Rental Agreement, Waiver of Liability and Release

Effective Date:June 3, 2021

 

PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE KICK SERVICES. In consideration of your (“Rider,” “You” or “Your”) use of any of the Kick Services (as defined herein) provided by Kick Inc. (“Kick”), Kick requires that You (acting on behalf of all of Rider’s family, heirs, agents, affiliates, representatives, successors, and assigns) agree to all of the terms and conditions contained in this this Kick Rental Agreement, Waiver of Liability, and Release (“Agreement”). The services provided by Kick include (1) the Kick mobile application (the “Kick App”) and the Kick website, https://www.Kickride.co (the “Kick Site”); and (2) Kick Electric Vehicles (“Vehicle” or “Vehicles”); (3) all other related equipment, personnel, services, applications, websites, and information provided, or made available, by Kick (collectively, the “Kick Services”). In addition to the Terms of Service, located at https://www.Kickride.co/terms-and-conditions, that You expressly agreed to when you signed up to use the Kick Services, You should CAREFULLY READ this Agreement in its entirety. THIS AGREEMENT CONTAINS RELEASES, DISCLAIMERS, AND ASSUMPTION-OF-RISK PROVISIONS AND A BINDING ARBITRATION AGREEMENT THAT LIMIT YOUR LEGAL RIGHTS AND REMEDIES. FOR MORE DETAILS, PLEASE REFER TO SECTIONS 9 AND 15 BELOW Kick expressly agrees to let, and the Rider expressly agrees to take on, rental of the Vehicle subject to the terms and conditions set forth herein. Unless otherwise indicated, all monetary values set forth in this Agreement shall be deemed to be denominated in U.S. dollars.

 

1. GENERAL RENTAL AND USE OF VEHICLE.

 

1.1 Rider is Sole User.

 

Kick and the Rider are the only parties to this Agreement. 

The Rider is the sole renter and is solely responsible for compliance with all terms and conditions contained herein. You understand that when You activate a vehicle, the vehicle must be used only by You. You must not allow any other person to use a vehicle that You have activated.

 

1.2 Rider is At Least 18 Years Old.

 

Rider represents and certifies that Rider is at least 18 years old. Persons under the age of 18 years old are prohibited from using or accessing the Kick Services.

 

1.3 Rider is a Competent Vehicle Operator.

 

Rider represents and certifies that he/she is familiar with the operation of the Vehicle, and that he/she is reasonably competent and physically fit to ride the Vehicle. This information may be updated periodically. By choosing to ride a Vehicle, Rider assumes all responsibilities and risks, as more fully detailed in Section 15 of this Agreement, for any injuries or medical conditions, including death, as well as property damage, incurred while utilizing the Kick Services. You are responsible for determining whether the conditions, including, without limitation, rain, fog, snow, hail, ice, heat or electrical storms, make it dangerous or hazardous to operate a Vehicle. You are advised to adjust Your riding behavior and braking distance in relation to all conditions, including, without limitation, the weather, visibility, surrounding environment and traffic conditions.

 

1.4 Vehicle is the Exclusive Property of Kick.

 

Rider agrees that the Vehicle and any and all equipment attached thereto, at all times, remain the exclusive property of Kick. You must not dismantle, deface, write on, repair, or otherwise modify, a Vehicle, any part of a Vehicle or other Kick equipment in any way. You must not write on, peel, or otherwise modify or deface any sticker on a Vehicle in any way. You must not use a Vehicle, or any other Kick equipment, for any advertising or other commercial purpose without the express prior written consent of Kick.

 

1.5 Vehicle Operating Hours and Vehicle Availability.

 

Rider agrees and acknowledges that the Vehicles are not available 24 hours a day, 7 days/week, 365 days per year. Vehicles must be rented within the maximum rental time limits set forth below. There is a finite number of Vehicles, and Kick does not guarantee Vehicle availability.

 

1.6 Vehicle May be Used and/or Operated only in.

 

Rider agrees to only use, operate, and/or ride the Vehicle in the fleet’s defined city limits.

