Resolution No. 2016-38 Awarding RFP No. 16-11-13-2 to Provide City Wide Bicycle Sharing System to B-Cycle, LLC - June 7, 2016 RESOLUTION NO. 2016-38
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA AWARDING AND LETTING A BID/CONTRACT
FOR RFP NO. 16-11-13-2, TO PROVIDE CITY WIDE BICYCLE
SHARING SYSTEM, TO B-CYCLE, LLC, AUTHORIZING THE CITY
MANAGER TO EXECUTE THE ATTACHED PURCHASE AGREEMENT,
INTELLECTUAL PROPERTY LICENSE AGREEMENT, DIGITAL
PLATFORM SERVICES AGREEMENT AND SERVICE AGREEMENT;
AUTHORIZING THE CITY MANAGER TO TAKE NECESSARY AND
EXPEDIENT ACTION TO CARRY OUT THE AIMS OF THIS
RESOLUTION; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City Manager has, pursuant to the various laws of the State of
Florida and the Code of the City of Aventura, properly solicited and accordingly
accepted bids for RFP NO. 16-11-13-2, to Provide City Wide Bicycle Sharing System;
and
WHEREAS, sealed bids have been submitted to and received by the City
pursuant to the City's RFP Bid/Notice to Bidders, specifications, proposals, and
requirements for the project/work as cited above; and
WHEREAS, staff has determined that B-Cycle, LLC has submitted a responsible
and responsive bid that meets the requirement of the RFP document; and
WHEREAS, the City Commission, upon the recommendation of the City
Manager, is therefore desirous of awarding said bid/contract to B-Cycle, LLC.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA:
Section 1: That bid/contract for RFP NO. 16-11-13-2, to Provide City Wide
Bicycle Sharing System, is hereby awarded to B-Cycle, LLC.
Section 2: That the City Manager is hereby authorized to execute, on behalf of
City of Aventura Resolution No. 2016-38
the City, the attached Purchase Agreement, Intellectual Property License Agreement,
Digital Platform Services Agreement and Service Agreement, and any other necessary
related documents, with such revisions as approved by the City Attorney.
Section 3: That the City Manager is hereby authorized and requested to take
all necessary and expedient action to carry out the aims of this Resolution in awarding
this RFP/contract.
Section 4: This Resolution shall be effective immediately upon its adoption.
The foregoing Resolution was offered by Commissioner Cohen, who moved its
adoption. The motion was seconded by Vice Mayor Landman, and upon being put to a
vote, the vote was as follows:
Commissioner Enbar Cohen Yes
Commissioner Teri Holzberg Yes
Commissioner Marc Narotsky Yes
Commissioner Robert Shelley Yes
Commissioner Howard Weinberg Yes
Vice Mayor Denise Landman Yes
Mayor Enid Weisman Yes
PASSED AND ADOPTED this 7th day of June, 2016.
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City of Aventura Resolution No. 2016-38
ENID WEISMAN, MAYOR
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ATTEST:
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ELLISA L. HORV
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITYATTO NEY
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PURCHASE AGREEMENT FOR EQUIPMENT AND SERVICES
THIS PURCHASE AGREEMENT FOR EQUIPMENT AND SERVICES (this
"Agreement") is made this 14th day of June, 2016 (the "Effective Date"), by and between B-
CYCLE, LLC, a Delaware limited liability company, with its principal offices at 801 West
Madison Street, Waterloo, Wisconsin 53594 ("Seller"), and the City of Aventura, Florida, with
its principal offices located at 19200 West Country Club Drive, Aventura, Florida 33180
("Buyer").
RECITALS
WHEREAS, Buyer has been duly authorized by Aventura, FL to install and operate a
bike share system in Aventura, FL on behalf of the City of Aventura, FL;
WHEREAS, Seller and Buyer desire for Seller to provide and sell certain goods and to
provide certain installation services to Buyer and for Buyer to pay for such goods and services;
WHEREAS, Seller and Buyer have contemporaneously herewith entered into that certain
Intellectual Property License Agreement attached hereto and incorporated herein as Exhibit A
("IP Agreement"); together with that certain Digital Platform Services Agreement, attached
hereto and incorporated herein as Exhibit B (the"Digital Services Agreement"); and
WHEREAS, in order to more fully delineate the agreements between Seller and Buyer
with respect to such goods and services, the parties desire to execute this Agreement.
NOW, THEREFORE, in consideration of the mutual undertakings contained herein, the
parties hereto agree as follows:
AGREEMENTS
1. Definitions. As used herein, the term:
(a) "Bicycle" means Seller's bicycle to be purchased by Buyer from Seller pursuant to
this Agreement and meeting the specifications set forth in Schedule A, attached
hereto and incorporated herein.
(b) "Station" refers collectively to one (1) kiosk and its associated docks, bases, and
map/ad module(s), if applicable, as set forth in Schedule B.
(c) "Equipment" shall mean any and all Bicycles, docks, kiosks, bases, map/ad modules,
components, spare parts, goods, equipment or materials of any kind which are
supplied, modified, repaired or overhauled by Seller.
(d) "Loss" shall mean any and all losses, claims, damages, liabilities, expenses, including
without limitation special, consequential, loss of profit, incidental, resultant or
indirect damages (including without limitation, loss of use, revenue, profit and good
will), future or exemplary damages.
(e) "Site" means the specific physical location where a Station is or will be installed.
2. Sale of Goods and Services.
(a) Seller shall sell to Buyer and Buyer shall purchase from Seller 35 Bicycles, together
with 5 Stations, at the prices listed in Schedule C, attached hereto and incorporated
herein.
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(b) Seller shall install, or cause its contractor ("Contractor") to install, the Stations
referenced in Subsection 2(a) hereof, at the prices listed in Schedule C. Seller and/or
Contractor may use subcontractors for the installation described in this subparagraph
(b); provided, however, Seller and Contractor each remains liable for all of its work
obligations to Buyer and installation services provided to Buyer under this Agreement,
notwithstanding that some obligations have been subcontracted to a subcontractor.
(c) During the Term of this Agreement(as defined in Section 12), (i) subsequent sales of
Equipment from Seller to Buyer shall be subject to the terms and conditions of this
Agreement; and (ii) the parties shall agree in writing to the cost of all subsequently
sold Equipment.
(d) Seller agrees that during the Term, Seller will sell to Buyer, any and all parts to repair
or replace Equipment as needed by the Buyer.
(e) Delivery and installation of Seller's Bicycles and Stations specified herein shall be
made to the locations specified by Seller in accordance on or about August 24, 2016.
(0 If proper Tender (as defined herein) of Equipment is made and completion of delivery
is prevented through no fault of Seller, Seller may specify a reasonable alternative
place of delivery. Buyer agrees that all costs of storage and transport incurred
following an initial attempt at delivery are hereby allocated to and imposed upon
Buyer, and shall be added by Seller to the sale price. For purposes of this Agreement,
"Tender" shall mean the delivery, or offer of delivery, by Seller to Buyer of all
Equipment, in the quantities set forth in this Agreement, and which materially
conforms to quality standards and specifications as set forth in Schedules A and B
hereto.
3. Payment.
(a) Buyer shall make a deposit payment equal to fifty percent(50%) of the total initial
costs as provided in Schedule C on or before the date that this contract is signed.
Payment in full shall be made immediately on delivery, installation, inspection of the
Stations and acceptance by Buyer, which shall occur within 5 business days, such
Acceptance not to be unreasonably withheld.
(b) All prices exclude state and local use, sales, or similar taxes, any direct or excise tax,
and any import or customs exactions. Buyer is responsible for reporting such costs,
taxes and exactions, if applicable.
(c) In the event Buyer fails to make a payment when due under this Agreement, Seller
may, upon thirty (30) days prior written notice to Buyer, either:
i. exercise Seller's rights pursuant to the security agreement granted in Section 9
and/or withhold delivery of further Equipment or suspend the software service or
planned maintenance due to be performed on Equipment without liability for any
Loss to Buyer until such overdue sum, together with any interest as may be due
thereon, is paid; or
ii. exercise Seller's rights pursuant to the security agreement granted in Section 9
and/or terminate this Agreement without liability for any Loss to Buyer, and
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Buyer shall immediately pay such overdue sum, together with any interest as may
be due thereon to Seller.
(d) Notwithstanding the foregoing, if Buyer pays to Seller such overdue sum, together
with any interest as may be due thereon, on or before the expiration of said thirty (30)
day period, this Agreement, including Seller's delivery obligations hereunder, shall
remain in full force and effect.
(e) If Buyer is in default of any payment obligation, Seller is, without reminder and
prejudice to any other rights, entitled to (1) charge interest at a rate equal to the lesser
of one percent (1. 0%) per month or the legal maximum rate that may be imposed
according to Florida law for similar debts, from the date on which payment was due
until such overdue sum, together with any interest as may be due thereon, is paid; and
(2) exercise all rights and remedies granted to Seller pursuant to the Security Interest
in Equipment granted herein.
(0 Buyer and Seller agree that the Florida Prompt Payment Act, Florida Statutes
§§218.70-80, shall apply and that Buyer shall make any payments or late payments in
accordance therewith.
4. Installation.
(a) Seller shall install, or cause Contractor to install, Stations at Sites selected by Buyer
in accordance with the terms and conditions set forth herein. Seller's installation
services shall include the following (collectively, the "Installation Services"):
i. Pre-site inspection,
ii. Transport and delivery of the Bicycles, kiosks, docks, and other Equipment
needed for the installation of the Stations,
iii. Installation of the Stations by no less than two (2) field technicians, to be
provided by Seller,
iv. On-site training and questions and answers at the time of installation,
v. Installation of Seller's Bicycles with associated Seller's Stations, and
vi. Clean-up of Sites.
(b) Seller's Installation Services shall be performed in accordance with Seller's
guidelines and criteria for installation of Stations, attached hereto and incorporated
herein as Schedule D ("Installation Criteria"), and any project and site-specific plans
mutually agreed to by the parties.
5. Buyer's Responsibilities. Buyer shall perform the following:
(a) Provide Station Sites at its own cost and expense and obtain all necessary permits or
other approvals required for each of the Sites;
(b) Ensure that each Site satisfies the site requirements set forth in the Installation
Criteria in Schedule D;
(c) Ensure satisfactory on Site power access, quality and grounding for all Equipment.
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(d) Ensure prompt and unencumbered access for Seller to the Sites and to network
cabling and communication equipment as may be necessary for Seller to perform the
Installation Services and any delivery, redelivery, manufacture, maintenance, repair,
overhaul, servicing, or replacement of Equipment. This access includes providing
and maintaining connectivity to any modem line, internet connection, vpn persistent
access, broadband internet connection, or other secure access reasonably requested by
Seller (as applicable) to enable Seller to perform support services and meet service
levels, including diagnostic, monitoring and repair services. Seller may separately
charge Buyer for a scheduled service call where Buyer does not provide such access
and Seller is therefore required to schedule an additional service call.
(e) Promptly place service calls in accordance with any reasonable Seller protocols
provided to Buyer and designate a Buyer representative and alternate with the
necessary skills to assist Seller in the diagnosis of service problems.
(0 Unless expressly provided otherwise, Buyer is separately responsible for: (i) the
repair, replacement or removal of any disposables, consumables, supplies, accessories
or collateral equipment; (ii) any additional service necessitated by (1) Buyer's or its
representatives' designs, specifications, or instructions, (2) anything external to
Equipment, including any causes or events beyond Seller's reasonable control, or(3)
losses or expenses related to Buyer's relocation, additions, or changes to Equipment.
(g) Shakeout Period. For a period of ninety (90) days following Installation Services,
Buyer and Seller acknowledge that issues may arise related to the normal operation of
the Equipment. Buyer and Seller agree to work cooperatively to address any
operational issues during this period.
6. Warranties and Limitations of Liability.
(a) Seller warrants that all Equipment sold hereunder shall be of merchantable quality,
free from defects in materials and workmanship (whether the work was performed by
Seller or by its approved subcontractor), and fit for their intended use; that all
Equipment will be manufactured in accordance with applicable Federal, state, and
local laws, regulations, and orders; and that Equipment shall be manufactured in
material conformity with the specifications attached hereto as Schedules A and B;
i. Except as otherwise agreed to in writing, this warranty shall commence upon
delivery of and acceptance by the Buyer of Equipment to the Buyer-designated
Site, and continue for a period of twelve (12) months after delivery. If Buyer
discovers within this period a failure of any Equipment to conform to warranty
stated herein, Buyer shall notify Seller in writing within ten (10) days of
discovery. Notification of such discovery shall be made to Seller by Buyer and
shall describe the nature of the defect and the manner in which the defect became
apparent in sufficient detail to indicate that the defect is covered by this warranty.
The notification shall also state the date of delivery of such Equipment to Buyer,
proof of purchase from Seller, and the amount of intervening use where
applicable.
ii. Within a reasonable time after proper notification, Seller, or Seller's contractor,
shall correct any failure of Equipment to conform to specifications or drawings or
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defects in workmanship, with either new or used replacement parts. If Equipment
is proved to Seller's satisfaction to be defective and covered by this warranty,
such repair or replacement shall be made by Seller without charge. The original
duration of this warranty shall continue for replaced parts. These remedies are the
exclusive remedies of Buyer or operator, as the case may be, for breach of this
warranty.
iii. This warranty shall not extend to the following:
(1) Normal wear and tear of Equipment;
(2) Equipment that has been moved or subjected to any tampering, alteration,
modification, installation of unauthorized parts, or repair without prior
authorization by Seller;
(3) Equipment subjected to experimental running or any type of operation or use
other than that for which Equipment is designed;
(4) Equipment from which manufacturer's and/or vendor's trademark or serial
number has been altered, removed, or obliterated without Seller's written
permission, excluding any alteration, removal, or obliteration directly caused
by accident or mishap to such Equipment;
(5) Equipment that has been in storage or immobilized for more than one (1) year
from the date of acceptance of Equipment by Buyer; and
(6) Defects resulting from accidents, misuse, abuse, negligence, vandalism,
rusting/corrosion, theft, acts of God or other events beyond the control of
Seller.
iv. For the purpose of this warranty, Equipment shall not be regarded as defective
merely because some modification or alteration is required to be made by reason
of Federal, state, or local regulation after delivery of Equipment.
v. Any official action or legal proceeding for breach of this warranty must be
commenced within six (6) months after discovery by Buyer of an alleged defect in
Equipment.
(b) Seller warrants that the delivery, redelivery, manufacture, installation, maintenance,
repair, overhaul, servicing, or replacement of Equipment by Seller shall be performed
by trained individuals in a professional, workmanlike manner, in accordance with
sound business practices.
(c) To the extent permitted by law, each party shall defend, indemnify, and hold the other
party and its affiliates and their respective officers, partners, directors, employees,
agents, successors, and assigns harmless from and against any Losses and threatened
Losses to the extent they arise from or in connection with any of the following: (i)
the death or bodily injury of any agent, employee, customer, invitee, visitor or other
person, or the damage, loss, or destruction of any real or tangible personal property,
either of which is caused by Equipment or the acts or omissions of the other party, its
employees, agents, contractors, or subcontractors (except if such Losses or threatened
Losses are caused by the gross negligence or willful misconduct of the other party, its
employees, agents, contractors, or subcontractors); (ii) any action taken by or on
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behalf of a party in the performance of this Agreement that causes the other party to
be obligated to indemnify, defend, or hold harmless any third party; and (iii) any
claim, demand, charge, action, cause of action, or other proceeding resulting from an
act or omission of a party, its employees, agents, or subcontractors acting in its or
their capacity as an employer or potential employer with respect to the claimant, to
the extent permitted by law. Buyer's liability under this section shall be limited to the
monetary limits of Section 768.28(5), F.S., regardless of whether these limits would
apply in the absence of this provision.
(d) Seller warrants that Equipment to be delivered hereunder including, without
limitation, the Bicycles, Stations and kiosks, do not infringe on any United States
patents, trademarks, or copyrights, or on any other right of any other person. Seller
shall indemnify and hold Buyer harmless against any claim of infringement of patent,
trademark, or copyright, or such other rights relating to the manufacture, sale, or use
of Equipment, and shall bear all costs and expenses, including reasonable attorneys'
fees, arising from or related to any such claim. As used herein, the term "claim"
includes, without limitation, any claim for temporary or permanent injunctive relief in
any action for such infringement of patent or other rights.
(e) The warranties identified herein shall not be transferred, assigned, extended, altered
or varied except by written instrument executed by the parties.
(f) Notwithstanding any other provision in this Agreement, Seller's total liability for any
and all claims, whether in contract, warranty, tort (including negligence but excluding
willful misconduct or recklessness), product liability,patent infringement, or
otherwise, for any damages arising out of, connected with, or resulting from the
performance or non-performance of any service or from the manufacture, sale,
redelivery, resale, repair, overhaul, replacement or use of Equipment or any item or
part thereof, will not exceed ONE HALF MILLION DOLLARS ($500,000.00) PER
OCCURRENCE AND ONE MILLION DOLLARS ($1,000,000.00) IN
AGGREGATE. In no event, whether as a result of breach of contract, warranty, tort
(including negligence but excluding willful misconduct or recklessness), product
liability, patent infringement, or otherwise, will Seller be liable for any special,
consequential, incidental, resultant or indirect damages (including, without limitation,
loss of use, revenue, profit or goodwill) or punitive or exemplary damages.
7. Assignment of Manufacturer's Warranties. To the extent possible, Seller hereby assigns
to Buyer all of its rights and interests in the warranties, and shall hereinafter assign to Buyer any
future warranties (if any), provided by the manufacturers of Equipment, including, without
limitation, new and refurbished parts and components incorporated into Equipment during
servicing, maintenance, repair, or replacement.
