Tempo Lease and Waiver Agreement
This Platform, Lease and Waiver Agreement (this “Agreement”) is entered into by and between you (“Lessee”) and Tempo Technology, Inc., a Delaware corporation (“Tempo”) (Lessee and Tempo each, a “Party” and collectively, the “Parties”) and sets forth the terms and conditions under which you may subscribe to certain products and services of Arrows.
By leasing an electric scooter (the “
Equipment”) and by clicking a button or checking a box marked “I Agree” (or something similar), Lessee signifies that it has read, understood, and agree to be bound by this Agreement and to the collection and use of Lessee’s information as set forth in our Privacy Policy available at
ridetempo.co/privacy-policy, whether or not Lessee is a registered user of the Platform. Tempo reserves the right to modify the terms of this Agreement and will provide notice of these changes as described below.
1. Lease. Tempo agrees to lease to Customer, and Customer agrees to lease from Tempo, the Equipment to use for personal mobility and transportation purposes (the “Activity”).
2. Operation. Customer shall at its expense keep and maintain the Equipment in a good state of repair, normal wear and tear excepted, and shall use the Equipment only for its intended purpose and follow Tempo’s instructions regarding the use and maintenance of the Equipment.
3. Release of Liability and Assumption of Risk.
3.1 LESSEE IS AWARE AND UNDERSTANDS THAT THE ACTIVITY IS A POTENTIALLY DANGEROUS ACTIVITY AND INVOLVES THE RISK OF SERIOUS INJURY, DISABILITY, DEATH, AND/OR PROPERTY DAMAGE. LESSEE ACKNOWLEDGES THAT ANY INJURIES THAT LESSEE SUSTAINS MAY RESULT FROM OR BE COMPOUNDED BY THE ACTIONS, OMISSIONS, OR NEGLIGENCE OF TEMPO. NOTWITHSTANDING THE RISK, LESSEE ACKNOWLEDGES THAT LESSEE IS VOLUNTARILY PARTICIPATING IN THE ACTIVITY WITH KNOWLEDGE OF THE DANGER INVOLVED AND HEREBY AGREES TO ACCEPT AND ASSUME ANY AND ALL RISKS OF INJURY, DISABILITY, DEATH, AND/OR PROPERTY DAMAGE ARISING FROM LESSEE’S ACTIVITY, WHETHER CAUSED BY THE ORDINARY NEGLIGENCE OF TEMPO OR OTHERWISE.
3.2 Lessee hereby expressly waives and releases any and all claims, now known or hereafter known, against Tempo, and its officers, directors, manager(s), contractors, subcontractors, landlords, indemnitees, employees, agents, affiliates, shareholders, successors, and assigns (collectively, “Releasees”), out of or attributable to the Activity, whether arising out of the ordinary negligence of Tempo or any Releasees or otherwise. Lessee covenants not to make or bring any such claim against Tempo or any other Releasee, and forever releases and discharges Tempo and all other Releasees from liability under such claims.
3.3 Lessee shall defend, indemnify, and hold harmless Tempo and all other Releasees against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorney fees, fees, the costs of enforcing any right to indemnification under this Release, and the cost of pursuing any insurance providers, arising out or resulting from any claim of a third party related to the Activity.
3.4 Lessee hereby consents to receive medical treatment deemed necessary if Lessee is injured or requires medical attention during Lessee’s participation in the Activity. Lessee understands and agrees that Lessee is solely responsible for all costs related to such medical treatment and any related medical transportation and/or evacuation. Lessee hereby releases, forever discharges, and holds harmless Tempo from any claim based on such treatment or other medical services.
4. Representations and Warranties. Lessee hereby represents and warrants to Tempo that: (a) Lessee is at least eighteen (18) years of age; (b) Lessee is physically fit to operate the Equipment; and (c) Lessee’s use of the Equipment will be in compliance with all applicable laws.
