The General Terms and Conditions
Version: April 2018
1. General | Scope
1.1 These Swapfiets Rental Terms (“SRT”) apply between you and Swaprad GmbH, Gontardstraße 11, D-10178 Berlin (“we” or “us”). They regulate the rental of a bicycle provided to you by us at any given time (“Swapfiets”).
1.2 These SRT apply to the exclusion of all others. Terms which deviate from, conflict with or supplement these SRT shall only become part of the contract if we have expressly consented to them in writing.
1.3 Legally relevant declarations and notices which you would like to give to us after the conclusion of the contract (e.g. setting deadlines, reminders, declarations of withdrawal from the contract), must be made at least in text form in order to be valid, unless expressly provided otherwise in these SRT.
2. Subject Matter of the Contract | Conclusion of the Contract | Swapfiets Territory
2.1 During the contract term we will make a Swapfiets available to you by means of renting it to you. The details of the contract concluded between you and us (“Subscription”) and of the Swapfiets arise from the online ordering process on our website.
2.2 During the online ordering process, we check whether your address is within our active territory in your city (“Swapfiets Territory”). You can find the current territories in which Swapfiets is active on our website. If your address is outside Swapfiets Territory, it is not possible to take out a Subscription.
2.3 When you fully complete the online ordering process on our website, this is an offer to take out a Subscription made by you to us. After the online ordering process is complete, we will send you a confirmation of the order by email. This order confirmation is at the same time the acceptance of your offer to enter into a contract. Therefore, a Subscription comes into existence when you receive the confirmation. Following that, we will agree the time and location for the delivery of the Swapfiets.
2.4 When we deliver the Swapfiets, we will check your personal details together with you (e.g. by you producing an official identity document). At the time of delivery, you are obliged to confirm to us in writing the receipt of the Swapfiets, the payment method chosen by you (e.g. by issuing the direct debit mandate in accordance with Clause 6.3) and that the personal details you have provided are correct. You are obliged to notify us, without undue delay, of any changes in your personal details during the Subscription period (e.g. if your address changes).
2.5 Your Subscription is restricted to your Swapfiets Territory. A change of the Swapfiets Territory is only possible after our express consent to this.
2.6 We do not save the contract text after concluding the contract.
3. Provision of the Swapfiets | Advertising
3.1 During your Subscription period we will make a Swapfiets available to you to rent. Details about providing the Swapfiets to you arise from the online ordering process on our website.
3.2 You do not have any right to a particular Swapfiets or to a particular design, fit-out or configuration of the Swapfiets.
3.3 The Swapfiets and all objects provided to you in connection with the Swapfiets (e.g. the key) shall remain in our sole ownership or in the ownership of our partner companies at all times. You do not become the owner of the Swapfiets or of any objects provided to you in connection with the Swapfiets.
3.4 After giving prior notice, we are entitled to inspect the Swapfiets at any time, to wholly or partially replace it, and to carry out maintenance and repairs to the Swapfiets.
3.5 We reserve the right to put advertisements on the Swapfiets at any time and at our discretion. If an advertisement attached to the Swapfiets or printed on it is damaged, removed, unreadable or otherwise no longer visible, you are obliged to inform us of this immediately.
4. Usage Rules
4.1 Certain rules apply to you in relation to the use of the Swapfiets, which you must comply with at all times:
- The use of the Swapfiets shall be in your sole responsibility.
- Prior to using the Swapfiets, you are obliged to familiarise yourself with how the Swapfiets functions.
- Prior to each use of the Swapfiets, you must check the Swapfiets for road safety, proper functioning and defects. For that purpose, in particular you must check that all screws which are of relevance to safety are tightened, the proper condition of the frame, the handlebars and the saddle, the tyre pressure, the functionality of the lights and the braking system. If a defect exists at the start of use or occurs while you are using it, you are obliged to refrain from using the Swapfiets or to cease using it.
- The Swapfiets is intended solely for your personal use. Consequently, you must not entrust the Swapfiets to third parties, you must not allow third parties the use of the Swapfiets in another form or sell it, hire it out, sub-let it, pledge it or otherwise encumber the Swapfiets with security interests or rights of third parties.
- The Swapfiets is a high-quality object. Consequently, you must not damage or destroy the Swapfiets and you must not carry out any modifications, lacquering, painting or other changes to the Swapfiets.
- You must secure the Swapfiets effectively against theft (Clause 7).
- You are only allowed to use the Swapfiets in the generally accepted customary manner, avoiding unusual strain on it and only on paved routes and streets.
- You must not use the Swapfiets whilst under the influence of drugs, medication or alcohol.
