SKIP TERMS OF SERVICE
Effective Date: September 7, 2018
PLEASE READ THIS ENTIRE AGREEMENT. IT IS A CONTRACT BETWEEN YOU AND SKIP TRANSPORT, INC. DBA SKIP, ITS PREDECESSORS, SUCCESSORS, AFFILATES AND SUBSIDIIARIES ("SKIP”) AND GOVERNS YOUR ACCESS TO AND USE OF ANY AND ALL PRODUCTS AND SERVICES THAT SKIP PROVIDES. ANY AND ALL USE OF SKIP’S PRODUCTS AND SERVICES, INCLUDING ACCESS OF OR USE OF SCOOTERS, OR ACCESS TO THE WEBSITE OR ACCESS TO THE MOBILE APPLICATION, AND/OR ANY PRODUCT OR SERVICE RELATED TO USE OF ITS SCOOTERS, IS EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, WE WILL BE SORRY TO SEE YOU GO, BUT YOU CANNOT CREATE OR MAINTAIN A SKIP ACCOUNT, AND CANNOT ACCESS OR USE ANY OF SKIP’S SERVICES. IN THAT EVENT, YOUR ONLY REMEDY IS TO IMMEDIATEY STOP USING THE SERVICES, THE WEBSITE, OR THE MOBILE APPLICATION.
SECTION 14 OF THIS AGREEMENT REQUIRES THAT ALL DISPUTES BE RESOVLED INDIVIDUALLY BY BINDING ARBITRATION. IT ALSO INCLUDES A CLASS ACTION WAIVER. SECTION 14, THEREFORE, AFFECTS YOUR LEGAL RIGHTS. READ IT CAREFULLY. YOU HAVE A RIGHT TO OPT-OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN THE "BINDING INDIVIDUAL ARBITRATION" SECTION.
SECTION 12 OF THIS AGREEMENT LIMITS SKIP’S LIABILITY AND DISCLAIMS WARRANTIES. IT AFFECTS YOUR LEGAL RIGHTS. READ IT CAREFULLY.
1. WELCOME TO SKIP
We are Skip Transport, Inc. dba Skip, together with our predecessors, successors, subsidiaries, affiliates and related entities (hereafter “Skip”), and we provide dockless electric scooters for short-trip transportation (“Scooters”), as well as equipment and services that relate to or concern the rental or use of our Scooters. We do this through our website located at http://www.skipscooters.com and through our mobile application (“App”), which may be available through certain third party marketplaces. For ease of reference, we refer to the Skip website and App, including all of the features or services relating to them, the Scooters and any product or service related to the use of the Scooters that we provide to you as the “Skip Services.” Skip owns all Skip Services and you do not, by this Agreement or otherwise, acquire any ownership rights in the Scooters or any other Skip Services.
2. SCOPE OF AGREEMENT
This Agreement governs all aspects of the relationship between you and Skip and expressly includes any and all use of the Skip Services. Before you can use any of the Skip Services, you must agree to all of the terms and conditions set forth in this Skip Terms of Service (the “Agreement”). If you do not agree to all of the terms and conditions set forth herein, you may not use any of the Skip Services. By using the Skip Services, you acknowledge that you have read, understand, and agree to be bound by this Agreement. If you have any questions regarding this Agreement or the Skip Services, please contact Skip at firstname.lastname@example.org.
Skip reserves the right, in its sole discretion, to modify this Agreement and any of its terms, and any other documents incorporated by reference herein, at any time. If we do, we will notify you of changes by posting them on the Terms pages on the Skip Services by sending you a message through the Skip App, by SMS if you authorize us to do so, or by any other appropriate means. Amendments will become effective the day they are posted for new users, and thirty (30) days after they are posted on the Skip Website for existing account holders. Any use of Skip Services after the expiration of the thirty (30) day notice period shall constitute your consent to the changes. If you do not agree to the revised Terms, including as amended from time-to-time, we will be sad to see you go, but your only recourse is to stop using the Skip Services.
4. ELIGIBILITY AND USE OF THE SKIP SERVICES
Access to and use of the Skip Services is available only to individuals who are at least 18 years old and who can form legally binding contracts under applicable law. By accessing or using the Skip Services, you represent and warrant that you are eligible and have the capacity to enter into contracts.