8. Termination.
(a) Except as otherwise provided in Section 3(c) of this Agreement, if either party
materially breaches this Agreement, the Intellectual Property Agreement, or the
Digital Services Agreement, the other party may notify the breaching party in writing,
setting out the breach, and the breaching party will have thirty (30) days following
such notice to remedy the breach. If the breaching party fails to remedy the breach
during said thirty (30)-day period, the non-breaching party may by written notice
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terminate this Agreement. Notwithstanding the foregoing, if the steps needed to
remedy a breach are such that the same cannot be reasonably corrected within said
thirty (30)-day period, then the breaching party shall undertake such corrections
within said thirty-day period and shall diligently prosecute the same to completion.
In such event, the breaching party shall give prompt notice of such delay to the other
party and the time for performance shall be extended as reasonably necessary to
enable completion.
(b) Each party shall have the right, in its sole discretion, to terminate this Agreement if(i)
the other party becomes insolvent or is adjudged bankrupt, (ii) at any time the
property and assets of the other party are in liquidation, or(iii) the other party ceases
or threatens to cease carrying on its business.
9. Security Interest.
(a) Buyer hereby grants to Seller a first priority security interest in Equipment to secure
all amounts owed by Buyer to Seller under this Agreement for sale of Equipment and
the amount of all sums and expenses advanced or incurred by Seller in connection
with Seller's installation, repair or overhaul of any Equipment.. After the full
payments for the above are made, the grants of the first priority security interest in
Equipment immediately extinguish.
(b) Buyer acknowledges and agrees that, in addition to the security interest and lien
expressly granted by Buyer to Seller hereunder, Seller shall have a lien on Equipment
retained in possession of Seller to the extent otherwise provided by law.
(c) Buyer acknowledges that the lien for repairs or overhaul shall be for the full value of
such work, and shall be superior to any lien or interest in favor of Buyer, its parents,
affiliates, or subsidiaries, or any other person who has knowledge of this Agreement.
To the extent that Seller maintains possession of Equipment under repair, Buyer
agrees that Seller is a secured creditor of Buyer and has all the rights of a secured
creditor. Upon the occurrence of any default by Buyer hereunder, Seller may, at its
option, after reasonable written notice to and demand on Buyer, and in addition to all
rights and remedies available to Seller under this Agreement, foreclose or otherwise
enforce its security interest hereunder in any manner permitted by law.
(d) Buyer agrees that at any time and from time to time Buyer will promptly make,
execute, endorse, acknowledge, file and/or deliver all further instruments and
documents, and take all further action, that Seller may reasonably deem to be
necessary or desirable, or that Seller may reasonably request, in order to perfect and
protect any security interest granted or purported to be granted by Buyer or to enable
Seller to exercise and enforce its rights and remedies hereunder.
10. Dispute Resolution.
(a) EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 10, EACH PARTY
EXPRESSLY WAIVES ALL RIGHTS TO A JURY TRIAL IN CONNECTION
WITH ANY DISPUTE ARISING UNDER THIS AGREEMENT. This agreement
shall be governed by, and interpreted in accordance with the laws of the state of
Florida without reference to its conflict of laws rules. Any action brought by either
party pursuant to this Agreement shall be brought in the appropriate court in Miami-
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Dade County, Florida, which shall have the sole and exclusive jurisdiction over the
matter. Each party shall bear its own costs and fees, including attorneys' fees.
(b) The rights and obligations set forth in this Section 10 shall survive the termination of
this Agreement.
11. Representations and Warranties. Seller and Buyer each represent and warrant that they
have full corporate authority to enter into and fulfill the terms of this Agreement. Buyer further
warrants that it is authorized to, and has all requisite approvals to, establish, own and operate a
bicycle sharing system.
12. Term. This Agreement will commence on the Effective Date and will continue for 1 year
from the date of the Effective Date (the "Term"). .
13. Schedules and Exhibits. The schedules and exhibits attached hereto and incorporated
herein are subject to reasonable change.
14. Reciprocity. The B-cycle system provides for membership reciprocity between
participating B-cycle cities. In the event Buyer chooses to participate in the reciprocity program
at B-cycle's discretion, then Buyer acknowledges that it would need to execute and be bound by
the B-cycle Inter System Reciprocity Agreement ("Reciprocity Agreement") attached hereto as
Schedule E.
15. General Provisions.
(a) Headings. 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 or of
any term or provision hereof.
(b) Beneficiaries. This Agreement is solely for the parties' mutual benefit and not for the
benefit of any third party.
(c) Independent Contractor. Buyer and Seller are now and will remain as to each other
separate and independent. In the performance of this Agreement, it is mutually
understood and agreed that each party is at all times acting and performing under this
Agreement as an independent contractor, and not as an employee,joint venturer or
franchisee or partner of the other party. The parties expressly agree that this
Agreement, together with the Intellectual Property License Agreement and the Digital
Platform Services Agreement shall not constitute a franchise. Buyer acknowledges
that all goods and services provided hereunder are for value in kind, and shall not
constitute a fee. Buyer hereby affirmatively elects to utilize Seller's trademarks in
connection with Buyer's bike share program, and Buyer acknowledges that it is not
required to do so in order to purchase the goods and services specified herein. Buyer
is solely responsible for its own marketing plans, rate structure, and methods of doing
business. Neither party shall have any right, authority, or duty to act for the other
party, except as otherwise agreed to in this Agreement.
(d) Confidentiality. Subject to Chapter 119, Florida Statutes and other applicable laws,
the parties agree that, in the course of performance of this Agreement, it may be
necessary and desirable for them to exchange confidential information. Each party
shall treat the other party's written, proprietary business information as confidential
provided that such written material is: (i) marked as confidential or proprietary at the
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time of disclosure and (ii) not otherwise publicly or already known or available from
a lawful source, and (iii) materials and information obtained via B-cycle's suppliers
including pricing, tech info, training materials, and manuals. The receiving party
shall not disclose confidential information of the disclosing party to any person
outside its employ, except when authorized by the disclosing party. Any party
receiving confidential information under this Agreement shall maintain such
information in confidence in the same manner it protects its own confidential
information and shall use it only for the performance of this Agreement and for no
other purpose. Notwithstanding the foregoing, confidential information excludes
information relating to the U.S. tax treatment or U.S. tax structure of the transactions
covered by this Agreement.
(e) Assignment. This Agreement is not assignable and the duties hereunder are not
delegable without the other party's prior written consent, which consent shall not be
unreasonably withheld; provided, however, that either Seller or Buyer may transfer
and assign this agreement without the other party's consent to any person or entity
(except to a competitor of Seller)that is an affiliate of such party or that acquires
substantially all of the stock or assets of such party's applicable business if any such
assignees agree, in writing, to be bound by the terms of this agreement. Subject to
such limitation, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Notwithstanding
anything to the contrary contained herein, Seller may hire subcontractors to perform
the installation and maintenance work provided for in this Agreement; provided,
however, that Seller shall at all times remain responsible for the performance of its
obligations and duties under this Agreement.
(f) Sponsorship. Buyer agrees that it will not knowingly sell or offer sponsorships to
competitors of Trek Bicycle Corporation.
(g) Entire Agreement. This Agreement, including any and all schedules and exhibits
attached hereto and incorporated herein, is intended by the parties as a final
expression of their agreement and as a complete and exclusive statement of its terms.
Acceptance of, or acquiescence in, a course of performance rendered under this
Agreement shall not be relevant or admissible to determine the meaning of this
Agreement even though the accepting or acquiescing party has knowledge of the
nature of the performance and an opportunity to make objection. No representations,
understandings, or agreements have been made or relied upon in the making of this
Agreement other than those specifically set forth herein.
(h) Amendments and Termination. This Agreement can only be amended, modified, or
terminated by a writing signed by all of the parties or their duly authorized agents. If
a mutually agreed to amendment or modification results in an increase or decrease in
the cost, or the time required for completion, of any delivery or part of the work to be
completed by Seller under this Agreement, an equitable adjustment shall be made in
the price or delivery schedule, or both, and this Agreement shall be modified in
writing accordingly.
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(i) Survival. The terms of this Agreement that, by their nature, are intended to survive
this Agreement's expiration (such as the confidentiality and warranty provisions
included herein) shall continue in full force and effect after its expiration.
(j) Waiver. Any failure to enforce any provision of this Agreement is not a waiver of
that provision or of either party's right to later enforce each and every provision.
(k) Severability. If any provision of this Agreement shall be determined by a court of
competent jurisdiction to be invalid or unenforceable, such determination shall not
affect the remaining provisions of this Agreement, all of which shall remain in full
force and effect.
(1) Force Majeure. Neither party is liable for delays or failures in performance under
this Agreement due to a cause beyond its reasonable control including, without
limitation, embargoes, fire, flood, explosions, Acts of God or a public enemy, strikes,
labor disputes, vandalism, or civil riots or commotions. In the event of such delay,
the party that is unable to perform shall give prompt notice of such delay to the other
party and the time for performance shall be extended as reasonably necessary to
enable performance.
(m)Notices. All notices or other communications to be given or delivered under or by
reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given when delivered personally, one business day following when sent via
a nationally recognized overnight courier, or when sent via facsimile(or other
electronic transmission) confirmed in writing to the recipient. Such notices and other
communications will be sent to the addresses indicated below or such other address or
to the attention of such other person as the recipient party shall have specified by
prior written notice to the sending party:
To Buyer:
City of Aventura
19200 W. Country Club Drive
Aventura, Fl 33180
Attn: Eric M. Soroka, City Manager
To Seller:
B-cycle, LLC
801 W. Madison St
Waterloo, WI 53594
Attn: Robert Bums, President
(n) Counterparts; Facsimile. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument. This Agreement may be executed and delivered via facsimile or other
electronic transmission.
(o) Language. If this document is drafted in more than one language, then the English
version shall be the controlling document and any disputes arising out of this
document shall be resolved with the English version.[Signature Page to Follow]
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IN WITNESS WHEREOF, Seller and Buyer have caused this Agreement to be executed
as of the Effective Date indicated above.
SELLER
B-CYCLE, LLC
By:
Name: Robert Burns
Its: President
BUYER
ATTEST: CITY OF AVENTURA
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__.A....b./161"----&:k-4----
City Clerk
T 14
� t t.�'� ,c° Name: Eric M. Sore
erg of Its: City Manage
Approves as o form d legal syfiency:
City Attorney
Page 11 of 11
SCHEDULE A: DESCRIPTION OF B-CYCLE 2.0 BICYCLE
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B-CYCLE 2.0 COMPONENTS AND SPECIFICATIONS
Customization
Color: White
Branding: Custom graphics
Decal Placement Locations:
Downtube
Optional Decals(Not included in quoted price):
Front Caddy(front panel)
Shroud
Skirt Guard(left and right panels)
Frameset
Sizes: One size fits 5'-6'2"+
Frame: Oversized alpha aluminum.
Fork: Proprietary triple clamp
Wheels
Front: Shimano Dynamo generator hub with alloy rims
Rear: Shimano 3-speed internal gear hub with alloy rims
Tires: Puncture resistant Bontrager hard case with reflective sidewalls
Schedule A
Drivetrgjp
Shifters: Shimano twist shifter
Rear: Shimano Nexus 3-speed internal gear hub
Crank: 38T alloy
Chain: KMC Rustproof 1/2x1/8" heavy duty
Pedals: Platform
Components
Saddle: Seamless Bontrager all-weather saddle
Seat Post: Proprietary theft resistant indexed post with easy to use proprietary four-finger clamp
Handlebars: Handlebar caddy and shroud.
Grips: All weather grips
Headset: Sealed bearing
Brakeset: Shimano IM40 all-weather internal brake system
Fenders: Black poly carbonate low profile
$ecurity Proprietary dual front hub locking design, seamless integration with the B-station
Mali= Always-on Spanniinga LED front and rear lights that run off the bicycle's hub dynamo.
Included Extras
Fully enclosed chain, shroud housing, robust kickstand, and bell
Note: Bicycle specifications and components subject to change.
Schedule A
SCHEDULE B: DESCRIPTION OF B-CYCLE 2.0 STATION
The kiosk can be powered by solar, AC, battery or a combination. A standard B-cycle kiosk covers all
basic station functionality(registration with a credit card, check-in/out, nearest bike/dock availability, 15
minute extensions for full stations).
• Kiosk Frame and Base: Galvanneal Steel
• Dock: Cast Aluminum
• Paint: Powder Coat
• Power Options:
- Solar powered(single 140-watt panel, 4 batteries, 24 volts)
- A/C (1 10 VAC, 60 Hz, 10 Amps minimum)
• Display: Color Touchscreen
• Language: English and Spanish(with other language availability)
• Magnetic stripe, Point to Point Encryption(P2PE), all-weather credit card reader(EMV credit
card reader available late 2015-2016)
• Communications to central server via broadband cellular(wireless)
Note: Station specifications subject to change.
Station Configuration Options
/ ■
tt•s•m. -A dedicated supply of 110V k r
tt•r run. required for d1 AC Stations
11• Q -Solar power can power a Station vtt• Q
at sites with sufficient sun exposure r
Ells ll
rr y fol.(135W) rr t•t• AC/BaMory
3iale sided bale pksles ae 210' f 4 ]' —�•� 4 ]"
-There are�aKea> rk„ bmwae dam.
-Dudl)arNty boss Wales ale 1'6- w $??" J. .
-Al Wates ale2'4•deep - ;, — {enmehc i dandad bole
Lm be bolted aunbolted - for modske
° asymmetric k eMad,abere '• V
_ . are e. en abode �1 II
Sane Pate fa Sala.Mad Battery ' '. .1
I — _ -Both dope con be boMed a
of
-M bale Oates ae nal MI
-Reference inane for base plat deeicn -Unbolted
4Polka Y Hedy
-Unbolted!talons met beaclocks on each side of the ldmk
Schedule B
Srinn'11 1
rr `
ir
•r I ss , I P / % ly� u—a— 1
01 7■7■�.ff■■ rlr
4'Back-Up Zone i 4 Back-Up Zone : ea +azo a
base
-Ore dock per base 1 i One dock per base One dock Bases are halflength(I'5')
-Kra an be related 180 degrees to reduce glare Moak Cal be rotated 180 degrees to reduce doe Moak cm g
be rotated 180 degrees to wipeglare
endears placedSands of
aareboththe dans -, I S'erada4n weWceddbdh erad'dhe dais, a -5"endcm'are placed d both ends of the station
ii -Kee be reseed t cry pardon of the talion »
-Pak made needed otos mypanmd the dation I f be rotated 22 sdcts tot redcefoot pml r spacers placed at Me Inca fa door ta
-Mm 32 Dodo per We mD de Iola. 1 Poe be rmded into v position of the'tartan
-Max 32 Dodo per We.64 Dock told -Mos 32 Doan Per vde mDocks l fd.
No of Daata length of Sigh Sled Station Length of Dud Deserts Stolen
._....�...._ _._�,.,,.,,._. _.._._:..�.,�_......"......
r
8 21'0' 16'I1' IGoilr 25
1011 Sanfl g8unlrCb Sold� 1^m
to 12 39 I' 1" tomeelebfl
IBmk Bye 651tos
I4 m'0' ya.s. For±avdepth referrotables
above
asKro9r Bye Balm) Jbb/each
16 `.A 5 3 Station lengths reflect d reamed Dock 351a
18 31 proponents l(k.docks Dock Base(Sde Sde) Its
end Wks and oamrs.
20 61'9' r Doak Bow(Dud Dental) I21os
Tl. ... . . .615 36.0. sadWed ea liaison length does '
not change win arcing he Era Cora 6b
24 131' 39'1' dOao' 81606-66 its
26 ..._ )89 42'S' ',,,,„,„.,„,,„„9.„,,,,,b,„.
28
Station Footprint—Straight Dock, Flat Back Kiosk
er
1
2.7 s t s s 49 St ' - s we s j 1
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Schedule B
Station Footprint—Angled Dock, Standard Kiosk
,[ir, r • • r • • r • • J' I
,. J3: L
n
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. ..
-7_ono l cod; 1 ';",t1 . 1 mi' - , 14 1'. l'ti 1 I"Iio Il:r; 1 ;ki 4' iii
��1 I ® 1 I ® 4 i I I. ydi I
Station Footprint—Dual Density, Standard Kiosk
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MINS
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1 - _ - _ _ = 1 .7.
�� f�i Ii I� II� ��f� �Ili ! II (� �, II I�Ili 11 t �la �:�� ��I��A.:r�l
bJid I .I IIII:I.I JII I�fllll_I. �___I:�I�h�II_.I ��I I�IItILhll_.I :4 _ c� IV II_ i/
Schedule B
SCHEDULE C: INITIAL COSTS
INITIAL COSTS
Capital Equipment Unit Price QTY Total
2.0 BIKES(3 speed) $ 1,099 35 $ 38,465
-Active GPS(per bike)* $ 226 10 $ 2,260
STATION
-Kiosk $10,124 5 $ 50,620
-Kiosk Ballast(for non-bolted kiosk) $ 940 _ 0 $ -
-Solar Kit $ 3,414 4 $ 13,656
-Dock $ 1,037 58 $ 60,146
-Base $ 343 58 $ 19,894
Capital Equipment Total: $ 185,041
Additional Equipment and Fees Unit Price QTY Total
RFID READER $ 300 1 $ 300
RFID MEMBERSHIP CARD $ 2 1,000 $ 2,000
SHIPPING AND HANDLING
-Bike shipping(estimated) $ 55 35 $ 1,925
-Station shipping(estimated) $14,542 1 $ 14,542
INSTALLATION $ 2,250 5 $ 11,250
ONE-TIME CONNECTIVITY TEST FEE(per station) $ 250 5 $ -
ONE-TIME SOFTWARE DESIGN FEE $ 7,500 1 $ -
INSTALLATION TRAVEL EXPENSES(estimated) $ 1,578 1 $ 1,622
Additional Equipment and Fees Total: $ 31,639
Total Initial Costs: $ 216,680
*50%Deposit is due on or before execution of contract *50% Deposit: $ 108,340
ONGOING COSTS
Other Fees Unit Price QTY Total
Annual Enterprise Software Fee (per dock) $ 125 58 $ 7,250
Est. Monthly Connectivity Fee (per station)
-paid to third party provider $ 30 5 $ 150
-Prices estimated
-Quote valid for current configuration only.
