GENERAL TERMS AND CONDITIONS IN EFFECT FROM 10 APRIL 2018
- The following terms used in these General Terms and Conditions written with a capitalized initial letter are defined as follows:
- ‘Subscription’: the subscription taken out by the Customer under the Contract between VanMoof and the Customer for the use of the Bicycle;
- ‘Applicant Customer’: any adult, natural person or legal entity wishing to be a Customer and/or with whom VanMoof is in discussions or negotiations for the signing of a contract, or who is in discussions or negotiations with a Customer for the transfer of a Key;
- ‘Bicycle’: the bicycle supplied to the Customer by VanMoof under the Subscription;
- ‘Guest Use’: as defined in Article 5.1;
- ‘Initial Payment’: a one-off sum payable by the Customer to VanMoof at the start of the Subscription for the rent of the Bicycle, as specified in the Contract;
- ‘Web Portal’: the digital Portal for the Subscription, accessible via www.vanmoof.com, by which the Customer can access their personal account and transfer their Key;
- ‘Key’: the right of the Customer to use the Bicycle;
- ‘Customer’: any adult, natural person or legal entity with whom VanMoof has entered into a Contract and who is accepted by VanMoof;
- ‘Monthly Fee’: the payment owed by the Customer to VanMoof each calendar month for the rent of the Bicycle, as specified in the Contract;
- ‘Contract’: a contract between VanMoof and the Customer for a Subscription;
- ‘Total Loss’: as defined in Article 7.4;
- ‘VanMoof’: VANMOOF B.V., with registered office at Mauritskade 55H, 1092 AD Amsterdam, registered in the Netherlands Chamber of Commerce under number 34227663; and
- ‘VanMoof Brand Store’: a specialist bicycle business managed by VanMoof or a legal entity associated with VanMoof or other location stipulated by VanMoof for the purpose of the Subscription.
- Insofar as required by context, terms used in the plural in these General Terms and Conditions (the ‘General Conditions’) include the singular, and vice versa.
- REGISTRATION PROCESS
- An Applicant Customer may apply for a Subscription via the Web Portal. A Contract comes into effect once the Applicant Customer has submitted an application via the Web Portal (and accepted these General Conditions) and once VanMoof has accepted the Applicant Customer as a Customer. These General Conditions apply to all Subscriptions and form part of every Contract between a Customer and VanMoof.
- VanMoof reserves the right to refuse an Applicant Customer if:
- The Applicant Customer has had a previous Subscription terminated by VanMoof;
- VanMoof has some other reason for believing that the Applicant Customer will not comply with the terms of the Subscription, the Contract, and/or these General Conditions; or
- the Applicant Customer does not live within a radius of 10 kilometres from a VanMoof Brand Store.
- Before VanMoof will supply the Bicycle to the Customer, the Customer must:
- have paid the Initial Payment to VanMoof;
- have supplied VanMoof with a payment authorization via the Web Portal (credit card or bank transfer) for payment of the Monthly Fee and any other sums payable under the Contract and/or these General Conditions, which method of payment must have been verified and accepted by VanMoof in writing; and
- at the time of collecting the Bicycle from a VanMoof Brand Store prove their identity by means of a valid form of ID.
- For the duration of the Subscription VanMoof will supply to the Customer a Bicycle of the agreed type and model. Unless VanMoof decides to replace the Bicycle, the Customer will have the use of the same Bicycle for the duration of the Subscription. The Bicycle will remain at all times the property of VanMoof.
- For the duration of the Subscription VanMoof will carry out maintenance and repairs on the Bicycle (parts and labour) insofar as such work is required as a result of normal wear and tear through normal use. For the purpose of maintenance and repair work, whether or not instigated by VanMoof, the Customer must transport the Bicycle to and from a VanMoof Brand Store or (at their own expense) arrange for such transportation. This obligation applies throughout the duration of the Subscription, even in the event of a large or larger distance between the Customer and the nearest VanMoof Brand Store occurring as a result, for example, of a new address of the Customer or the closure/relocation of a VanMoof Brand Store. If available, the Customer will be able to loan an alternative bicycle for the duration of the repairs or maintenance to their Bicycle. VanMoof is entitled (but not obliged) to repair damage to the Bicycle caused by circumstances for which the Customer is liable at the expense of the Customer.
- Work carried out on the Bicycle by the Customer or a third party is at the expense of the Customer, unless VanMoof has confirmed in advance in writing that it will be responsible for such costs.
- VanMoof is entitled to take back the Bicycle at any time in consultation with the Customer and replace it with a comparable Bicycle.