5. Payment
5.1 In consideration of Lessee’s right to possess and use the Equipment during the Term (as defined below), Lessee shall:
(a) Provide an initial security deposit of one hundred US dollars ($100) (the “Security Deposit”); and
(b) Make the payments at the periodic rate specified in Exhibit A (“Payments”) in advance, with the first Payment prorated, if necessary, due on the date of this Agreement first above written, without any set-off, offset, abatement, or deduction whatsoever in US dollars. Lessee shall pay interest on all late payments at the lesser of the rate of 1.5% per month and the highest rate permissible under applicable law, calculated daily and compounded monthly. Lessee shall reimburse Tempo for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Payment of any late charge does not excuse Lessee of any default under this Agreement.
5.2 If by the expiration of the Term, Lessee does not return the Equipment to Tempo in the condition and on the terms and conditions of Section 8, Lessee shall continue to comply with all the terms and conditions of this Agreement, including the obligation to pay the prorated daily Payment for each day from the expiration of the Term until the date on which Lessee returns such Equipment to Tempo in the manner required under Section 8 (“Holdover Payment”). Lessee shall not construe anything contained in this Section, including Lessee’s payment of Holdover Payment, as Tempo’s (a) waiver of Lessee’s failure to perform any obligation under this Agreement; or (b) assent to any renewal of this Agreement.
6. Limited Warranty
6.1 Tempo shall replace the Equipment with identical or similar Equipment if the Equipment fails to operate in accordance with the manufacturer’s specifications and operation instructions. Such replacement shall be made as soon as practicable after Lessee returns the non-conforming Equipment. Lessee shall return all non-conforming Equipment at its expense and risk of loss to Tempo to the destination specified by Tempo. Products manufactured by a third party (“Third-Party Products”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Equipment. Third-Party Products are not covered by the above limited warranty.
6.2 The limited warranty above does not apply where the Equipment has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Tempo, or used with any Third-Party Product, hardware, software, or product that has not been previously approved in writing by Tempo.
6.3 OTHER THAN AS SET FORTH ABOVE, TEMPO MAKES NO WARRANTY WHATSOEVER, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INTERFERENCE; OR (d) WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
6.4 THE REMEDIES SET FORTH IN THIS SECTION 6 ARE LESSEE’S SOLE AND EXCLUSIVE REMEDIES AND TEMPO’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
7. Title and Risk of Loss. Title to the Equipment remains with Tempo throughout the Term, and Lessee shall acquire no right, title, or interest in the Equipment. Lessee shall not pledge or encumber the Equipment in any way. Lessee shall bear all risk of loss, damage, destruction, theft, and condemnation to or of the Equipment from any cause whatsoever (“Loss”) until the Equipment has been returned to Tempo as specified in Section 8.1. Lessee shall immediately notify Tempo in writing of any such Loss.
8. Return of Equipment.
8.1 Obligation to Return Equipment. Lessee shall, at its risk and expense, no later than the expiration of the Term (a) inspect and properly secure the Equipment; and (b) (i) return the Equipment to Tempo’s facility as Tempo may specify; or (ii) request that Tempo retrieve the Equipment, at Lessee’s cost. Upon Tempo’s inspection of the returned Equipment, Tempo will remit to Lessee the Security Deposit, less any costs for repairs or maintenance.
8.2 Condition of Equipment Upon Return. Lessee shall ensure the Equipment returned for any reason under this Agreement to (a) be free and clear of all liens (other than liens of Tempo) and rights of third parties; (b) be in the same condition as when delivered to Lessee, ordinary wear and tear excepted; (c) have all Lessee’s insignia or markings removed or painted over and the areas where such markings were removed or painted over refurbished as necessary to blend with adjacent areas; and (d) be in compliance with applicable law.
8.3 Lost Equipment. In the event that the Equipment is lost or stolen, Lessee covenants that it will, as soon as reasonably possible, file a police report to report the lost or stolen Equipment. Provided that Lessee has filed a police report, in the event that the Equipment cannot be recovered, Tempo will retain the Security Deposit.
9. Compliance with Law. Lessee shall (a) comply with all applicable laws, regulations, and ordinances and (b) maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
10. Limitation of Liability. IN NO EVENT SHALL TEMPO BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF ANY PROVISION OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT TEMPO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL TEMPO’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL OF THE AMOUNTS PAID TO TEMPO HEREUNDER.