You understand and agree that you are a user of Skip Services, and that you are not a Skip employee, joint venturer, partner, or agent. You acknowledge and agree that Skip does not control, and has no right to control, you or other third parties with whom you may come into contact while using the Skip Services, including but not limited to pedestrians, bikers, other Skip Scooter riders, or other vehicles.
5. ACCOUNT REGISTRATION AND OTHER SUBMISSIONS
Users may access limited parts of the Skip Services, such as its website, without registering for an account. To access and participate in certain Skip Services, however, including without limitation, to renting, unlocking and locking a Scooter, Users must create a password-protected account (a "Skip Account"). Users may register for a Skip Account using an email address and phone number and creating a secure password, or if we make such features and functionalities available, through certain third party social networking sites by using existing login credentials and passwords for sites such as Facebook or Google (your "TNS Password"). You agree to provide accurate, current, and complete information during the registration process and at all other times when you use the Skip Services. You also agree to update your information at all times to keep it accurate, current, and complete. You are solely responsible for safeguarding your Skip password and, if applicable, your TNS Password. You are also solely responsible for all activity that occurs on your Skip Account, and you agree to notify Skip immediately of any suspected unauthorized use. To the maximum extent allowed by law, Skip is not liable for any losses by any party caused by unauthorized use of your Skip Account. You also agree that: (i) you may register for only one account at any point in time, (ii) Skip Accounts may not be transferred to any other person or entity, and (iii) all rights to your Skip Account terminate upon death. Upon receipt of a certified copy of a death certificate, your Skip Account may be terminated and its contents (if any) permanently deleted.
6. MESSAGING, SMS OR TEXT MESSAGES
By creating a Skip Account, you agree that Skip may send you text (SMS) messages and/or email messages as part of the normal business operation and your use of the Skip Services or Skip Services. Such uses include, without limitation, to provide you with information you requested from Skip, to let you know about features, functions, improvements or changes to the Skip Services, or other aspects of your Skip Account. These text (SMS) messages and/or email addresses may be automated or non-automated, and while Skip does not charge you to send or receive such messages, other message and data rates may still apply by your carrier or other provider. You may opt-out of receiving text (SMS) messages and/or email messages from Skip at any time by contacting our team at email@example.com though we may still send you messages that are required for the proper functioning of the Skip Services. If you do not wish to receive any messages from Skip, you must terminate your Skip Account and cease using the Skip Services. You acknowledge that opting out of receiving text (SMS) and/or email messages may impact your use of and ability to fully use the Skip Services.
7. YOUR LICENSE TO USE THE SKIP SERVICES
Subject to your continuing compliance with these Terms, Skip grants you a limited, non-exclusive, revocable, nontransferable, and non-sublicensable license to reproduce and display content (excluding any software source code) solely for your personal and non-commercial use and only in connection with your access to and participation in the Skip Services. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Skip Services or any content contained on the website of App, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Skip or its licensors, except for the licenses and rights expressly granted in these Terms.
8. PROHIBITED CONDUCT
While using any Skip Services, you agree that you shall not:
9. RENTAL AND PERMISSIBLE USE OF SCOOTERS
By accessing or using the Skip Services, including our scooters, you agree that:
· You are the only authorized rider. You and Skip are the only parties to this Agreement and you are therefore are the only authorized rider of a Scooter that is rented through your account. Permitting another person to use any Skip Scooter or Skip Services obtained through your account is prohibited and constitutes a material breach of this Agreement. You understand and acknowledge that you alone are responsible for complying with the terms of this Agreement and that you alone are responsible for any damage resulting from the use of any Scooter that is rented through your account and/or the breach of any provision of this Agreement.
· You Must Be 18 Years Old. You must be at least 18 years old to use the Skip Services or to ride a Scooter. By entering into this Agreement, you represent and certify that you are at least 18 years old.