- KEY, TRANSFER OF KEY
- The Key is strictly personal and may be used only by the Customer or, if the Customer is a legal entity Customer, by the natural person for whose benefit the Subscription is taken out. Except by transfer of the Key in accordance with the provisions of Article 4 the Customer is not permitted to share this with any third party or to enable any third party to use the Bicycle.
- During the registration process the Customer will create a password that will provide them with access to the confidential information and functions within the Web Portal. The Customer undertakes to treat the log on data in the strictest confidence and to ensure it remains inaccessible to any third party.
- The Customer must update the personal and payment data it has supplied to VanMoof as soon as possible following every change in such data via the Web Portal.
- The Customer may transfer the Key (and thus the exclusive right to use the Bicycle) to an Applicant Customer. The Key gives such Applicant Customer the exclusive right to use the Bicycle without this Applicant Customer being liable to pay VanMoof the Initial Payment, on condition that this Applicant Customer has first accepted these General Conditions and has been accepted by VanMoof as a Customer, whereby the legal obligations of the Customer to VanMoof arising under the Subscription are transferred to this new Customer by means of an assignment of contract as defined in Book 6 Article 159 of the Dutch Civil Code. In the case of a transfer of the Key in accordance with this Article 4, the start date of the Subscription of the new Customer is the date on which the Key is supplied to the person who has been assigned the Key. The Customer may offer the Key to an Applicant Customer in any way permitted by law, but transfer of the Key must be effected via the Web Portal.
- VanMoof has no control over the willingness of an Applicant Customer to accept transfer of the Customer’s Key or any payment that the Applicant Customer may be prepared to pay for such transfer. VanMoof does not guarantee that there will at any time be any Applicant Customer wishing to accept transfer of the Customer’s Key, nor does VanMoof give any guarantee as to the amount that any Applicant Customer may be willing to pay for the transfer to them of the Customer’s Key. VanMoof expressly does not guarantee that as a result of a transfer of the Key the Customer will receive a payment equal to, or in proportion to, the amount of the Initial Payment.
- It is the sole responsibility of the person who transfers the Key, and not VanMoof, to actually supply the Bicycle to the Applicant Customer who has accepted transfer of the Key. The transfer of the Key is a transaction between the Customer that transfers the Key and the Applicant Customer that accepts transfer of the Key. VanMoof is not a party to this transaction and the right of revocation specified in Article 11 does not apply to this transaction.
- These General Conditions apply by analogy to the party that is assigned a Key from an existing Customer and to the Contract with such party, with the exception of Article 2.3.
- VanMoof is entitled to refuse to cooperate with the assignment of contract referred to in section 4 of this article 4 if there are compelling reasons to justify this. Such a compelling reason would include, for example, a situation in which the Customer wishing to transfer the Key is in breach of their obligations to VanMoof.
- GUEST USE
- For the duration of the Subscription the Customer and one partner, family member or friend of the Customer may during a stay in a city abroad (outside the Netherlands) in which a VanMoof Brand Store is located make use of a Bicycle (‘Guest Use’) at no additional cost.
- VanMoof will use its best efforts to be able to offer Bicycles for Guest Use to the Customer, but cannot guarantee the availability thereof. Bicycles for Guest Use should be booked via the Web Portal and will be allocated on a ‘first come, first served’ basis. Following a confirmed booking, any such Bicycle may be collected from the VanMoof Brand Store or other location designated for such purpose by VanMoof and at the end of the relevant period must be returned to the same location. No such Bicycles will necessarily be of the same value as the Bicycle in respect of which the Subscription is taken out.
- The Customer may take advantage of Guest Use for a maximum of seven (7) consecutive days and a total of no more than fourteen (14) days per calendar year.
- By taking advantage of Guest Use the Customer and - where relevant - their partner, family member or friend acknowledge that all obligations upon the Customer arising from these General Conditions will apply by analogy to Guest Use. In addition or as an exception to these General Conditions, local conditions may apply. In the event of any discrepancy between the two, local conditions will take precedence over the provisions of these General Conditions.