1.7 Rider Must Follow Laws Regarding Use and/or Operation of Vehicle.

 

Rider agrees to follow all laws pertaining to the use, riding, parking, charging, and/or operation of the Vehicle, including all applicable federal, state and local laws, including any rules and regulations pertaining to vehicles in the area where You are operating the Vehicle, including, but not limited to, any helmet laws. Rider also agrees to act safely, and with courtesy and respect toward others while using the Kick Services.

 

1.8 Prohibited Acts.Rider agrees to the following:

 

Kick advises against the operation of a vehicle while carrying or holding a briefcase, backpack, bag, or other item that can alter the balance or impair safe operation of the vehicle. If You choose to bring such an item onto a vehicle, such an item must fit snugly to Your body and not impede, in any way, Your ability to safely operate the Vehicle.

You must not place objects on the handlebar of the Vehicle which in anyway interferes with your ability to properly and safely operate the Vehicle.
While riding a Vehicle, You must not use any cellular telephone, text messaging device, mobile communications device, portable music player, or any other device that may distract You from safely operating the Vehicle or the use of which is otherwise prohibited by any applicable laws, rules or regulations.
You must not operate a Vehicle while under the influence of any alcohol, drugs, medication, or other substance that may impair Your ability to operate a Vehicle safely or otherwise impair your judgment.

Only one rider is permitted on a Vehicle at any time.

No animals or pets are permitted to ride on a Vehicle.

You may only use locking mechanisms provided by Kick. You may not add another lock to the Vehicle or lock a Vehicle to anything.

The Vehicle must be parked at a lawful parking spot, in an upright position using the kickstand. The Vehicle cannot be parked on unauthorized private property, in a locked area, or in any other unapproved, non-public space. You should not park the Vehicle in heavily trafficked areas if the Vehicle is in danger of being knocked down.

1.9 Vehicle is Intended for Only Limited Types of Use.

 

Rider agrees that he/she will not use the Vehicle for racing, mountain riding or stunt or trick riding. Rider agrees that he/she will not operate and/or use the Vehicle on unpaved roads, through water (beyond normal urban riding) or in any location where the use of the Vehicle is prohibited, illegal and/or a nuisance to others. Rider agrees that he/she will not use the Vehicle for hire or reward, nor use it in violation of any applicable law, rule, ordinance or regulation.

 

1.10 Weight and Cargo Limits.

 

You must not exceed the maximum weight limit for the Vehicle which is 300 lbs.

 

1.11 No Tampering.

 

You must not tamper with; attempt to gain unauthorized access to; or otherwise use the Kick Services other than as specified in this Agreement.

 

1.12 Reporting of Damage or Crashes.

 

Rider must report any accident, crash, damage, personal injury or stolen or lost Vehicle to Kick as soon as possible. Additionally, Rider must file a report with the local police department within 24 hours of (i) an incident involving personal injury or property damage; or (ii) the theft of a Vehicle.Rider agrees that he/she is responsible and liable for all claims, costs and expenses related to Rider’s use of the Kick Services, including, but not limited to, any misuse, consequences, demands, causes of action, losses, liabilities, damages, injuries, deaths, property damage, penalties, attorney’s fees, judgments, suits or disbursements of any kind or nature whatsoever related to (i) Rider’s use of a Vehicle; or (ii) a stolen or lost Vehicle.

 

1.13 Rider Responsibility for Vehicle Use and Damage.

 

Rider agrees to return the Vehicle to Kick in the same condition in which it was rented, provided, however, Rider will not be responsible for normal wear and tear of the Vehicle.

 

1.14 Electric Vehicle.

 

The Vehicle is an electric Vehicle that requires periodic charging of its battery in order to operate. Rider agrees to use and operate the Vehicle safely and prudently in light of the Vehicle being an electric Vehicle, including all of the limitations and requirements associated therewith. Rider understands and agrees with each of the following:

 

The level of charge power remaining in the Vehicle will decrease with use of the Vehicle (depending on time, distance and speed), and that as the level of charge power of the Vehicle decreases, the speed and other operational capabilities of the Vehicle may decrease (or cease in their entirety.)
The level of charging power in the Vehicle at the time Rider initiates the rental or operation of the Vehicle is not guaranteed and will vary with each rental use.
The rate at which the Vehicle will lose its charge is not guaranteed and may vary (i) based on several factors, including, but not limited to, road conditions, weather conditions and the Rider’s weight; and (ii) from Vehicle to Vehicle.