-Shipping and travel charges estimated. Actual charges finalized upon delivery.
-1-year parts and service warranty on the station equipment, 1-year parts warranty on
and 5-year warranty on the bike frame.
*Active GPS requires an ongoing monthly data charge of$4 per month per device
Schedule C
SCHEDULE D: INSTALLATION CRITERIA
• The maximum number of docks supported by one kiosk is 23 docks (station length would be
64' for 23 single sided docks with 1 kiosk or 32' for 23 double sided docks with 1 kiosk.
These lengths do not include measurements for Map/Ad Module).
• The minimum length for an unlagged single-sided station is 4 bases or 21'4"(with 1/2"thick
plate). Single-sided stations with less than 4 bases will need to be lagged into the ground.
The minimum length for an unlagged double-sided station is 3 bases or 16' (with %2"thick
plate). Double-sided stations with less than 3 bases will need to be lagged into the ground.
• No dock shall be more than 30' away from the kiosk so we recommend that for stations
longer than 30',the kiosk be moved between the docks to satisfy this requirement
• Power Requirements
o For installations with an AC kiosk, 110V 20Amp single phase service will be
required
o Ideally service is routed under base plate containing kiosk as per sketch
o Electrical lead ends should be no shorter than 12"
• Allowable ground slope/grade
o Cross Slope—is the angle perpendicular to the direction of travel or usage
o Running Slope—is the steepness measured parallel to the direction of travel or usage
Mammo m Acceptebto
al
lockwSpa ls 'x
blaximu m Acceptable
loceIIowspotis 'x
'` ` ■ a Slope orret 50 IS LX I
Maximum Acceptable
Slope ov er IS t
• Allowable ground indulation
Ma>tumu m Acceptgbto
Mlalodmum Acceptable
local law spot n 1'x 3"
Schedule D
• Allowable ground flatness
o Maximum ground variation or flatness is constrained by ADA trip hazard guidelines,
which states that a rise larger than ''/2"requires a ramp with maximum grade of 1:12
o Therefore, in order to ensure that the gap between the ground and the base is less than
%2",the grade variation must be less than %2"(or±1/4")
o If flatness of site is outside of spec, special measures can be employed to avoid a
tripping hazard(i.e., locally filling the low spot)
Side to Side Front to Back
Maximum Acceptable
Slope over 60'is LW
Meodmom Acceptable
Slope over 3tr is*IC
• Parallel parking spots
o Please exercise caution when siting stations for street parallel parking spots
o Normally,the minimum clearance behind the bikes is 4 feet. In this case, space
behind the bike would only be is 2.5 feet on a 9 foot wide spot
o Spots should be chosen close to the intersection(with a stop sign ideally)of a quiet
street(because cars are slowing and coming to a stop)
Schedule D
I
SCHEDULE E: RECIPROCITY AGREEMENT
B-cycle Inter System Reciprocity Agreement
WHEREAS, B-Cycle, LLC ("B-cycle") has installed bike sharing systems in several different locations;
and
WHEREAS, all of these bike sharing systems are operated by the same proprietary B-cycle enterprise
software; and
WHEREAS, it is technologically feasible to allow B-cycle system members from one system to utilize
B-cycle systems in other locations while enjoying the membership benefits of their home location;
and
WHEREAS, most B-cycle systems are independently owned and operated by local organizations
("Operators"); and
WHEREAS, many of these Operators have expressed an interest in providing their members with
membership privileges in other B-cycle locations in exchange for reciprocal privileges in their own
locations; and
NOW THEREFORE; the signatories to this Agreement agree to provide reciprocity for their
respective members subject to the terms and conditions set forth below.
1. Reciprocity shall be extended to annual members only;
2. Current annual members in good standing shall enjoy the privileges of annual
membership in participating cities without incurring additional membership fees;
3. Usage fees accrued shall be paid to the location where usage takes place ("Host
Location");
4. B-cycle will not charge any additional fees to Operators participating in the reciprocity
program;
5. All annual members wishing to enjoy the privilege of reciprocity in participating
locations must first accept that location's User Agreement and Terms and Conditions at
a kiosk in the Host Location;
6. In the unlikely event that a visiting annual member returns a B-cycle to another
participating location, it shall be the responsibility of the Host Location to make
arrangements to retrieve its B-cycle, and the Host Location shall determine a retrieval
fee which shall be charged to the user;
7. Each Operator shall be responsible for damage to its own facilities which is not
otherwise covered by the Kiosk User Agreement or is not recoverable from the User.
8. All participating locations agree that the other participating locations shall have access
to the user profiles of the annual members who have opted into other participating
locations. This access shall include visibility to all participating locations' user
Schedule E
information and the ability to charge one-time charges, usage fees, and settle
outstanding delinquencies to annual members who have opted into other participating
locations when they incur these fees in the Host Location. This access shall not include
modifying profile, card,or membership information or making adjustments to receipts
with the exception of receipts charged by the Host Location;
9. All participating locations shall keep the customer information and other proprietary
information of the other participating locations strictly confidential and shall not
disclose such information to third parties or use it for any purpose other than those
specified herein. Further, all participating locations agree that they will not use other
participating locations' user information for marketing purposes unless it is part of a
joint marketing effort agreed to by all Operators whose user information is involved;
10. Participating locations will confer and exchange their member's trips in other
participating locations;
11. Participation in this Reciprocity Agreement is voluntary and no B-cycle location shall be
required to participate;
12. Any participating location may elect to withdraw participation on three months written
notice to B-cycle. In the event a participating location elects to withdraw from this
Reciprocity Agreement, it shall be its sole responsibility to notify all other reciprocity
operators 3 months before reciprocity privileges will expire ;
13. B-cycle, in its reasonable discretion, shall determine whether any individual B-cycle
location may participate in this Reciprocity Agreement;
14. Participating locations acknowledge that reciprocity arrangements, by their nature,
create the need for inter-system customer service, cooperation and coordination and
each signatory below agrees to reasonably cooperate with B-cycle and all other
participating locations as may be necessary to effect the purposes and spirit of this
Agreement;
15. The original signatories below acknowledge that new systems may be added to this
Agreement from time to time.
AGREED:
Original Signatures
B-Cyc DATE: -2/f'
Robert Bu s-President
2
Schedule E
Denver Bike Sharing DATE: 472 ' 13
P
arry W a'-Ez Nrecter
Boulder Bike Sharing DATE: 2/g/12--
r
iti/
Ellabeth r 'veD+rector
Additional Signatures:
1'. A DATE:
AcDATE: t -).
DATE:
DATE:
DATE:
DATE:
3
Schedule E
Exhibit A
INTELLECTUAL PROPERTY LICENSE AGREEMENT
THIS INTELLECTUAL PROPERTY LICENSE AGREEMENT (this "Agreement") is
made this 14th day of June, 2016 (the"Effective Date"), by and between B-CYCLE, LLC, a
Delaware limited liability company, with its principal offices at 801 West Madison Street,
Waterloo, Wisconsin 53594 ("Seller"), and the City of Aventura, Florida with its principal
offices located at 19200 West Country Club Drive, Aventura, Florida 33180 ("Licensee").
RECITALS
WHEREAS, Licensee is forming an independent bicycle share program ("Bike Share
Program") with equipment purchased from Licensor;
WHEREAS, Licensee hereby elects to use certain trademarks and other intellectual
property of Licensor;
WHEREAS, Licensor owns or has rights to all right, title, and interest in and to the
trademarks and internet domain names in the form more fully described in Schedule A hereto
(the "Marks");
WHEREAS, Licensor owns or has rights to all right, title, and interest to certain secret
and valuable processes, procedures, techniques, and secret and valuable business, financial,
software object and source code, and other proprietary information (the "Trade Secrets") that that
are useful in the business of bicycle sharing programs (the "Business") and that Licensee may
elect to access under the terms of this Agreement;
WHEREAS, Licensor owns or has rights to all right, title, and interest in and to certain
information, designs, drawings, operations manuals, compilations of technical information,
research files and records, methods and specifications, quality assurance specifications,
know-how, processes, business methods, and other priority information related to the Business
(the "Know-How") (the Marks, Trade Secrets, and Know-How will be collectively referred to as
the "Intellectual Property");
WHEREAS, Licensor wishes to license and Licensee wishes to receive the right to use
the Intellectual Property in connection with the Bike Share Program;
WHEREAS, the Intellectual Property constitute valuable rights used by Licensor in
conducting its business;
WHEREAS, the Marks designate the origin or sponsorship of Licensor's products and
services and Licensor desires to protect the goodwill of its Marks and to preserve and enhance its
rights in and the value of the Marks; and
WHEREAS, Licensor and Licensee agree that certain restrictions on Licensee's use of the
Intellectual Property are necessary to ensure Licensor's rights to the Intellectual Property are
preserved, protected, and enhanced.
NOW, THEREFORE, in consideration of the above premises and the mutual covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows.
Page 1 of 10
AGREEMENTS
1. Grant of License.
1.1 Licensor hereby grants to Licensee, and Licensee hereby voluntarily accepts, a
non-exclusive, royalty-free, non-transferable license to use the Intellectual
Property solely in connection with the Bike Share Program, subject to the terms of
this Agreement.
1.2 Licensee recognizes and acknowledges that the Intellectual Property and all rights
therein and goodwill pertaining thereto belong exclusively to Licensor and that all
rights resulting from Licensee's use of the Intellectual Property as permitted
hereunder inure to the benefit of the Licensor.
1.3 Licensor represents and warrants to Licensee that: (i) it owns or has the right and
all necessary authority to license the Intellectual Property in accordance with the
terms of this Agreement; (ii) the Intellectual Property does not infringe any third
party intellectual property or other proprietary right, nor misappropriate any third
party trade secrets; and (iii)the entering into of this Agreement with Licensee will
not breach the terms of any other agreement to which Licensor is a party.
1.4 OTHER THAN EXPRESSLY SET FORTH IN THIS AGREEMENT,
LICENSOR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, AS TO THE USE, EXCLUSIVE OWNERSHIP, VALIDITY OR
ENFORCEABILITY OF THE MARKS OR THE INTELLECTUAL
PROPERTY.
2. Rights Not Granted. All rights other than those expressly granted to Licensee are
reserved to Licensor. This Agreement is not an assignment or grant to Licensee of any right, title
or interest in or to the Intellectual Property, or any of Licensor's other trademarks, other than the
grant of rights to use the Marks subject to the terms and conditions of this Agreement. Licensor
expressly does not grant to Licensee the right to use any variation of the Marks that now exist or
hereafter are developed by Licensor, Licensee or any other person.
Licensee agrees that it will not make use of the Intellectual Property except in connection with
the Bike Share Program nor sell or sub-license same to any third party.
Licensee further acknowledges that the rights granted hereunder do not include the right to: (i)
operate a retail or outlet store under the Marks or any variation thereof; (ii) sell any products
bearing the Marks at retail stores anywhere in the world, including in the Territory; (iii) sell any
products bearing the Marks directly to the public through catalogs (print, CD-ROM or otherwise)
or wholesale clubs; or (iv) sell any products bearing the Marks on the Internet or any other
electronic network of any kind currently in existence or which may be developed in the future.
3. Territory. The license of the Intellectual Property granted under this Agreement is for
use solely in the Territory described in Schedule B hereto.
4. Quality Control.
4.1 Quality Control Standards. Licensee will use the Intellectual Property only in
accordance with the guidance and directions as may be furnished in writing from
Page 2 of 10
time to time by Licensor or its agents.
4.2 Purpose of Quality Control. To maintain the quality reputation of the Marks, all
promotional or packaging material relating to the Bike Share Program must have
Licensor's prior written approval, such approval not to be unreasonably withheld.
5. Ownership and Use of Intellectual Property.
5.1 Licensee acknowledges and agrees that Licensor is the owner or licensee of the
Intellectual Property and that it will never dispute, contest, or challenge, directly
or indirectly, the validity or enforceability of the Intellectual Property or
Licensor's ownership of or right in the Intellectual Property, nor counsel, procure,
or assist anyone else to do the same, nor will it take any action that is inconsistent
with Licensors ownership of or rights in the Intellectual Property, nor will it
represent that it has any right, title, or interest in the Intellectual Property other
than those expressly granted by this Agreement.
5.2 Upon Licensor's request, Licensee will cooperate fully, both before and after
termination or expiration of this Agreement and at Licensor's expense, in
confirming, perfecting, preserving, and enforcing Licensor's rights in the
Intellectual Property, including but not limited to, executing and delivering to
Licensor such documents as Licensor reasonably requests for any such purpose,
including but not limited to, assignments, powers of attorney, and copies of
commercial documents advertising the Bike Share Program. Licensee hereby
irrevocably appoints Licensor as its attorney-in-fact for the purpose of executing
such documents.
5.3 In the event Licensee acquires, as a result of the exercise of any rights provided
under this Agreement, any rights in the Intellectual Property, it agrees to assign
and hereby assigns all such rights to Licensor.
5.4 Licensee will not create, use, distribute, or allow to be distributed, any materials
that are false or misleading.
5.5 Licensee will ensure that all advertising, labeling, packaging and other materials
associated with the Bike Share Program fully conform to all applicable laws and
regulations.
5.6 Licensee will conduct its business operations in accordance with all applicable
laws and regulations, including but not limited to, laws relating to consumer
protection, wages, hours, labor, health and safety, and immigration.
5.7 Licensee agrees that all right, title and interest in and to all materials, including
but not limited to, all artwork and designs, created by Licensor, and used with the
Intellectual Property or in association with the Business are the property of
Licensor. Additionally, all such materials created by Licensee or any other person
or entity retained or employed by Licensee that incorporate any Intellectual
Property are works made for hire within the meaning of the United States
Copyright Act and are the property of Licensor, who shall be entitled to use and
license others to use such materials unencumbered by moral rights. To the extent
such materials are not works made for hire or rights in the such materials do not
automatically accrue to Licensor, Licensee irrevocably assigns and agrees to
Page 3 of 10
assign to Licensor, its successors and assigns, the entire right, title, and interest in
perpetuity throughout the world in and to any and all rights, including all
copyrights and related rights, in such materials, which Licensee and the author of
such materials warrant and represent as being created by and wholly original with
the author. Where applicable, Licensee agrees to obtain any other assignments of
rights in such materials from another person or entity necessary to ensure
Licensor's right in such materials.
5.8 If Licensee, during the term of this Agreement, conceives or develops any
improvements or additions to the Intellectual Property, website or any other
documents or information pertaining to or relating to the Business, or any new
trade names, trade and service marks, logos, or commercial symbols related to the
Business or any advertising and promotional ideas or inventions related to the
Business (collectively, the "Improvements"), Licensee shall fully disclose the
Improvements to Licensor, without disclosure of the Improvements to others, and
shall obtain Licensor's written approval prior to using such Improvements. Any
such Improvement may be used by Licensor without any obligation to Licensee
for royalties or other fees. Licensee shall assign and does hereby assign to
Licensor, all right, title and interest in and to the Improvements, including the
right to grant sublicenses to any such Improvement. Licensor, at its discretion,
may make application for and own copyrights, patents, trade names, trademarks
and service marks relating to any such Improvement and Licensee shall cooperate
with Licensor, in securing such rights. Licensor may also consider such
Improvements as the property and Trade Secrets of Licensor.
6. Ownership and Use of Marks. It is of utmost importance that the goodwill, stature, and
image of quality associated with the Marks be maintained and enhanced by Licensee. Licensee
will make no use of the Marks without the prior approval of Licensor, this Agreement itself not
constituting such approval. To maintain and enhance the goodwill and image of quality
associated by the public with the Marks, Licensee will conduct its business in accordance with
the following:
6.1 Licensee will use the Marks only in lettering, logos, print styles, forms, and
formats, including but not limited to, advertising and promotional materials,
invoices, signage and promotional items which have been approved by Licensor
in accordance with this Agreement, and otherwise promptly follow instructions
regarding the Marks given by Licensor in writing from time to time. Licensee will
not alter, move, change or obscure any of Licensor's or Licensor's sponsors,
trademarks, logos, or other indicia as delivered to Licensee by Licensor on the
goods sold to Licensee pursuant to that certain Purchase Agreement for
Equipment and Services executed contemporaneously herewith. Licensee shall
only use the Marks in accordance with Licensor's Trademark Use Standards, as
may be changed by Licensor from time to time and provided to Licensee in
writing, and which are attached hereto, and incorporated herein, as Schedule C.
6.2 Licensee agrees to use commercially reasonable efforts to safeguard and maintain
the reputation and prestige of the Marks and will not do anything that would
knowingly tarnish the image of or adversely impact the value, reputation or
Page 4 of 10
goodwill associated with the Marks. Licensee will never attempt to knowingly
dilute, directly or indirectly, the value of the goodwill attached to the Marks, nor
to counsel, procure, or assist anyone else to do the same.
6.3 Licensor may decide, in its sole and absolute discretion, to apply to register or to
register any trademarks with respect to the Business or any other goods and
services. Failure of Licensor to obtain or maintain in effect any such application
or registration is not a breach of this Agreement. Licensee will not, before or
after termination or expiration of the Agreement, register or apply to register any
of the Marks, or any trademark or logo confusingly similar thereto, anywhere in
the world.
6.4 Licensee should mark the Marks with a superscript "®" or "TM," as appropriate,
unless and until advised by Licensor to use a different notice.
6.5 If, in Licensor's reasonable determination, the use of a Mark in connection with
the Bike Share Program will infringe or potentially infringe upon the rights of any
third party or weakens or impairs Licensor's rights in the Marks, then upon notice
from Licensor, Licensee will immediately terminate or modify such use in
accordance with Licensor's instructions, and Licensee will have no rights of
damages, offset, or right to terminate this Agreement as a result thereof.
