1. General Information and Applicability
a. Unless expressly agreed otherwise, these general terms and conditions (“T&Cs”) shall apply to all contracts (individually “Contract”) between Swobbee GmbH, Johann-Hittorf-Str. 8, 12489 Berlin (“Swobbee”) and the contracting party (“Customer”) concerning products and services provided by Swobbee, in particular for rentals of Swobbee Scooter (individually “Vehicle”) and related items such as but not limited to batteries, chargers andphone holders (“Accessories”, individually “Accessory”).
b. Deviating or conflicting terms and conditions of the Customer shall not apply.
c. Swobbee reserves the right to make changes to these T&Cs as necessary to adapt to changing legal or technical conditions. Changes will be announced to the Customer by notification via email. If the changes do not require the Customer´s consent, the Customer will be informed of potential changes four weeks prior to the change in the T&Cs.
2. Conclusion of Contract
If Swobbee sends the Customer an offer or a price list for Swobbee products, this does not constitute a legally binding offer, but is non-binding until the final agreement. Upon signing of the contract document, the Customer submits a binding offer to conclude a Contract. The Customer is bound to this offer for 3 days.
A binding contract for the offered Swobbee products comes about with confirmation by Swobbee. The acceptance takes place through the receipt of a separate declaration of acceptance, which is sent to the Customer by Swobbee via email.
In order to enter into a contract with Swobbee, the customer must be at least 18 years old and have its main place of residence/business domicile in Berlin or Brandenburg.
Regarding the T&Cs the contractual language shall be German. Insofar as Swobbee provides the Customer with these T&Cs in another language as part of the conclusion of the Contract, these are merely non-binding translations and a non-binding service provided by Swobbee. In the event of any discrepancies, ambiguities or contradictions between the English version and other versions, the German version shall always take precedence.
Charging the batteries at the Swobbee stations is included in the price.
The Vehicle and Maintenance
a. The Customer has no claim to receive a Vehicle in a certain color or design if not otherwise agreed in the Contract.
b. Swobbee is obligated to leave the Vehicle to the Customer in usable condition and to maintain the usability during the Contract period.
c. Swobbee remains at all times the owner of all Vehicles and Accessories. In case the rented vehicle is of type of Yamaha Neos, the ownership is with Yamaha Europe.
d. The customer is obligated to independently adhere to the maintenance intervals specified by the manufacturer according to Appendix 1 and to arrange for a maintenance appointment in a timely manner. For this purpose, the customer must contact Swobbee GmbH. Swobbee will carry out the maintenance work exclusively in a workshop. For maintenance work in a workshop, the customer is responsible for independently transferring the vehicle to the workshop designated by Swobbee.
The Customer will enable Swobbee to perform the maintenance. If the Customer cannot enable Swobbee to perform the maintenance, i.e. not provide access to the Vehicle, the Customer will inform Swobbee thereof at least 24 hours in advance.
If the Customer does not enable Swobbee to perform maintenance and does not cancel the maintenance date 24 hours in advance, Swobbee is entitled to a no show fee as defined in Annex 1. The Customer has the right to demonstrate that no damage or a reduction in value has occurred at all or that the damage or reduction in value is significantly lower than the no show fee. Swobbee reserves the right to claim further damages. This provision does not apply if the Customer acted without fault.
4. Payment and terms of payment
The agreed fees and charges (“fees”) for the respective month will be invoiced by Swobbee at the end of each month upon completion of the service. Payment is to be made within the agreed payment terms.
b. The fees are exclusive of statutory VAT.
c. Swobbee is entitled to notify the Customer of a change in the account at any time. The rent shall then be paid into the new account.
The late payment fees described in Appendix 1 will be charged if payment is not made within the payment period after invoicing. The customer has the right to prove that no damage or depreciation has occurred at all or that the damage or depreciation is significantly less than the late payment fee.
5. Term and termination of the Contract
a. The contract period begins on the day that is agreed upon in the Contract and ends with the expiry of the agreed day or period.
b. If the Contract is concluded for an indefinite period, termination may be declared by the Customer and by Swobbee at any time. The notice period is 1 month to the end of the month. The termination must be declared in writing, textform (in line with section 126b German Civil Code („BGB“)) is sufficient.
c. The right to extraordinary termination for good cause remains unaffected.
