Zipcar Membership Contract
Effective: April 30, 2021
This Contract is a vehicle-sharing service subscription contract between Zipcar and the Member. All Members are required to accept and comply with the terms and conditions set forth herein. By accepting the terms and conditions of this Contract and using Zipcar's services you accept and agree to comply with the terms and conditions of this Contract, as it may be amended from time to time as provided herein.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING ANY ZIPCAR VEHICLES OR SERVICES, ESPECIALLY BECAUSE THESE TERMS MAY AFFECT YOUR LEGAL RIGHTS, SUCH AS REQUIRING BINDING INDIVIDUAL ARBITRATION, AND LIMITING YOUR RIGHT TO BRING A LAWSUIT OR CLASS ACTION – SEE SECTION 10 BELOW.
Zipcar reserves the right to change the terms of this Contract, including the associated Schedules, from time to time. We will give notice of material changes to Members. Unless we designate a different date for effectiveness, such changes will be effective when notice is given to Members and notice will be considered given when such notice is indicated and accessible from the first page accessed after the Member log-on, when it is provided by email to the Member's address on file with Zipcar, or it is provided via our website or other applicable form of communication such as by mobile application or text. You agree that continued use of Zipcar constitutes acceptance of any amended terms and conditions in a revised Contract, which shall be effective and binding on you upon the effective date indicated in such notice or on such other date as Zipcar may designate in its notice. Reservation rates, fees and taxes are subject to change. You may review your total estimated reservation cost before you confirm your reservation.
Certain provisions of this Contract and the Rules related to your use of Zipcar vehicles and services may vary based upon the jurisdiction in which you reserve or use a Zipcar vehicle. For example, the third party liability Zipcar provides may vary based upon the country (or, if applicable, by province or state) in which you are utilizing the Zipcar vehicle and certain different or additional fees and policies may apply. The Contracts applicable to all jurisdictions in which Zipcar vehicles may be reserved are available through the Zipcar websites.
1. Definitions
In this Contract, the following definitions apply:
a. "Member" or "you": The person registered as the First Member and, unless specifically indicated otherwise in this Contract, each Associate Member.
b. "First Member": The person designated to receive and pay all fees, charges and other costs associated with membership, including application fees, membership fees, driving charges and other costs or fees as indicated in the Rules and Schedules described below.
c. "Associate Member": Any approved Zipcar Member who is authorized by the First Member to use Zipcar's service under the terms of this Contract. Additional driving record/insurance verification, application and/or membership fees may apply for Associate Members.
d. "Contract": This Membership Contract and its Schedules, whether made available in print or electronically through Zipcar's websites. The Schedules are an integral part of this Contract.
e. "Rules": All the rules, guidelines or policies of Zipcar related to a Member's use of the Zipcar service, whether set forth in this Contract, appearing elsewhere on Zipcar's websites or otherwise issued from time to time by Zipcar, including specifically and without limitation those set forth in Schedule 1: Rules for Vehicle Use.
f. "Schedules": All the schedules, rate plans and polices referenced in or incorporated into this Contract.
2. Basic Terms of Use of the Zipcar Service
2.1 This Contract is a vehicle-sharing service subscription contract offered by Zipcar, Inc. or one of its affiliated companies ("Zipcar", "us", or "we"), but does not in itself confer any right to use any Zipcar vehicles. A Member may only use Zipcar's vehicles, to the extent available, in accordance with the terms of this Contract and subject to paying all applicable fees and charges.
2.2 Zipcar is the owner of any item it provides to the Member or puts at the Member's disposal during the term of this Contract, including specifically and without limitation, all Zipcar vehicles, mobile and web based applications and the Member's access card ("Zipcard"). The Member's use of and rights in relation to any Zipcar vehicle or item provided by Zipcar under this Contract are limited to those rights of use stated in this Contract.
3. Eligibility
3.1 To be eligible for our service, the Member must:
- Be at least 21 years of age; provided, however, that if the Member is a student of a college or university that has separately contracted with Zipcar for services, generally, such Member must be at least 18 years of age;
- Hold a valid driver's license that authorizes the Member to drive in the jurisdictions in which the Member will use Zipcar vehicles and have a driving history that meets Zipcar's then current eligibility requirements, which may change from time to time.