· You Must Use Our App to Use a Scooter. Unless we make our Skip Services available elsewhere, Skip’s Services are provided only through the Skip App. Unless you use our non-smart phone options, you must have access to a mobile device that is compatible with our App. and the Scooters in order to use the Skip Services. You are responsible for obtaining, at your own expense, such mobile device and all other equipment and services needed to access the Skip Services. You understand and agree that your wireless carrier may charge certain fees (including fees for data, text messaging, and other wireless access or communications services). Skip does not guarantee that the Mobile App can be accessed through all mobile devices or service plans or in all geographic locations. If you have questions about accessing Skip Scooters or the Skip Services via a non-smart phone option, please contact us at firstname.lastname@example.org.
· You Must Operate the Scooter Safely. You represent and warrant that you have sufficient knowledge to operate a Scooter safely and that you are physically capable of operating an electric scooter safely without any risk to the health and safety of Yourself or others. By choosing to operate a Scooter, you assume all responsibility and risk for all medical conditions that may interfere with your safe operation of a Scooter and and/or all risk of injuries to Yourself or others. You agree as a condition of accessing Skip Scooters and the Skip Services to confirm that you have viewed and agree to all of the Skip University training materials, including the training cards and other portions of the Skip Services.
· You Must Abide By All Applicable Laws. You represent and warrant that you are familiar with all laws applicable to operating a Scooter, including helmet, traffic laws and other laws, and that you will fully comply with those laws while you are operating, riding, parking and/or charging a Scooter. In certain jurisdictions, You must wear a helmet whether one is made available to you by Skip or not.
· No Guarantee of Availability. Unless we provide reservation services, use of a Scooter or any Skip Services is subject to availability at a given location on a first-come, first-served basis. Due to the nature of the Skip Service, Skip cannot and does not guarantee that Scooters will be available at any given location or at any given time.
· Scooters and Related Equipment are Provided “As-Is.” Scooters are provided on an “as-is” basis. You are responsible for inspecting a Scooter and any related materials that Skip provides to you, such as helmets, locks, etc. to ensure that they are in good working condition prior to using them. If you find that any Scooter or related materials are not in good working condition, you must inform Skip promptly via our toll free number, 844-929-2687 or via the Website or our App.
· You must return and secure the Scooter in clean and in good working condition after Your trip. You must notify Skip immediately if a Scooter malfunctions, is damaged or is stolen.
· You Must Inspect the Scooter Prior to Using It. Prior to taking possession of a Scooter, you must inspect the Scooter for evidence of damage and disrepair. If you discover any damage or disrepair, then you must notify Skip immediately to avoid being held responsible for such damage or disrepair. If you fail to report any evidence of damage or disrepair prior to using the Scooter, then you may be liable for the cost of repairing the Scooter. For your own safety, you are prohibited from operating a Scooter if any of the following equipment is not in good working order: throttle, brakes, tires, and lights.
· Responsibility for Charges and Costs. You are responsible for all charges and costs incurred, as well as any damage to the Scooter from the time you activate a Scooter until you the time you return and secure it.
· Traffic Violations. You are responsible for all traffic, moving and parking violations. You must notify Skip of any traffic violations, tickets or fines as soon as reasonably possible, but in any event before a response or payment is required. If you fail to pay a fine and Skip pays it instead, you agree that Skip may obtain reimbursement by charging the payment method that you have on file.
10. PROHIBITED USES OF THE SCOOTERS
You agree that the following conduct relating to Scooters is prohibited:
· Using a Scooter in connection with a criminal act;
· Using a Scooter with the intent to destroy public or private property or to cause injury or damage to persons or private property;
· Using a Scooter with passengers or more than one person;
· Placing any bags or other tangible things on the handlebars which interferes with the proper and safe operation of a Scooter;
· Failing to yield to pedestrians on the public right of way;
· Parking a Scooter in any area that is prohibited by law or which interferes with the public use of public right of way;
· Parking a Scooter in private areas without the permission of the owner or authorized representative of the private property;
· Taking a Scooter out of a public areas, for example, taking a Scooter into a building or other structure without our express permission;
· Interfering or attempting to interfere, either directly or indirectly, with a Scooter’s GPS, wireless or other technology;
· Removing or attempting to remove any Skip system designed to track Scooter location or ride duration;
· Attempting to or riding a Scooter without payment through any device, scheme or artifice;
· Using a Scooter to propel or tow any vehicle, trailer, or other object;
· Using a Scooter to transport animals of any kind or nature or any other persons;
· Using a Scooter to in any type of race, competition or to perform tricks;
· Using a Scooter while under the influence of drugs, alcohol, medication or any other substance capable of interfering with your judgment, reflexes or safe use of the Scooter;
· Using a Scooter in a negligent or abusive manner or in a manner that is outside the scope of a Scooter’s ordinary and intended functionality and purpose (violating a traffic law, or receiving a ticket in an accident is not automatically a violation of this provision, but may be an indication that a violation of this provision has occurred);
· Using a Scooter in inclement weather, including heavy rain, snow, electrical storms or strong wind, which make it more dangerous to operate a Scooter;
· Using a Scooter to while texting, emailing, using a cell phone, or otherwise using a mobile device other than to operate the Scooter that may distract from driving safely;
· Carrying any briefcase, backpack, bag or other item if that item impedes your ability to operate the Scooter safely;
· Using any lock on a Scooter other than the lock that skip provides to you;
· Using a Scooter in violation of any law;
· The foregoing list is not intended to be exhaustive and Skip expressly retains discretion to prohibit any unreasonable, unlawful or inappropriate use of a Scooter.