Such cause shall be deemed to include, in particular:
i. Considerable deterioration of Customer´s financial situation,
ii. Dishonored bank debits/cheques,
iii. Enforcement measures aimed against the Customer,
iv. Lack of care of the Vehicle,
v. Improper and illegal use,
vi. Disregard of the regulations of the Contract and the T&Cs,
vii. If it becomes unreasonable to expect the Contract to be continued, e.g. causing an excessive damage ratio.
6. Handover and return of the Vehicle
a. The Vehicle and the Accessories are handed over to the Customer on the basis of the provision agreed in the Contract at the beginning of the term of the Contract. Swobbee will provide the Customer with a digital or paper-basedversion of the manual of the Vehicle (“the Manual”) upon handover.
b. Unless expressly agreed otherwise, the Vehicle and the Accessories shall be delivered to the Customer´s address specified in the Contract. The Customer will be informed of the handover time at least 48 hours prior to the handover.
c. If the Customer does not enable Swobbee to handover the Vehicle although he was informed of the planned handover, Swobbee is entitled to a no show fee as described in Annex 1. The Customer has the right to demonstrate that no damage or a reduction in value has occurred at all or that the damage or reduction in value is significantly lower than the no show fee. Swobbee reserves the right to claim further damages.
d. Upon termination of the Contract, the Customer is obliged to book a returndate and hand over the Vehicle as well as any Accessories to Swobbee latest at the end of the Contract period. Should no return date be available on the last day of the contract period, the Customer may book the next available slot. The ustomer is entitled to book an earlier slot, if desired. . If the Customer continues to use the Vehicle after expiry of the agreed contract period, the rental shall not be deemed to have been extended. Section 545 BGB shall not apply.
e. In the event of excessive soiling of the Vehicle, which requires special cleaning of the Vehicle, or if the Vehicle is returned with an odor impairment, special cleaning costs as laid out in Annex 1 shall apply. The Customer has the right to demonstrate that no damage or a reduction in value has occurred at all or that the damage or reduction in value is ignificantly lower than the fee. Swobbee reserves the right to claim further damages.
f. If the Customer has not agreed on a return date during the term of the Contract, Swobbee may define a return date within the week after the end of the Contract. The Customer must then enable the return on that date.
g. If the Vehicle is not returned at the end of the Contract Swobbee is entitled to a fee as defined in Annex 1. The Customer has the right to demonstrate that no damage or a reduction in value has occurred at all or that the damage or reduction in value is significantly lower than the no show fee. Swobbee reserves the right to claim further damages.
h. The customer must be personally present at both the handover and return.
i. If the Customer cannot attend a return date that was booked, the appointment needs to be cancelled 24 hours before.
j. The Customer is obliged to inform Swobbee about any technical malfunctionsat return in writing.
7. driver
a. The Vehicle may be driven exclusively by the Customer unless expressly agreed otherwise.
b. Only persons who have reached the age of 18 and hold a valid driving license, which entitles them to drive the Vehicle in Germany, are authorized to drive the Vehicle.
c. Driving the Vehicle is contractually prohibited in the presence of any condition that is not in line with the usual use of the Vehicle and the purpose of the Contract, especially where:
i. The driver of the Vehicle is under the influence of alcohol, drugs or medication that could potentially impair the ability to drive. A strict alcoholprohibition of 0.0‰ applies.
ii. The driver is not in full possession of his or her faculties.
iii. The Vehicle is used for off-road driving, motor sport events, racing of anykind, vehicle testing, driver training or for the commercial transportation of persons.
iv. The Vehicle is used to transport children, although they are neither tallenough to reach the footrests nor strong enough to hold on to the driver.
d. Swobbee is entitled to request a photo identification of the Customer (e.g. identity card or equivalent) and a driver’s license of the Customer.
e. The Customer is obliged to inform Swobbee in writing of the revocation of his driving license or the drivers licencse of a Permitted Driver, as well as regarding all circumstances placing a restriction on the driving license (for example, restriction of the driving license, temporary seizure or confiscation of the driving license or a judicial or official driving ban). Upon revocation of the driving license or the occurrence of other circumstances placing a restriction on the driving the Customer is prohibited from driving the Vehicle.