- Accurately, truthfully and fully complete the application process with Zipcar and deliver all information and documents requested in the application or otherwise.
3.2 Satisfying the foregoing criteria does not automatically give an applicant the right to become a Zipcar Member. Acceptance of the applicant's membership is subject to approval by Zipcar in its sole discretion and, without limiting the foregoing, membership may be denied based upon other factors determined by Zipcar in its sole discretion. In addition, even if approved for membership, a Member may be restricted from driving certain Zipcar vehicles at Zipcar’s sole discretion, or reasons including, but not limited to, the Member's driving or membership history or Zipcar’s service offerings.
4. Fees and Responsibilities of the Member
4.1 The Member agrees to pay Zipcar all applicable driving record/insurance verification, application, membership and similar fees associated with the Member's driving/membership plan. Such fees (if applicable) are not refundable, regardless of whether or not the application is accepted by Zipcar or a Member's membership terminates and new verification/application fees may be payable if a new membership application is resubmitted more than thirty (30) days after a Member's account with Zipcar is closed. If your driving/membership plan includes an annual or monthly fee, your initial membership fee will be charged to you within five days of membership approval, regardless of whether you activate your Zipcard, and will only be refundable if you terminate your membership within the first thirty (30) days following membership approval. Certain restrictions apply. If at any time you wish to cancel your Zipcar membership, call us at 1-866-4ZIPCAR.
Certain membership plans (including for example, monthly plans, Extra Value Plans ("EVP") or Wheel Deal Plans) renew every month. Following approval of the Member by Zipcar for a monthly renewing plan, the Member's credit or debit card will be automatically charged every month, even if the Member's Zipcard is not activated. Monthly payments associated with such plans are non-refundable and, for EVP and Wheel Deal Plans, the driving credit associated with the monthly fee expires at the end of each month if not used and may not be carried into future months. EVP and Wheel Deal plans are optional and may be changed/opted-out of at any time from the Member's account page or by calling 1-866-4ZIPCAR.
4.2 The Member is required to pay all fees and costs incurred (including fees and costs incurred by Associate Members) when due, including, without limitation, application fees, driving record/insurance verification fees, membership fees (which are automatically charged when due), driving charges (including but not limited to mileage overage and surcharge and/or toll fees), sales and other taxes and levies, and other costs and fees as may be detailed in the Rules and Schedules or the Member's driving/membership plan. Members are billed for amounts due via credit or debit card or other means as established by Zipcar. Any Member account which is past due will be suspended; however, any reservations booked in advance shall still be charged to the Member if not timely cancelled by the Member. If payment of any amount due is rejected by the credit or debit card provided by the Member, membership, and the use of Zipcar's services, may be suspended. Members are responsible for providing and maintaining current credit card or debit card information on file with Zipcar. Issues with credit or debit card billings may result in termination of membership. Under no circumstances will Zipcar be responsible for any overdraft or other fees charged by a Member's credit card company or bank. For past due accounts, Zipcar may also change when payment is due and/or terminate the Member's account. In addition, Zipcar may utilize third parties to collect amounts owed to Zipcar by a Member and the Member will also be responsible for any collection or similar fees associated with these collection activities.
4.3 Young Driver Fees. Due to the high costs associated with providing on-demand vehicles to young drivers, all reservations made by drivers under 25 years of age will include additional young driver fees assessed by the hour or day, as appropriate. Please refer to the Zipcar Help Center at https://support.zipcar.com/hc/en-us for additional information on these fees.
4.4 Members are responsible for providing and maintaining current email, mobile phone, preferred search address, mailing address and other account information. Telephone calls/texts, email correspondence and social media communications with Zipcar may be recorded or monitored. By using these communication methods, you are consenting to the recording or monitoring of your calls/texts, emails and social media communications.