11. FEES AND PAYMENT
11.1. Published Fee Schedule. Skip’s Rate Schedule, which sets forth the fees and charges associated with our Skip Services, is published on Skip’s website at http://www.skipscooters.com/, and is also accessible through the Skip App. The Rate Schedule is incorporated herein by this reference and you agree to pay the published fees and charges. Skip may alter, amend or make changes to the Rate Schedule at any time and will provide notice of such changes on the Skip website and App.
11.2. Payment Services. Skip may restrict the availability of payment services, or any aspect or feature of payment services, to perform maintenance of systems to help ensure the proper functioning of the system or to improve, enhance, modify, suspend or terminate any payment service, or to introduce new or additional services at any time, including through additional third parties. The payment-related services may contain links to certain third-party websites, applications, services or resources ("Third Party Services"). Any Third-Party Services are subject to different terms or conditions and privacy policies created or controlled by those Third-Party providers and not Skip, and you should review them carefully and independently. Skip is not responsible for or liable for the availability, accuracy, reliability or anything related to Third-Party Services, including the content thereon. Links or other access to information of Third-Party Service providers shall not constitute an endorsement by Skip of such providers or their services.
11.3. Compliance with Law. You may not use Skip’s payment related services except as authorized by the laws of the United States of America, the laws of the jurisdiction where you reside, and any other applicable laws. Specifically, but not by way of limitation, Skip’s payment related services may not be used to send or receive funds or currency into (i) any United States embargoed countries; (ii) to anyone on the United States Treasure Department's list of Specially Designated Nationals or the United States Commerce Department's list of Denied Persons List or Entry List. By agreeing to these Terms, by accessing and/or using the Skip Services, you further represent and warrant that (i) neither you nor the subject of your transaction (e.g., items, goods, products, services, tangible or intangible things) are located in a country that is subject to a United States Government embargo, or that has been designated by the United States Government as a "terrorist supporting" country; and (ii) that you are not listed on any United States Government list of prohibited or restricted parties.
11.4. Payment Processing Services. Payment processing services, which are a key feature of the Skip Services, are currently provided by Stripe, and where applicable, may include money transmission services pursuant to licenses or other regulatory approvals held by Stripe. Payment processing services provided by Stripe are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these terms in this Agreement or by accessing, searching or using the Skip Services or your Skip Account, you agree to be bound by the Stripe Connected Account Agreement and the Stripe Services Agreement, as they may be amended or modified from time-to-time by Stripe. Skip’s provision of any payment processing services through Stripe is subject to, and conditioned upon, your agreement to provide Skip up-to-date, accurate, and complete information relating to you and your payment instrument(s) and you expressly authorize Skip to share this information and transaction-related information relating to your use of payment related services with Stripe. Skip reserves the right to provide payment processing services through other third party vendors, and if it choose to do so, will provide notice to you via the Skip website, APP, SMS Text Message and/or through another method.
