(the “Renter”) desire to rent and/or operate a bicycle (this together shall be known as the “Activity”) provided by ENCORE BIKE RENTALS, LLC, an Arkansas Limited Liability Company. In consideration of Encore’s permission to use their bikes, and in recognition of Encore’s reliance hereon, I agree to all terms and conditions set forth in this RELEASE AND INDEMNIFICATION AGREEMENT (the “Release”).
I. ACKNOWLEDGEMENT OF RISK
I am aware and understand that the Activity is a potentially dangerous and involves the risk of serious injury, disability, death, and/or property damage. I acknowledge that the Activity, or using an Encore bicycle, may include many risks, including but not limited to: colliding with other bicycles, motorcycles, motor vehicles, or other objects; hitting potholes; suffering the sudden loss of control; suffering from flat tires due to objects puncturing or damaging tires; brakes failing; bicycle malfunctions; and hazards relating to weather conditions, and/or wildlife. I acknowledge that risks, whether known or unknown at this time, may result from or be compounded by the actions, omissions, or negligence of Encore employees or agents.
I understand that Encore cannot guarantee that I will not be injured while participating in the Activity. I ACKNOWLEDGE THAT I AM VOLUNTARILY PARTICIPATING IN THE ACTIVITY WITH KNOWLEDGE OF THE RISKS AND DANGERS INVOLVED. I HEREBY AGREE TO ACCEPT AND ASSUME ALL RISKS OF ILLNESS, PERSONAL INJURY, PSYCHOLOGICAL INJURY, PAIN, SUFFERING, DISABILITY, DEATH, PROPERTY DAMAGE, AND/OR FINANCIAL LOSS ARISING THEREFROM, WHETHER CAUSED BY THE ORDINARY NEGLIGENCE OF ENCORE OR OTHERWISE.
I hereby expressly waive and release any and all claims, now known or hereafter known, against Encore and its owner(s), officer(s), director(s), member(s), employee(s), agent(s), successor(s), and assign(s) (collectively the “Releasee”), on account of personal or psychological injury, illness, pain, suffering, disability, death, property damage, or financial loss arising out of or attributed to my participation in the Activity, whether arising out of the negligence of Encore or any Releasee. I agree not to make or bring any claims against Encore or any Releasee. I understand that this waiver and release does not extend to claims or liabilities that are not permitted to be waived under Arkansas law.
I AGREE THAT I, MY FAMILY AND MY HEIRS, WILL NOT SUE ENCORE BIKE RENTALS, LLC OR OTHERWISE MAKE ANY CLAIM ON ACCOUNT OF ANY INJURY, DISABILITY, LOSS OF LIFE, OR DAMAGE AND I INTEND THIS RELEASE OF LIABILITY TO BE EFFECTIVE EVEN IF THE INJURY, DISABILITY, LOSS OF LIFE, OR DAMAGE RESULTS FROM ENCORE BIKE RENTALS, LLC’S NEGLIGENCE.
III. REPRESENTATIONS BY RENTER
I acknowledge, confirm, agree, and covenant the following:
That I do not have any physical, mental, or other condition which effects my ability to participate safely in the Activity.
That I understand how to properly use an Encore Bicycle. I agree that if I am unfamiliar with the features of an Encore Bicycle, then I will ask an Encore representative to answer my questions.
That I will exclusively ride Encore bicycles on trails, bike paths, bike lanes, streets, off-road trails and roads (the “Roads”) that are within my riding ability. I confirm that I am not relying upon any statement or representation by any Releasee as to the safety of any Road or their perception of my ability to safely operate an Encore bicycle.
That if at any time I believe the conditions to be unsafe, or that I am not in proper physical condition to participate in the Activity, then I will immediately discontinue further participation in the activity.
That if I suspect any mechanical or electrical malfunction in the bicycle, I will stop operating the bicycle and immediately contact Encore for further guidance.
That I have been advised, and agree, to wear an appropriate helmet at all times while participating in the Activity.
That I will not be under the influence of any intoxicants, including marijuana and alcohol, or controlled substances while participating in the Activity.
That I will follow all instructions, recommendations, and cautions of Encore at all relevant times.
That I must solely bear the costs of any physical injury caused by my participation in the Activity.
I agree that I will defend, indemnify, and hold harmless Encore and all other Releasees against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees, the costs of enforcing any right to indemnification under this Release, and the cost of pursuing any insurance providers,
incurred by or awarded against Encore or any other Releasees, arising out of or resulting from any claim of a third party related to my participation in the Activity, including any claim related to my own negligence or the ordinary negligence of the Company.
V. DISPUTE RESOLUTION
The parties agree that any and all disputes arising out of or relating to this Agreement shall be submitted to mediation. The cost of mediation shall be split between the parties. If the dispute cannot be resolved through mediation, then the dispute shall be resolved through BINDING ARBITRATION, governed by the Federal Arbitration Act. The prevailing party in arbitration shall be entitled to recover reasonable attorney fees and costs from the losing party.
You may not commence against ENCORE BIKE RENTALS, LLC or its affiliates any class action, class arbitration, or other representative action or proceeding. By voluntarily participating in Activities with ENCORE BIKE RENTALS, LLC, you agree to be bound by this mediation and arbitration agreement. In doing so, except where prohibited, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and ENCORE BIKE RENTALS, LLC or the Releasees. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. YOU AGREE THAT YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY.
If this arbitration agreement is for any reason held to be unenforceable, then any litigation against Encore, or any claim or cause of action arising under this Release, must be brought in the circuit courts of Benton County, Arkansas.
This Release constitutes the sole and entire agreement of Encore and Renter. If any term or provision of this Release is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Release or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or provision of any Article is invalid, illegal, or unenforceable, the court or other tribunal making such determination is authorized and instructed to modify this Agreement and strike the invalid, illegal, or unenforceable terms or provision but so as to effect the original intent of the Parties as closely as possible.
All matters arising out of or relating to this Release shall be governed by and construed in accordance with the laws of the State of Arkansas. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
BY RENTING AN BIKE FROM ENCORE BIKE RENTALS, LLC, I UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS LISTED ABOVE. I UNDERSTAND THAT BY SIGNING THIS DOCUMENT I HEREBY WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE ENCORE BIKE RENTALS, LLC, AN ARKANSAS LIMITED LIABILITY COMPANY.