4.5 By applying for membership, each applicant authorizes Zipcar to obtain his/her driving records from the jurisdiction in which the applicant is licensed. Members who do not have a driver's license from the jurisdiction in which they reside must comply with the licensing requirements of such jurisdiction for driving in that jurisdiction. In addition, Zipcar may at any time require Members to demonstrate compliance with the licensing laws of their jurisdiction of residence and/or impose further policies regarding the obligation to be licensed in their jurisdiction of residence. Zipcar reserves the right to request additional information, such as a copy of a passport or proof of address at any time. Because driving a Zipcar vehicle requires maintaining a good driving record, Zipcar may, from time to time, check Members' driving records and reserves the right, at its sole discretion, to suspend or terminate the Membership of any Member who does not meet Zipcar's eligibility requirements. If the Member's license is suspended or revoked or becomes invalid, if the Member has any further endorsements or accidents on their driving record or if the Member is convicted of or receives a citation for driving under the influence of alcohol or drugs, dangerous or reckless driving or exceeding the relevant speed limit, the Member agrees to report such suspension, revocation, changes, conviction or citation to Zipcar promptly. Failure to notify Zipcar of any such events may lead to the Member not being covered by Zipcar's liability protection when driving a Zipcar vehicle and/or termination of membership.
4.6 Connected Car Data.
Equipment. Certain cars contain devices that monitor the car’s condition, performance and operation, track fuel consumption, distance travelled, location and other information (the “Connected Car Data”), and may transmit such Connected Car Data to us, our third party providers and/or the car manufacturer. Some or all of these communications are turned on all the time, even when other services or other media in the car are turned off. We cannot guarantee that a car without these features will be available for your reservation. These devices may have been installed by us, on our behalf, or by the car manufacturer. If the devices are installed by the car manufacturer, the car manufacturer will process the Connected Car Data in accordance with its privacy notice. We do not provide the car manufacturer with your personal information (PI), unless authorized by you, necessary in connection with the provision of services provided through such car manufacturer, or required by law. We may enter into agreements with car manufacturers to receive some or all of the Connected Car Data collected by these devices. We may use a third party to process the Connected Car Data on our behalf. We do not provide the third party processor with your personal information (PI), unless authorized by you, necessary in connection with the provision of services provided through such third party, or required by law.
Uses. If equipped and where permitted by law, we use these devices and the Connected Car Data for some or all of these purposes: (i) to provide certain aspects of our services to you, e.g., remote lock/unlock, remote disable engine/cancel ignition, and automatically transmit vehicle data such as location, odometer, fuel level and other data during the reservation; (ii) to manage your reservation, e.g., start your reservation or swap your car; (iii) to enable us to better understand how our cars are being used; (iv) to optimize our operations; (v) to assist in the handling of any liability or property damage claims; (vi) to provide roadside assistance services; (vii) to assist in the recovery of cars which are overdue, lost or reported stolen, or suspected of being lost or stolen; (viii) to develop new products and services and enhance our existing products and services; (ix) to respond to requests from law enforcement and/or regulatory authorities; (x) as necessary to defend, protect or enforce our rights in connection with the use of our products and/or services, (xi) to protect the rights and/or property of Zipcar or third parties; (xii) when we have a good faith belief that there is an emergency that poses a threat to your safety or the safety of another person, or in other circumstances in which we reasonably believe our cars are being or have been used in violation of law or otherwise in the commission of a crime; and (xiii) to comply with law.
5. Damages; Damage Fee; Damage Fee Waivers
5.1 Damages Generally: A Member is financially responsible for any and all damages that occur to a Zipcar vehicle while in the Member's possession or control (including the entire time the vehicle is reserved under the Member's account), even if damage is weather-related, caused by a third party or arises from similar causes, and is responsible for the full value of any damages or injuries caused to third parties or their property. Such damages include, without limitation, the repair costs (estimated or actual) for the Zipcar vehicle and third party property, injuries to third parties, costs associated with the related recovery or transportation of Zipcar vehicles, and the loss of use of Zipcar vehicles or third party property.
Damage Fee: If a member is in compliance with all of the terms and conditions of this Contract, including providing all reasonable assistance to Zipcar in the event of any incident, the Member's financial responsibility will be limited to the first $1,000 of damage to the Zipcar vehicle per incident, the ("Damage Fee"). Members will be responsible for up to the full amount of the Damage Fee for actual, estimated or projected expenses, whether or not an actual claim is made or processed, unless the Member has purchased a Damage Fee Waiver, or DFW.