It is Rider’s responsibility to check the level of charge power in the Vehicle and to ensure that it is adequate before initiating operation of the Vehicle.
The distance and/or time that Rider may operate the Vehicle before it loses charging power is never guaranteed.
The Vehicle may run out of charging power and/or cease to operate at any time during Rider’s rental of the Vehicle, including prior to returning the Vehicle.

1.15 Insurance. 

 

YOUR AUTOMOTIVE INSURANCE POLICIES MAY NOT PROVIDE COVERAGE FOR ACCIDENTS OR DAMAGES INVOLVING A VEHICLE OR DAMAGE TO A VEHICLE. TO DETERMINE IF COVERAGE IS PROVIDED, YOU SHOULD CONTACT YOUR AUTOMOTIVE INSURANCE COMPANY OR AGENT.

 

2. PAYMENT AND FEES.

 

2.1 Fees. 

 

Rider may use the Vehicle in accordance with the pricing described in the Kick App or the Kick Website. If there is a conflict between the pricing provided on the Kick App and the Kick Website, the pricing provided on the Kick Website shall govern. Pricing is subject to change.  In each case, fees and other charges may include applicable taxes and other local government charges.  You will be charged (through credit card, debit card, or another agreed payment method) the amount of the fees as described in this Agreement and the App.

 

Rider agrees that Kick may, in its sole discretion, pay all traffic tickets, costs/fees imposed in respect of violations, impound fees, fines and/or charges related to Rider’s actions on Rider’s behalf directly to the appropriate authority or applicable party. If Kick is required to pay and/or process such fees or associated costs, Rider agrees that Kick may charge You for the amount paid plus a reasonable administration charge for dealing with these matters; You will be provided notice of any such costs or fees.

 

Rider acknowledges that Kick may be obligated pursuant to rules, regulations, ordinances or laws of Municipalities or other applicable authorities to charge You fines or fees for Your actions in violation of such rules, regulations, ordinances or laws.  Rider agrees that Kick may charge You for these fines or fees as required. You will be provided notice of any such fines or fees charged to You.

 

In the event Kick uses a third party collection and/or administrative agent to resolve any tickets, damages, infringements of law or of this Agreement, fines and/or penalties, Rider agrees to pay all costs and collection fees including, but not limited to, administrative and legal costs to such agent upon demand without protest.

 

2.2 Referral and/or Promotional Codes.

 

Kick may, in its sole discretion, create referral and/or promotional codes (“Promo Codes”) that may be used for discounts or credits on Services provided by Kick, subject to any additional terms that Kick establishes. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, unless expressly permitted by Kick; (iii) may be disabled by Kick at any time for any reason without liability to Kick; (iv) may only be used pursuant to the specific terms that Kick establishes for such Promo Code; (v) are not valid for cash; (vi) may be subject to quantity or value limits; and (vii) may expire prior to Your use. Kick reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Promo Codes by You or any other user in the event that it determines or believes that the use of the referral system or use or redemption of the Promo Code was in error, fraudulent, illegal, or otherwise in violation of this Agreement or specific terms applicable to such Promo Codes.

 

2.3 Maximum Rental Time and Charges.

 

Rider agrees that Rider will deactivate the Vehicle rental within 24 hours of renting a Vehicle.  Rider may then rent again. Rider agrees that he/she is solely responsible for being aware of the length of any elapsed ride time. After the return of the Vehicle, Rider will be charged the accumulated rental charges.  

Rental time will be calculated from the moment of unlocking the Vehicle through the App until the Rider receives the confirmation through the App that the ride has been ended. If You end the ride incorrectly, this may result in the ride not being terminated. If the ride is not ended properly, the ride will continue and the Rider will continue to be charged. If You have technical issues terminating a ride for any reason, You should report this through the App immediately.  Failure to report an issue in terminating a ride may result in continued charges.