- GENERAL OBLIGATIONS AND PROHIBITIONS
- The Customer must:
- act with the required duty of care and treat the Bicycle with care, in accordance with the instructions given by VanMoof and with local traffic laws and regulations;
- immediately notify VanMoof via the Web Portal of any theft, embezzlement, or loss of - of damage to - the Bicycle;
- always keep the Bicycle locked, using as a minimum (depending on type) the ring lock supplied with the Bicycle or the rear-wheel lock integrated within the Bicycle and, where possible, also using the chain lock supplied with the Bicycle;
- carry out small repairs at their own expense, such as: (i) regularly checking tyre pressure and, where necessary, inflating the tyres, and (ii) keeping up-to-date and regularly checking the sturdiness of moving parts, and oiling and greasing such parts as necessary;
- ensure that the Bicycle is at all times safe in traffic and ridden safely;
- ensure that the Bicycle is maintained in accordance with the maintenance schedule specified by the manufacturer;
- arrange for damage to the Bicycle resulting from circumstances for which they are liable to be repaired at their own expense by VanMoof; and
- if the Bicycle indicates an error to immediately contact VanMoof.
- The Customer is not permitted to:
- make alterations to the Bicycle that cannot be reversed without causing damage to the Bicycle. Bicycle child seats and other accessories are permitted provided that these can be removed without damaging the Bicycle;
- use the Bicycle for commercial purposes (such as leasing/sub-leasing, or for use in providing courier or delivery services) or for cycling sport competitions, or tests;
- make the Bicycle available to family members or, if the Customer is a legal entity or business owner, to employees;
- use the Bicycle other than on roads and cycle paths;
- exceed the maximum load of the Bicycle specified by the manufacturer;
- manipulate, decompile, reverse engineer, or disassemble in any way the electronics and/or software of the Bicycle, the Key, or the Web Portal, or use these in any way for data gathering;
- arrange for repairs or alterations to be carried out to the Bicycle without the prior express written approval of VanMoof;
- take the Bicycle abroad (outside the Netherlands);
- park the Bicycle in any place where this is prohibited;
- use the Bicycle as security; or
- make copies of the keys to the locks supplied with the Bicycle.
- THEFT, EMBEZZLEMENT, ACTUAL LOSS, TOTAL LOSS
- The Customer must safeguard the Bicycle as far as possible against theft, embezzlement, and actual loss by keeping it locked using as a minimum (depending on type) the ring lock supplied with the Bicycle or the rear-wheel lock integrated within the Bicycle and, where possible, also using the chain lock supplied with the Bicycle.
- In the event of theft, embezzlement, or actual loss the Customer must notify VanMoof accordingly by e-mail or via the Web Portal immediately, and in any event within 24 hours of discovery, and report the matter to the police. The Customer must be in a position to return to a VanMoof Brand Store all original keys to the Bicycle supplied to the Customer.
- On receipt by VanMoof of a report of theft, embezzlement, or actual loss of a Bicycle, together with a copy of the police report, the VanMoof Bike Hunters will try to find the Bicycle. If they fail to return the Bicycle to the Customer within two weeks of receipt of the report, VanMoof will replace the Bicycle by one that is as far as possible of equal value unless any of the situations described in section 6 of this article arises.
- If the Bicycle is a total write off or so badly damaged that the repair costs would exceed the amount of the Initial Payment this is referred to as ‘Total Loss’. In the event of Total Loss the Customer must notify VanMoof accordingly by e-mail or via the Web Portal immediately, and in any event within 24 hours of discovery, and VanMoof will replace the Bicycle by one that is as far as possible of equal value unless any of the situations described in section 6 of this article arises.
- Until such time as the Bicycle is returned to the Customer following its theft, embezzlement or actual loss, or the Customer receives a replacement Bicycle from VanMoof, the Customer may loan an alternative bicycle provided there is one available. The Customer must collect the Bicycle (once it has been recovered by the Bike Hunters), the replacement bicycle, and/or a loan bicycle from, and return them to, the nearest VanMoof Brand Store. For each occasion that the VanMoof Bike Hunters are deployed, whether or not they succeed in recovering the bike, VanMoof will charge the Customer a fee of €98.00.
- VanMoof will not replace the Bicycle, and the Customer is liable to make a payment to VanMoof (the amount of which is specified in the Contract and is dependent upon the type and value of the Bicycle) if any one or more of the following situations arises:
- this is the third occurrence of a theft, embezzlement, actual loss and/or Total Loss;
- the theft, embezzlement, actual loss and/or Total Loss is the result of the own fault, deliberate act, recklessness (whether or not intentional), and/or deliberate intent of the Customer. This would be the case if, for example, the Customer has not locked the Bicycle sufficiently or at all, or not otherwise sufficiently protected it against theft, embezzlement, or actual loss (for example, through careless handling of the keys), or if the damage or Total Loss is the result of improper use of the Bicycle (for example, by using the Bicycle in breach of these General Conditions); or
- the Customer, following an actual or alleged theft, embezzlement, actual loss, or Total Loss of the Bicycle, is unable to hand in the keys to the Bicycle to a VanMoof Brand Store.