Separate of the Damage Fee, Zipcar provides third party liability as described in Section 6 below. If, however, a Member fails to abide by the terms and conditions of this Contract, including providing all reasonable assistance to Zipcar in the event of any incident, the third party liability Zipcar provides may not apply, which may make the Member responsible for the full cost of any accident or incident and any damage arising from such accident or incident. For example, a Member who has violated the member contract will be responsible for all damage and costs incurred as a result of an incident during a reservation under the Member's account.
For reservations originating in New York State: In the event a Zipcar vehicle reserved from a location in New York State is damaged while it is reserved under the Member’s account, Zipcar will provide the Member with an incident report form, an estimate of the cost for repairing the vehicle, and the damage fee the Member is obligated to pay, if it is proven that the vehicle was damaged while it was reserved under the Member’s account, pursuant to the terms of this Contract. A Member is obligated to truthfully and timely complete the incident report form, or Zipcar will have the right to terminate this Contract. The Member has the right to contest any damage that Zipcar determines may have occurred while the Zipcar vehicle was reserved under the Member’s account.
5.2 Damage Fee Waivers: Zipcar offers for purchase, at the option of the Member, Damage Fee Waivers or DFWs.
For an additional charge, eligible Zipcar Members (generally Members age 21 or over who have not had an accident in Zipcar vehicle involving property damage or any third party during the past 12 months, subject to applicable limitations and restrictions) have the option to purchase a DFW to cover part or all of the Member's Damage Fee, as defined above. Before purchasing a DFW, you should check to see if you already have rental vehicle collision coverage through your credit card or personal automobile insurance policy that would apply to and cover the Damage Fee. You have no obligation to purchase a DFW. The purchase of a DFW is optional and may be declined. A DFW is not insurance and does not provide or alter insurance coverage.
By purchasing an optional DFW, a Member can reduce or eliminate the applicable Damage Fee. If a Member purchases a DFW and reserves a Zipcar vehicle, Zipcar will waive that Member's responsibility for all or a portion of the applicable Damage Fee, based upon the buy down amount (all or partial) of the DFW purchased. A DFW applies only to the Zipcar vehicles reserved by the Member purchasing the DFW and does not apply to Associate Members or use of Zipcar vehicles which were reserved by another member. A DFW may also be limited to specific types or classes of Zipcar vehicles. Before reserving a Zipcar vehicle, Members should confirm whether any previously purchased DFW applies to the Zipcar vehicle being used. The purchase of a DFW is non-refundable and the DFW will not be applied if the Member has violated any of the terms or conditions of this Contract.
The cost of the DFW will vary based upon, among other things, the term/type of DFW purchased (annual, monthly or per reservation), Damage Fee reduction amount (all or partial), membership location, driving experience and similar factors. For annual or monthly waivers, the DFW is limited to the period stated at the time of purchase; after which, if you elect not to renew or repurchase or cancel a DFW, you will be once again responsible for the full Damage Fee. A per reservation DFW applies only to the specific reservation for which it is purchased and is not transferable in any manner.
The elimination or reduction of liability for the Damage Fee through the purchase of a DFW will not apply, and previously purchased DFWs may be terminated by Zipcar, if you (1) are in violation of this Contract, including if you permit a non-Member to drive, engage in any prohibited use of a Zipcar vehicle or purposely damage a Zipcar vehicle or third party property (e.g. by putting the wrong type of fuel in a vehicle); (2) have had your membership suspended or terminated by Zipcar; (3) fail to close and lock all windows, doors and trunk and the vehicle is stolen, damaged or vandalized; (4) fail to notify Zipcar immediately after an incident or loss; or (5) fail to pay any other amount due under this Contract. If the law of a jurisdiction covering your reservation requires conditions on the DFW that are different than the terms of this Membership Contract, such as if your liability for ordinary negligence is limited by such law, that law prevails.