Vehicles and related equipment provided or made available by Kick not returned (with the ride concluded) within 24 hours will be considered lost or stolen, and Rider may be charged up to $750 plus administrative and processing fees.  Kick may also charge additional service fees for rentals in excess of 24 hours where the Vehicle is not lost or stolen.

 

2.4 Valid Payment Method.

 

To be registered to use Kick Services, Rider must provide a valid credit, debit card or prepaid card number and expiration date or other valid payment method information.  Rider represents and warrants to Kick that Rider is authorized to use any credit, debit or prepaid card or other payment method information Rider furnishes to Kick.  By providing Your payment method, You agree that Kick is authorized to charge You for Your ride and any other fees incurred by Rider under this Agreement, including all applicable governmental and regulatory charges and applicable sales and other taxes.

 

When You provide a payment method or in accordance with Kick policies, our system will attempt to verify the information You entered. We may do this by processing an authorization hold, which is a standard practice.  We do not charge You in connection with this authorization hold. If Your payment method expires and You do not update Your information or cancel Your account, You authorize us to continue billing, and You will remain responsible for any uncollected amounts. We reserve the right to retry billing all payment method(s) on file after any failed billing attempt. You will remain liable for all such amounts and all costs incurred in connection with the collection of these amounts, including, without limitation, bank overdraft fees, collection agency fees, reasonable attorneys’ fees, and arbitration or court costs.

 

Rider disputes any charge on Rider’s credit or debit card account, then Rider must contact Kick within 10 business days from the end of the month in which the disputed charge was incurred, and provide Kick with all information necessary to identify such disputed charge, including, but not limited to, the date of the rental, the Original Rental Location and the approximate start and end times of the rental. Rider agrees to immediately inform Kick of all changes relating to the card.

 

2.5 Pick Up Fees.

 

If You are unable to return a Vehicle to a valid area (i.e. You deactivate the Vehicle on private property, a locked community, or another unreachable area, or You leave the vehicle outside of the service area), Kick, at its sole discretion, may charge You a pick-up fee of up to $250 plus processing fees.  If any Vehicle accessed under Your account is abandoned without notice, You will be responsible for all trip fees until the Vehicle is recovered and deactivated, plus a service charge to recover the Vehicle.  Fees are subject to change.

 

2.6 Fines and Penalties.

 

We may, at our sole discretion, assess fines, fees, or penalties and/or take other actions for Your violation of these Terms. For example, You may incur fees or fines if You leave a Vehicle outside the service area, use a Vehicle in a prohibited area, leave a Vehicle unlocked, or cause damage or loss to a Vehicle. In some locations, we are required by the municipality to impose fines for improper use of our Vehicles, including without limitation improper parking or reckless riding behavior.

 

In addition, when You are using our Services, You must comply with the laws that apply to You. If You receive a ticket or a fine (e.g., for Your violation of parking or traffic rules and regulations), cause a Vehicle to be towed and/or impounded or receive any other penalties or fees, You’ll be responsible for the associated costs. We cooperate with all governmental officials in their enforcement of the applicable laws, and for expediency we may pay amounts You owe on Your behalf and provide any necessary information requested or required by the applicable government agencies. If we do so, You are required to pay us back. If we had to use third party collection or administrative agents to resolve or attempt to resolve the issue, You are also responsible for paying us an administrative fee up to $100. By agreeing to these Terms, You agree that we may pay the amounts directly and charge these amounts (including the administrative fee) to any payment method indicated in Your account, and we may need to contact You for additional information.

 

2.7 Security Deposit

 

Upon renting a vehicle, Rider maybe charged a refundable security deposit in the amount of $50.00. Such security deposit will be refunded to the Rider upon the return of the vehicle in same condition as when it was initially rented, normal wear and tear excepted.