- You are only allowed to use the luggage carrier(s) of the Swapfiets in an appropriate manner in accordance with its / their intended purpose and in particular you must not transport any persons or animals on it / them.
- You are only allowed to use the Swapfiets in Germany.
4.2 When using the Swapfiets, you are obliged to always comply fully with all applicable legal provisions, in particular all road traffic rules (e.g. the StVO (Road Traffic Regulation)). In addition, you must always make sure that the Swapfiets is not detrimental to road safety, that other road users and pedestrians are not endangered, harmed or impeded and that the use of the Swapfiets does not interfere with, damage or endanger other vehicles or other property of third parties or other rights of third parties.
4.3 For the purposes of these SRT, use of the Swapfiets shall be deemed to also include pushing, parking and storing the Swapfiets.
5.1 In accordance with the terms of this Clause 5, you have a right to “Swapping” free of charge. By Swapping or a “Swap”, we mean:
- Repairing defects in the Swapfiets free of charge within your Swapfiets Territory;
- Exchanging the Swapfiets free of charge within your Swapfiets Territory;
5.2 The type and extent of the Swap is determined by us according to our discretion. During your Subscription period you can request an unlimited number of Swaps. You do not incur any additional costs for Swapping. Swapping is covered by payment of the Swapfiets rent. However, we can refuse a Swap until such time as you have paid any outstanding Swapfiets rent, fees or other sums to us.
5.3 If there is a defect in the Swapfiets, you are entitled to a Swap provided that the defect has arisen in the course of your use of the Swapfiets in accordance with the terms of the contract.
5.4 If the Swapfiets is stolen or lost, you are only entitled to a Swap if you are not responsible for the theft or loss. Clause 8 applies.
5.5 You can request a Swap by telephone, email or WhatsApp (“Swap Request”). We will agree the place and time of the Swap on an individual basis with you.
5.6 We make every effort to carry out a Swap within one day after your Swap Request. However, if we do not meet this target time, you cannot use this as the basis for any claims for compensation or any other claims.
5.7 If we exchange the Swapfiets, you are obliged to hand over the previous Swapfiets and the key to us.
5.8 If you make a Swap Request without being entitled to a Swap, we reserve the right to charge you a fee of EUR 20 for this. This also applies if you fail to attend an agreed Swap appointment.
5.9 If you do not notify us about a defect in the Swapfiets or do not notify us immediately, you are obliged to compensate us for losses arising from this. This includes all additional expenses incurred for the purposes of repairing the damage as well as third parties’ compensation claims which would have been avoided if notice of the defect had been given in good time.
6. Rent | Time for payment | Payment Terms
6.1 In return for the use of the Swapfiets, you owe us the monthly rent agreed with us (“Swapfiets Rent”). The Swapfiets Rent is due for payment in advance at the beginning of each calendar month for the whole calendar month. If your Subscription starts or ends during a calendar month, the Swapfiets Rent will be charged by us on a pro rata basis in each case for such a month.
6.2 We reserve the right to adjust the Swapfiets Rent during your Subscription period with effect for the future. We will inform you in text form about changes in the Swapfiets Rent in good time prior to changes taking effect.
6.3 Payment of the Swapfiets Rent as well as any other fees arising shall be made by means of the direct debit authorisation scheme (SEPA direct debit scheme). Consequently, you are obliged to issue us a corresponding direct debit mandate in advance, giving details of your IBAN and BIC numbers. We will collect a monthly direct debit payment for the Swapfiets Rent. We may also request during the Subscription period that you pay the Swapfiets rent not to us, but instead to one of our partner companies.
6.4 If a direct debit payment is not made due to a lack of funds or for other reasons for which you are responsible or a direct debit is subsequently cancelled by you, you will be in default in relation to the relevant payment. You will receive a reminder from us to settle the payment due within 14 days. If the amount due is not paid within 14 days, we reserve the right to instruct a collection agency to recover the debt. All additional administration costs and out of court debt collection costs will be borne by you.
7. Securing the Swapfiets against Theft | Key
7.1 We provide the Swapfiets to you together with one or more locks (e.g. ring lock, chain lock or other security measures).
7.2 In order to prevent the loss or theft of the Swapfiets or damage to it, you are obliged to always secure the Swapfiets with all locks which have been provided to you. The Swapfiets should always be secured to a fixed object (e.g. bicycle stands).
7.3 If you do not secure the Swapfiets in this way (e.g. if you do not secure the Swapfiets with all locks) and as a consequence of this the Swapfiets is damaged, lost or stolen, you are obliged to pay us a fee in the amount of EUR 90. This fee arises in addition to any deductible under Clauses 8.5 and 8.6.