Annual and monthly DFWs typically renew automatically. A Member's credit card will be automatically charged monthly or annually, depending upon the DFW selected, when due. DFWs are optional. Monthly DFWs may be opted-out of at any time from a Member's account page or by calling 1-866-4ZIPCAR. In order to change the type of DFW purchased (for example, to change from a monthly DFW to an annual DFW), Members must call 1-866-4ZIPCAR.
6. Third Party Liability
6.1 Except where required by law to be primary or excess, any third party liability protection provided by Zipcar shall be secondary to, and not in excess of, any applicable insurance available to you, or any other driver, from any other source, whether primary, excess, secondary, or contingent in any way. Any such third party liability protection afforded will only be up to the minimum financial responsibility limits required by the law of the jurisdiction in which the accident occurs. The limit for bodily injury sustained by any one person includes any claim for loss of that person's consortium or services. If this third party liability protection is extended by operation of law to anyone not permitted by this agreement to drive the car, or to any person or instance where coverage is not intended to be afforded by this agreement, the financial responsibility limits of the jurisdiction in which the accident occurs will apply.
You agree that Zipcar can provide coverage under a certificate of self-insurance or an insurance policy, as we choose. In any case, a copy of the policy and/or certificate will be available for your inspection at the main office of our parent company. You understand that unless required by applicable law, Zipcar will not provide (a) coverage for fines, penalties, punitive or exemplary damages; (b) coverage for bodily injury to you, or your death while not a driver, or any member of your family or the driver's family members related by blood, marriage or adoption residing with you or them; or the drivers family, or to a fellow employee arising out of or in the course of employment; (c) defense against any claim, unless Zipcar is required to provide primary protection, but in such event not after the applicable limits of protection that we furnish are tendered (d) supplementary no fault, noncompulsory uninsured or under-insured motorist coverage, and any other optional or rejectable coverage, and you and Zipcar reject all such coverages to the extent permitted by law. Where any of these coverages are required or implied by law, the limits shall be the minimum required under applicable statute.
Where permitted by law, you are rejecting uninsured or underinsured motorist and all optional automobile insurance coverages and under any policy of insurance or certificate of self-insurance in connection with this agreement, for you and all other passengers in the car, and each Member agrees that Zipcar is hereby authorized to sign any forms or acknowledgements on behalf of each Member rejecting such coverage. You understand that uninsured and underinsured motorist coverage protects you and other passengers in a car for losses and damages suffered if injury is caused by the negligence of a driver who does not have any insurance or has insufficient insurance to pay for losses and damages. There is no coverage in Mexico, and the car may not be taken into Mexico under any circumstances.
Where required by law, we provide Personal Injury Protection (PIP), or "no-fault" coverage, to the minimum level required by the jurisdiction in which the accident occurs, for injuries you may suffer in an accident. Members may also use their own health care coverage in case of injury and any personal injury coverage that the Member has available will be primary over any PIP or no-fault coverage Zipcar may provide where allowed by law. If any such protection described above is imposed by operation of law, then the limits of such protection will be the minimum required for protection by the law of the jurisdiction in which the accident occurs. No coverage is provided for any use of a Zipcar vehicle by any unauthorized driver as defined by the terms of this Contract; provided, however, if such coverage is mandated by law, then the limits of such protection will be the minimum financial responsibility limits required by law in the jurisdiction where the accident occurs.
The third party liability provided by Zipcar does not relieve Members of their obligations with respect to the Damage Fee described in Section 5 of this Contract.
For clarification, any third party liability coverage provided under this Contract only applies when a Member is in compliance with the terms and conditions of this Contract, including providing all reasonable assistance to Zipcar in the event of any incident.
7. Additional Liability Protection
Additional Liability Protection (optional Supplemental Liability Insurance) may be available for purchase for hourly or daily trips you take with Zipcar in the United States. If available, you can purchase Additional Liability Protection for an hourly or daily trip in the United States in the app or on our website when booking a reservation.
Additional details about this coverage are available on our Help Center here, or on the reservation portal of our mobile app or website.
If you purchase this additional liability insurance at the time of reservation, the insurance coverage is restricted only to the vehicle rented in that reservation and only for the period the coverage is purchased for the respective rental vehicle in the same reservation.