 

3. ADDITIONAL TERMS OF USE.

 

3.1 Safety Check.

 

Before each use of a Vehicle, Rider shall conduct a basic safety inspection of the Vehicle, which includes inspecting the following: (i) trueness of the wheels; (ii) safe operation of all brakes and lights; (iii) good condition of the frame; (iv) sufficient battery charge power; and (iv) any sign of damage, unusual or excessive wear or tear or any other visible and obvious mechanical issues or maintenance needs. Rider agrees (i) not to ride the vehicle if there are any noticeable issues with respect to the foregoing; and (ii) to immediately notify Kick customer service of any such issues.

 

3.2 Lost or Stolen Vehicle.

 

A Vehicle may be deemed lost or stolen if (i) the Vehicle is not returned within 24 consecutive hours of being rented; (ii) the Vehicle’s GPS unit is disabled (iii) the Vehicle is parked on unauthorized private property, in a locked area or in any other non-public space; or (iv) other facts and circumstances that suggest to Kick in its reasonable, good faith determination that a Vehicle has been lost or stolen. Kick and You agree that the last Rider of a Vehicle shall be responsible for a lost or stolen Vehicle unless facts and circumstances clearly suggest otherwise to Kick in its reasonable, good faith determination. If Kick deems a Vehicle lost or stolen, Kick shall have the authority to take any and all actions it deems appropriate (with respect to the last Rider of a Vehicle or otherwise), including, without limitation, (i) obtaining restitution and other appropriate compensation and damages; and (ii) filing a police report with local authorities. Rider agrees that the data generated by Kick’s computer is conclusive evidence of the period of use of a vehicle by a Rider. Rider agrees to report vehicle disappearance or theft to Kick immediately upon learning of such disappearance or theft.

 

3.3 Helmets; Safety.

 

Kick recommends that all Riders wear a Snell, CPSC, ANSI or ASTM approved helmet that has been properly sized, fitted and fastened according to the manufacturer’s instructions. Kick and all other Released Persons (as defined in Section 15 of this Agreement) do not represent or warrant the quality or safety characteristics of any helmet, and Rider agrees that no Released Persons is liable for any injury suffered by Rider, including death, while using any of the Kick Services, whether or not Rider is wearing a helmet at the time of injury. Rider assumes all risk of not wearing a helmet or other protective gear. Rider may need to take additional safety measures or precautions not specifically addressed in this Agreement.

 

3.4 Vehicle Routes.

 

Rider agrees that Kick does not provide or maintain places to ride vehicles, and that Kick does not guarantee that there will always be a safe place to ride a Vehicle. Roads, sidewalks, vehicle lanes, and vehicle routes may become dangerous due to weather, traffic or other hazards.

 

3.5 Limitations on Vehicle Rental.

 

Rider agrees that Kick is not a common carrier. Alternative means of public and private transportation are available to the general public and to Rider individually, including public buses and rail service, taxis, and pedestrian paths. Kick provides vehicles only as a convenience, and such rental availability is intended to be used only by those persons who (i) are able and qualified to operate a Vehicle on their own; and (ii) who have agreed to all of the terms and conditions of this Agreement.

 

3.6 Limitations on Availability of Kick Services.

 

Kick makes every effort to provide Kick Services 365 days per year, but Kick does not guarantee that Kick Services will be available at all times. Access to Kick Services is also conditioned on the availability of vehicles. Kick does not represent or warrant the availability of any Kick Services or the availability of any Vehicle at any time. Rider agrees that Kick may require Rider to return a vehicle at any time, and Rider agrees to do so.

 

4. TERMINATION.

 

4.1 Termination by Kick.

 

Kick may, in its sole discretion, unilaterally terminate Rider’s right to use the Kick Services without notice or cause. Rider may terminate Rider’s use of the Kick Services at any time; provided, however, that (i) Kick is not required to provide any refund as a result of Rider’s termination; and (ii) Rider may still be charged any applicable additional fees in accordance with this Agreement. This Agreement shall remain in full force and effect, in accordance with its terms and conditions, following any termination of a Rider’s right to use any of the Kick Services regardless of whether Kick, the Rider or a third party was responsible for terminating the use of the Kick Services.