8. General obligations of the customer/ prohibitions
a. The Customer shall carefully inspect the Vehicle and the Accessories for damages at the time of receipt and report such damages to Swobbee immediately.
b. The Customer is obliged to make himself familiar with the functioning of the Vehicle before using it and to observe the safety and usage instructions of the Manual.
c. The Customer is obliged to treat the Vehicle with care and to use it with caution. The Customer shall use the Vehicle and the Accessories solely in accordance with their purpose and with due care and in compliance with all instructions provided.
d. The customer must ensure careful use of the battery by not storing it at temperatures below 0 degrees Celsius, protecting it from heat sources and extreme heat, and is obligated to charge the battery at least every four weeks.
e. The vehicle and any accessories may not be used outside the borders of Berlin and Brandenburg or exported from Germany.
f. The Customer may not sell, sublease, pledge, encumber, in any other way dispose or attempt to dispose the Vehicle or the Accessories without Swobbee´s prior written consent.
g. At Swobbee´s request, the Customer shall be obliged to mark the Vehicle and the Accessories as Swobbee´s property in a clearly visible place during the contract period.
h. The Customer must immediately notify Swobbee of any seizure of the Vehicle or the Accessories or any other infringement or threat of infringement of Swobbee´s rights
i. The Customer shall contact Swobbee immediately in case of any problems, complaints and/ or questions regarding the Vehicle or the Accessories.
j. The Customer shall provide Swobbee or a representative with access to the premises where the Vehicle is stored upon reasonable notice and at reasonable times and intervals to allow Swobbee to inspect the Vehicle´s and the Accessories` condition.
k. The Customer is obliged to lock the Vehicle with all available locks before leaving the Vehicle unattended.
l. The Customer shall not be permitted to make, or have made, any copy or duplicate keys or to have more than one key in its possession. The Customer shall protect the key against loss, theft, and unauthorized use at all times and is not permitted to pass the key on to third parties (except the Permitted Drivers).
m. If the key is lost, stolen or damaged, the Customer must inform Swobbee immediately. Swobbee may charge the Customer for a new key as set out in Annex 1. This does not apply if the Customer acted without fault. The Customer has the right to demonstrate that no damage or a reduction in value has occurred at all or that the damage or reduction in value is significantly lower than the fee. Swobbee reserves the right to claim further damages.
n. A key that was previously reported lost or stolen that is found again, must immediately be returned to Swobbee.
o. Prior to the start of each use of the Vehicle, the Customer is obliged to check that the Vehicle is in good working order and noadworthy (in particular the brakes, tires and lights) and to refrain from using it if it is defective. In case of malfunctions that occur during the ride or are noticed during the ride, the Customer is also obliged to immediately stop using the Vehicle and refrain from using the Vehicle until Swobbee repairs it or informs the Customer otherwise.
p. It is not allowed to make any modifications or changes like painting, alterations or similar to the Vehicle or any Accessories.
q. It is not permitted to fit additional accessories that are usual or unusual for the specific type of vehicle without Swobbee’s consent.
r. The Vehicle may not be used in an unusual way, loaded or exposed toinappropriate conditions.
s. The Customer is obliged to adhere to the valid road traffic regulations and local regulations when using the Vehicle.
t. The Customer undertakes to carry his valid driver’s license with him on every trip and to ensure safe driving.
u. The customer is obliged to check the correct functioning of the Accessories (especially the smartphone holder) before using them.
v. As part of the Contract Swobbee may have the obligation to share personal data (e.g. demographic data) with the Customer. If the Customer is a business customer the Customer is responsible for ensuring the legal basis for this data processing.
9 Malfunctions, statutory warranty rights and defects
a. Malfunctions and defects shall be reported to Swobbee by the Customer immediately latest within 24 hours after they have become known. The further use of the defective Vehicle is not allowed until the damage is repaired or Swobbee has informed the Customer that further use is permitted until it can be repaired.
b. If it is not possible to lock the Vehicle properly, the Vehicle must not be left behind without supervision and the Customer is obliged to immediately inform Swobbee about the malfunction.
c. In the case of a defect, the Customer shall be entitled to the statutory warranty rights, provided that Swobbee may choose to remedy the defect by repairing the Vehicle or the Accessory or by supplying a comparable Product/ Accessory.
d. The Customer shall waive the right to reduce the Fees insofar as Swobbee is not responsible for the circumstances that would entitle the Customer to do so and insofar as the reduction is not asserted with a non-appealable claim or a claim acknowledged by Swobbee.
e. The repair will be carried out exclusively in the workshop named by Swobbee. If the vehicle is unroadworthy, Swobbee or an authorised contractual partner will collect it from a pre-designated location. If a defect cannot be repaired immediately, the vehicle will be replaced by a comparable model when it is handed over at the workshop.
f. The Customer will enable the access to the Vehicle. If the Customer does not enable the Access, Swobbee is entitled to a no show fee as described in Annex 1. The Customer has the right to demonstrate that no damage or a reduction in value has occurred at all or that the damage or reduction in value is significantly lower than the no show fee. Swobbee reserves the right to claim further damages.