- DURATION AND TERMINATION
- Unless a minimum duration for the Subscription has been agreed, the Subscription is for an indefinite term and may be terminated by the Customer at the end of a calendar month subject to two weeks’ written notice sent by letter, e-mail or via the Web Portal. If a minimum duration for the Subscription has been agreed, then the Subscription cannot be ended until the agreed end date, and subject to two weeks’ notice before that date.
- VanMoof may not terminate the Subscription during the first five years following the date on which the Key is first supplied by VanMoof to a Customer, unless a situation as described in section 4 of this article arises. After five years following the date on which the Key is first supplied by VanMoof to a Customer, VanMoof may, in addition to any rights to terminate under section 4 of this article, terminate the Subscription provided that VanMoof pays compensation to the Customer for such termination in accordance with the following table:
Termination by VanMoof (after date of first issue of Key):
Compensation payable by VanMoof to the Customer (as a percentage of the Initial Payment):
5 to 6 years:
6 to 7 years:
7 to 8 years:
8 to 9 years:
9 to 10 years:
More than 10 years:
Otherwise than under section 2 of this article or pursuant to Article 11, no part of the Initial Payment will be refunded to a Customer.
- In respect of the compensation specified in section 2 of this article:
- VanMoof will only pay this compensation if it terminates the Subscription and such termination is not pursuant to section 4 of this article;
- VanMoof will only pay this compensation once the Bicycle has been returned to VanMoof in accordance with section 6 of this article; and
- VanMoof reserves the right to reduce the amount of compensation or not to pay any, as it sees fit, in the event of any damage or defects to the Bicycle otherwise resulting from normal wear and tear of normal use.
- VanMoof may terminate the Subscription at any time with immediate effect and without prior warning to the Customer if:
- the Customer is a consumer and has failed to pay two instalments of the Monthly Fee and/or other sums owed under the Contract or these General Conditions;
- the Customer is a legal entity or business person who has signed the Contract in the performance of their commercial or independent professional or business activities, and there is also: an arrears of payments, a moratorium, bankruptcy, liquidation, or winding-up of business, or they are made subject to the rescheduling of debts of natural persons act, or there is a change in control of the legal entity;
- at the start of, or at any time during, the Subscription the Customer has supplied incorrect information;
- fraud has been committed or VanMoof has a reasonable belief that fraud has been committed;
- the Customer shares their Key or log-in information for the Web Portal with, or otherwise transfers the same to, a third party in breach of the provisions of Article 4;
- the Customer refuses to bring the Bicycle to a VanMoof Brand Store for maintenance or repair, or otherwise creates difficulties for any maintenance or repair;
- a situation as described in Article 7.6 occurs;
- the Customer is in attributable breach of the provisions of the Contract or of these General Conditions and fails to remedy such breach(es) without delay; or
- the Customer rides the Bicycle when under the influence of alcohol or drugs;
- the Customer uses the Bicycle for improper purposes, including but not limited to the performance of stunts.
- In the event of termination of the Subscription by VanMoof by virtue of one or more of the situations listed in section 4 points 1 to 10 of this article, the Customer’s access to the Bicycle and the Web Portal will be immediately blocked and the Customer must immediately return the Bicycle to a VanMoof Brand Store. If the Subscription is terminated in such a way, then VanMoof has the right to:
- the immediate return of the Bicycle to a VanMoof Brand Store. If the Customer does not immediately return the Bicycle, VanMoof is entitled to recover possession itself and to charge the Customer accordingly;
- receive payment of the Monthly Fee up to and including the month in which the Bicycle is returned, together with all other sums due under the Contract and/or these General Conditions; and
- compensation for all loss actually incurred by VanMoof.
- Following termination of the Contract, the Customer must return the Bicycle to VanMoof in the same condition as it was supplied to the Customer, with any additions or changes made to the Bicycle by the Customer reversed.
- PAYMENT, ARREARS OF PAYMENT
- The Monthly Fee and any other payments due under the Contract and/or these General Conditions, will be transferred monthly in advance by means of the payment method selected at the time of registration. In the case of commercial Customers agreement can be reached for payment to be made in respect of regular invoices. Payment of the Monthly Fee for the next calendar month must be made by no later than the last day of the current calendar month. The Monthly Fee due in respect of the first calendar month is calculated pro rata according to the number of days between the signing of the Contract and the end of that month.