6.6 Licensee shall not use Licensor's Marks as part of a domain name, except as
authorized herein. See Schedule A for a list of approved domain names.
Immediately on expiration or termination of this Agreement, Licensee shall cease
use of any domain name which incorporates any of Licensor's marks, and shall
assign registered ownership in such domain names to Licensor.
7. Trade Secrets. Subject to Chapter 119, Florida Statutes and other applicable laws,
Licensee agrees to take all reasonable steps to protect the Trade Secrets, and to employ at least
those precautions that Licensee employs to protect its own confidential or proprietary
information. In order to protect the Trade Secrets from public disclosure, Licensee agrees to take
at least the following minimum steps:
7.1 All access to Trade Secret information will be limited to those employees of
Licensee who may require the information in order to perform their jobs;
7.2 Other than as specifically provided in Section 7.1 above, no Trade Secret
information will be disclosed to third parties; and
7.3 Licensee will require that all relevant employees enter into confidentiality
agreements, in a form suitable to Licensor, acting reasonably.
8. Indemnification and Infringement.
8.1 Licensor shall defend, indemnify, and hold harmless Licensee and its officers,
directors, employees, agents and members from any and all third party damage,
liability, claims, and expense, including reasonable attorneys' fees and expenses,
related to any suit, action, legal proceeding, claim or demand of whatever kind or
character based on:
Page 5 of 10
8.1.1 any allegation of infringement of any patent, copyright, industrial design,
trademark, or other intellectual property or proprietary right or
misappropriation of any trade secret of a third party, arising from the use
of the Intellectual Property in accordance with the terms of this
Agreement; or
8.1.2 Breach of a warranty, representation, or duty of Licensor to Licensee or to
any vendors or consumers.
8.2 To the extent permitted by law, Licensee shall defend, indemnify, and hold
harmless Licensor from any and all third party damage, liability, claims, and
expense, including reasonable attorneys' fees and expenses, related to any:
8.2.1 Act or omission of those with whom Licensee contracts for the provision
of goods and services related to the Bike Share Program;
8.2.2 Suit, action, legal proceeding, claim or demand of whatever kind or
character based on:
(a) any allegation of false or misleading advertising involving the goods
and services of the Bike Share Program or the Intellectual Property by
Licensee; or
(b) any allegation of infringement of any patent, copyright, industrial
design, trademark, or other right of a third party, arising from the
advertisement, or promotion, by Licensee of the Bike Share Program.
8.2.3 Use of the Intellectual Property in a manner not authorized by this
Agreement; or
8.2.4 Breach of a warranty, representation, or duty of Licensee to Licensor or to
any vendors or consumers.
. Licensee's monetary liability to B-cycle under this section shall be limited to the
monetary limits of Section 768.28(5), F.S., regardless of whether these limits would apply in the
absence of this provision. Notwithstanding anything to the contrary, Licensee agrees that it shall
promptly comply with any injunction or non-monetary relief, in law or in equity, that a court
may order.
8.3 Licensee shall notify Licensor within three (3) days in writing of any act that
Licensee believes constitutes an act of infringement by a third party either of its
rights under this Agreement or of the Intellectual Property and shall cooperate
fully with Licensor in dealing with it.
8.4 Licensee, in its sole discretion and at its expense, shall have the right but not the
obligation to bring any action against persons it believes are infringing the
Intellectual Property. Licensee agrees to consult with Licensor concerning the
strategy for and settlement of any action brought by Licensee. Licensor also has
the right but not the obligation to bring any action against persons it believes are
infringing the Intellectual Property. Licensor may bring such action if Licensee
does not do so and may take over an action that Licensee initiates. If Licensor
brings an action or takes over an action brought by Licensee, Licensor will have
Page 6 of 10
full control of the proceedings and Licensee will provide complete cooperation to
Licensor in connection with the action, provided that, if any settlement requires an
affirmative obligation of, results in any ongoing liability to or prejudices or
detrimentally impacts Licensee in any way and such obligation, liability,
prejudice or impact can reasonably be expected to be material, then such
settlement shall require Licensee's written consent (not to be unreasonably
withheld or delayed) and Licensee may have its own counsel in attendance at all
proceedings and substantive negotiations relating to such claim. Whichever party
brings the action shall notify the other party in writing. Whichever party brings
the action is entitled to any recovery, whether by judgment or settlement.
9. Term. This Agreement, unless terminated earlier as provided herein, will remain in full
force and effect until the termination of Licensee's B-cycle branded Bike Share Program,
including, without limitation, the termination of the Digital Platform Services Agreement entered
into between Licensor and Licensee in connection with the Bike Share Program.
10. Termination.
10.1 Termination for Default. A non-defaulting party may terminate this Agreement in
the event of the occurrence of any of the following events of default:
10.1.1 The failure of the other party to comply with any material provision of this
Agreement, the Purchase Agreement for Equipment and Services dated
June 14, 2016 between the parties, or the Digital Platform Services
Agreement dated June 14, 2016 between the parties, if such
noncompliance is not remedied within thirty (30) days after written notice
of such default is provided to the defaulting party;
10.1.2 The filing by Licensor or Licensee of a voluntary petition under any
chapter of the United States Bankruptcy Code, or any similar state or
foreign law;
10.1.3 The appointment of a receiver for Licensee, unless remedied to the
satisfaction of Licensor within thirty (30) days after such appointment; or
10.1.4 The unauthorized sale, transfer or assignment of this Agreement by
Licensee to a third party. The sale of an interest exceeding fifty percent
(50%) in Licensee will constitute an assignment for purposes of this
Agreement.
10.2 No Exclusive Remedy. The parties agree that termination of this Agreement will
not be the exclusive remedy of the non-defaulting party in the event of a default.
Rather, in addition to or in lieu of termination pursuant to this Section 10, such
non-defaulting party may exercise any and all other legal remedies available to it
under applicable law in the event of default.
10.3 Effect of Termination. Upon the effective date of termination of this Agreement
as provided in Section 10.1 or 10.2, Licensee agrees to immediately discontinue
all use of the Intellectual Property. It is expressly understood that the obligations
of Sections 5 and 8 above survive termination or rescission of the Agreement or
any part thereof.
Page 7 of 10
11. Miscellaneous Provisions.
11.1 Relationship Between Parties. The relationship between the parties established
by this Agreement is solely that of licensor and licensee. Neither party, based on
this Agreement alone, is in any way the legal representative, partner, employee or
agent of the other, nor is either party authorized or empowered to create or
assume any obligation of any kind, implied or expressed, on behalf of the other
party, without the express prior written consent of the other.
11.2 Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter contained herein and therein and will
supersede all prior agreements, proposals or understandings between the parties
whether written or oral.
11.3 Amendment. This Agreement will not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by written
instrument signed by both parties hereto.
11.4 Waiver. Neither the waiver by either party hereto of any breach of or default
under any of the provisions of this Agreement, nor the failure of either of the
parties to enforce any of the provisions of this Agreement or to exercise any right
hereunder, will be construed as a waiver of any subsequent breach or default, or
as a waiver of any such rights or provision hereunder.
11.5 Severability. If any term or provision of this Agreement will be held by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement will not be affected thereby and each term and provision will be valid
and enforceable to the fullest extent permitted by law.
11.6 Notices. All notices given pursuant to this Agreement will be given in writing
and will be given by telegram, telex, cable, facsimile, certified mail or hand
delivery to the addresses set forth below or at such other address as a party may
from time to time specify in writing:
If to Licensor: B-cycle, LLC
801 West Madison Street,
Waterloo, Wisconsin 53594
Attention: President
Fax: (920) 478-4200
If to Licensee: [City of Aventura
19200 W. Country Club Drive
Aventura, Fl 33180
Attn: Eric M. Soroka, City Manager
Page 8of10
11.7 Headings. The headings in this Agreement are for convenience purposes only
and will not be construed as part of this Agreement or in any way limiting or
amplifying any of the provisions of this Agreement
11.8 Execution in Counterparts. To facilitate execution, this Agreement may be
executed in counterparts, and it will not be necessary that the signatures of each
party appear on each counterpart; but it will be sufficient that the signature of
each party appear on one or more of the counterparts. All counterparts will
collectively constitute a single agreement.
11.9 Governing Law. This Agreement will be governed by the substantive laws of the
State of Florida without regard to the application of conflicts of law principles.
LICENSEE AND LICENSOR HAVE NEGOTIATED REGARDING A
FORUM IN WHICH TO RESOLVE ANY DISPUTES WHICH MAY
ARISE BETWEEN THEM AND HAVE AGREED TO SELECT A FORUM
IN ORDER TO PROMOTE STABILITY IN THEIR RELATIONSHIP.
THEREFORE, IF A CLAIM IS ASSERTED IN ANY LEGAL
PROCEEDING INVOLVING LICENSEE, LICENSOR, EITHER OF
THEIR AFFILIATES AND ANY OF THEIR RESPECTIVE OFFICERS,
DIRECTORS, MANAGERS, MEMBERS, OR PARTNERS, BOTH
PARTIES AGREE THAT THE EXCLUSIVE VENUE FOR DISPUTES
BETWEEN THEM SHALL BE IN THE STATE OF FLORIDA AND
EACH WAIVE ANY OBJECTION EITHER MAY HAVE TO THE
PERSONAL JURISDICTION OF OR VENUE IN THE STATE OF
FLORIDA. LICENSOR AND LICENSEE IRREVOCABLY SUBMIT TO
THE JURISDICTION OF SUCH COURTS AND WAIVE ANY
OBJECTION THEY MAY HAVE TO EITHER THE JURISDICTION OR
VENUE IN SUCH COURT.
11.10 Attorneys'Fees. Each party will be responsible for the payment of its own
attorneys' fees incurred with the respect to the preparation of this Agreement.
11.11 Language. If this document is drafted in more than one language, then the
English version shall be the controlling document and any disputes arising out of
this document shall be resolved with the English version.
[Signature Page to Follow]
Page 9 of 10
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
LICENSOR
B-CYCLE, LLC
By:
Name: Robert Burns
Its: President
LICENSEE
ATTEST: CITY OF AVENTURA
City Clerk
lf-
H Lo� „IP Name: Eric M. Sorok
(;r ' Its: City Manager
Approves as o orm and legal sufficiency:
City Attorney
Page l0 of l0
SCHEDULE A: MARKS
U. S. Federal Trademark Registrations:
Trademark Registration Date Registration No. Class
Bcycle 10/20/09 3700047 12
Bcycle 05/29/12 4149982 25
Bcycle 12/23/08 3790814 35
Bcycle 10/20/09 3700048 39
Bcycle Logo 05/17/11 3960369 12, 35, 39
B cycle
Circle B Logo 02/14/12 4098871 12, 35, 39
B
Bcycle Logo
Rycle
Circle B Logo
tisl
'ra
Internet Domain Names:
Aventura.bcycle.com
Schedule A
SCHEDULE B: TERRITORY
City of Aventura, Florida
Schedule B
SCHEDULE C: TRADEMARK USE STANDARDS
Schedule C
Exhibit B
DIGITAL PLATFORM SERVICES AGREEMENT
THIS DIGITAL PLATFORM SERVICES AGREEMENT together with its Schedules (collectively this
"Agreement") is made this 14th day of June, 2016 (the"Effective Date"), by and between B-CYCLE, LLC, a
Delaware limited liability company, with its principal offices at 801 West Madison Street, Waterloo, Wisconsin
53594 ("Seller"), and the City of Aventura, Florida with its principal offices located at 19200 West Country
Club Drive, Aventura, Florida 33180 ("Customer").
1. Definitions. In addition to capitalized terms defined 1.11 "User Agreement" means the agreement between
elsewhere in this Agreement, the following terms have the Customer and each User that sets forth the terms and
following meanings: conditions governing Customer's bike share program,
1.1 "B-cycle Property"is defined in Section 9. including the membership and payment terms and
conditions for such program and Users' access to the
1.2 "Confidential Information" is defined in Section Service through Customer's location-specific website.
11. Customer's current version of the User Agreement is
1.3 "Data"is defined in Section 12. attached to this Agreement as Schedule C.
1.4 "Intellectual Property Rights" is defined in Section 1.12 "User Manual" means the web based user manual
9. for the Service, as updated by B-cycle from time to time,
available at www.bcycle.com or other intemet address as
1.5 "Kiosk(s)" means the self-service bicycle rental B-cycle may specify from time to time.
kiosks through which Users will have access to the 2. Services. Subject to the terms and conditions of this
Service. Agreement and the Schedules incorporated herein by
1.6 "Schedule" means a document attached to this reference, during the Term (as defined in Section 10), B-cycle
Agreement, identifying, without limitation, specific will provide Customer, and Users who have accepted the User
services, terms and conditions, agreements, specifications Agreement, access to the Service solely in connection with
and Fees as set forth in this Agreement. Customer's bike sharing program activities.
1.7 "Service" means B-cycle's proprietary automated 3. Restrictions. Except as otherwise expressly set forth in
bicycle sharing digital platform, including access to and this Agreement, authorized by B-cycle in writing, or to the
use of(1) B-cycle's online enterprise software for bicycle extent limited or prohibited by law, Customer will not, and
renting and tracking; account and data management; and will not cause or permit any User or third party to: (i)transfer
system administration; (2) B-cycle's national website at User names or passwords between Users; (ii) attempt to gain
Bcycle.com; and (3) B-cycle's location-specific website unauthorized access to the Service, other User accounts, web
for www.Aventura.BCycle.com, as applicable, as all of sites or networks connected to the Service, through password
the foregoing may be modified by B-cycle from time to mining or any other means; (iii)breach, violate or circumvent
time, including all applicable documentation and user the User Agreement or any other regulations, policies or
guides supporting the use of the service. procedures governing the use of the Service; (iv) intentionally
interfere with or disrupt the Service; (v) disassemble,
1.8 "B-cycle Website Terms and Conditions of Use" decompile, reverse engineer or otherwise attempt to derive the
means B-cycle's Website Terms and Conditions of Use source code of the software used in the Service; (vi)upload or
between B-cycle and users of B-cycle's national and transmit any content to Kiosks or B-cycle's website that
location-specific websites, if any, as such websites may infringes any patent, trademark, trade secret, copyright or
be modified by B-cycle from time to time. B-cycle's other proprietary rights of any party; (vii) use the Service to
current version of the Website Terms and Conditions of develop a product that is competitive with the Service.
Use is attached as Schedule A. Customer will notify B-cycle in writing of any instances of
1.9 "B-cycle Website Privacy Policy" means B-cycle's which Customer is aware that any User has breached the User
privacy policy for users of B-cycle's national and Agreement. All rights not expressly granted to Customer
location-specific websites, as such may be modified by B- herein are reserved by B-cycle. If any of the restrictions in
cycle from time to time. B-cycle's current version of the this Section 3 are prohibited by applicable law, then, to the
B-cycle Website Privacy Policy is attached as Schedule extent the following requirements are permissible, Customer
B. will notify B-cycle in writing before engaging in any of the
1.10 "User(s)"means end user(s)of the Service. foregoing activities.
Page 1 of 7
4. Activation and Training. During the Term, B-cycle will work. For purposes of clarity, B-cycle has sole discretion
perform the following services: whether to perform any requested Development Services.
4.1 Activation; Testing. Customer will purchase 6. Customer Obligations.
Kiosks pursuant to that certain Purchase Agreement for
Equipment and Services and all attachments thereto 6.1 Cooperation and Assistance. Subject to applicable
between B-cycle and Customer (the "Purchase laws and regulations, Customer will provide B-cycle
Agreement"). B-cycle will activate the Service on the access to Kiosks for purposes of B-cycle's fulfillment of
number of Kiosks identified in Schedule D within the its obligations hereunder. Customer and Customer's
activation schedule set forth in such Schedule D (the representatives will provide all reasonably necessary
"Initial Activation"). Customer will review and test the information and assistance to B-cycle with respect to
Service and either accept or reject the activation of each activation, support and use of the Service.
location as expressly provided for in this section within 6.2 Compliance with Laws. Customer will comply
ten (10) days ("Acceptance Testing Period") following with all applicable laws and regulations relating in any
the date that B-cycle notifies Customer that such location way to Customer's use of the Service and its provision of
is active ("Activation Date") by delivering to B-cycle on the Service to Users.
or before the end of the Acceptance Period either (i) a 6.3 Customer Support. Except as set forth in the B-
written "Notice of Acceptance" or (ii) a written list
containing any and all reasons for not accepting the cycle Website Terms of Use or any separate written
activation of the Service in such location ("Correction agreement with Customer, B-cycle is not required to
List"). B-cycle will use commercially reasonable efforts provide customer support to Users. Customer will handle
to promptly resolve any issues identified within the or cause to be handled any and all User complaints
Acceptance Period, including, without limitation, the regarding the bicycles rented to Users through the
Correction List, to the reasonable satisfaction of Service.