10. Special provisions
For business customers and customers who are not the authorized drivers:
a. If the Customer is a business that intends to provide the Vehicles and the Accessories to its employees for usage the Customer has to communicate this to Swobbee in writing prior to the conclusion of the Contract.
b. In that case the Customer is obliged to
i. delegate to its employees the duties arising from the T&Cs with respect to the use and handling of the Vehicle and the Accessories and monitor compliance therewith and
ii. provide Swobbee with names of the permitted drivers (“Permitted Drivers”).
c. The Customer shall be liable for the actions of the Permitted Driver as if they were the Customer’s own actions.
11. Insurance
a. Unless expressly stated in these T&Cs or the Contract, Swobbee does not take out insurance for the benefit of the Customer.
b. Swobbee takes out third-party insurance for the Vehicle, which covers the use of the Vehicle by the Customer and the Permitted Driver (“Insured Driver”). The general insurance conditions of the respective insurer apply.
c. The insurance covers damages to third-party vehicles or property caused by a traffic accident for which the Insured Driver was at fault with the Vehicleunder the conditions set out in the general insurance conditions of the respective insurer and limited by the respective coverage amounts.
d. The insurance does not cover loss/theft of individual Accessories such as keys, remote controls, chargers, and keys for the top cases.
e. The insurance only applies during the term of the Contract.
12. Accidents and Theft
a. In the event of an accident, the Customer is obliged to draw up an accident report. An accident is defined as a sudden event with a mechanical force thataffects the exterior and/ or interior of the vehicle.
b. In the event of an accident involving a third party, the Customer is additionallyobliged to report the accident immediately to the police and actively participate in the preparation of the accident report and the minimisation of the damage.
c. The Customer may not make an admission of liability without the prior written consent of Swobbee.
d. The Customer is required to inform Swobbee of any accident immediately via email to vehicles@swobbee.com. If this information to Swobbee is omitted, the Customer is responsible for all damages caused by the omission of the information, including the potential loss of insurance coverage.
e. Within seven days of the accident, the Customer is required to send the accident report, and/or any other documentation of the accident to the email address listed above (see clause 12. d.). d.).
f. If the Vehicle, a part of the Vehicle or a removable Accessory (e.g. battery) has been stolen or cannot be found for any other reason, the Customer is obliged to inform Swobbee about the loss as soon as possible, but at the latest within 24 hours after becoming aware of it. Furthermore, the Customer is obliged to participate in the attempt to recover the Vehicle, part of the Vehicle,or Accessory and if necessary to give information to the insurance company and the police.
g. If Accessories could not be found at the time of the ending of the Contract and the Customer is obliged to pay damages the Accessory replacement fees as defined in Annex 1 apply. The Customer has the right to demonstrate that no damage or a reduction in value has occurred at all or that the damage or reduction in value is significantly lower than the fee. Swobbee reserves the right to claim further damages.
h. In accordance with the service package agreed with the customer, Swobbee GmbH is authorised to charge the customer a deductible of up to €1,000 in the event of a claim.
13. Repairs and Accessory replacements
a. All repairs to the vehicle will be carried out by Swobbee or an authorised contractual partner. In the event of inability to drive, Swobbee or an authorised contractual partner will collect the vehicle from the service area.
b. Where applicable the Customer will be invoiced for any repairs in line with the costs for the repair.
c. Any Accessory replacements during the term of the Contract will be performed by Swobbee.
d. Where applicable the Customer will be invoiced for any Accessory replacements in line with the Accessory replacement fees laid out in Annex 1. The Customer has the right to demonstrate that no damage or a reduction in value has occurred at all or that the damage or reduction in value is significantly lower than the fee. Swobbee reserves the right to claim further damages.
14. Service Area
a. Swobbee only offers services (i.e. handovers, pick-ups, repairs and maintenance, “Services”) in the area of service (“Service Area”). The Service Area can be found here.
b. Services outside the Service Area can be refused by Swobbee. For any Services performed outside the Service Area, a fee in line with Annex 1 will be charged.
