parent or legal guardian agrees that he or she is fully and completely responsible and liable for all injuries, damages, costs, and expenses arising from or related to the minor’s use of the Service; (d) the parent or legal guardian represents, warrants, and agrees that he or she is the minor’s parent or legal guardian; and € that he or she and the minor have all accepted and agreed to all terms and conditions of this Agreement.
USE OF ANY E-ASSET BY A MINOR IS STRICTLY PROHIBITED. IF YOU ALLOW A MINOR TO USE AN E-ASSET UNDER YOUR ACCOUNT YOU SHALL BE RESPONSIBLE FOR ANY AND ALL USE AND MISUSE AND RESULTING CLAIMS (AS DEFINED BELOW). USE OF SERVICE IS PROHIBITED BY ANYONE YOUNGER THAN 16 YEARS OF AGE, WHETHER OR NOT ACCOMPANIED BY A PARENT OR GUARDIAN. IF A USER FALSIFIES OR MISREPRESENTS THEIR AGE, THE USER AND THEIR LEGAL GUARDIAN ACCEPT FULL RESPONSIBILITY FOR ALL CLAIMS (AS DEFINED BELOW) RELATED TO SUCH MISREPRESENTATION.
- Availability of Service. We will make every effort to provide the Service, but We do not guarantee, represent, or warrant that the Service will be available at all times; access to Assets is conditioned upon the availability of We may suspend all or part of the Service, may relocate Assets, reduce the number of Assets available for rent, and otherwise operate the Service in our sole discretion. Members should use the Website or App to check the availability of Assets. You agree that We may require You to return an Asset at any time and that You shall comply with any such requirement.
- State of Good Repair. We will make every effort to provide Assets that are usable and in a state of general good Before using an Asset, You shall inspect such Asset for defects and report to Gotcha any such defect. You must report defects to Gotcha by using the repair function via the App or “Contact Us” number on the Asset. If You notice an Asset with a defect, You must use a different Asset.
- Use of the Asset(s). You agree that You will only use the Assets in areas where the Assets are You agree you will not use any Asset in any restricted areas, and you assume all responsibility and liability for any operation of nay Asset in any restricted area. You agree to treat the Asset(s) with great care. You are responsible for loss or damage to the Asset(s) rented by You due to theft, mysterious disappearance, or any other cause, other than ordinary wear and tear.
- Locking the Asset(s). If You leave an Asset unattended at any time for any reason, You are responsible for securing the Asset by deploying the Lock to protect against theft of the You shall not leave any Asset unattended and unsecured at any location at any time for any reason.
- Returning the Asset(s). Upon the end of the Rental Period (defined below), You agree to return the Asset to one of the Stations or Locations listed on the Mobile Application and to secure the Asset by deploying the If you fail to return an Asset to a designated Station or Location additional fees may apply. You agree to refer to the Website and App for further requirements for returning the Asset(s) and to comply with any and all such requirements and instructions.
- Restricted Uses. You expressly agree that you will not do any of the following acts (“Restricted Uses”):
- Use any Asset if You are younger than 18 years of age except as specified in Section 2.
- Use any Asset if You exceed the maximum weight limit (275 pounds) of the
- Use any Asset if You have any existing physical or mental condition that would prohibit You from safely operating the
- Operate an Asset while carrying any item that impedes Your ability to safely operate the
- Operate an Asset while under the influence of alcohol, drugs, or any other substance that impairs Your ability to safely operate the
- Use any cell phone or mobile electronic device for any use that distracts You from the safe operation of the Asset, including but not limited to phone calls or text
- Allow any other person to use the Asset or allow more than one person to be carried on the
- If applicable, overfill the Asset basket or place objects weighing in total more 20 pounds in the Asset
- Violate any applicable federal, state, or local law or
- Operate or use an Asset in any manner during adverse weather conditions, including but not limited to hail, dust storms, fog, heavy rains, or lightning
- Ride or operate an Asset that has any defect, fails to operate as a properly functioning bicycle, or that is in need of
- Use the Asset if it, or any component of it, appears to become defective or
- Use the Asset for racing, tricks, jumping, stunt riding, and/or off-road
- Use the Asset for any commercial
- Use any locking mechanisms other than those provided by
- Tow, pull, carry, or push any person or object with an
- Remove, dismantle, write on, deface, misuse, or modify any accessories, parts, or components of any
3. Payment and Fees.
- Fees. We agree to rent to You, and You agree to rent from Gotcha, the Asset(s) through the Service subject to the terms and conditions of this Agreement and in accordance with the rates set forth on the Website or App, which are subject to applicable sales taxes and other local government charges and which may be modified from time to time at Our sole We will charge your credit or debit card (collectively, Your “Card”) or other agreed payment methods, the amount of the fees as described in this Agreement.