8. Term and Termination
8.1 This Contract shall commence upon the acceptance by Zipcar of the Member's completed membership application and the payment by the Member of any applicable fees. The term of this Contract shall continue until such time as membership is canceled in accordance with this Section 8. A Member may terminate membership and all associate memberships upon one day prior notice by calling us at 1-866-4ZIPCAR. No monthly, annual, application, driving records/insurance verification or similar fee will be refunded in the event of termination by the Member, except as specifically provided in this Contract. In addition to the termination provisions set forth in Section 8.2 below, Zipcar may terminate this Contract at any time upon no less than thirty (30) days' notice to the Member, in which event Zipcar will, if applicable, refund a prorated portion of the Member's annual membership fee for the year of termination. With respect to any termination or cancellation of this Contract, the Member shall remain responsible for any fees, costs or expenses incurred prior to termination of this Contract.
8.2 Zipcar may also, upon notice to the Member or any Associate Member, immediately terminate this Contract if the Member or any Associate Member (a) fails to pay any sum due under this Contract, (b) fails to comply with any term or condition specified in the Contract or any Rules, (c) is involved in an incident with a Zipcar vehicle that, in Zipcar's reasonable sole discretion, renders the Member or Associate Member ineligible or inappropriate for continued membership, (d) engages in any activities or conduct that Zipcar, in its reasonable sole discretion, determines to be inappropriate, negligent, offensive, abusive or otherwise unacceptable; or (e) is not paying the Member's debts as such debts generally become due, becomes insolvent, files or has filed against the Member a petition (or other document) under any bankruptcy or insolvency law or similar law that is unresolved within sixty (60) days of the filing of such petition (or document), proposes any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, makes a general assignment or trust mortgage for the benefit of creditors, or if a receiver, trustee, custodian or similar agent is appointed or takes possession of any of the Member's property or business. No membership or other fees will be refunded in the event of termination pursuant to this Section 8.2.
8.3 Upon termination, all of the Member's and Associate Member's rights to use Zipcar's services and vehicles shall immediately terminate. The Member agrees to return immediately to Zipcar any vehicle or any other property of Zipcar that the Member has in the Member's possession, including, if requested, all Zipcards. Additionally, the Member shall be responsible for and agrees to pay any legal fees, court costs or expenses associated with enforcing the terms of this Contract, whether upon termination or otherwise (including, without limitation, any costs relating to recovering any of the foregoing property or any amounts due and owing to Zipcar).
9. Limitations of Liability
UNDER NO CIRCUMSTANCES WILL ZIPCAR BE LIABLE TO ANY MEMBER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFIT, REVENUE, GOODWILL, BUSINESS OPPORTUNITY OR ANTICIPATED SAVINGS, ARISING FROM OR RELATED TO THIS CONTRACT OR USE OF THE ZIPCAR SERVICES. Without limiting the foregoing, Zipcar shall have no liability for any loss of, or damage to, any goods in or on the vehicle or in or on any third party vehicle, any loss, damage, injury or death in relation to any Member or any third party arising from the use of a Zipcar vehicle, loss or damage incurred by the Member as a result of any claims made by a third party, or loss or damage incurred by the Member arising from or in relation to either (i) the reservation, non-availability, supply, operation or use of a Zipcar vehicle or (ii) any vehicle accessories, whether supplied by Zipcar or by a Member (for example, luggage racks, bicycle racks, baby seats and the like; the Member is responsible for the safe installation of such accessories and must check the condition of such accessories before each use), unless in each case such loss or damage is incurred due to our negligence or failure to carry out our responsibility.