7.4 We will also provide you with a key to use with the Swapfiets locks. You are not allowed to make any additional keys or have them made (e.g. replacement key, copy, duplicate key). We can keep additional keys for the Swapfiets locks in our possession.
7.5 You are obliged to protect the key for the Swapfiets against loss, theft and unauthorised use at all times and you are not allowed to pass the key on to third parties.
7.6 If you lose a key, you must inform us immediately. In these circumstances we will deliver a new key to you within the Swapfiets Territory and will charge you a fee of EUR 15 per key for this. On delivery of the new key, you must confirm receipt of it to us. If you find a key which has been notified to us as having been lost, you must send it to us immediately by post at your own cost.
8. Damage | Theft and Loss
8.1 You are obliged to inform us of any damage to the Swapfiets within 24 hours of becoming aware of the damage occurring. This applies regardless of the extent of the damage and of whether you have caused the damage or not.
8.2 If you have caused the damage to the Swapfiets or it otherwise results from your breach of the usage rules in these SRT (in particular of Clause 4), we reserve the right to claim compensation from you.
8.3 In the event of damage to the Swapfiets due to the fault or contributory fault of a third party, you are obliged to give us the identity and contact details of this third party. If the damage has occurred in connection with an accident, you are obliged to send us an accident diagram sketch signed by you and the third party. You can use the accident form at https://swapfiets-abo.de/verkehrsunfallbericht for that purpose. If you do not send us the contact details of the third party, although you have them, we reserve the right to invoice you in full for the losses which we incur.
8.4 You are obliged to inform us of the theft or loss of the Swapfiets or of individual components of the Swapfiets within 24 hours of you becoming aware of it. In the event of the theft or loss of the Swapfiets, you must hand over or send to us all of the keys for the Swapfiets which you have. You are obliged to support us, to the extent that is reasonable, in relation to reports to the police or bringing any other legal action.
8.5 In the event of the theft or loss of the Swapfiets we can charge you a deductible in the sum of EUR 60 per theft or loss. If, during your Subscription period, the Swapfiets which has been notified to us as having been lost or stolen is found again, at our own discretion and subject to the condition of the Swapfiets which has been found again, we may reimburse you this deductible.
8.6 In the event of the theft or loss of individual components of the Swapfiets, we can charge you a deductible in the sum of the value of the stolen or lost components up to a maximum amount of EUR 60. You can request a list giving details of the value of individual components of the Swapfiets from us.
8.7 If you do not inform us about the theft or loss of the Swapfiets or if you do not hand over the keys which you have to us, we will charge you a sum of EUR 450.
8.8 If it turns out that you have made false statements to the detriment of Swapfiets, Swapfiets shall be entitled to charge a dishonesty supplement in the sum of EUR 100. This sum must be paid in addition to any amounts due under Clauses 8.5 to 8.7.
9. Subscription period | Termination | Return
9.1 Your Subscription period arises from the online ordering process on our website. Unless otherwise stated there, to begin with your Subscription period is one month from the date stated in the online ordering process and extends automatically by a further month each month unless it is terminated in accordance with these SRT.
9.2 Without stating reasons for doing so, you or we can terminate your Subscription by giving notice of one month prior to the end of any monthly period calculated under Clause 9.1.
9.3 Your right and our right to extraordinary termination of your Subscription without notice for an important reason (§ 314 of the German Civil Code (“BGB”)) is not affected by this. An important reason, which entitles us to termination without notice exists in particular if:
- You are in default in relation to more than two Swapfiets Rent payments;
- You use the Swapfiets contrary to the usage rules in Clause 4; or
- You improperly make false statements to us or you repeatedly make use of our services provided for the purposes of your Subscription in an improper manner (e.g. by making intentionally false statements or unjustified Swap Requests).
9.4 Every notice of termination must be given in text form (email is sufficient).
9.5 If you have terminated your Subscription, prior to returning the Swapfiets to us you can cancel your termination at any time and reactivate your Subscription by email free of charge. After returning the Swapfiets to us, free of charge reactivation is impossible.
9.6 When the termination of your Subscription takes effect, you are obliged to return the Swapfiets and any other objects provided by us (in particular keys) at your own cost and risk to us or, if we notify you thereof, to one of our partner companies. If you return the Swapfiets to us prior to the termination of your Subscription taking effect, your rights under your Subscription end at that time; however, we reserve the right to charge the Swapfiets Rent accruing up until when the termination of your Subscription takes effect.