- The Customer irrevocably authorizes VanMoof or - in the case of an assignment of the right as described in section 5 of this article - the party to which the right has been assigned, to obtain payment of all sums owed by the Customer under the Contract and/or these General Conditions by means of direct debit from the account indicated by the Customer or the debiting of their credit card, or other selected payment method included in the Web Portal.
- The Customer remains liable for payments that VanMoof has not been able to collect. If the Customer has not paid the Monthly Fee or any other payment even after a payment reminder has been sent, VanMoof will contact the Customer to again request payment and offer the Customer the option to update their personal and/or payment data.
- If a payment has not been received by VanMoof within 60 days of the payment date, and VanMoof has sent the Customer at least one payment reminder, VanMoof reserves the right to report the theft and/or embezzlement of the Bicycle and to recover the Bicycle. The Customer is liable for all costs thereby incurred by VanMoof. Furthermore, in such a case the Customer has no right to any partial refund of the Initial Payment.
- VanMoof reserves the right to assign its rights under the Contract and/or these General Conditions.
- VanMoof may store and process personal data and other information pertaining to the Customer and use this to make offers, whether or not personalised, to the Customer.
- In the case of the theft or embezzlement of the Bicycle or reasonable suspicion of theft, embezzlement, or fraud, VanMoof is entitled (but not obliged) to locate the Bicycle – if the type of Bicycle permits this – to track the Bicycle at this location, and/or to check whether prior to the alleged or actual embezzlement or theft the Bicycle had been locked.
- CANCELLATION RIGHTS
- The Customer has the right to cancel the Contract (and thus the Subscription) within a cancellation period of 30 days following the date on which a binding Contract is created, without having to give reasons.
- To exercise these cancellation rights, the Customer must notify VanMoof clearly, in writing (by letter or e-mail) or via the Web Portal of their wish to cancel the Contract (and thus the Subscription).
- If the Customer does cancel the Contract VanMoof will refund to the Customer no later than 14 days after VanMoof has received notice from the Customer of their decision to cancel all payments made to VanMoof by the Customer up to that moment, including delivery costs (but excluding any extra costs arising from any choice of delivery beyond the cheapest standard delivery offered by VanMoof). The refund will be effected using the same payment method used by the Customer for the original transaction, unless the Customer has expressly agreed otherwise. If the Customer has used the Bicycle during the cancellation period the Customer will pay a sum to VanMoof equal to the Monthly Fee, which sum VanMoof may withhold from the sums it owes to the Customer. If the Bicycle has already been supplied by VanMoof at the time of cancellation the said cancellation period of 14 days does not start to run until the Customer has returned the Bicycle to VanMoof having regard to the provisions of Article 8.6.
- FINAL PROVISIONS
- VanMoof reserves the right to make any reasonable changes to the Subscription (including an increase in the Monthly Fee in line with the consumer price index) and/or to these General Conditions. VanMoof will notify the Customer at least 30 days before any change to these General Conditions becomes binding upon the Customer.
- If any provision of these General Conditions is deemed invalid, void, or unenforceable, this will not prevent the remaining valid, lawful and enforceable provisions from being fully binding.
- Book 7, Articles 207, 208, 210, and 216 (2) and (3) of the Dutch Civil Code do not apply.
- The Customer agrees to information concerning the Subscription being sent only in digital form, such as by e-mail to the e-mail address disclosed at the time of registration.
- Apart from any liability of VanMoof arising from a deliberate act or gross negligence, or by virtue of any mandatory law, VanMoof excludes all other liability to the Customer.
- In the event of force majeure VanMoof is not obliged to comply with any obligation arising from the Subscription, the Contract, and/or these General Conditions. The term ‘force majeure’ here includes the inability of VanMoof to comply with its obligations due to war, threat of war, civil unrest, disturbance, fire, water damage, frost, flood, earthquake, work stoppage, sit down, lock out, government measures, defective equipment, interruptions in energy supply, breakdowns in communication systems, and changes to relevant laws or regulations.
- The Subscription, the Contract, and these General Conditions are governed exclusively by Dutch law.
- The Dutch courts have exclusive jurisdiction to hear any dispute arising from the Subscription, the Contract, these General Conditions, or any other legal relationship between VanMoof and the Customer resulting therefrom.
- Except in the case of a transfer of a Key in accordance with the provisions of Article 4, the rights of the Customer arising from the Subscription, the Contract, or these General Conditions cannot be assigned without the prior written consent of VanMoof. This provision constitutes a stipulation with property-law effect as defined in Book 3 Article 83 (2) of the Dutch Civil Code.