10. Dispute Resolution by Binding Arbitration and Class Action Waiver
10.1 Pre-Dispute Resolution Procedure. For the purposes of this Section 10, “Zipcar Party” or “Zipcar Parties” shall mean Zipcar and Zipcar’s service providers and licensees, and their respective officers, directors, employees, contractors and agents when providing services for or on behalf of Zipcar. Before asserting a claim in any proceeding (including in an individual arbitration or in a small claims proceeding), you and the applicable Zipcar Party agree that we shall give the other party written notice of the claim to be asserted 30 days before initiating a proceeding and make a reasonable good faith effort to resolve the claim. If you are intending to assert a claim against a Zipcar Party, you must send the written notice of the claim to Zipcar Legal Dept, 35 Thomson Place, Boston, MA 02210. If Zipcar is intending to assert a claim against you, we will send the written notice of the claim to you at your address appearing in our records. NO SETTLEMENT DEMAND OR SETTLEMENT OFFER USED IN THIS PRE-DISPUTE RESOLUTION PROCESS MAY BE USED IN ANY PROCEEDING, INCLUDING AS EVIDENCE OR AS AN ADMISSION OF ANY LIABILITY OR DAMAGES (OR LACK THEREOF).
10.2 Agreement to Arbitrate. Except as otherwise provided in section 10.8 of this dispute resolution provision, in the event of a dispute that cannot be resolved informally through the pre-dispute resolution procedure, you and the Zipcar Parties agree to arbitrate all disputes and claims arising under or relating to any these Terms, Zipcar’s vehicles, Zipcar’s services, or any other transaction involving you and Zipcar, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis. The interpretation and scope of this provision, and the arbitrability of the dispute or claim, are for the arbitrator to decide.
10.3 What is Arbitration. Arbitration is more informal than a lawsuit. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Under this dispute resolution provision, arbitrators can award the same individual relief affecting individual parties that a court can award, including damages and an award of attorneys’ fees, if the applicable law allows. BY AGREEING TO RESOLVE DISPUTES THROUGH ARBITRATION, YOU AND ZIPCAR AGREE TO EACH UNCONDITIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY OR COURT.
10.4 Class Action Waiver. YOU AND THE ZIPCAR PARTIES AGREE THAT ANY CLAIMS BROUGHT BY YOU OR THE ZIPCAR PARTIES WILL BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND WILL NOT BE BROUGHT AS A CLASS, REPRESENTATIVE, COLLECTIVE OR PRIVATE ATTORNEY GENERAL ACTION. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class, representative, or private attorney general proceeding. You and the Zipcar Parties agree to seek only such relief—whether in the form of damages, an injunction, or other non-monetary relief—as is necessary to resolve any individual injury that either you or Zipcar have suffered or may suffer. In particular, if either you or a Zipcar Party seek non-monetary relief, such relief must be individualized and may not affect individuals or entities other than you or the applicable Zipcar Party. This requirement that claims be brought in binding arbitration only in an individual capacity and not as a representative, private attorney general, or class member (“Class Action Waiver”) is non-severable. If the Class Action Waiver is found to be unenforceable, then the entirety of this dispute resolution provision shall be null and void.
10.5 Applicable Law and Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes. For more information on AAA, its rules and procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
10.6 Hearings and Decisions. If you are an individual, arbitrations will proceed at a location that the arbitrator selects in the county of your primary residence unless you and the applicable Zipcar Party agree otherwise. If you are not an individual person (but are instead, for instance, a partnership, corporation, or other form of entity or non-natural person) (hereafter “Entity Member”), arbitrations shall proceed at a location that the arbitrator selects unless you and the applicable Zipcar Party agree otherwise. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction. Further, an arbitrator’s award and any judgment confirming it shall apply only to that specific case and cannot be used in any other case except to enforce the award itself.
10.7 Fees and Costs. If you are an individual (and not an Entity Member), in the event that (1) your claim is less than $10,000, and (2) you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, the applicable Zipcar Parties will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation. Zipcar also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration. However, the Zipcar Parties will not pay your share of the arbitration fees if the arbitrator finds that either your claim or the relief sought is frivolous or brought for an improper purpose, as measured by the standards of Federal Rule of Civil Procedure 11(b).
10.8 Small Claims, Personal Injury Claims and Vehicle Damage or Loss Claims. The following disputes and claims are exempt from Sections 10.1-10.7: (a) unresolved disputes and claims that are within the scope of a small claims court’s authority; (b) disputes and claims regarding personal injury and/or damage to or loss of a vehicle related to your Zipcar reservation; and (c) if you are an Entity Member, disputes over the validity of any party’s intellectual property rights.