Customer. The acceptance date ("Acceptance Date") for 6.4 Bike Share Program; User Agreement. B-cycle
the activation of each location will be the date that the will have the right to include the following minimum
Acceptance Testing Period concludes unless the Customer provisions in the User Agreement, which will incorporate
has provided a Correction List, in which case the and benefit B-cycle, its licensors, vendors and suppliers:
Acceptance Date for such location will occur when B- indemnification, disclaimers of warranties and limitation
cycle resolves the issues identified on the Correction List of liability.
and provides written notification to Customer that the
Service is active for such location. 6.5 Membership Fee Processing. If Customer elects to
charge Users for use of the Service, Customer will, at its
4.2 Exclusions. Activation services under this expense, obtain an account with third party credit card
Agreement do not include (i) providing bicycles for the payment gateway service, Authorize.net ("Payment
Kiosks, which is provided for under the Purchase Gateway"). Customer is also required to obtain an
Agreement; (ii) training the Customer's staff to rent or account with a third party credit card merchant or
service bicycles; or (iii) activating any future versions of payment processor ("Payment Processor") that is
the Service or activating the Service in additional Kiosks compatible with the Payment Gateway. B-cycle has the
(each a "Subsequent Activation") unless otherwise sole and exclusive right to select the Payment Gateway,
specified in Schedule D or agreed by the parties in but Customer may choose any Payment Processor that can
writing. B-cycle will charge Customer for activation interface with the Payment Gateway selected by B-cycle.
services in connection with each Subsequent Activation The Payment Gateway and Payment Processor will be
as set forth in Exhibit D. required to receive and collect credit card payments from
Users, if applicable under Customer's User Agreement, in
4.3 Initial Training and Support Services. B-cycle will
provide the initial training and support services set forth any of the following methods: (i) through a Kiosk; (ii)
online; and (Hi)
in Schedule E. Customer may elect to receive additional manually or verbally entered by one of
training at any time, subject to B-cycle's then-current Customer's authorized representatives. B-cycle will
prices and schedule, upon reasonable advance notice to B- capture User payment information input through the
cycle. Service and transmit it to the Payment Gateway, which in
turn passes it to the selected Payment Processor. Except
5. Custom Development Services. B-cycle will provide for the foregoing, B-cycle will not be responsible for any
customization, programming, consulting, support and other aspect of collecting payment from Users.
development services ("Custom Development Services") to
Customer as specified in Schedule F or in any statement of 7. Fees.
work accepted in writing by B-cycle on a time and materials
basis at the rates specified in Schedule F or such statement of
Page 2 of 7
7.1 Fees. Customer will pay B-cycle the fees thereof, in any form, format or media ("Intellectual Property
identified in Schedule G for the Initial Activation (the Rights") (such items and rights individually and collectively,
"Fees"). "B-cycle Property"). To the extent(if any)Customer acquires
(a) Except as otherwise provided in Schedule G, the any Intellectual Property Rights in or to any of the B-cycle
Fees for the Initial Activation and any Property, Customer hereby irrevocably and without further
consideration assigns and transfers to B-cycle all such right,
Subsequent Activation will be due within thirty
(30) days following the date of the invoice title and interest to any such B-cycle Property and waives the
provided by B-cycle to Customer("Invoice"), in enforcement of any moral rights or rights of authors that
accordance with the Florida Prompt Payment cannot be so transferred. Customer will take any reasonably
Act requested actions by B-cycle to document or otherwise
facilitate B-cycle's ownership of the B-cycle Property.
(b) Except as otherwise expressly set forth in the
Agreement, (A)the Fees are non-refundable, and 10. Term and Termination.
(B) upon any termination of this Agreement, 10.1 This Agreement will commence on the Effective
Customer will promptly pay B-cycle all Date and will continue for one (I) year (the "Initial
outstanding Fees, including, without limitation, Term"). At the end of the Initial Term, the Agreement
any Fees that Customer would have paid (or shall automatically renew for successive additional one
would have owed) to B-cycle during the Initial (1) year terms, (each, a "Renewal Term") unless either
Term and any current Renewal Term. party gives the other at least one hundred eighty (180)
8. Payment. days' written notice of non-renewal prior to the expiration
of the Initial Term or then-current Renewal Term. The
8.1 B-cycle will have the right to charge Customer a Initial Term and each applicable Renewal Term constitute
late charge of one percent (1. 0%) per month, (or any the"Term"of this Agreement.
applicable legal maximum, whichever is less), for any 10.2 Either party will have the right to terminate this
invoice that is not paid within (30) days of the date of Agreement in the event the other party: (i) materially
invoice. Such late fees reasonably estimate the amount breaches this Agreement, or any other agreement between
necessary to compensate B-cycle for costs and losses the parties, and fails to cure such breach within sixty (60)
associated with delays in payment and are therefore not days following written notice from the non-breaching
penalties. Customer and B-cycle agree that the Florida
Prompt Payment Act, Florida Statutes §§218.70-80, shall party, or as otherwise stated in the agreement under which
apply and that Customer shall make any payments or late the breach has arisen; (ii) files a petition in bankruptcy or
payments in accordance therewith. In the event an involuntary petition in bankruptcy is filed against it
Customer fails to pay B-cycle any Fees when due, B- and is not dismissed within thirty(30) days of such filing;
cycle will have the right, upon written notice to Customer or(iii) is subject to the appointment of a trustee, receiver
and following Customer's failure to cure within ten (10) or other custodian for such party or such party's property.
days, and without waiving or limiting any other remedies 10.3 Upon expiration or termination of this Agreement:
to which B-cycle may be entitled hereunder, in law or in (i) all of the parties' rights and obligations granted
equity, to suspend the operation of the Service until such hereunder will immediately cease to exist (except for
time as all amounts due have been paid in full. rights and obligations that survive as set forth in Section
8.2 The Fees exclude all applicable sales, use, and 10.4); (ii) B-cycle will have the right to immediately
service taxes ("Taxes"), and Customer will pay all such deactivate the Service; (iii)Customer will return(or, at B-
Taxes if applicable (other than taxes based on B-cycle's cycle's request, destroy)all B-cycle Property; (iv)B-cycle
income) and any penalties or charges that accrue with will provide Customer a copy of the Data; and (v)
Customer will promptly pay B-cycle all amounts, Fees,
respect to the non-payment of any Taxes by Customer.
charges and expenses owed as of the date of expiration or
9. Ownership. Except for the limited rights explicitly termination.
granted in this Agreement, B-cycle and/or its licensors and 10.4 Survival. Sections I, 3, 8 (solely to the extent of
suppliers retain all right,title and interest in and to the Service, any unpaid Fees) 9, 10.3, 10.4 and 11 through 18 will
including, without limitation, all new software or product survive the termination of this Agreement for any reason
enhancements, updates and modifications developed by B- and continue in full force and effect.
cycle, or by B-cycle and Customer jointly, in the performance
of this Agreement, all documentation and all intellectual II. Confidentiality.
property rights in each of the foregoing (including, without 11.1 As used herein, "Confidential Information" means:
limitation, all copyrights, patents, trademarks, trade secret and (i) any and all technical or business data or information
other rights therein, and all improvements, modifications, (including, without limitation, third-party information),
derivative works, extensions, applications and renewals
Page 3 of 7
materials or software furnished or made available, in for any lawful purpose. During the Term, B-cycle will provide
whatever form or medium, by the parties to each other Customer with copies of such Data upon request, subject to
regardless of whether such technical or business data or applicable law, and will provide Customer with access to
information is marked or identified as"Confidential." various system administration features of the Service in
11.2 Subject to Chapter 119, Florida Statutes and other accordance with B-cycle's then current policies and
requirements, as modified by B-cycle from time to time in its
applicable laws, the parties will, during the Term and for
a period of two (2) years thereafter, (i) treat as discretion and provided to Customer, solely for Customer's
confidential, and preserve the confidentiality of, all geographic location. B-cycle grants to Customer a non-
Confidential Information; t� use the Confidential exclusive, irrevocable, perpetual license to use the Data for its
O lawful purposes.
Information solely for the purposes of this Agreement;
(iii) not copy such Confidential Information unless 13. WARRANTIES, DISCLAIMERS, AND LIMITATION
specifically authorized by the disclosing party; and (iv) OF LIABILITY.
limit dissemination of the Confidential Information to 13.1 Representations and Warranties. B-cycle warrants
those employees, agents and representatives to whom
disclosure is necessary for the purposes of this to Customer that, after an initial ninety(90) day Shakeout
Agreement, provided such employees, agents and Period (as defined in the Purchase Agreement for
representatives have first agreed to maintain the Equipment and Services) following the Activation Date,
confidentiality thereof in writing. Notwithstanding the the Service will operate in material compliance with the
foregoing, the parties may use Confidential Information specifications set forth in Schedule H to this Agreement.
for purposes of routine due diligence or internal audit or if 13.2 DISCLAIMER OF WARRANTIES. EXCEPT AS
required by law. EXPRESSLY PROVIDED IN SECTION 13.1, THE
11.3 The receiving party will promptly return all SERVICE AND ALL SERVICES ARE PROVIDED
Confidential Information to the disclosing party at the STRICTLY "AS IS," AND B-CYCLE DISCLAIMS
disclosing party's request, to the extent such request is ANY AND ALL WARRANTIES AND
reasonable and does not interfere with the parties' REPRESENTATIONS OF ANY KIND WITH REGARD
performance pursuant to this Agreement. TO ANY SUBJECT MATTER OF THIS AGREEMENT,
WHETHER EXPRESS, IMPLIED OR STATUTORY
11.4 The obligations imposed by this Section 11 of the INCLUDING, WITHOUT LIMITATION, ANY
Agreement do not apply to any information that: (i) is WARRANTY OF NON-INFRINGEMENT, TITLE,
already in the possession of the receiving party; or (ii) is FITNESS FOR A PARTICULAR PURPOSE,
or becomes publicly available through no fault of the FUNCTIONALITY OR MERCHANTABILITY. NO
receiving party; or (iii) is obtained by the receiving party ORAL OR WRITTEN INFORMATION OR ADVICE
from a third person without breach by such third person of GIVEN BY B-CYCLE, ITS EMPLOYEES,
an obligation of confidence with respect to the DISTRIBUTORS, OR AGENTS WILL INCREASE THE
Confidential Information disclosed. Information will not SCOPE OF THE ABOVE WARRANTY OR CREATE
be deemed to be within the foregoing exceptions merely ANY NEW WARRANTIES. ANY DISCLAIMERS
because it is embraced by more general information in the SET FORTH IN THE ATTACHED SCHEDULES ALSO
public domain or in the possession of the party receiving APPLY BUT DO NOT LIMIT THE FOREGOING. THE
such information, or a combination of individual items of ENTIRE RISK ARISING OUT OF THE USE,
information that could be pieced together to reconstruct PERFORMANCE, OR INABILITY TO USE THE
such combination from non-Confidential Information. SERVICE REMAINS WITH CUSTOMER. EXCEPT
11.5 Because the Confidential Information is unique, FOR DIRECT DAMAGES AGREEMENT, IN NO
either of the parties' failure to comply with the provisions EVENT IS EITHER PARTY LIABLE TO THE OTHER
of this Section 11 will result in irreparable harm to the FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL,
disclosing party and, in the event of a breach by the EXEMPLARY, OR INCIDENTAL DAMAGES
receiving party of its obligations under this Section, the WHATSOEVER (INCLUDING, WITHOUT
disclosing party may bring suit in equity to enjoin any LIMITATION, DAMAGES FOR LOSS OF BUSINESS
such breach. PROFITS, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, PERSONAL INJURY OR
12. Data. The data entered into the Service by Users of PROPERTY LOSS TO EITHER PARTY'S
Customer or generated through the Service solely through the EMPLOYEES, USERS OR OTHER THIRD PARTIES,
location-specific section of the B-cycle website for Customer, OR OTHER PECUNIARY LOSS) ARISING OUT OF
if applicable (collectively, "Data") will be stored on B-cycle's THE USE OF OR INABILITY TO USE THE SERVICE,
servers. As between B-cycle and Customer, B-cycle owns EVEN IF THE PARTY HAS BEEN ADVISED OF THE
such Data and will have the right to use and disclose the Data POSSIBILITY OF SUCH DAMAGES. IN NO EVENT
Page 4 of 7
WILL B-CYCLE'S LIABILITY EXCEED ONE HALF associated costs and expenses paid by the indemnifying
MILLION DOLLARS ($500,000.00) PER party). The indemnifying party will have the right to
OCCURRENCE AND ONE MILLION DOLLARS control the defense or settlement of the claim, provided,
($1,000,000.00) IN AGGREGATE. Customer however, that the indemnified party will have the right to
acknowledges that the Fees, disclaimers and limitations of participate in, but not control, any litigation for which
liability set forth in this Agreement reflect the allocation indemnification is sought with counsel of its own
of risk negotiated and agreed to by the parties and that B- choosing, at its own expense, and if any settlement
cycle would not enter into this Agreement without these requires an affirmative obligation of, results in any
limitations on its liability. These limitations will apply ongoing liability to or prejudices or detrimentally impacts
notwithstanding any failure of essential purpose of any the indemnified party in any way and such obligation,
limited remedy. liability, prejudice or impact can reasonably be expected
14. Indemnification. to be material, then such settlement will require the
indemnified party's written consent (not to be
14.1 To the extent permitted by law, each party will unreasonably withheld or delayed).
indemnify, defend and hold the other party and its 14.4Customer's monetary liability to B-cycle
affiliates and each of their respective officers, directors, under this section shall be limited to the
members, managers, employees and agents harmless from monetary limits of Section 768.28(5), F.S.,
and against any and all third party claims, damages, losses regardless of whether these limits would
and expenses (including, without limitation, reasonable apply in the absence of this provision.
attorneys' fees) arising from (i) B-cycle's breach of any
warranty regarding the Service; (ii) any claim that Notwithstanding anything to the contrary,
Customer's or User's use of the Service pursuant to the Licensee agrees that it shall promptly
terms of this Agreement infringes or violates any third comply with any injunction or non-monetary
party's copyright, U.S. patent,trade secret or trademark or relief', in law or in equity, that a court may
any other intellectual property right, or misappropriates order.
any third party trade secret; or (iii) either party's use of 15. Restrictive Covenant. Except as the parties mutually
Data in violation of any applicable laws, including, agree in writing, during the term of this Agreement and for a
without limitation, any privacy and data security laws period of one(1)year thereafter,neither Customer nor B-cycle
regarding the collection, use, sharing and storage of will knowingly hire, contract, or solicit the employment of any
personally identifiable information or credit card current or previous employee of the other party who has been
information of a User. involved with this Agreement or performance hereunder,
14.2 To the extent permitted by law, customer will either indirectly or directly, unless a period of at least twelve
ndemnify, defend and hold B-cycle, its suppliers, (12)months has elapsed from the last date that such employee
licensors and vendors harmless from any and all third was employed by the party, provided that publications of open
party claims, damages, losses and expenses (including, positions in media of general circulation will not constitute
without limitation, reasonable attorneys' fees) arising solicitation by either party.
from (i) use of the Service by Customer or any User; (ii) 16. Service Level Agreement. B-cycle will provide the
any claim of injury by a User other than a claim that the Service according to the Service Levels set forth in Schedule I.
Service has directly injured such User; (iv) any negligent 17. Escrow. Upon request by Customer and at Customer's
or wrongful acts or omissions of any User, Customer or sole expense, the parties will cooperate in good faith to locate
its representatives; and (v) Customer's use of Data in a suitable and mutually agreeable escrow agent to hold a copy
violation of any applicable laws, including, without of the source code for the software used to provide the Service
limitation, any privacy and data security laws regarding ("Source Code") upon the terms and conditions set forth in
the collection, use, sharing and storage of personally Schedule J.
identifiable information or credit card information of a
User. 18. General Provisions.
14.3 The indemnified party will promptly give written 18.1 Dispute Resolution. This Agreement will be
notice of any known claim to the indemnifying party construed under and governed by the laws of the State of
(provided that any delay by the indemnified party in Florida, excluding of choice of law provisions. The
providing such notice will not absolve the indemnifying parties submit to the exclusive jurisdiction of state and
party from indemnifying any indemnified party, unless federal courts of the state of Florida.
such delay materially prejudices the indemnifying party's
ability to respond to such claim), and provide any 18.2 Entire Agreement. This Agreement constitutes the
assistance which the indemnifying party may reasonably entire agreement between the parties with respect to and
request for the defense of the claim (with all reasonable services provided by B-cycle to Customer pursuant to the
Page 5 of 7
terms herein. This Agreement supersedes any and all affected provision an enforceable provision that
prior agreements and understandings between the parties approximates the intent and economic effect of the
with respect thereto and may be amended or modified affected provision.
only by a writing signed by each of the parties. 18.8 Independent Contractor Relationship. The parties
18.3 Assignment. This Agreement is not assignable and intend to create an independent contractor relationship,
the duties hereunder are not delegable without the other and nothing contained in this Agreement will be
party's prior written consent, which consent shall not be construed to make either B-cycle or Customer (or any of
unreasonably withheld; provided that either B-cycle or their respective representatives, patients, officers,
Customer may transfer and assign this Agreement without employees, subcontractors or agents) partners, joint
the other party's consent to any person or entity(except to venturers, principals, agents or employees of the other.
a competitor of B-cycle) that is an affiliate of such party Neither party will have any right, power or authority,
or that acquires substantially all of the stock or assets of express or implied,to bind the other and neither will be or
such party's applicable business if any such assignees become liable or bound by any representation, act or
agree, in writing, to be bound by the terms of this omission whatsoever of the other. The parties are
Agreement. Subject to such limitation, this Agreement independent contractors and not employees of the other
shall be binding upon and inure to the benefit of the party and none of the parties' personnel will be entitled to
parties hereto and their respective successors and receive any compensation, benefits or other incidents of
permitted assigns. For purposes of this Agreement, any employment from the other party.
change in control of a party constitutes an assignment of
18.9 Language. If this document is drafted in more than
the Agreement. Any attempted assignment in violation of one language, then the English version shall be the
this provision is null and void.
controlling document and any disputes arising out of this
18.4 Notices. The parties will make all notices required document shall be resolved with the English version.
under this Agreement in writing at the addresses set forth
on Page I of this Agreement. Notices are deemed
delivered when transmitted by facsimile or deposited with [Signature Page to Follow]
an express delivery service with guaranteed third day
delivery, prepaid. The parties will notify one another
about changes of address in the same manner as they
provide any other notice.