15. Liability of Swobbee
a. Swobbee is liable
i. for damages or expenses resulting from a grossly negligent or intentionalbreach of duty by Swobbee, a legal representative or a vicarious agent of Swobbee.
ii. for injuries to life, body or health resulting from an intentional ornegligent breach of duty on the part of Swobbee, a legal representative or a vicarious agent of Swobbee,
iii. for all damages or expenses based on the absence of a characteristic of durability that was guaranteed by Swobbee.
iv. for all damages or expenses caused by a breach of cardinal obligations by Swobbee or its legal representatives or a vicarious agent of Swobbee. Cardinal obligations are those basic obligations that constitute the essence of the Contract, which were decisive for the conclusion of the Contract and on the fulfillment of which the Customer may rely on. If Swobbee breaches its cardinal obligations through simple negligence, the resulting liability shall be limited to the amount that was foreseeable for Swobbee at the time the respective service was provided;
v. for damages under the German Product Liability Act (ProdHaftG).
b. Any further liability is excluded.
16. General liability of Customer
a. If not laid out differently in these T&Cs or the Contract in the event of damages to or loss of the Vehicle and/ or the Accessories, or breach of the Contract and/ or the T&Cs, the Customer shall be liable in accordance with the statutory law.
b. The customer is fully liable for all traffic and administrative offences, all violations of statutory provisions and for any interference with possession committed by the customer, the authorised driver or third parties to whom the customer has entrusted the vehicle.
As compensation for Swobbee´s administrative costs incurred in handling enquiries put to it by the prosecution authorities or other third parties in order to investigate administrative offences, criminal offences or any nuisance committed, a fee for each such inquiry shall be paid in accordance Annex 1. The Customer has the right to demonstrate that no damage or a reduction in value has occurred at all or that the damage or reduction in value is significantly lower than the fee. Swobbee reserves the right to claim further damages.
c. . These provisions apply not only to the Customer but also to the Permitted Driver.
d. Any contractual exemption from liability does not apply to unauthorized users of the Vehicle.
17. Indemnification
a. If a third party asserts a claim against Swobbee, the Customer shall indemnify Swobbee insofar as the claim is based on (i) a breach of the provisions of the T&Cs or the Contract by the Customer, (ii) a violation of the law by the Customer or (iii) changes and additions made by the Customer to the Vehicle that Swobbee did not approve. This shall not apply unless the Customer acted.
b. The Customer shall indemnify Swobbee against all penalty and warning fines, fees and other costs, levied by the authorities or other bodies from Swobbee because of any breach of legal provisions by the Customer, Permitted Driver or third party to whom the Customer has left the Vehicle.
18. Final provisions
a. The law of the Federal Republic of Germany applies.
b. The European Commission offers on the website https://ec.europa.eu/consumers/odr/ the possibility for consumers to submit a possible dispute between the consumer and Swobbee to a consumer mediator, after trying to settle it amicably. This referral is not mandatory.
c. Swobbee is not obligated and not willing to participate in dispute resolutionproceedings pursuant to the German Consumer Dispute Resolution Act (VSBG).
d. As far as legally permissible the exclusive local jurisdiction lies with the courts of Berlin, Germany.
| No show | |
|
The Vehicle is not available for a repair or maintenance appointment |
30 € |
|
The Vehicle is not available for return after the end of the Contract |
50 € per day of delay |
| The Customer does not enable handover of the Vehicle | 30 € |
| Accessory replacements | |
| Key replacement | 123,40 € |
| Top case replacement incl. Keys | 202,44 € |
| Top case key replacement | 25 € |
| Battery replacement | 700 € per battery |
|
Smartphone holder replacement |
60,46 € |
| Helmet replacement | 125,97 € |
| Winter blanket Apron NEO’s replacement | 122,65 € |
| License plate replacement | 100 € |
| Services outside the Service Area | |
| Services outside the Service Area | 60 € + 3 € p. additional kilometer |
| Other Fees | |
| Administrative costs incurred in handling enquiries put to it by the prosecution authorities or other third parties in order to investigate administrative offences, criminal offences or any nuisance committed | 20 € |
| Special cleaning Cost | 110 € |
| Late payment fee | 10 € |
| KM overrun (Intervals: 1000, 6000,12000, 18000, 24000) | 1 €/per km |
All fees are exclusive of the current VAT rate of 19%.
Germany Status: 17.06.2024