11.5. Payment Methods. Acceptable forms of payment are also published on Skip’s Website and in the Mobile Application. You are required to authorize a form of payment that is acceptable to Skip when you create your account and may be asked to provide Skip with a credit card number from a card issuer that Skip accepts, ApplePay, an eCard or other non-credit card option, in order to activate and/or pay for any fees related to the Skip Services. You agree that Skip is authorized to charge your selected payment method for any payments and any other sum that you owe to Skip as a result of your use of a Scooter which includes but is not limited to unreported damage or repairs that are necessary as a result of your use of a Skip Scooter. You further agree that Skip is authorized to seek pre-authorization of any charge to any credit card that you provide as a payment method for using the Services.
11.6. No Refunds. Skip adheres to a strict no refund policy. All published fees and charges are final and nonrefundable.
11.7. Disputed Charges. You agree to notify Skip in writing of any billing dispute within 30 days of the date upon which your credit card is charged. Failure to do so will result in the charge being final, binding and collectable.
11.8. Delinquent Accounts. Any User Account which is delinquent will be suspended or terminated solely at Skip’s discretion. Any credit card or other payment method which is rejected may result in suspension or termination of your account in Skip’s sole discretion. The User must notify Skip in the event of the credit card or payment method on record being changed, expiring, or being no longer valid and replace it with a valid payment method. Skip may seek third party assistance with unpaid or delinquent accounts if the you do not pay outstanding charges.
12. ASSUMPTION OF RISK, RELEASES, DISCLAIMERS OF WARRANTY
THIS SECTION CONTAINS PROVISIONS THAT AFFECT YOUR LEGAL RIGHTS. PLEASE READ IT CAREFULLY.
12.1. ASSUMPTION OF RISK
You acknowledge and agree that riding a Scooter and use of the Skip Services s is an inherently dangerous activity that involves both obvious and non-obvious risks of physical harm, including the risk of death to you and others, as well as damage to property, and that these types of risks can be unforeseeable and sometimes cannot be avoided. You are solely responsible for any and all injury or damage caused by your use of a Scooter, the Skip Services and/or any related equipment or services that are a part of, relate to or concern your use of a Scooter, regardless of whether the injury or damage is caused to Yourself or to others. You therefore assume full and complete responsibility for your use of a Skip Scooter or the Skip Services and agree that Skip is not responsible for any injury, damage, harm or cost that you cause that is related to or arises out of your use of a Skip Scooter, the Skip Services and/or any equipment or services that are a part of, relate to or concern your use of a Scooter or the Skip Services including damage to the Scooter itself.
12.2. LIMITATION OF LIABILITY
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the skip services or anything that relates to or concerns your use of a scooter OR THE SKIP SERVICES, remains with you. Neither Skip nor any other party involved in creating, producing, or delivering the Skip services, including the scooters, 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 Skip Services and/or anything that relates to or concerns your use of a scooter; (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 Skip Services; (iv) any and all uses of the Skip services including the website, mobile Application, products and Services (INCLUDING THE SCOOTERS) and/or (v) Your misconduct or negligent use of the Skip Services INCLUDING THE SCOOTERS, 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 Skip 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.
In no event will Skip’s aggregate liability arising out of, relating to your relationship with skip, this Agreement, Your use of the Skip services or anything relating to or concerning your use of a scooter, exceed the amounts you have paid to Skip in the twelve (12) month period prior to the event giving rise to the liability, or one hundred U.S. dollars (US$100), if no such payment has been made. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Skip and You. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
12.3. DISCLAIMER OF EXPRESS AND IMPLIED WARRANTIES
Skip’s website and mobile application, ALL OF THE SERVICES, SCOOTERs AND anything relating to your use of a scooter are provided ON “AS-IS” AND “AS AVAILABLE” AND YOU USE THEM SOLELY AT YOUR OWN RISK. SKIP DOES NOT REPRESENT OR WARRANT THE FUNCTIONALITY OF ANY SCOOTER, ANY skip SERVICE OR that any scooter or anything relating to your use of a scooter WILL BE IN GOOD REPAIR OR ERROR-FREE or free from DELAYS, defects, OMISSIONS, INTERRUPTIONS OR INACCURACIES.
TO THE FULLEST EXTENT PERMITTED BY LAW, SKIP DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSIOn OF IMPLIED WARRANTIES. iF ANY OF THOSE LAWS APPLY TO YOU, THEN SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MIGHT NOT APPLY TO YOU AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12.4. RELEASE OF LIABLITY. You are required to sign a separate “RELEASE OF LIABLITY” as a condition of creating a Skip account and using the skip services. The Release of Liability is incorporated into this Agreement by this reference as if it were set forth fully herein.