18.5 Force Majeure. Neither party will be liable to the
other for any delay or failure to perform any obligation
(other than failures to pay) hereunder if such delay or
failure is due to any act of God, acts of civil or military
authority, labor disputes, fire, riots, civil commotions,
sabotage, terrorism, war, embargo, blockage, floods, or
other inclement weather, epidemics, delays in
transportation, inability beyond such party's reasonable
control to obtain necessary labor, materials, or
manufacturing facilities, or when due to governmental
restrictions. In the event of any such delay or failure, the
parties will have an additional period of time equal to the
time lost by reason of the foregoing in which to perform
hereunder.
18.6 Headers. The titles of the Sections of this
Agreement are solely for the convenience of the parties
and will not be used to explain,modify, simplify, or aid in
the interpretation of the provisions of this Agreement.
18.7 Severability. If any provision of this Agreement is
held to be invalid or unenforceable by a proper authority
having jurisdiction over this Agreement, such provision
will be deemed null and void and the remaining
provisions of this Agreement will remain in full force and
effect. The parties will promptly substitute for the
Page 6 of 7
IN WITNESS WHEREOF,in consideration of the foregoing and the following terms and
conditions of this Agreement,together with the terms and conditions of the Schedules, and for
other good and valuable consideration, the receipt of which is hereby acknowledged,the parties
by their authorized representatives have entered into this Agreement as of the Effective Date set
forth above.
SELLER
B-CYCLE, LLC,
By:
Name: Robert Burns
Its: President
CUSTOMER
ATTEST: CITY OF AVENTURA
---- /V1'101-14‘
City Clerk _
* T ,_:-.•-•:_1-..t--..:r - By: /-----)blimir
.>ir - t 1 oi- �� Name: Eric M. So s
AW
C"trg 4 ,,x Its: City Manag-
Approves as i orm and gal sufficiency:
City Attorney
Page 7 of 7
SCHEDULE A: WEBSITE'S TERMS OF USE
B-CYCLE WEBSITE TERMS AND CONDITIONS OF USE
We welcome you to the B-cycle websites, including www.bcycle.com and the other websites that display these B-
cycle Website Terms and Conditions of Use(collectively,the"Website"). The Website is owned by B-cycle, LLC
and is licensed to third parties(together defined as`B-cycle"). PLEASE READ VERY CAREFULLY THE
FOLLOWING TERMS AND CONDITIONS FOR USE OF THE WEBSITE.
1. Acceptance of Terms. This Terms and Conditions of Use Agreement(the"Agreement")sets forth legally
binding terms for your use of Website. By using our Website,you agree to be bound by this Agreement and all
applicable laws and regulations with regard to your use of the Website,whether you are a"Visitor"(which means
that you simply browse our Website)or you are a"Member"which means that you have registered as a Member of
this Website and obtained an"Account"which permits you to set up your"Member Profile." IF YOU DO NOT
AGREE TO BE BOUND BY THIS AGREEMENT,YOU MAY NOT USE THIS WEBSITE.
2. Changes to Terms. We may modify this Agreement from time to time,and such modification will be
effective upon its posting on our Website or any other website or location through which you are able to access our
Website. You agree to be bound by any modification to this Agreement when you use the Website after any such
modification is posted; it is therefore important that you review this Agreement regularly. If you have an Account,
we will attempt to notify you by email when we update the terms of this Agreement.
3. Bicycle Rental Agreement. If you wish to rent bicycles through our system of kiosks in your area,you are
required to review and accept the User Agreement You can access the User Agreement at any time by clicking on
the link identified as"User Agreement"at the bottom of any page on the Website.
4. Member Account,Password and Security. You must be at least 18 to become a Member of our Website. If
you register to become a Member,you will be required to choose a password and user name,and you may be asked
for additional information regarding your Account, such as your email address. You agree to provide true,accurate,
current and complete information about yourself as prompted by the registration form(the"Registration Data")and
maintain and promptly update your Registration Data to keep it true,accurate,current and complete. For safety
reasons,we recommend that your user name should not contain your last name(in addition,rather than your actual
first name,you may want to consider using a word or term with meaning to you). You are responsible for
maintaining the confidentiality of the password and account information, and are fully responsible for all activities
that occur under your password and Account. You are required to(a) immediately notify B-cycle(email:
info@bcycle.com)of any unauthorized use of your password or account or any other breach of security, and(b)
ensure that you log out from your account at the end of each session. B-cycle will not be liable for any loss or
damage arising from your failure to comply with this paragraph. Use of and registration for the Website are void
where prohibited.
5. Leader Board. When you register for the Website,we will give you the option to permit us to display your
user name on the Website's"Leader Board." The Leader Board displays publicly visible statistics of some
individual Members relating to the Member's use of the Service. If you choose to permit us to display your user
name on the Leader Board,we may post your user name and statistics such and number of miles ridden, calories
burned,etc. Nothing in this Section will require us to include any information about you in the Leader Board. The
Leader Board is an entertainment feature of the Website. Although we will strive to track and display information
about Members in the Leader Board accurately,we will not be liable for any errors or inaccuracies in the Member
statistics displayed on the Leader Board.
6. Your Interactions With Other Members. You acknowledge that we have no screening policy,and that
anyone who registers to become a Member will become a Member without any review or approval by us. You are
solely responsible for your interactions with other Members that occur as a result of the Website,whether online or
offline,and any communications with other individuals through or as a result of the Website are at your own risk.
We disclaim all liability for any actions of other Members. Please use your discretion when deciding whether to
send any of your personal information to another Member.
7. Prohibited Conduct. You agree not to use the Website to post or otherwise transmit information, data,text,
software, music,sound,photographs, graphics, video, messages,tags, or other materials("Content")that:
• is patently offensive and/or promotes racism,bigotry,hatred or physical harm of any kind against any
group or individual;
• harasses or advocates harassment of another person;
• exploits people in a sexual or violent manner;
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• contains nudity, violence, or offensive subject matter;
• solicits personal information from anyone under the age of eighteen(18);
• provides any telephone numbers, street addresses, last names or email addresses of anyone other than
your own(and we advise you not to post your own and to communicate such information in private
messages to other Members only at your own risk);
• promotes information that you know is false or misleading or promotes illegal activities or conduct
that is abusive,threatening,obscene,defamatory or libelous;
• violates any intellectual property or other proprietary right of any third party(including without
limitation Content that promotes or links to an illegal or unauthorized copy of another person's
copyrighted work or provides information to circumvent copy-protect devices);
• involves the transmission of"junk mail," "chain letters," or unsolicited mass mailing, instant
messaging, "spimming,"or"spamming";
• contains restricted or password only access pages or hidden pages or images(those not linked to or
from another accessible page);
• furthers or promotes any criminal activity or enterprise or provides instructional information about
illegal activities including,but not limited to making or buying illegal weapons, violating someone's
privacy, or providing or creating computer viruses;
• solicits passwords or personal identifying information for commercial or unlawful purposes from other
Members;
• involves commercial activities and/or sales without our prior written consent, such as contests,
sweepstakes, barter, advertising, or pyramid schemes;
• includes a photograph of another person that you have posted without that person's consent or, in the
case of children under the age of eighteen(18),parental consent, or otherwise constitutes an invasion
of an individual's privacy or infringement of publicity rights;or
• contains a virus or other harmful component.
In addition, any unauthorized modification,tampering or change of any information, or any interference with the
availability of or access to the Website is strictly prohibited. You may not attempt to override or circumvent any
security components and usage rules of the Website. You are prohibited from engaging in any hacking, cracking, or
other means of obtaining access to any Member's account information or other data or communications not intended
for you. We reserve all rights and remedies available to us, and we will not hesitate to pursue all available legal
actions in response to violations of this Agreement.
8. Responsibility for Content. You,and not B-cycle, are entirely responsible for any Content that you may
upload,post,email,transmit or otherwise make available via the Website. B-cycle does not control the Content
posted via the Website and, as such, we do not guarantee the accuracy, integrity or quality of such Content. You
understand that by using the Website,you may be exposed to Content that you deem offensive, indecent or
objectionable. Under no circumstances will B-cycle be liable in any way for any Content, including, but not limited
to, any errors or omissions in any Content,or any loss or damage of any kind incurred as a result of the use of any
Content posted, emailed,transmitted or otherwise made available via the Website.
9. Rejection/Removal of Content. You acknowledge that B-cycle does not generally pre-screen or review
Member Profiles or other Content posted on our Website. However, B-cycle will have the right(but not the
obligation)in its sole discretion to pre-screen,edit,refuse, or remove any Content or portion thereof that is available
via the Website, in its sole discretion, for any reason.
10. Termination of Account or Access. B-cycle has the right in its sole discretion to restrict, suspend, or
terminate your Account,or your access to all or any part of the Website at any time,for any or no reason,with or
without prior notice, and without liability. You may choose to terminate your membership at any time by notifying
us by email at info@bcycle.com. Please allow us sufficient time to process termination requests. You understand
that termination of your membership is your sole right and remedy with respect to any dispute with B-cycle.
Following the cancellation or termination of your membership by you or by B-cycle for any reason, B-cycle will
have no further obligation to save your Member Profile, communications via the Website or any of your settings,
information or Content you have posted on or transmitted through the Website. We have the right to delete any
personal information or other Content immediately following termination of your Account.
11. Objectionable Content and Abuse. If you become aware of misuse of the Website by any person, if you
find any Content on the Website that you feel is objectionable, or if you feel that any Member has violated the terms
of this Agreement in any manner, please contact B-cycle(email: info@bcycle.com). Please include a description of
the misuse of the Website or the objectionable Content or activity(along with the URL or a copy of the Content if
possible) in your email. B-cycle has no obligation to take any action whatsoever in response to any such notice,and
Schedule A
the receipt of any such notice will not be deemed to create any duty or liability on the part of B-cycle.
12. Preservation/Disclosure. You acknowledge, consent and agree that B-cycle may access,preserve and
disclose your Account information and Content if required to do so by law or in a good faith belief that such access,
preservation or disclosure is reasonably necessary to: (a)comply with legal process; (b)enforce this Agreement;(c)
respond to claims that any Content violates the rights of third parties;(d)respond to your requests for customer
service;or(e)protect the rights,property or personal safety of B-cycle, its Members and the public. Under no other
circumstances will B-cycle intentionally disclose your account information to any third party.
13. Non-commercial Use. The Website may not be used in connection with any commercial purposes,except
as specifically approved by B-cycle. You may link to the home page of our Website,but any unauthorized framing
of or linking to our Website, or any Content therein, is prohibited. Commercial advertisements, affiliate links, and
other forms of solicitation may be removed from your Member Profile without notice and may result in termination
of membership privileges.
14. Ownership of Content. B-cycle does not claim ownership rights in any Content you post on or transmit
through the Website. Subject to the non-exclusive license contained in the following paragraph, as between B-cycle
and you,you will retain all intellectual property rights that you may have in any Content that you post on or transmit
through the Website.
15. License to Your Content, In order to be able to offer you the use of our Website,you are required to grant
a license to B-cycle to use and distribute your Content. This enables us to permit other Visitors to the Website and
Members to view and share your Content,and to display your Content in other places within the Website.
Accordingly,by posting,displaying,publishing,transmitting, or otherwise making available(individually and
collectively, "posting")any Content on or through our Website,you hereby grant to B-cycle a non-exclusive
(meaning you can license the Content to other parties as well), fully-paid,royalty-free, irrevocable, worldwide
license(including the right to sublicense)for the duration of copyright in your Content,to use,copy, modify, adapt,
translate, create derivative works,publicly perform,publicly display, store,reproduce,transmit, distribute, and
otherwise make available such Content on and through our Website, in print, or in any other format or media now
known or hereafter invented,without any obligation of notification,compensation, attribution or consent. If you
wish to remove any Content from the Website,your ability to do so may depend on the type of Content,the location
and manner of posting,and other factors. You may contact us at info@bcycle.com to request the removal of certain
Content you have posted,but B-cycle has no obligation to remove any such Content,may choose whether or not to
do so in its sole discretion, and makes no guarantee as to the complete deletion of any such Content and copies
thereof. In any case, a back-up or residual copy of any Content posted by you may remain on B-cycle's servers after
the Content appears to have been removed from our Websites, and B-cycle retains all rights granted in this
paragraph to all such remaining copies. You represent and warrant that: (i)you own all right,title and interest in all
Content posted by you on or through our Website, or otherwise have the right to grant the license set forth in this
section,and(ii)the posting of your Content on or through our Website does not violate the privacy rights, publicity
rights,copyrights,trademarks,patents,trade secrets, contract rights, confidentiality, any other rights of any third
party, or any terms of this Agreement.
16. B-cycle and Third Party Content. Our Website contains Content of B-cycle("B-cycle Content"), and
Content of third party licensors to B-cycle(including content provided by you and other users of our Website,as
described above),which is protected by copyright,trademark,patent,trade secret and other laws. B-cycle owns and
retains all rights,title and interest in the B-cycle Content. B-cycle hereby grants to you a limited, revocable,non-
sublicensable license to reproduce and display a single copy of the B-cycle Content and any third party Content
located on or available through our Website(excluding any software code therein)solely for your personal,non-
commercial use in connection with viewing our Website and using the features that appear on the Website. Except
for Content posted by you,you may not copy,modify,translate,publish,broadcast,transmit, distribute, perform,
display, make available,or sell any Content appearing on or through our Website.
17. Other Sites. Our Website may contain links to other sites owned by third parties(i.e. advertisers,affiliate
partners,strategic partners,or others). We are not responsible for examining or evaluating, and we do not warrant
the products or offerings of, any of these businesses or individuals, or the accuracy of the content of their websites.
B-cycle does not assume any responsibility or liability for the actions,product,and content of any such websites.
Before you use any third party website, you should review the applicable terms of use and policies for such
websites. The inclusion of a link in any of our Websites does not imply B-cycle's endorsement of such third party
website. If you decide to access any such linked websites,you do so at your own risk.
18. International Use. Due to the global nature of the Internet,you agree to comply with all local rules
regarding online conduct and acceptable Content. Specifically,you agree to comply with all applicable laws
regarding the transmission of technical data or personal information exported from the United States or the country
Schedule A
in which you reside.
19. Privacy Policy. Please review our Privacy Policy to learn what personal information we collect through
this Website, how we use and share the personal information we collect,and some of the steps we take to protect
your privacy. Our Privacy Policy is part of these Terms of Use. By agreeing to these Terms of Use,you are also
consenting to the collection,use and disclosure of your personal information in accordance with our Privacy Policy.
You can access the Terms of Use and the Privacy Policy at any time by clicking on the links for these documents at
the bottom of any page on the Website.
20. Copyright Policy. B-cycle has in place certain legally mandated procedures regarding allegations of
copyright infringement occurring on our Website. B-cycle reserves the right in its sole discretion to immediately
suspend and/or terminate access to our Website by any user who is alleged to have infringed on the intellectual
property rights of B-cycle or of a third party,or otherwise violated any intellectual property laws or regulations. B-
cycle's policy is to investigate any allegations of copyright infringement brought to its attention. If you have
evidence,know,or have a good faith belief that your rights or the rights of a third party have been violated and you
want B-cycle to delete,edit,or disable the material in question,you must provide B-cycle with all of the following
information: (a)a physical or electronic signature of a person authorized to act on behalf of the owner of the
exclusive right that is allegedly infringed; (b)identification of the copyrighted work claimed to have been infringed,
or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c)
identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be
removed or access to which is to be disabled, and information reasonably sufficient to permit B-cycle to locate the
material;(d) information reasonably sufficient to permit B-cycle to contact you, such as an address,telephone
number, and if available, an electronic mail address at which you may be contacted;(e)a statement that you have a
good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its
agent, or the law;and(0 a statement that the information in the notification is accurate, and under penalty of
perjury,that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For
this notification to be effective,you must provide it to B-cycle either by e-mail at: info@bcycle.com, or by U.S. mail
to our designated agent for notification of infringement, Bob Burns, B-cycle, LLC, 801 West Madison St, Waterloo,
WI 53594.
21. Term and Termination. This Agreement will remain in full force and effect for so long as it is accessible
through the Website. If you wish to terminate your membership, please follow the instructions on the FAQ page for
the Website or email us at info@bcycle.com. B-cycle reserves the right to terminate your Account or your access to
our Website immediately,with or without notice to you,and without liability to you, if B-cycle believes that you
have breached any of the terms of this Agreement, furnished B-cycle with false or misleading information,or
interfered with use of the Website by others.
22. Disclaimer of Warranties. You expressly understand and agree that:
YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE IS PROVIDED ON AN "AS IS"
AND "AS AVAILABLE" BASIS. B-CYCLE AND ITS SUBSIDIARIES,AFFILIATES,OFFICERS,
EMPLOYEES,AGENTS, PARTNERS AND LICENSORS (THE`B-CYCLE PARTIES")EXPRESSLY
DISCLAIM ALL WARRANTIES OF ANY KIND,WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO THE WEBSITE,AND ANY
THIRD PARTY WEBSITES WITH WHICH THEY ARE LINKED.
THE B-CYCLE PARTIES MAKE NO WARRANTY: (I)THAT THE WEBSITE OR THE FEATURES OFFERED
ON THE WEBSITE WILL MEET YOUR REQUIREMENTS, WILL BE UNINTERRUPTED,TIMELY,
SECURE, ERROR-FREE,OR FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES);(II)
REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE;AND(III)
THE QUALITY OF THE BICYCLES, CONTENT,PRODUCTS, SERVICES, INFORMATION OR ANY
MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE WILL MEET YOUR
EXPECTATIONS. WE DO NOT PROVIDE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE
POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE COMMUNICATIONS,
PERSONALIZED SETTINGS,OR OTHER DATA.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR WEBSITE
IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE
DOWNLOAD OF ANY SUCH MATERIAL.
23. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS IN NO
EVENT WILL THE B-CYCLE PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY
Schedule A
INDIRECT,CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES,
INCLUDING LOST PROFIT DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OF THE
WEBSITE,OR ANY WEBSITE WITH WHICH THEY ARE LINKED, EVEN IF B-CYCLE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, B-CYCLE'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER
AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE
AMOUNT PAID, IF ANY, BY YOU TO B-CYCLE FOR THE WEBSITE. Some jurisdictions do not allow the
exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages.