- Penalties and You agree to pay any fines, fees, penalties, impounding charges, and/or any other charges incurred by Gotcha, that result from your parking any Asset improperly, or a result of You violating any law, rule, regulation, and/or ordinance while using the Services.
- Promo Codes. Promo Codes (“Discounts”) are one-time offers and can only be redeemed via the We reserve the right to modify or cancel Discounts at any time. Discounts are limited to one per customer and account and may not be combined with other offers. Discounts are non-transferable and may not be resold or redeemed for cash value.
- Maximum Rental Time. You understand and agree that the purpose of the Service is to provide short-term access to Assets and that Your use of any one Asset in the Service should be limited to a period of 24 Any Asset(s) not returned within 24 hours will be deemed stolen or lost. You assume full responsibility for care of the Asset(s) during the period of time You rent the Asset(s) (“Rental Period”).
- Collections. All amounts due and payable to Gotcha will be charged to Your In the event that the credit card charges are not paid to Gotcha, other collection procedures will be employed. You agree to pay all of Our costs of collection, including without limitation reasonable attorneys’ fees, if You do not pay amounts owed hereunder when due.
- Damage or Stolen Asset. If the Asset(s) is damaged, stolen, or lost during the Rental Period, You shall immediately return any such damaged Asset(s) and report any such stolen or lost Asset to You shall compensate Gotcha if the Asset(s) is damaged, stolen, or lost during the Rental Period. Amounts due for a damaged, stolen, or lost Asset(s) will be charged to the credit or debit card associated with Your account up to a maximum of $1,500 per Asset. If the Asset(s) is damaged, You will be charged the cost to repair damages, as determined by Gotcha in our sole discretion, when the damages are reported to or discovered by Gotcha. You hereby authorize Gotcha to charge Your credit or debit card for all fees incurred by You as well as such amounts due in connection with any damaged, stolen, or lost Asset. If You dispute any charge on Your account, then You must contact Gotcha within ten (10) days of Your receipt of Your statement containing the disputed charge and provide trip information that is necessary to identify the disputed charge. The above does not restrict Gotcha in any way to recover all costs associated with the any damage or recovery of an Asset, including but not limited to attorney fees, employee time to fix, and the cost included above.
- Subscription. We may offer a number of membership plans, including special promotional plans or memberships with differing conditions and Any materially different terms from those described in this Agreement will be disclosed at Your sign- up or in other communications made available to You. Some promotional memberships are offered by third parties in conjunction with the provision of their own products and services. We are not responsible for the products and services provided by such third parties. We reserve the right to modify, terminate or otherwise amend Our offered membership plans.
- Required Information. You shall provide us with Your name, address, phone number, email, and payment information, as well as other information as may be
- Subscription Term and Termination. Except in the event of a free trial offer, Your subscription will commence as of the date Your payment for a subscription is received by Your subscription will continue in full force for the length of the term You specifically purchased or on a month-to-month term until such time as You cancel the subscription as further explained below (the “Subscription Term”). In the event that You cancel a subscription in the middle of Your Subscription Term, You will not be entitled to receive a refund for the unused portion of the remainder of that Subscription Term. Gotcha will have the right, upon written notice to You, to terminate this Agreement, and suspend Your access to their subscription, if: (a) You fail to pay Gotcha any amount due under this Agreement; and/or (b) You materially breach any term or condition of this Agreement. Gotcha shall have the right to terminate this Agreement and suspend Your access to the subscription with or without cause, upon thirty (30) days written notice to You in which case You will no longer be charged for access to the
subscription. Upon the expiration or termination of this Agreement for any reason, Your access to, and use of, their subscription will terminate.
- Free Trials and Promotional Offerings. We may offer promotional trial subscriptions to access the Services for free for a limited time or at special discounted If You sign up for a trial use, Your rights to use the Services are limited by the terms of such trial and will terminate or renew on the terms of Your trial arrangement and/or any applicable Additional Terms. Please be aware that when You sign up for a free trial, You will be required to provide Your Card number and Gotcha will confirm Your Card is valid. When We process Your Card, some credit card companies may place a temporary hold on Your account for Your first payment. Please contact Your Card company if You have questions.