12.5. Indemnification. You agree to indemnify and hold Skip, its predecessors, successors, subsidiaries, affiliates, and each of its directors, shareholders, investors, employees and authorized agents harmless from and against all third-party claims arising out of or in any way relating to any injury, illness, death or loss of or damage to property allegedly suffered as a result of your use of the Skip Services including the Scooters or anything that relates to or concerns your use of Skip Services, including the Scooters.
13. TERM AND TERMINATION
13.1. Term. This Agreement shall be in force until terminated as described below or as otherwise provided in this Agreement.
13.2. Termination by You. You may terminate this Agreement at any time without cause upon one-week written notice to Skip. In order to be effective, your notice of termination must be in writing and sent to Skip by email to email@example.com.
13.3. Termination by Skip.
A. Without Cause. Skip may terminate this Agreement at any time, without cause, upon one-week written notice to you. Upon termination, your account will be permanently deleted.
B. With Cause. Skip may immediately terminate this Agreement and, consequently, your account, if you have breached any term of this Agreement.
13.4. Return of Property Upon Account Termination. If your account is terminated, you will immediately return any Scooter, or other property of Skip that you have in your possession. You will be charged for the value of any property of Skip that you fail to return as well as all costs (including attorneys’ fees and costs) that Skip incurs in attempting to recover its property from you.
13.5. Account Suspension or Termination. Skip may, in its sole discretion, with or without cause, with or without prior notice to you and at any time, decide to limit, block, suspend, deactivate or cancel your Skip Account or your access to the Skip Services in whole or in part. If we exercise our discretion under this Agreement to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Skip Services or receive assistance from Skip support teams; and (b) if appropriate in our sole discretion, we may communicate to other Users or third parties that your Account has been terminated, blocked, suspended, deactivated, or cancelled, and why this action has been taken.
14. DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
14.1. Definition of “Disputes” That Are Subject to Binding Arbitration. The provisions set forth in this Section 14 govern the process for resolving all “Disputes” between you and Skip. For purpose of this Section 14, the term “Dispute” means any dispute, claim, or controversy between you and Skip, regardless of when it accrued, that refers to, relates to or in any way involves your use of a Scooter and/or the Skip Services regardless of whether the Dispute is based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or on any other legal or equitable theory. “Dispute” also includes a dispute between you and Skip regarding the validity, enforceability or scope of this “DISPUTE RESOLUTION AND ARBITRATION AGREEMENT ” section and you expressly agree that any Dispute regarding the enforceability, validity or scope of this “DISPUTE RESOLUTION AND ARBITRATION AGREEMENT ” will be resolved exclusively by the arbitrator and not a court (with the exception of the enforceability of the Class Action Waiver clause below). The term “Dispute” is to be given the broadest possible meaning that will be enforced, encompasses all Disputes regardless of when they accrued and is therefore expressly intended to be retroactive. If you have a Dispute with Skip or any of its officers, directors, employees and/or agents that cannot be resolved through negotiation within the time frame set forth in the “Pre-Arbitration Dispute Resolution” process described below, then you and Skip agree to seek resolution of the Dispute only through final and binding arbitration of that Dispute in accordance with the terms of this Section. Accordingly, by entering into this Agreement, you are expressly agreeing to arbitrate all Disputes and are affirmatively waiving your right to litigate any Dispute in court, except for those matters listed below in the “Exclusions from Arbitration” clause. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
14.2. Agreement to Arbitrate. You and Skip agree that with the exception of the Class Waiver in Section 14.9 below, any Dispute as defined above shall be settled by final and binding arbitration (the “Arbitration Agreement”) by JAMS pursuant to its Streamlined Arbitration rules and Procedures and the JAMS Consumer Minimum Standards which are available on JAMS’ website: www.jamsadr.com or by calling JAMS at 1-800-352-5267 and requesting a copy. Note that with the exception of the Class Waiver as set forth below, any issue raised regarding the enforceability, applicability or scope of this Arbitration Agreement is a “Dispute” as defined above and therefore must be resolved by the arbitrator and not a court. Either party may initiate arbitration under JAMS by filling out a form entitled Demand for Arbitration and filing that form with JAMS pursuant to the instructions on their website. The Demand for Arbitration form is available online at www.jamsadr.com. click “ADR Services,” then “ADR Forms” to obtain a copy.