 

5.1 Confidentiality of Information; Privacy Policies.

 

You understand and agree that all personal information pertaining to Riders that is held by Kick, including, all names, addresses, phone numbers, email addresses, passwords, payment information and other information, will be kept by Kick in accordance with its privacy policy located at https://www.Kickride.co/privacy-policy.

 

6. License to Image and Likeness.

 

For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, You do hereby knowingly, voluntarily and irrevocably: (i) give Your full and unconditional consent to Kick and its affiliates, successors, and assigns to use at any time, and from time to time, without restriction, Your appearance and voice in photographs, videos and other recordings related to Your use of the Kick Services, on all mediums, including on websites, and for all press, promotional, advertising, publicity and other commercial purposes, including all formats and media, whether now known or hereafter devised, throughout the world and in perpetuity; (ii) grant to Kick and its affiliates, successors, and assigns (a) the right to photograph, videotape and otherwise record Your appearance and voice related to Your use of the Kick Services, at any time and from time to time, (b) all rights, copyrights, title, and interests in the results of such photographs, videos and other recordings, as a work for hire for copyright purposes, and (c) the right to use, reproduce, exhibit, distribute, transmit, alter, and exploit, at any time and from time to time and as Kick may decide in its sole discretion, such photographs, videos, and other recordings, or any component thereof, and all related merchandising, promotions, advertising and publicity; and (iii) waive, release, and discharge all Released Persons from all Claims (as defined in Section 15 of this Agreement) that You have or may have for any libel, defamation, invasion of privacy, right of publicity, infringement of copyright or violation of any right granted by You in this Section 6.

 

7. Notice.

 

Kick may be contacted by emailing [email protected].

 

8. Choice of Law; Dispute Resolution.

 

This Agreement is governed by, and must be construed and enforced in accordance with, the laws of the place where business is conducted excluding principles of conflicts of laws. For every dispute regarding this Agreement: (i) each party is entitled to its costs, expenses, and reasonable attorney fees (whether incurred at trial, on appeal, or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which the party may be entitled; (ii) each party consents to the jurisdiction of the courts of the place where business is conducted and agrees that those courts have personal jurisdiction over each party; (iii) venue.

 

9. Binding Arbitration and Class Action Waiver

 

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

 

9.1 Initial Dispute Resolution

 

Rider support is available via the Kick App to address any concerns you may have regarding this Agreement or Your use of a Vehicle (the “Kick Support Process”). Prior to initiating arbitration, the parties agree to first conduct good faith negotiations through the Rider Support Process and to put forth their best efforts in order to settle any dispute, claim, question or disagreement.

 

9.2 Binding Arbitration

 

If the parties do not reach an agreed upon solution through the Kick Support Process, then the sole means for resolving such dispute (“Dispute”) shall be decided by binding arbitration before a single arbitrator selected by the parties, provided that if the parties are unable to mutually agree on the selection of an arbitrator, shall, upon the request of either party, select the arbitrator. The arbitrator shall be a licensed attorney and have significant experience dealing with the subject matter and underlying facts that form the basis for the dispute. The arbitration shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association and held in place where business is conducted, provided, however, the arbitration shall not be conducted through the American Arbitration Association process. The parties shall equally share in the cost of the arbitrator and each party shall bear its own attorney’s fees and expenses in resolving any dispute, except for attorney’s fees which may be awarded in connection with a claim for damages, if granted by the arbitrator. A party may seek any interim or preliminary relief necessary to protect its rights with respect to this Agreement in a court of competent jurisdiction. Other than actions for equitable relief and the remedies hereunder, the provisions of this Section 

 

9.2 are the sole and exclusive remedies between the parties for resolving any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator’s award shall be in writing, binding on all parties and may be entered as a judgment in any court of competent jurisdiction.

 

9.3 Location

 

The arbitration will take place in where business is conducted, or such other location mutually agreed upon by the parties. For any dispute determined not subject to arbitration, You and Kick agree to submit to the personal and exclusive jurisdiction of and venue in the courts where business is conducted. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.