ONCE YOUR FREE TRIAL ENDS, WE OR A THIRD PARTY PAYMENT PROCESSOR WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES), UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR FREE TRIAL.
- Auto-Renewal of Subscription Membership. Your subscription to the Services will automatically renew at the end of Your Subscription Term continuously and indefinitely without action by You, and the subscription membership fee will be charged to You at the time of Once Your membership fee has been paid You will be entitled to all privileges included in the membership until the membership is cancelled by You as set forth in the paragraph below. By providing Your payment method information for Your subscription, You are agreeing to pay a subscription fee (and any applicable taxes and service fees (collectively, “Subscription Fees”), that will automatically renew, at the then current rate, unless You cancel prior to the expiration of the current Subscription Term. The Subscription Fees will be charged to Your original payment method automatically at the beginning of Your Subscription Term, and at the beginning of each renewal Subscription Term thereafter on the calendar day corresponding to the commencement of Your current Subscription Term, unless You cancel Your subscription, or Your account is suspended or terminated pursuant to this Agreement. The renewal Subscription Term will be the same length as Your initial Subscription Term unless otherwise disclosed to You at the time of sale. The rate for the renewal Subscription Term will be the then current subscription-rate. The Subscription Fees charged to Your payment method may vary from Subscription Term to Subscription Term due to changes in Your subscription plan or applicable taxes, and You authorize Gotcha to charge Your payment method for these amounts. Gotcha reserves the right to change the pricing of subscription at any time. In the event of a price change, Gotcha will post the new pricing on the Services and attempt to notify You in advance by sending an email to the address You have registered for Your account. You agree that We may change the pricing We charge You for Your subscription and any Products/Services offered in Your subscription package by providing You with notice through an electronic communication from us and You agree that all agreements, notices, disclosures, and/or any other communications that We provide to You electronically satisfy any legal requirement that such communications be in writing. You consent to our ability to change our pricing and the details of our subscription packages through an electronic communication to You. If You do not wish to accept a price or subscription package change made by us, You may cancel Your subscription as described below, otherwise You will be deemed to have consented to the price/subscription package change and authorize Gotcha to charge the new Subscription Fees to Your payment method. If there are any discrepancies in billing, You hereby waive Your right to dispute such discrepancies if You do not notify Gotcha within sixty (60) days after they first appear on an account statement.
- Cancellation of Subscription Membership. You have the right to cancel Your subscription membership at any time upon notice to You may cancel your Subscription though the App or Website. There are no refunds or credits for partial months. Cancellation of initial membership any time after purchase will result in forfeiture of the membership fee. To avoid a late cancellation fee or forfeiture of the membership renewal fee, membership should be cancelled prior to the end of the then current Subscription Term. Upon cancellation, You will lose access to the areas of the Services designated for subscription members only. This could include any credit and other data and analyses that have been displayed during Your subscription membership.
- Account Registration And Security. You understand that You will need to create an account to have access to the You will: (a) provide true, accurate, current and complete information about You as prompted by the Services’ registration or subscription page (such information being the “Registration Data”) and (b) maintain and promptly update the Registration
Data to keep it true, accurate, current and complete. If You provide any information that is untrue, inaccurate, not current or incomplete, or Gotcha has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Gotcha has the right to suspend or terminate Your account and refuse any and all current or future use of the Services (or any portion thereof). You are entirely responsible for the security and confidentiality of Your password and account. Furthermore, You are entirely responsible for any and all activities that occur under Your account. You will not share Your account information or Your user name and password with any third party or permit any third party to logon to the Services using Your account information. You agree to immediately notify us of any unauthorized use of Your account or any other breach of security of which You become aware. You are responsible for taking precautions and providing security measures best suited for Your situation and intended use of the Services. We have the right to provide Your billing, account, Content or use records, and related information under certain circumstances (such as in response to legal responsibility, lawful process, orders, subpoenas, or warrants, or to protect our rights, customers or business, or in some cases, as a result of mandatory data sharing with governments). Please note that anyone able to provide Your personally identifiable information will be able to access Your account so You should take reasonable steps to protect this information.
6. No Warranty. THE ASSET IS RENTED TO YOU AS IS AND ALL SERVICES ARE PROVIDED AS AVAILABLE WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE CAUSED BY THE ASSET(S).