14.3. Exceptions to Arbitration Agreement. You and Skip agree that the only claims that are exempt from the final and binding arbitration are: (i) claims related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) claims seeking emergency injunctive relief based on exigent circumstances and (iii) matters that fall within the jurisdiction of the applicable small claims court.
14.4. Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this Section 14, including its procedural rules. To the extent that any provision of the Federal Arbitration Act conflicts in any way with any California substantive or procedural law, the provisions of the Federal Arbitration Act will control. The arbitration will be administered by JAMS in accordance with its Streamlined Arbitration Rules and Procedures and the JAMS Consumer Minimum Standards and/or other JAMS arbitration rules determined to be applicable by JAMS (the “JAMS Rules “) then in effect, except as modified below. The JAMS Rules are available at www.jamsadr.com or by calling JAMS at 1–800–352–5267.
14.5. Modification to JAMS Rules. You and Skip agree that the JAMS Rules shall be modified as follows:
a. Arbitration Hearing/Location. In order to make the arbitration most convenient to you, Skip agrees that any required arbitration hearing may be conducted, at your option, (a) in the county where you reside; (b) in San Francisco County; (c) in any other location to which you and Skip both agree; (d) via phone or video conference; or (e) solely on the submission of documents. Any Demand for Arbitration in which the Claimant demand $75,000 or less shall be a desk arbitration and conducted solely based on the submission of documents to the arbitrator.
b. Attorney’s Fees and Costs. If you are the claimant and you are able to demonstrate that paying the JAMS filing fee creates a hardship for you, then Skip agrees to reimburse you for the cost of filing. Skip further agrees to reimburse you for the balance of any initial filing fee required by JAMS in excess of $200 for claims of $75,000 or less, regardless of hardship. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the JAMS Rules. Unless the arbitrator determines that your claim was frivolous or filed for the purpose of harassment, Skip agrees that it will not seek, and hereby waives all rights it may have under applicable law or the JAMS Rules, to recover attorneys’ fees and expenses if it prevails in arbitration.
14.6. Arbitrator’s Decision. The arbitrator is required to follow applicable law in rendering his or her decision. The arbitrator is authorized to award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim when such relief is allowed by law. The arbitrator is not empowered to award any damages prohibited by the parties in this Agreement.
14.7. Confidentiality. You and Skip agree that all proceedings before the arbitrator are to be confidential. This confidentiality provision governs all aspects of the arbitration including documents exchanged and submitted, all testimony, all briefing and all communications made between us or between either of us and the arbitrator. The only exception to this paragraph is court filings necessary to confirm an arbitration order.
14.8. Jury Trial Waiver. You and Skip acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
14.9. No Class Actions or Representative Proceedings. You and Skip acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative or collective proceeding as to all Disputes. Further, unless you and Skip both agree otherwise in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. Notwithstanding any other provision of this Agreement or the JAMS Rules, disputes regarding the revocability, validity or enforceability of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class, collective or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
14.10. Right to Opt-Out of Binding Arbitration and Class Action Waiver. If You do not wish to be bound by the binding arbitration and class action waiver in this Arbitration Agreement, You must send written notice addressed to the Skip Legal Department (Arbitration) within thirty (30) days of the date you accept this Agreement, unless a longer period is required by applicable law. Your written notification must include: (i) your name (ii) your address, (iii) any unique Skip Account Identification such as your user name and (iv) a clear statement that you do not desire to resolve disputes with Skip through arbitration. You must send your notification either by physical mail or by email. If by physical mail, you must send to 501-535 Alabama Street, San Francisco, CA 94110 ATTN: Skip Legal/Arbitration. If you send notification via email, you must send it to firstname.lastname@example.org and your email must contain the words “Arbitration Opt-Out” in the Subject Line.
14.11. Severability. Except for the class action waiver, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect. If the class action waiver is found to be illegal or unenforceable, then the entirety of this Section 14 shall be severed from the Agreement.