 

9.4 Class Action Waiver

 

The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND Kick 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. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

 

9.5 Litigation of Intellectual Property and Small Claims Court Claims

 

Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

 

10. Waiver and Severability.

 

No waiver of any breach of any provision of this Agreement is a waiver of any other breach or of any other provision of this Agreement. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that, for any reason, any other or others of them may be invalid or unenforceable in whole or in part.

 

11. Cumulative Remedies.

 

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

 

12. Final Agreement; Modification by Kick.

 

This Agreement contains the complete, final and exclusive integrated agreement between the parties with respect to its subject matter. This Agreement supersedes all other prior agreements, written or oral, relating to such subject matter. At any time and from time to time, and without Rider’s consent, Kick may unilaterally amend, modify, or change this Agreement, in its sole discretion. By continuing to use any of the Kick Services after any amendment, modification or change, Rider has agreed to be bound by all such amendments, modifications and changes. Rider must carefully review this Agreement on a regular basis to maintain awareness of all amendments, modifications and changes. Whenever a change is made to this Agreement, Kick will post a notification on the Kick Site. The pricing set forth on the Kick Site or the Kick App supersedes all pricing set forth in this Agreement.

 

13. Contract Interpretation.

 

The headings in this Agreement do not affect the interpretation of this Agreement. “Or” is not to be exclusive in its meaning. “Including” means “including, but not limited to.” Unless the context otherwise requires, words in the singular number or in the plural number shall each include the singular number or the plural number. All pronouns include the masculine, feminine and neuter pronoun forms.

 

14. Voluntary Execution of this Agreement.

 

This Agreement is entered into voluntarily, with consideration, and without any duress or undue influence on the part of, or on behalf of, Kick. Rider acknowledges that he/she (i) has read this Agreement; (ii) understands the terms, conditions and consequences of this Agreement, including the releases contained herein; and (iii) is fully aware of the legal and binding effect of this Agreement.

 

15. RELEASES; DISCLAIMERS; ASSUMPTION OF RISK. 

 

In exchange for Rider being allowed to use Kick Services, Vehicles, and any other equipment or related information provided by Kick, Rider agrees to fully release, indemnify, and hold harmless (i) Kick and all of its owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, assigns, professionals; (ii) rental location property owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, assigns, and professionals; (iii) to the fullest extent permitted by law, any Municipality (including its elected and appointed officials, officers, employees, agents, contractors, and volunteers) with which the operators have contracted with to provide Kick Services; and (iv) every sponsor of any of the Kick Services and all of the sponsor’s owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, professionals, successors, and assigns, (collectively, the “Released Persons”) from liability for all “Claims” arising out of, or in any way related to, Rider’s use of the Kick Services, Vehicles, or related equipment, including, but not limited to, those Claims based on Released Persons’ alleged negligence, breach of contract and/or breach of express or implied warranty, except for Claims based on Released Persons’ gross negligence or willful misconduct. Such releases are intended to be general and complete releases of all Claims.“Claims” means, collectively, any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings, obligations, debts, liens, fines, charges, penalties, contracts, promises, costs, expenses (including attorney’s fees, whether incurred at trial, on appeal, or otherwise), damages (including but not limited to, for personal injury, wrongful death, property damage, and injury to rider or to third parties, consequential, compensatory, or punitive damages), or losses (whether known, unknown, asserted, unasserted, fixed, conditional, or contingent) that arise from or relate to (i) any of the Kick Services, including any of the Vehicles, placement, equipment, maintenance, related information, or this Agreement; or (ii) Rider’s use of any of the foregoing.RIDER ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE KICK SERVICES OR ANYTHING THAT RELATES TO, REMAINS WITH RIDER. NEITHER KICK, ANY RELEASED PARTY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE KICK SERVICES, WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH (I) THIS AGREEMENT; (II) THE USE OF OR INABILITY TO USE THE Kick SERVICES; (III) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OR OTHER PERSONS WITH WHOM YOU COMMUNICATE, INTERACT OR MEET WITH AS A RESULT OF YOUR USE OF THE KICK SERVICES; (IV) ANY AND ALL USES OF THE KICK SERVICES INCLUDING THE KICK WEBSITE, KICK APP, PRODUCTS AND SERVICES AND/OR (V) YOUR MISCONDUCT OR NEGLIGENT USE OF THE KICK SERVICES, OR THE NEGLIGENCE OR MISCONDUCT OF A THIRD PARTY WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KICK HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.TO THE FULLEST EXTENT PERMITTED BY LAW, AND AS TO RIDER’S USE OF ANY OF THE KICK SERVICES, VEHICLES, OR RELATED EQUIPMENT, KICK AND ALL OTHER RELEASED PERSONS DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL OF THE KICK SERVICES, VEHICLES, AND RELATED EQUIPMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND RIDER RELIES ON THEM AT RIDER’S OWN RISK.Rider is aware that Rider’s use of any of the Kick Services, Vehicles, and related equipment involves obvious and not-so-obvious risks, dangers and hazards that may result in injury or death to Rider or others and damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. Risks, dangers, and hazards, include, but are not limited to:

 

vehicles and other objects;
pedestrians;
traffic;
malfunction of vehicle or any components;
road conditions;
weather conditions;
failure to follow applicable laws regarding use and/or operation of the Vehicle pursuant to Section 1.7;
commission of any of the prohibited acts listed in Section 1.8;
failure to perform the required safety check pursuant to Section 3.1;
failure to wear a helmet, whether or not required by law; and negligent acts or omissions by Kick, any other Released Person, Rider or third party.
Rider is solely responsible for any and all injury or damage caused by Rider’s use of the Kick Services and/or any related equipment that is part of, or related to the Kick Services, regardless of whether such injury is caused to you or to others. Rider is solely and fully responsible for the safe operation of Vehicle at all times. Rider agrees that Vehicles are machines that may malfunction, even if the Vehicle is properly maintained and that such malfunction may cause injury. Rider assumes full and complete responsibility for Rider’s use of the Kick Services, including, but not limited to, all related risks, dangers and hazards associated with, or arising pursuant to, Rider’s use of the Kick Services, and Rider further agrees that Kick is not responsible for any injury, death, damage, harm or cost that you cause, or is otherwise related to, your use of the Kick Services.

 

TO THE FULLEST EXTENT PERMITTED BY LAW, THIS RELEASE AND HOLD HARMLESS AGREEMENT INCLUDES ANY AND ALL CLAIMS RELATED TO, OR ARISING FROM, THE SOLE OR PARTIAL NEGLIGENCE OF Kick, THE RELEASED PARTIES, ANY MUNICIPALITY, RENTAL LOCATION PROPERTY OR ANY OTHER PARTY. RIDER HEREBY EXPRESSLY WAIVES ANY CLAIMS AGAINST THE RELEASED PARTIES, ANY MUNICIPALITY, RENTAL LOCATION MANAGER OR ANY OTHER PARTY WHICH RIDER DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF USE OF KICK SERVICES, AND EXPRESSLY WAIVES RIDER’S RIGHTS UNDER ANY STATUTES THAT PURPORT TO PRESERVE RIDER’S UNKNOWN CLAIMS.

RIDER ACCEPTANCE OF AGREEMENT.

 

I certify that I have read and expressly agree to the terms and conditions of the Section 15 Releases; Disclaimers; Assumption of Risk, and I acknowledge that this Section 15 limits my legal rights and remedies. I intend my assent to this Agreement to be a complete and unconditional release of all liability to the greatest extent permitted by law. I represent and certify that I am familiar with the operation of the Vehicle, and I am reasonably competent and physically fit to ride the Vehicle; andI further certify that:

 

I am the Rider
I am at 18 years old or older
I will wear a helmet where required to do so by law
I will not ride a Vehicle with another occupant
I will obey all traffic laws
I will ride at my own risk
I will not ride or park a vehicle outside the service area
I have read and expressly agree to the terms and conditions set forth in this Agreement.