- ASSUMPTION OF RISK, RELEASE AND WAIVER OF LIABILITY, AND INDEMNITY. In consideration for Your use of any of the Services You hereby freely and voluntarily acknowledge and/or take action for yourself, and on behalf of Your spouse, children, parents, guardians, heirs, next of kin, and any legal or personal representatives, executor, administrators, successors and assigns, or anyone else who might claim or sue on Your behalf, as follows:
- Assumption of Risk. YOU HEREBY ACKNOWLEDGE AND ASSUME ALL RISKS OF USING THE You acknowledge that riding any Asset is inherently dangerous and carries with it the potential for serious bodily injury, permanent disability, paralysis, death, property damage, and loss. You acknowledge and agree that it is Your responsibility to determine whether You are sufficiently fit and healthy enough to use the Service, which You elect voluntarily. You have no physical or medical condition that would endanger You or others if You participate in the program, or would interfere with Your ability to safely use the Service. You also certify that You have not been advised against using any Asset by any health professional. You understand and acknowledge that there may be heavy vehicle and pedestrian traffic. You assume all other risks associated with using the Service including without limitation: falls; dangers of collision with vehicles, pedestrians, and fixed objects; dangers arising from surface hazards, equipment design failure, and inadequate safety equipment; hazards posed by vehicles, pedestrians, and other shared mobility riders; and weather conditions. You further acknowledge that these risks include risks that may be the result of the failure and/or design of equipment supplied by, or the negligent acts, omissions and/or carelessness of, the Released Parties.
- Safety. You have been advised you are required to wear a protective helmet while using the You understand and acknowledge the increased risk for personal injury, permanent disability, paralysis and death due to not wearing a protective helmet. You assume responsibility for any injury, loss, or damage associated with Your choosing not to wear a protective helmet; further, because helmets do not protect against all head injuries, and do not protect against other injuries, You assume responsibility for any injury, loss, or damages associated with Your use of the Service even if You choose to wear a protective helmet.
- Alcohol and Controlled Substances. Use of alcohol and controlled substances while on an Asset is strictly You may not use the Service while impaired or under the influence of alcohol or substances that would impair your ability to use such Asset. You understand and acknowledge the dangers associated with the consumption of alcohol and/or controlled substances while riding an Asset and You recognize that consumption of alcohol and/or controlled substances might impair Your judgment and motor skills. You assume responsibility for any injury, loss, or damage associated with Your consumption of alcohol and/or controlled substances.
- Waiver. YOU WAIVE, RELEASE, AND FOREVER DISCHARGE GOTCHA, THE SERVICE’S SPONSORS, ORGANIZERS, PROMOTERS, STAFF, ADVERTISERS, VOLUNTEERS, PROPERTY OWNERS, ADMINISTRATORS, CONTRACTORS, ANY AND ALL OTHER VENDORS AND ALL OTHER INDIVIDUALS OR ENTITIES INVOLVED WITH THE SERVICE, AND ALL STATE, CITY, TOWN, COUNTY, AND OTHER GOVERNMENTAL BODIES AND/OR MUNICIPAL AGENCIES WHOSE PROPERTY AND/OR PERSONNEL ARE USED AND/OR IN ANY
WAY ASSIST IN LOCATIONS IN WHICH THE SERVICE TAKE PLACE, AND EACH OF THEIR RESPECTIVE PARENT, SUBSIDIARY AND AFFILIATED COMPANIES, OFFICERS, DIRECTORS, PARTNERS, BOARD MEMBERS, SHAREHOLDERS, ATTORNEYS, INSURERS, AGENTS, EMPLOYEES, VOLUNTEERS, AND OTHER PARTICIPANTS AND REPRESENTATIVES (INDIVIDUALLY AND COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL CLAIMS, LIABILITIES OF EVERY KIND, DEMANDS, DAMAGES (INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL AND PUNITIVE), LOSSES AND CAUSES OF ACTION (WHETHER KNOWN, UNKNOWN, ASSERTED, UNASSERTED, FIXED, CONDITIONAL, OR CONTINGENT), OF ANY KIND OR NATURE (INCLUDING WITHOUT LIMITATION, THOSE BASED IN CONTRACT, TORT, STATUTORY, OR OTHER GROUNDS, WHICH YOU HAVE OR MAY HAVE IN THE FUTURE, INCLUDING COURT COSTS, ATTORNEYS’ FEES AND LITIGATION EXPENSES (INDIVIDUALLY AND COLLECTIVELY, THE “CLAIMS”) THAT MAY ARISE OUT OF, OR RESULT FROM, YOUR PARTICIPATION IN THE SERVICE, INCLUDING YOUR DEATH, PERSONAL INJURY, PARTIAL OR PERMANENT DISABILITY, NEGLIGENCE, PROPERTY DAMAGE AND DAMAGES OF ANY KIND, PROPERTY THEFT, AND CLAIMS RELATING TO THE PROVISION OF FIRST AID, MEDICAL CARE, MEDICAL TREATMENT, OR MEDICAL DECISIONS AND ANY CLAIMS FOR MEDICAL OR HOSPITAL EXPENSES, EVEN IF SUCH CLAIMS ARE CAUSED BY THE NEGLIGENT ACTS, OMISSIONS, OR THE CARELESSNESS OF THE RELEASED PARTIES AND EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS. ANY SUCH RELEASE IS INTENDED TO BE A COMPLETE AND GENERAL RELEASE OF ALL CLAIMS. THE RELEASED PARTIES MAY PLEAD SUCH RELEASES AS A COMPLETE AND SUFFICIENT DEFENSE TO ANY CLAIM, AS INTENDED THIRD PARTY BENEFICIARIES OF SUCH RELEASES.