14.12. Modifications to this Arbitration Agreement. If Skip changes this Section 14 after the date you last accepted this Agreement (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Skip’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Skip in accordance with the provisions of the “Dispute Resolution and Arbitration Charger Agreement” section that was in effect of the as of the date you last accepted these Terms.
14.13. Survival. The arbitration agreement contained in this Section 14 will survive the termination of this Agreement and will continue to apply even if you subsequently stop using the Skip Services and/or your Skip Account is terminated.
By sending Skip any feedback, comments, questions, or suggestions concerning Skip or Skip Services(collectively, “Feedback”) you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute, sublicense or otherwise exploit the Feedback, and (iv) irrevocably waive, and cause to be waived, against Skip and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your Skip Account or termination of the Skip Services, if any.
16. MISCELLANEOUS PROVISIONS
16.1. Choice of Law; Venue
Any dispute that arises out of or relates to this Agreement or the breach thereof that is not governed by the mandatory arbitration agreement set forth in Section 14, above, shall be governed by the law of the State of California without regard to or application of choice of law principles. The parties hereby consent to the exclusive jurisdiction of the state and federal courts in California for all claims and both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue. For any action not subject to mandatory arbitration pursuant to Section 14 above, the prevailing party to such dispute shall be entitled to recover its reasonable costs incurred in prosecuting or defending against such dispute, including its reasonable attorneys’ fees and experts’ fees.
You must provide any notice required in accordance with this Agreement via your Account or the following email address: email@example.com, except in cases where this Agreement directs communications to a more specific email address (e.g., arbitration @skipscooters.com). Skip’s routine communications regarding the Skip Services and any legal notices will be sent to you either electronically (via your Account, your email address on record or by text message to your mobile device using the number you provided), by United States mail or by courier, except that Skip may give notice of an amendment to the Agreement by posting the notice on the Site, your Account, or by email to the email address on record.
16.3. Data Breach Notification
Notwithstanding your determination to opt-out of receiving electronic messages or cease use of the Skip Services, you agree that in the event an incident occurs in which a third party obtains unauthorized access to your personal data provided to Skip, you agree that should Skip become legally obligated to provide notice of such unauthorized access, then Skip may provide such notice to you electronically by using the email address or mobile telephone number provided by you.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Skip without restriction. Any assignment attempted to be made by you in violation of this Section shall be void. This Agreement will be binding upon and inure to the benefit of the parties hereto, and permitted successors and assigns. No delay or omission by Skip to exercise any right or power occurring upon any noncompliance or default by you with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by Skip of any of the covenants, conditions, or agreements to be performed by you shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise. Skip may freely assign this Agreement and all of the policies and other documents incorporated or referenced in it (including all rights, licenses, and obligations under it or them), in whole or in part and without notice.
If any part of this Agreement other than the arbitration provision and class action waiver set forth in Section 14, above, is found invalid or unenforceable by a court of competent jurisdiction, then if practicable, the parties will substitute a valid provision that most closely approximates the intent and economic effect of the invalid provision(s). If a practicable substitution cannot be made, then the parties agree to sever the invalid provision(s), leaving the remainder of the Agreement in full force and effect.
16.6. Force Majeure
Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including, a significant failure of the Internet, fire, flood, acts of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, or civil or military authority.
16.7. Entire Agreement
This Agreement constitutes the entire agreement between the parties hereto regarding the subject matter contained herein and the parties acknowledge that they have not relied on any promise, representation, or warranty, express or implied, that is not contained in this Agreement. Skip is not obligated under any other agreements unless they are in writing and signed by an authorized representative of Skip.
16.8. No Third-Party Beneficiaries:
You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to these terms and conditions contained herein.
16.9. Sections. The section titles in the Terms are for convenience only and have no legal or contractual effect.
16.10. Contact Skip. We are always here to help, and there are many ways to reach us. you can reach the Skip customer support team at 844-929-2687, through email at firstname.lastname@example.org, through our website at http://www.skipscooters.com, or through the “report an issue” section of our Mobile App. You can even reach us by snail mail at 501-535 Alabama Street, San Francisco, CA 94110. Rest assured, you’ve now found the Best Way to Get There!