9.7 If you do not return the Swapfiets to us in good time when the termination of your Subscription takes effect, we will charge you a late fee in the sum of EUR 5 per day, up to a maximum of EUR 35, until you return the Swapfiets to us or take out a new Subscription in accordance with Clause 9.9. You are at liberty to prove that we have not suffered any loss or that such loss is significantly lower than the late fee. We reserve the right to claim more extensive damages.
9.8 If you do not return the Swapfiets to us within 7 days after the termination of your Subscription taking effect and you do not take out a new Subscription in accordance with Clause 9.9 either, we reserve the right to take legal action. In these circumstances, we will charge you a retention fee in the sum of EUR 450. You are at liberty to prove that we have not suffered any loss or that such loss is significantly lower than the retention fee. We reserve the right to claim more extensive damages.
9.9 If you want to take out a new Subscription within 3 months after terminating your Subscription, we will charge you a start fee in the sum of EUR 40 for this.
10. Trading in Your Old Bicycle for a Swapfiets
10.1 During the first month of your Subscription, you can offer us the chance to buy your old bicycle one time. We can then decide freely at our own discretion whether we will buy your old bicycle and grant you a one-off discount on the Swapfiets Rent in the amount of the purchase price (“Old Bicycle Bonus”).
10.2 You have no entitlement to us buying an old bicycle from you or granting you an Old Bicycle Bonus of a particular amount.
10.3 When the old bicycle is handed over to us, property in it passes to us unconditionally.
10.4 You give your assurance that the old bicycle offered by you is your property, you are entitled to freely dispose of it and that by handing over the old bicycle to us you are not infringing any third parties’ rights or legal interests. Where there are substantiated indications of the breach of this warranty, we reserve the right to terminate your Subscription with immediate effect and to take legal action against you, in particular by reporting you to the police.
11. Prohibition on Set-off | Restriction on the Right of Retention
11.1 You are only allowed to set off your own claims against ours to the extent that your claims against us have been finally determined in a binding judgment which is not subject to appeal, are undisputed or are accepted by us.
11.2 You are only allowed to enforce a right of retention (in particular over the Swapfiets) if it is based on the same contractual relationship as our claim.
12. Data protection
We are obliged to comply with the applicable statutory provisions on the protection of personal data.
13. Our liability
13.1 Our liability shall be unlimited (i) in respect of losses caused by acting intentionally or with gross negligence, (ii) in respect of breaching essential contractual obligations, namely those obligations which must be complied with in order to make it possible for the contract to be properly performed at all and which you normally rely on being fulfilled and may so rely (cardinal obligations), (iii) in respect of defects which have been fraudulently concealed, (iv) in respect of losses arising from death, bodily injury, or harm to health, (v) in respect of claims under the Law on Product Liability (Produkthaftungsgesetz), and (vi) in the event that we expressly assume a guarantee as to quality. Any more extensive liability for us is excluded.
13.2 We shall not be liable without being at fault in respect of defects in the Swapfiets which exist at the start of the Subscription period (first scenario in § 536a (1) of the BGB).
14. Final provisions
14.1 We have not entered into any collateral agreements with you, whether written, oral or implied.
14.2 We can amend these SRT at any time for technical, commercial or legal reasons with effect for the future. We will notify you of an amendment to these SRT in text form at least 6 weeks before the amendment takes effect. You can agree to the amendment or object to it prior to it taking effect; however, your agreement shall be deemed to have been given if you do not object to the amendment before it takes effect. We will draw your attention specifically to this in our notice of amendment. We reserve the right to terminate your Subscription if you object to an amendment to these SRT.
14.3 In the event that a provision of these SRT is or becomes wholly or partially void, invalid, impracticable or unenforceable, the validity and the enforceability of the remaining provisions of these SRT shall not be affected. In those circumstances, we and you shall be obliged to agree on a provision to replace the defective provision which comes as close as possible to what we and you would have agreed if we had realised that the provision was defective, taking into account the spirit and purpose of these SRT and within the scope of what is legally possible. The same applies to any gaps in the regulations in these SRT. This clause is not intended to merely have the effect of reversing the burden of proof but is intended to exclude the application of § 139 of the BGB in its entirety.
14.4 Your Subscription and these SRT, as well as all rights arising out of or in connection with them, shall be exclusively subject to German law excluding those rules of private international law which lead to the application of the law of a country other than Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
14.5 The jurisdiction of the courts over disputes between you and us in connection with your Subscription and these SRT shall be governed by the statutory provisions. If, after concluding the contract, you move your domicile or habitual residence to another country outside Germany, we can bring proceedings against you before the courts in Berlin.
14.6 The German version of these SRT takes precedence over the English version. The English version of these SRT is merely a non-binding translation.
Commercial Register: Amtsgericht Frankfurt am Main HRB 110940
Version: May 2018