You further covenant and agree not to sue any of the Released Parties for any of the Claims that You have waived, released, or discharged herein. You agree to indemnify, defend, and hold harmless the Released Parties from any and all expenses incurred, Claims made by You or third parties, for liabilities assessed against the Released Parties, including but not limited to court costs, attorneys’ fees, and litigation expenses, arising out of or resulting from, directly or indirectly, in whole or in part, Your breach or failure to abide by any part of this Waiver, by Your breach or failure to abide by the rules of the Service and/or Your actions or inactions which cause injury or damage to any other person, understanding that all court costs, attorneys’ fees, and litigation expenses that arise out of such defense will be indemnified by You. You understand that the Service does not provide insurance coverage for injuries incurred during the Service. You agree to be responsible and assume liability for any and all costs incurred as a result of participation in the Service, including without limitation ambulance transport services, hospital stays, medical treatment, except for care and treatment covered by Your insurance. You agree to indemnify and hold harmless the Released Parties from all liability for such costs.
FOR THE AVOIDANCE OF DOUBT, YOU DO HEREBY ACKNOWLEDGE AND AGREE THAT WE AND ALL OTHER RELEASED PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR ANY CLAIM THAT ARISES OUT OF OR RELATES TO (A) ANY RISK, DANGER, OR HAZARD DESCRIBED IN THIS AGREEMENT, (B) YOUR USE OF, OR INABILITY TO USE, ANY SERVICE, ASSET, OR RELATED INFORMATION,
(C) YOUR BREACH OF THIS AGREEMENT OR YOUR VIOLATION OF ANY LAW, (D) ANY MISCONDUCT, OR OTHER ACTION OR INACTION BY YOU, OR (E) YOUR FAILURE TO WEAR A HELMET WHILE PARTICIPATING IN THE SERVICE. YOU DO HEREBY WAIVE ALL CLAIMS WITH RESPECT TO ANY OF THE FOREGOING, INCLUDING THOSE BASED IN CONTRACT, TORT, STATUTORY, OR OTHER GROUNDS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE OR ANY RELEASED PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM PARTICIPATION IN THE SERVICE OR THE USE OF, OR INABILITY TO USE, THE SERVICES. IF WE, OR ANY RELEASED PARTY, ARE FOUND TO BE LIABLE, SUCH LIABILITY SHALL BE LIMITED TO THE GREATER OF (A) THE TOTAL FEES PAID HEREUNDER OR (B) ONE HUNDRED US DOLLARS ($100).
- Arbitration; Class Action Waiver; Dispute Resolution.
- Binding Arbitration. ANY AND ALL DISPUTES ARISING BETWEEN YOU AND GOTCHA (WHETHER BASED IN CONTRACT, LAW, STATUTE, RULE, REGULATION, ORDINANCE, TORT INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE, COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDENT SUPERIOR, AGENCY AND/OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, MUST BE RESOLVED BY FINAL AND BINDING THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE SERVICES. The Federal Arbitration Act (“FAA”),
not state law, shall govern the arbitrability of all disputes between Gotcha and You regarding this Agreement (and any Additional Terms) and the Services, including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. Gotcha and
You agree, however, that State or federal law shall apply to, and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between You and Gotcha regarding this Agreement and the Services, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to State’s choice of law principles.