10.9 Conflicts . In the event of any conflict between this dispute resolution provision and any other dispute resolution provision in any other agreement between you and Zipcar, the dispute resolution provision in this Contract shall govern.
10.10 Modification of this Provision. Notwithstanding any provision in these this Contract to the contrary, we agree that if Zipcar makes any material change to this arbitration provision, including the deletion of this provision, that change will not apply to any dispute that you had already provided Zipcar notice of in writing.
10.11 Third Party Beneficiaries. Without limitation of any of the foregoing, you acknowledge and agree that with respect to the dispute resolution provisions in this Section 10, each applicable Zipcar Party shall be deemed to be an intended third party beneficiary of this Section 10, with authority to enforce this Section 10.
11. Miscellaneous Provisions
11.1 By applying for membership and becoming a Zipcar Member, the Member represents and warrants to Zipcar that the Member has received all explanations as the Member may have reasonably requested concerning the content of this Contract, including all Schedules, and that the Member has carefully reviewed and understands the Member's commitments and obligations hereunder. The Member also represents that the Member has reviewed and understands the Zipcar Privacy Notice and acknowledges that any information shared by, or collected from or about, the Member may be used by Zipcar in accordance with the terms of the Privacy Notice as it may be amended from time to time.
11.2 To the fullest extent permitted by applicable law, this Contract and any notices or other communications (including, without limitation, by e-mail) regarding access to and/or use of Zipcar’s services may be provided to the Member electronically, and the Member hereby agrees to receive electronic communications from Zipcar in an electronic form. Electronic communications may, and will, be delivered to the email address that Member provided to Zipcar in their application. Member expressly agrees that any notice or other communications required under this Contract may be given in email form. In addition, the Member expressly agrees that it is Member’s sole responsibility to keep Member’s email address current and accurate by providing Zipcar with written notice of any changes to the same, and that Zipcar may reasonably assume that any communications sent to the email address provided will be received by Member. Member’s consent to receive communications electronically is valid until Member revokes their consent.
11.3 The rights granted to the Member or Associate Members under this Contract are not assignable or transferable, in whole or in part. Any attempt to transfer this Contract without the written consent of Zipcar shall be void and of no force and effect. Zipcar may assign this Contract to an affiliate or to another entity in connection with a corporate transaction or otherwise.
11.4 No delay or omission by Zipcar to exercise any right or power occurring upon any noncompliance or default by the Member with respect to any of the terms of this Contract shall impair any such right or power or be construed to be a waiver thereof. Any waiver by Zipcar of any covenant, condition, or agreement to be performed by the Member shall not be deemed to be a waiver of any prior or subsequent breach of the same, or of any other covenant, condition, or agreement hereunder. Unless stated otherwise, all remedies provided for in this Contract shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
11.5 If any term, provision, covenant or condition of this Contract is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Contract had been executed with the invalid portion eliminated. The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.
11.6 This Contract is governed by the laws in force in the Commonwealth of Massachusetts and shall be interpreted according to the internal laws of such Commonwealth, without reference to its conflicts of laws or choice of law rules. All disputes hereunder shall be resolved solely in the applicable state or federal courts of Massachusetts. The parties hereby consent to the exclusive jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
11.7 Any legal notices or communication required or permitted to be given to the Member shall be in writing and shall be sufficiently given if delivered by email or mailed to the Member at the email or postage address provided to Zipcar in the Member's completed application or as updated by the Member and on file with Zipcar. Any legal notices or communication required or permitted to be given to Zipcar shall be in writing and shall be sufficiently given if delivered via email or mailed as follows:
Zipcar, Inc.
Attention: Legal Department
35 Thomson Place
Boston, MA 02210
Email address for Legal notices only: legal@zipcar.com
The schedules constitute an integral part of this Contract:
Schedule 1: Rules of Vehicle Use
Schedule 2: Fee Policy
Schedule 3: Membership and Driving Rates
Schedule 4: Services for Members with Disabilities
Schedule 5: State Specific Notices