Accordingly, in certain jurisdictions, some of the above limitations of liability may not apply to you; all other
provisions of this Agreement remain in full force and effect.
24. Indemnity. You agree to indemnify,defend, and hold harmless the B-cycle Parties from any and all third
party claims, losses, liability, damages,and/or costs(including reasonable attorney fees and costs)arising from or
relating to your breach of the terms of this Agreement or your use of the Website. B-cycle will notify you promptly
of any such claim, loss, liability,or demand,and will provide you with reasonable assistance,at your expense, in
defending any such claim, loss, liability,damage,or cost.
25. Additional Terms. We may also require you to follow additional rules,guidelines or other conditions
("Additional Terms") in order to participate in certain promotions or activities available through our Website,to
obtain certain premium Content through our Website,or for other reasons. These Additional Terms will be posted
on the relevant portions of our Website or on the portions of our Website that describe the specific promotions,
Content, or activities. These Additional Terms are part of this Agreement,and you agree to comply with them when
you participate in those promotions,purchase items from our online stores,or otherwise engage in activities
governed by such Additional Terms.
26. Modification and Discontinuation. We reserve the right at any time to modify,edit, delete, suspend or
discontinue,temporarily or permanently our Website(or any portion thereof)with or without notice. You agree that
we will not be liable to you or to any third party for any such modification,editing, deletion, suspension or
discontinuance of the Website.
27. Entire Agreement. This Agreement,together with any other terms or policies referenced herein(including
without limitation the Privacy Policy and Additional Terms), constitutes the entire agreement between you and B-
cycle and governs your use of the Website, superseding any prior agreements between you and B-cycle with respect
to the Website.
28. Choice of Law and Forum. This Agreement and the relationship between you and B-cycle will be
governed by the laws of the State of Wisconsin without regard to its conflict of law provisions. You and B-cycle
agree to submit to the personal and exclusive jurisdiction of the courts located within Madison, Wisconsin.
29. Waiver and Severability of Terms. The failure of B-cycle to exercise or enforce any right or provision of
this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found
by a court of competent jurisdiction to be invalid,the parties nevertheless agree that the court should endeavor to
give effect to the parties' intentions as reflected in the provision,and the other provisions of this Agreement remain
in full force and effect.
30. Limitation on Actions. You agree that regardless of any statute or law to the contrary,any claim or cause
of action arising out of or related to use of the Websites or this Agreement must be filed within one(I)year after
such claim or cause of action arose or be forever barred.
31. Questions. If you have any questions regarding this Agreement,please contact us by email at
info@bcycle.com, or by mail at 801 West Madison St, Waterloo, WI 53594.
Schedule A
SCHEDULE B: PRIVACY POLICY
B-CYCLE WEBSITE PRIVACY POLICY
This B-cycle Website Privacy Policy("Privacy Policy")governs your use of the B-cycle websites, including
www.bcycle.com and any other websites that display this Privacy Policy(collectively,the"Website"). The Website
is owned by B-cycle, LLC and licensed to third parties(together known as"B-cycle"). We have created this Privacy
Policy to ensure that you understand our policies and procedures,what personal information you must provide if you
wish to use our Website and, ultimately, how we use such personal information. This Privacy Policy is a part of and
is incorporated into our B-cycle Website Terms and Conditions of Use. You can access either of these documents at
any time by clicking on the links at the bottom of any page on the Website. By accessing or using the Website,you
accept,without limitation or qualification,the terms of this Privacy Policy.
1. Information We Collect. We collect two types of information from users of our Website: personal
information described below; and non-personal information such as information about traffic patterns and usage
statistics regarding our Website.
2. Personal Information. You may browse our Website without registering for the Website. However,to
access certain features of our Website,we require you to register as a member("Member")and select a user name
and password. Some personal data is collected during the registration process. We may then ask for additional
information, including personally identifiable and non-personally identifiable information.
When you register as a Member of the Website,or when you enter a contest or other promotion,we may ask you for
certain personal information such as your name, address,e-mail address,or credit card number, in order to process
your order,administer the contest,or send you promotional e-mails. Providing personal information in these
instances is solely your choice;you do not need to provide such information, register as a Member, or enter such
contests to browse our Website.
3. How We Use Your Personal Information. We use the information collected through our Website for a
variety of purposes, including, but not limited to,processing your registration as a Member, operating the Website,
and contacting Members. We may use your information to communicate with you,to update you regarding features
of the Website,to personalize the Website for you,to contact you for market research or to provide you with
marketing information, newsletters, or other information we think would be of interest to you. In addition, if you
become a Member of our Website, we may send you an email confirming your membership details.
You can request to remove your email address from our email list for marketing related email messages,or other
emails which are not necessary to your participation as a Member of the Website by following the procedures set
forth in the"Opt Out Procedures"section below. In addition,you can modify your information or change your
preferences,as set forth in the"Reviewing or Changing Your Information"section below. We will strive to exclude
you from future communications if you follow the procedures set forth in this section.
Information obtained through our Website may be intermingled with and used in conjunction with information
obtained through sources other than our Website,including both offline and online sources.
4. Disclosure of Personal Information through Leader Board or to Other Members. If you elect during
registration,your user name and other information or Content you provide may be visible on the Leader Board to
anyone who visits our Website or browses through our Website, including individuals who are not registered
Members. Please keep this in mind as you select your user name.
The Website is not currently set up for social networking. Except for information about you that may appear
on the Leader Board,information that you provide as part of your registration or that is collected about you
through your use of the B-cycle Service is generally not visible to other Members or to non-members who
visit the Website. This may change in the future as we add more features and functionality to the Website.
Please use extreme caution when deciding whether and when to provide any personally identifiable information
about yourself(such as your full name, email address, phone number,or address)to another Member of the Website
via email,through the Leader Board or otherwise.
5. Non-Personal Data. In some cases, we may collect non-personal information. Examples of this type of
information include the type of interne browser you are using,the type of computer operating system application
software,and peripherals you are using and the domain name of the website from which you accessed our Website.
We use your information to do such things as operate and enhance our Website, and sell and deliver advertising.
6. Cookies. Certain features on our Website utilize cookie technology. A cookie is a small data file that
certain web sites write to your hard drive when you visit them. A cookie file can contain various types of
information, including a user ID that the site uses to track the pages you've visited. We may use cookies to enhance
your experience on our Website,to determine user traffic patterns and for other purposes.
Schedule B
Most browsers are initially set up to accept cookies;however,you can reset your browser to refuse all cookies or
indicate when a cookie is being sent or you can flush your browser of cookies from time to time. (Note: you may
need to consult the help area of your browser application for instructions.) If you choose to disable your cookies
setting or refuse to accept a cookie,however,you may not be able to access all areas or features of our Website.
7. Opt Out Procedures. You have certain options to opt out of receiving promotional or commercial
information from B-cycle and our Website during registration and through your Account settings. However,you
may not opt out completely of receiving email communications necessary for the operation of your membership in
the Website unless you decide to terminate your membership. If you no longer wish to use or visit our Website, or
receive any form of direct contact from B-cycle or our Website,whether it is email, discounts, newsletters,or other
promotional offers or materials,contact us at: info(a bcycle.com.
8. Reviewing or Changing Your Information. In order to ensure that the information we maintain is accurate,
B-cycle gives Members the option to change or modify their information previously provided during registration. If
you would like to change your information currently in our database please log in to your Account and click the "My
Profile" link or email us at infonabcycle.com.
9. Sharing of Your Information. Except as prohibited by law, B-cycle may share your personal information:
(i)with the operators of our Websites and bicycle rental programs; (ii)third parties for advertising or marketing
purposes,(iii)if B-cycle is required by law to do so, (iv)in the event of a transfer of ownership of B-cycle, merger
or other similar transaction,or(v)as otherwise set forth in this Privacy Policy.
We may share certain personal information with third parties for advertising,promotional and other purposes
regarding products and services that we think may be of interest to you. We also may work with third party
advertising companies,to serve and track our ads. These third parties may serve other cookies. Our advertising
partners may use personal and non-personal information they collect from our Website to help us better market and
serve our customers.
This Privacy Policy does not address the practices of third parties who may collect your personal information. You
may visit other websites,through links on the Website, which may collect, use and share your personal information
in accordance with their own privacy policies. The information practices of those linked websites are not covered
by this Privacy Policy,and we encourage you to be very cautious before you disclose your personal information to
others.
In order to provide you with the Website and any information, products or services which you have requested, we
may share or transfer your personal information with our affiliates or subsidiaries,or third party agents acting on
their behalf.
B-cycle may be obligated to cooperate with various law enforcement inquiries. B-cycle reserves the right to
disclose or transfer personal information and non-personal information about you and your activities on the Website
in order to comply with a legal requirement or request from law enforcement or other government officials,
administrative agencies or third parties as we, in our sole discretion, determine necessary or appropriate for the
administration of justice,or in connection with an investigation of fraud, intellectual property infringements or
violations of any other law, rule or regulation, our B-cycle Terms and Conditions of Use or other rules or policies of
our Website,the rights of third parties,or an investigation of any other activity that may expose us or you to legal
liability, or to investigate any suspected conduct which B-cycle in its sole discretion deems improper.
10. Security. We have installed encryption software conforming to the Secure Socket Layers(SSL)protocol to
safeguard all of the information you send to us. All information is stored on our servers in a secure location. It is
important for you to protect against unauthorized access to your password and to your computer. If your password
is compromised,notify Customer Service at once at info@bcycle.com.
11. Protection for Children. Our Website is not intended for users under the age of 18. Furthermore,we do not
knowingly collect personally identifiable information from children(i.e., individuals under the age of 13). If you
believe that a child has provided information to us through the Website,please contact us by email at
info@bcycle.com or by writing us at B-cycle 801 West Madison St, Waterloo, WI 53594 Attn. Privacy Officer. We
will use our best efforts to remove all of the information provided by the child from our system.
12. Privacy Precaution Warning. Please note that no data transmission over the Internet is 100%secure. As a
result,we cannot guarantee the security of the information that you transmit via our Website.
13. Your Consent. You may have certain rights under various state and federal statutes that may apply to the
personal and non-personal information we collect in connection with the Website. By accepting the terms of this
Privacy Policy and using our Website,you are waiving all of such rights as to collection, use,disclosure and storage
of your personally identifiable and non-personal information as described herein. You recognize that we are able to
offer our Website to you solely based upon these terms, which are an integral part of our contract for the provision
of services.
Schedule B
By using our Website and providing your personal information to us,you also authorize the export of your personal
information to the USA, as well as its storage and use as specified herein. Our headquarters is located in the state of
Wisconsin, in the USA. This Privacy Policy and our legal obligations are subject to the laws of Wisconsin and the
USA,regardless of the location of any user. Any claims or complaints must be filed in the USA in the State of
Wisconsin.
We may amend our Privacy Policy at any time, without notice to you, by posting such revised Privacy Policy on this
page, so you are always aware of what information we collect,how we use it and under what circumstances we may
disclose it. Any changes will only apply to information collected after the change is posted.
Schedule B
SCHEDULE C: USER AGREEMENT
USER BIKE SHARING AGREEMENT
TERMS AND CONDITIONS,RIDER'S RELEASE OF LIABILITY,ASSUMPTION OF RISK,
INDEMNITY AND HOLD HARMLESS.
RIDER should CAREFULLY READ all terms and conditions before entering this Agreement.
1. PURPOSE OF AGREEMENT
This document constitutes the entire Agreement("Agreement")between(a)RIDER,the person agreeing to lease
and use the bike("Bike"), and(b)B-cycle LLC("B-cycle").
2. GENERAL RENTAL AND USE OF BIKE: Agreements and Restrictions
2.1 RIDER is sole user: B-cycle expressly agrees to let,and the RIDER expressly agrees to take on,rental of
the Bike subject to the terms and conditions set out herein. B-cycle and the RIDER are the only parties to this
Agreement. The RIDER is the sole leassee and is solely responsible for compliance with all terms and conditions
contained herein.
2.2 RIDER is 18 or older: RIDER represents and certifies that RIDER is at least 18 years old. If RIDER
intentionally or unintentionally misrepresents his/her age, RIDER accepts full responsibility and is liable for any
consequence,claims,demands,causes of action, losses,liabilities, damages, injuries,costs and expenses,penalties,
attorney's fees,judgments, suits or disbursements of any kind or nature whatsoever related to any such
misrepresentation.
2.3 RIDER is a competent bike operator: RIDER represents and certifies that he/she is familiar with the
operation of the Bike,and is reasonably competent and physically fit to ride the Bike.
2.4 Bike is exclusive property of B-cycle: RIDER agrees that the Bike and any equipment attached thereto, at
all times,remains the exclusive property of B-cycle. RIDER will not make any modification to the Bike at any time.
2.5 Bike Operating Hours and Bike Availability: RIDER agrees and acknowledges that the Bikes are
available seasonally, 7 days/week. Bikes must be rented within the maximum rental time limits set forth in 2.6
below. Bikes are limited and Bike availability at any station is never guaranteed.
2.6 MAXIMUM RENTAL TIME AND CHARGES: Maximum rental time is hours. RIDER agrees
that RIDER will return the Bike to a designated B-cycle Bike Station within hours of time that rental of the Bike
began. RIDER may then rent again. RIDER agrees that he/she is solely responsible for being aware of any elapsed
time related to the timely return. Bike Rental Charges are $ for the first half hour, $ for the second half hour,
$ additional for the third half hour,$ additional for the 4th half hour,and$ additional for each half hour
thereafter. The maximum day charge is$ and is based on a calendar day. Upon return of the bicycle,the rider
will be charged the accumulated rental charges, or the maximum day charge;whichever is less. Bikes not returned
within hours will be considered stolen, and Rider will be charged $ . Applicable local and state sales tax of
%included in Rental and Replacement Charges.
2.7 Bike may be used and/or operated only in the City of Aventura, FL: RIDER agrees to only use,
operate and/or ride the Bike in the City of Aventura, FL. RIDER will not, under any circumstances, remove the
Bike from the City of Aventura, FL.
2.8 RIDER must follow rules of use and/or operation of Bike: RIDER agrees to follow all laws pertaining
to the use,riding and/or operation of the Bike, including all state and local laws and the rules and regulations
pertaining to bicycles in the City of Aventura, FL.
2.9 Bike is intended for only limited types of use: RIDER agrees that he/she will not use the Bike for racing,
mountain bike riding,stunt or trick riding. RIDER agrees that he/she will not operate and/or use the Bike on
unpaved roads,through water,or in any location that is prohibited, illegal and/or a nuisance to others. RIDER
agrees that he/she will not use the Bike for hire or reward,nor use it in violation of any law, ordinance or regulation.
2.10 RIDER's use of front carrier/basket is limited: RIDER acknowledges that the front carrier/basket of the
Bike is intended for light goods only, and that he/she will not carry people or animals anywhere on the bicycle.
2.11 RIDER must report accident,stolen or lost Bike and/or B-cycle Membership Card: RIDER agrees
that he/she must immediately report an accident,or a stolen or lost Bike to B-cycle and Police. Stolen or lost
Schedule C
membership cards will be reported to B-cycle. RIDER agrees that he/she is responsible and liable for any misuse,
consequences,claims, demands, causes of action, losses, liabilities,damages, injuries,costs and expenses,penalties,
attomey's fees,judgments, suits or disbursements of any kind or nature whatsoever related to a stolen or lost Bike
and/or B-cycle Membership Card.
2.12 RIDER responsibility related to Bike use and damage: RIDER agrees to return the BIKE to B-cycle in
the same condition received,ordinary wear and tear expected. RIDER agrees to ensure that the Bike is always
locked and secured when unattended. Bikes may be equipped with wire locks;however, B-cycle will not be
responsible for any lost,stolen, destroyed and/or damaged Bike under any circumstances,regardless of whether
Bike locks are used or not properly functioning. RIDER agrees to pay for destruction or loss of Bike and for any
damage, including replacement parts. (RIDER agrees to pay for any loss even though damage was caused by
someone else). All repairs needed as a result of any damage,will be performed at the normal labor rates. In the
event the Bike is lost or damaged beyond repair,regardless of fault or cause, RIDER agrees to pay B-cycle the full
replacement value of the equipment.
3. WAIVER AND/OR LIMITATION OF LIABILITY
3.1 For and in consideration of rental and use of the Bike, RIDER specifically forever releases and relinquishes
and discharges B-cycle,LLC,the City of Aventura,FL,all Sponsors as well as owners of property upon or near
which stations are located ("Released Parties")from any and all claims, liability,cause(s)of action and/or damage
or wrongful death, injury to others and/or third parties, which arise out of,result from or relate to this Agreement;
the rental, maintenance, design, use and/or operation of the Bike;the B-cycle program,and/or its website, including
any and all claims, liability,cause(s)of action and/or damages related to the sole or partial negligence of Released
Parties and/or the negligence of others. By this agreement any such claims,rights,and causes of action that RIDER
(and RIDER'S legal guardian(s), if applicable)may have are hereby waived,released and relinquished,and RIDER
(and guardian(s), if applicable)does(do)so on behalf of RIDER'S heirs,executors,administrators and assigns.
3.2 RIDER expressly agrees to indemnify,defend, release and hold harmless Released Parties from all liability
for any such property loss or damage, personal injury or loss of life, whether caused by the sole or partial negligence
of B-cycle or the City of Aventura, FL, and/or the negligence of others, whether based upon breach of contract,
breach of warranty, active or passive negligence or any other legal theory, in consideration for using and/or
operating the Bike.
3.3 RIDER voluntarily agrees, understands and recognizes that RIDER will have no right to make a claim or
file a lawsuit against Released Parties arising out of this Agreement,the rental,maintenance, design, use and/or
operation of the Bike,the B-cycle program,and/or this website, in consideration for using and/or operating the Bike.