11. Indemnification. Lessee shall indemnify, defend, and hold harmless Tempo and its officers, directors, managers, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Party relating to any claim of a third party or Tempo arising out of or occurring in connection with the Equipment or Lessee’s negligence, willful misconduct, or breach of this Agreement. Lessee shall not enter into any settlement without Tempo’s or Indemnified Party’s prior written consent.
12. Insurance. LESSEE ACKNOWLEDGES THAT ITS AUTOMOTIVE INSURANCE POLICIES MAY NOT PROVIDE COVERAGE FOR ACCIDENTS INVOLVING OR DAMAGE TO THIS VEHICLE. TO DETERMINE IF COVERAGE IS PROVIDED, LESSEE ACKNOWLEDGES THAT IT SHOULD CONTACT LESSEE’S AUTOMOTIVE INSURANCE COMPANY OR AGENT. TO THE EXTENT LESSEE HAS AUTOMOTIVE OR ANY OTHER INSURANCE THAT WOULD COVER ANY CLAIMS, LESSEE AGREES THAT SUCH INSURANCE WOULD BE PRIMARY AND NON-CONTRIBUTORY.
13. Term and Termination. The term of this Agreement commences on the date of this Agreement and for the period set forth in Exhibit A (the “Term”), unless and until earlier terminated as provided under this Agreement. In addition to any remedies that may be provided in this Agreement, either Party may terminate this Agreement with immediate effect upon notice to the other Party, if the other Party: (a) fails to pay any amount when due under this Agreement and such failure continues for twenty-four (24) hours after the other Party’s receipt of notice of nonpayment; (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. If Lessee is in default of any of the terms and conditions of this Agreement, Tempo, and its agents, at Lessee’s risk, cost, and expense may enter Lessee’s premises where the Equipment is stored or used and recover the Equipment.
14. Confidential Information. All non-public, confidential, or proprietary information of Tempo, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Tempo to Lessee, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Tempo in writing. Upon Tempo’s request, Lessee shall promptly return all documents and other materials received from Tempo. Tempo shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Lessee at the time of disclosure; or (c) rightfully obtained by Lessee on a non-confidential basis from a third party.
15. Miscellaneous.
15.1 Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
15.2 Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
15.3 Notices. All notices, requests, consents, claims, demands, waivers, summons, and other legal process, and other similar types of communications hereunder must be in writing and addressed to the relevant Party at the address set forth on the first page of this Agreement (or to such other address that may be designated by the receiving Party from time to time in accordance with this Section). All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). A notice is effective only (a) upon receipt by the receiving Party and (b) if the Party giving the notice has complied with the requirements of this Section.
15.4 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
15.5 Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party.
15.6 Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15.7 Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Lessee’s rights under Section 6 are Lessee’s exclusive remedies for the events specified therein.
15.8 Assignment; Successors and Assigns. Lessee shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Tempo. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Lessee of any of its obligations hereunder. Tempo may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without Lessee’s prior written consent. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
15.9 No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
15.10 Choice of Law and Choice of Forum. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of California, without regard to the conflict of laws provisions of such State. Any legal suit, action, or proceeding arising out of or relating to this Agreement must be instituted in the federal courts of the United States of America or the courts of the State of California, in each case located in the City of San Francisco and County of San Francisco, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
15.11 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
15.12 Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Lessee to make payments to Tempo hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party.
15.13 Notification Procedures and Changes to this Agreement. Tempo may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to Lessee via email notice, written or hard copy notice, or through posting of such notice on Tempo’s website, as determined by Tempo in its sole discretion. Tempo reserves the right to determine the form and means of providing notifications to its users, provided that Lessee may opt out of certain means of notification as described in this Agreement. When Tempo changes this Agreement in a material manner, Tempo will update the ‘last modified’ date at the top of this page and notify Lessee that material changes have been made to this Agreement. Lessee’s continued use of the Equipment after any such change constitutes your acceptance of the new Agreement. If Lessee does not agree to any of these terms or any future Agreement, Lessee should not use the Equipment and should return it pursuant to Section 8.
15.14 Headings. Headings in this Agreement are for convenience of reference only, and are not to be used in any interpretation of the agreement between the Parties.
EXHIBIT A
EQUIPMENT, TERM, AND FEES