- Applicability of JAMS Rules and Location of Arbitration. A Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the Judicial Arbitration and Mediation Services (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that You and an officer or legal representative of Gotcha consent to in writing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where You are a resident at the time the Dispute is submitted to arbitration. You and Gotcha will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Gotcha to pay a greater portion or all of such fees and costs in order for this Section 8 to be enforceable, then Gotcha will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator or arbitration panel, as the case may be, will apply and be bound by this Agreement and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award. All issues are for the arbitrator to decide, including arbitrability. This arbitration provision shall survive termination of this Agreement or the Services. You can obtain JAMS procedures, rules, and fee information as follows: JAMS: 800.352.5267 and www.jamsadr.com.
- Arbitrator’s Decision. The Arbitrator will render a written decision within the time frame specified in the JAMS Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The Arbitrator’s decision shall be final and binding on all parties. The prevailing party in the arbitration shall be entitled to an award of attorneys’ fees and costs, as long as the Arbitrator includes such an award of attorneys’ fees and costs in the written decision.
- Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR GOTCHA WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR GOTCHA MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH HEREIN) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES OR IT WILL BE FOREVER Commencing means, as applicable: (a) by delivery of written notice as set forth herein; (b) filing for arbitration with JAMS as set forth herein; or (c) filing an action in state or Federal court.
- Injunctive Relief. The foregoing provisions of this Section will not apply to any legal action taken by Gotcha to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Services, any Content, Your User Submissions and/or Gotcha’s intellectual property rights (including those that Gotcha may claim are in dispute), Gotcha’s operations, and/or Gotcha’s Products and/or
- No Class Action Matters. YOU AND GOTCHA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 8 to arbitrate will not apply and the Dispute must be brought exclusively in court. Notwithstanding any other provision of this Section 8, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
- Jurisdiction. Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising out of or related to this Agreement, any
Product, and/or any of the Services, may only be instituted in state or Federal court in Charleston County, South Carolina. Accordingly, You and Gotcha consent to the exclusive personal jurisdiction and venue of such courts for such matters.
- Term and Termination. We may unilaterally terminate Your right to use the Service, in Our sole discretion and without any notice or You may terminate Your use of the Service at any time; provided, however, that (i) no refund will be provided by Gotcha and (ii) You may still be charged any applicable additional fees arising under this Agreement. Sections 1, 2, 4, 5, 6, 7, 8 and 12 shall survive any termination or expiration of this Agreement.
- Not a Common Carrier. You agree that We are not a common Alternative means of public and private transportation are available to the general public and to You individually, including public buses and light rail service, taxis, and pedestrian paths. We provide Assets only as a convenience, and the Service is intended for those persons who are able and qualified to operate an Asset on their own and who have agreed to all terms and conditions of this Agreement.
- Modifications to Agreement. We reserve the right to unilaterally amend, modify, or change this Agreement (each a “Modification”), at any time in Our sole discretion, without Your Whenever a Modification is made to this Agreement, We will post a notification of such Modification on www.ridegotcha.com the “Website”) and/or send a notification via the mobile application or email address on file. By continuing to use the Service after any Modification, You agree to be bound by such Modification.
- The Agreement constitutes the entire agreement between You and Gotcha with respect to the subject matter hereof and is the final, complete, and exclusive statement of the terms of the Agreement, superseding all prior written and oral agreements, understandings, representations, and undertakings with respect to the subject matter hereof. You hereby give Gotcha the right to use Your image and likeness (including caricature), and any reproduction or simulation thereof, in any media now known or hereafter developed, both during and after the term of this Agreement, for whatever the purposes We deem necessary or desirable. You hereby waive any right to royalties or other compensation arising from or related to any such use by Gotcha or related entities. The waiver of any term or condition or any breach thereof shall not affect any other term of condition of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the State of South Carolina. If any provision of this Agreement shall be held illegal, unenforceable, or in conflict with any law of any authority having jurisdiction over this Agreement, the validity of the remaining portions or provisions hereof shall remain in full force and effect. We shall not be liable for failure to perform any of Our obligations hereunder for reasons that are beyond Our reasonable control, including, without limitation, fire, flood, earthquake, natural disaster, interruptions in supply, war, embargo, riots, or acts of terrorism.