3.4 This agreement is governed by the applicable laws of the State of Florida. If any provision of this
agreement is found to be unenforceable, all other provisions will be given MI force and effect.
4. ACCEPTANCE of AGREEMENT and TERMS and Conditions by RIDER: RIDER
expressly acknowledges that he/she has carefully read the entire Agreement, including the Terms and Conditions,
and understands this Agreement, including,but not limited to,the Waiver and Liability, Assumption of risk and
Indemnification Provisions fully and expressly agrees to be bound by this Agreement. After careful deliberation,
RIDER voluntarily gives his/her consent and expressly agrees to all the conditions included in this Agreement as set
forth above.
Schedule C
SCHEDULE D: ACTIVATION PLAN
Initial Activation
B-cycle will activate the Service on the number of Stations set forth in the Purchase Agreement on a date
that is on or before the Launch Date (as defined in the Purchase Agreement), as mutually agreed upon by
the parties.
Schedule D
SCHEDULE E: NOT USED
Schedule E
SCHEDULE F: CUSTOM DEVELOPMENT SERVICES
In the event B-cycle and Customer mutually agree that a custom software enhancement request by
Customer should be developed, the parties will mutually agree in advance in writing to the fee that B-
cycle will charge for any Custom Development Services performed by B-cycle for Customer or Users.
Schedule F
SCHEDULE G: FEES
Fees. BCycle's software fees are included in its Service Fees, as set forth in the Service Agreement.
Should the Customer or B-cycle elect to terminate the Service Agreement, Customer will be responsible
for paying B-cycle the following fees for continuing system Services, if desired by Customer:
- A fee equal to $125 per dock per year("Software Fee").
The Software Fee will be pro-rated for the remainder of the year following the date that B-cycle activates
each dock. Customer will pay all Invoices for Fees within thirty(30)days following the date of the
Invoice, in accordance with the Florida Prompt Payment Act.
Exclusions. The Software Design Fee and the Software Fee are limited to the Services described in this
Schedule G. Without limitation, the Fees do not cover the cost of delivery, installation, power, site
preparation, connectivity,the bicycles, bicycle computers, radio head controllers, kiosks, docks or other
hardware.
Schedule G
SCHEDULE H: SPECIFICATIONS FOR THE SERVICE
B-CYCLE DIGITAL SOLUTION
The B-cycle bike sharing system includes a digital platform comprised of 5 discrete components
1. Customizable Public Facing Website
Capabilities and Features:
• Static information pages(what is it,how to use it, etc.)
• Interactive content and tools
• Local news and events publishing with live,relevant Twitter feeds
• B-Station
• Online subscription purchases,renewals, and upgrades
• Hooks to established social networking sites(links and live feeds)
• Password protected member's portal with personalized data
• Profile information
• Ride and payment history
• Health and environmental impact
• Leader board—user population ranking
2. Self Service Kiosk
Capabilities and Features:
• Touch screen access to:
• Bike checkout for subscription holders
• 1 Day/24H subscription purchase via credit card
• Text-based way-finding for available open docks
• 15-minute credit requests when station is full
• RFID scanning access to:
• Bike checkouts at the dock
3. Virtual Kiosk
Capabilities and Features:
• Standard bike check in and outs performed by bike sharing staff members from a laptop(with
RFID reader and credit card reader as needed)
4. Mobile Applications
Capabilities and Features:
• Location based Dock and Bike Locator(find bikes and open docks relative to GPS coordinates of
the user)
• Outbound system generated SMS text alerts(overdue bike warnings,etc.)
• Open API for mobile developer community
5. Backend Operations Management
Capabilities and Features:
• Tiered,role-based access
• Subscriber and member management(including bulk-loading)
• Inventory management(Kiosks, RFID cards, Bikes, Docks,etc.)
• Reports and role-specific dashboards
• Configurable notifications(maintenance events,overdue bikes, etc.)
• Fulfillment process support
• Maintenance and Issue Tracking
• Program personalization and configuration(notifications, subscription types+pricing)
• Virtual Kiosk management—mobile bike check ins/outs, offsite maintenance
Schedule H
SCHEDULE I: SERVICE LEVEL AGREEMENT
Service Levels; Credits. B-cycle will provide the Service to Users via the Internet and through the
Kiosks on a daily basis every day of the year and will provide a credit to Customer in the event that the
Service is not available in any single month in excess of the following maximum downtime standards:
Performance Standards.
Service Up Time Requirement Penalty
Kiosk Service 95% up time per month I% of the average monthly
service fee in Schedule G for
every 1% up time below stated
requirement.
Web Service(front and back 95% up time per month 1% of the average monthly
end) service fee in Schedule G for
every 1% up time below stated
requirement.
Connectivity B-cycle is not responsible for Connectivity is dependent on
loss of, or poor, cellular third party providers, local
connectivity landscapes and/or weather
conditions.
Station Power B-cycle is not responsible for Power is dependent on third
loss of power supply party utility providers, property
owners and/or or solar
conditions.
Downtime. The following will not count as downtime or a breach of the performance standards: planned
downtime for maintenance that is scheduled at least 24 hours in advance and held between the hours of 11
pm and 5 am; any loss or interruption of the Service from causes beyond the control of B-cycle, or which
are not reasonably foreseeable by B-cycle, including, without limitation, user error, ping or denial of
service attacks,third party attacks, interruption or failure of power supply,telecommunication or digital
transmission links, cellular network traffic, Internet slowdowns or failures, insufficient solar coverage,
hardware issues, failures attributable to the actions of Customer or third parties; downtime that occurs
between the hours of 11 p.m. and 5 a.m. Mountain time(for Kiosks) or between the hours of 11 p.m. and
5 a.m. (for the Internet).
Payment of Credits. B-cycle will track downtime for the Service as set forth in this Schedule I during the
Term and will periodically provide written or electronic reports to Customer setting forth the down time,
if any, of the Service per month and the calculation of any credits awarded to Customer as set forth in this
Schedule I that Customer may apply toward future Base Fees.
Escalation Procedures. Customer will contact the customer service representative("Service
Representative")designated by B-cycle from time to time to report unscheduled downtime and will
provide all available information about the outage in order for the Service Representative to handle or
direct the timely resolution of the issue.
Schedule I
SCHEDULE J: SOURCE CODE ESCROW TERMS AND CONDITIONS
1. Customer will pay all costs and fees relating to the creation and maintenance of the escrow,
including all fees charged by the escrow agent. B-cycle will provide the Source Code to the escrow agent
upon execution of an Escrow Agreement between the parties and an escrow agent which is agreeable to
both Customer and B-cycle("Escrow Agreement"). During the Term of the Agreement, B-cycle will
provide updated versions of the Source Code, if any(excluding source code in development or testing
stages),to the escrow agent within thirty(30)days after B-cycle makes such updates generally available
to its other customers. The Escrow Agreement will provide that the Escrow Agent will release the Source
Code to Customer only upon the occurrence of the following conditions (each a"Releasing Event"):
(a) if B-cycle has availed itself, or been subjected by any third party,to a proceeding in
bankruptcy, which proceeding has not been dismissed within thirty(30)days, in which B-cycle is the
named debtor; in which a receiver has been appointed for B-cycle; or any other proceeding involving
insolvency or the protection of B-cycle from creditors; or
(b) if B-cycle has ceased its on-going business operations, or has clearly manifested its intent
to permanently cease or has ceased providing the Services for a period of thirty (30) continuous days.
2. The terms of this Section 2 will be effective only if the Agreement is in full force upon the
occurrence of a Releasing Event. If the Agreement has been previously terminated,then despite the
occurrence of a subsequent Releasing Event,the Source Code will not be released. Customer will give
written notice by certified mail to the escrow agent and B-cycle if it claims the occurrence of a Releasing
Event. The Escrow Agreement will provide that unless B-cycle files,within ten (10)days, an affidavit
executed by a responsible executive clearly refuting the occurrence of the Releasing Event, then the
escrow agent will deliver to Customer within the next five(5)business days the Source Code. If
Customer disputes any claims in such affidavit, Customer may seek adjudication by a neutral third-party
arbitrator that a Releasing Event has occurred, and B-cycle will agree to all aspects of the arbitration
process and the third-party arbitrator selected by Customer.
3. Subject to the terms and conditions of this Schedule I and the Agreement, upon release of the
Source Code to Customer, B-cycle hereby grants to Customer a non-exclusive, non-transferable, non-
assignable license to use, copy and modify such Source Code solely as necessary to continue to use and
maintain the Services provided by B-cycle to Customer' customers under the Agreement and consistent
with all obligations and limitations set forth therein, including restrictions on disclosure of Confidential
Information. Further, Customer will use the Source Code strictly in accordance with the following
conditions:
(a) Customer may use the Source Code only to make modifications to the Source Code that
are necessary to support and maintain the provision of Services for the uses expressly provided in this
Agreement or as required by law and for no other purpose. Customer will not make copies of the Source
Code except as necessary to support and maintain the provision of the Services as provided in the
preceding sentence, and will not authorize anyone else to make copies of the Source Code. All copies of
the Source Code will be marked with a restrictive legend identifying the Source Code as confidential and
proprietary to B-cycle and prohibiting any unauthorized use or reproduction;
(b) Customer will allow use of or access to the Source Code only by employees and
contractors of Customer who have a need to use the Source Code for exercise of Customer' rights with
respect to the Source Code set forth herein and who have signed nondisclosure agreements containing
terms at least as restrictive as those set forth in this Agreement;
Schedule J
(c) Customer will not allow use of or access to the Source Code by any third parties except
as provided above, and when provided with access to the Source Code,will maintain and use the Source
Code only in reasonably secure facilities. For Source Code that is useable or stored on any computer
equipment(whether a multi-user system, network, stand-alone computer or otherwise),the equipment
will have password-based access control, with each user having a unique user identification and
associated password;
(d) Customer will maintain a record of(1) all employees, contractors, and other personnel
who use or have access to the Source Code, (2)the number of copies made, if any, of the Source Code,
and (3)the computer equipment and storage media on which the Source Code is used or stored, and will
provide such record(s)to B-cycle upon request.
Schedule J
SERVICE AGREEMENT
THIS SERVICE AGREEMENT is made this 14th day of June, 2016 (the "Effective
Date"), by and between B-CYCLE, LLC, a Delaware limited liability company, with its principal
offices at 801 West Madison Street, Waterloo, Wisconsin 53594 ("B-cycle"), and the City of
Aventura, Florida, with its principal offices located at 19200 West Country Club Drive, Aventura,
Florida 33180 ("City").
RECITALS
WHEREAS B-cycle has a contract with the City to install and operate a bike sharing
system in Aventura, FL ("Program"); and
WHEREAS B-cycle and the City wish to enter into this Agreement whereby B-cycle will
provide bike sharing services related to the Program as set forth below;
NOW, THEREFORE, the parties agree as follows:
AGREEMENTS
1. Operations. B-cycle will perform implementation, first-tier customer service, fulfillment,
and station and bicycle maintenance ("Service")for the Program during the Term of this
Agreement.
(a) Customer Service. B-cycle will establish staff and operate a first tier customer service call
center in accordance with the requirements of the Program as follows:
a. The call center shall be in operation from 8:00 AM—4:00 PM CST, excluding
holidays. The call center shall answer questions and provide information
concerning, among other things, subscription process, subscription prices, billing,
crashes, comments, complaints, malfunction problems, and location of Stations.
(b) Membership Fulfillment. B-cycle will send out B-cards and fulfillment packages, as
provided by B-cycle, within five (5) business days of a member's enrollment.
(c) Station and Bicycle Maintenance. B-cycle shall be responsible for station and bicycle
maintenance in accordance with the following standards:
a. Bicycle Maintenance.
i. B-cycle shall employ sufficient personnel with sufficient skill and training
to inspect, repair and rebalance the bicycle fleet.
ii. Bicycles shall be inspected monthly and overhauled annually. The
assembly and maintenance of bicycles shall be performed in compliance
with the B-cycle bicycle assembly manual.
iii. B-cycle shall take all steps to ensure, at all times, that not less than ninety
percent (90%) of the bicycle fleet shall be in safe operating condition and
placed in service on a daily basis.
iv. Maintenance records for each bicycle shall be maintained by B-cycle and
shall be provided to the City upon request.
b. Station Maintenance.
i. B-cycle shall monitor and service the stations on a daily basis.
ii. B-cycle shall make repairs as necessary to keep the stations in proper
working order. B-cycle shall perform station maintenance in compliance
with the B-cycle station manual.
iii. B-cycle shall clean the stations from debris and vandalism as needed.
c. System Reporting.
i. B-cycle shall provide to the City a monthly report of system operation,
including system usage, revenue, and membership sales.
d. Copy of Releases
i. Upon City's request, B- Cycle will provide the City a certified copy of the
liability release from bike riders as generated thru the USER BIKE
SHARING AGREEMENT.
2. Term. The Initial Term of this Agreement shall be for one (1) year from Effective Date.
Thereafter, it may be renewed for additional one (1)year Renewal Term periods by mutual
agreement of the parties. Either party may terminate this Agreement, without cause, on the first
anniversary of the Effective Date, with 60 days prior written notice
3. Fees.
(a) City will pay B-cycle the fees identified in Schedule A for Service (the "Fees"). Except as
otherwise provided in Schedule A, the Fees for Service will be due within thirty(30)
days, following the date of the invoice provided by B-cycle to City ("Invoice"), in
accordance with the Florida Prompt Payment Act.
(b) Except as otherwise expressly set forth in the Service Agreement, (A) the Fees are non-
refundable, and (B) upon any termination of this Agreement, City will promptly pay B-
cycle all outstanding Fees, including, without limitation, any Fees that City would have
paid (or would have owed) to B-cycle during the Initial Term and any current Renewal
Term.
4. Payment.
a. B-cycle will have the right to charge City a late charge of one percent(1. 0%) per
month, (or any applicable legal maximum, whichever is less), for any invoice that is
not paid within thirty(30) days of the date of invoice, in accordance with the Florida
Prompt Payment Act. Such late fees reasonably estimate the amount necessary to
compensate B-cycle for costs and losses associated with delays in payment and are
therefore not penalties. City and B-cycle agree that the Florida Prompt Payment Act,
Florida Statutes §§218.70-80, shall apply and that Buyer shall make any payments or
late payments in accordance therewith. In the event City fails to pay B-cycle any Fees
when due, B-cycle will have the right, upon written notice to City and following
City's failure to cure within ten (10) days, and without waiving or limiting any other
remedies to which B-cycle may be entitled hereunder, in law or in equity, to suspend
the operation of the Service until such time as all amounts due have been paid in full.
b. The Fees exclude all applicable sales, use, and service taxes ("Taxes"), and City
will pay all such Taxes, if applicable (other than taxes based on B-cycle's income)
and any penalties or charges that accrue with respect to the non-payment of any Taxes
by City.
5. Notices. Any notices which are required or permitted under this Agreement will be sent
by an overnight delivery service having a reliable method for confirming delivery, and will be
deemed effective when received. Notices to City will be sent to Eric M. Soroka, City Manager,
City of Aventura 19200 W. Country Club Dr., Aventura, Florida 33180. Notices to B-cycle will
be sent to Robert Burns, 801 West Madison Street, Waterloo, Wisconsin 53594.
6. Entire Agreement. This is the entire agreement between the City and B-cycle concerning
the subject matter hereof. As of its execution by both parties, it supersedes and extinguishes any
other prior oral or written agreements or understandings between them. If a court of competent
jurisdiction shall find any part of this Agreement unenforceable, the rest of the Agreement shall
remain in full force and effect.
7. Amendments. This Agreement may only be amended by a written document signed on
behalf of both parties.
8. Governing Law. This Agreement will be governed by the law of the State of Florida.
Any disputes arising under this Agreement will be determined in accordance with such law, and
will be venued in the appropriate court in Miami-Dade County, Florida. The parties consent to
jurisdiction in Florida.
9. Termination. This Agreement may be terminated for cause. In the event either party
believes it has cause for termination, it will notify the other of the specific cause, and the
breaching party will have 30 days within which to cure its breach to the satisfaction of the non-
breaching party. If the breach is not cured within that period, the non-breaching party may
terminate the Agreement with immediate effect.
10. Assignment. This Agreement is not assignable and the duties hereunder are not delegable
without the other party's prior written consent, which consent shall not be unreasonably
withheld; provided, however, that either party may transfer and assign this agreement without the
other party's consent to any person or entity that acquires substantial stock or assets of such
party's applicable business if any such assignees agree, in writing, to be bound by the terms of
this agreement. Subject to such limitation, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted assigns.
11. Facsimiles; Counterparts. This Agreement may be executed in any number of
counterparts, each of which together shall constitute one complete original. Signatures
exchanged by facsimile transmissions or email will be accepted as binding.
[Signature Page to Follow]
IN WITNESS WHEREOF,B-cycle and City have caused this Agreement to be executed as of the
Effective Date indicated above.
B-CYCLE, LLC
•
By:
Name: Robert Burns
Its: President
ATTEST: CITY OF AVENTURA
��c
City Clerk _
$ ill....Ei 1
--:
g ._-- J By: r
�� ,.`F to 0}1P Name: Eric M. Sore'
( 4 di 5v-46 Its: City Manage
Approves o orm an e sufficiency:
City Attorney
SCHEDULE A: SERVICE FEES
Fees. B-cycle's Fees shall be invoiced monthly, in advance of Services being provided. Monthly Invoice
will be determined using the monthly Service Fee schedule outlined here:
B-cycle Service Fee schedule
Broward BCycle Broward BCycle Broward BCycle
Operations (Year 1) Operations (Year 2) Operations (Year 3)
Total Stations 5 5 5
Price/Station $1,000/month $1,030/month $1,061/month
Extended $5,000/month $5,150/month $5,305/month
Price
*Excludes sales tax and credit card processing fees for user-generated revenues.