emmy

TERMS

General Terms of the Electric Mobility Concepts GmbH

Preamble

The Electric Mobility Concepts GmbH (hereafter “emmy”) offers, in its area of operation, a payment-based use of electrically powered vehicles to its customers through short-term rentals on the basis of these general terms (hereafter “GTs”). By registering with emmy (base contract), customers are authorized to use our vehicles upon completion of a short-term rental contract, according to the following conditions of these GTs.

§ 1 Eligible Customers, Contract Parties and Applicability of these GTs

(Paragraph 1: Contract Partners)

Electric Mobility Concepts GmbH (hereafter emmy), Alboinstr.17-23, 12103 Berlin, Deutschland acts as the provider. Detailed information about emmy can be found on the Internet site https://emmy-sharing.de/en/ under Impressum (“Imprint”).

(Paragraph 2: Eligible Customers)

Customers of emmy may only be natural persons according to the German Civil Code [Bürgerliches Gesetzbuch] (hereafter “BGB”) who have concluded a valid base contract with emmy and are eligible according to the following criteria:

Must have attained 18 years of age,

Must possess a valid driver’s license for an automobile, a motorcycle, or a moped, and

This driver’s license must have been granted by the Federal Republic of Germany, another member state of the European Union, Switzerland, Lichtenstein, Norway, or Iceland, or is recognized as an international driver’s license in relation to the national driver’s license, so far as it authorizes the driving of a vehicle in the Federal Republic of Germany.

(Paragraph 3: Applicability)

These GTs cover both the registration (base contract) at emmy and the individual contracts concluded for short-term rentals of our vehicles. They apply exclusively, unless emmy explicitly agrees to contrary or deviating provisions of a customer. Apart from these GTs, emmy may provide additional terms for the use of its products. Moreover, notices of privacy protection may be found on emmy’s Internet site under Datenschutz (“privacy statement”).

(Paragraph 4: Right to Change these GTs)

emmy reserves the right to change or amend these GTs – especially for individual future rental contracts –, unless they are unreasonable towards customers. emmy will inform its users about changes (in writing or by e-mail) in a timely manner and will publish these on its Internet site. Should customers issue no objections to changes of the GTs within a month of notification; the amended GTs will be regarded as accepted by the customer. Notifications shall emphasize the rights of revocation and the objection period to customers. Should a customer object to changes or amendments of the GTs, emmy may cancel a customer’s base contract within four weeks, on the basis of these GTs.

(Paragraph 5: Retrieval of GTs)

Customers may retrieve, print, or save the GTs at any time through emmy‘s Internet site.

§ 2 Subject of the Contract

(Paragraph 1: Subject)

The subject of the contractual relationship between emmy and its customers, on the basis of these GTs, is the base contract which governs the legal relationship between the parties during registration and the subsequent services provided as a framework contract, and the individual rental contracts which are concluded by the parties on the basis of these GTs and the individual base contracts.

(Paragraph 2: Smartphone App)

As part of the base contract, which is subject to these GTs, emmy provides an overview over all available vehicles in its vicinity through a smartphone app (hereafter “app”), so that customers may make reservations and rent or cancel rentals for specific vehicles. Use of the app requires the customer’s personal registration data. Emmy allows its customers only to use the app and only permits registered customers to access the app. Neither the source code, nor the object code of the software shall be provided to customers. Customers shall merely receive the technical possibility and authorization to access and use this software, which is hosted on a central server, via the Internet. Usage of the app is free of charge.

(Paragraph 3: Individual Rental Contracts)

As part of the base contract, emmy offers its customers in its area of operation a payment-based use of electrically powered vehicles through short-term rentals, which customers may rent through individual rental contracts on the basis of the base contract. No guarantee of availability is provided by emmy. Should all vehicles be rented, customers must wait until they become available again. Emmy reserves the right to restrict or exclude the usage of vehicles (e.g. in case of black ice).

§ 3 Registration, Contract Conclusion, Rentals and Reservations

(Paragraph 1: Base Contract)

The base contract shall be concluded by orderly registration at emmy through its Internet site. Customers are required to complete the online application and follow the online notices of registration. Through entering of the base data and acceptance of the GT in the registration process, the registration is considered duly completed. Only upon activation is the base contract concluded and legally-binding between the parties. To rent vehicles the customer is also required to verify his/her driver license. Verification shall occur, according to the user’s wishes, either personally at the office or at selected locations in the city, or through a so-called audio-visual verification. Each customer is allowed to only register once. Emmy reserves the right to request the customer at any time to carry out a new verification process. If the customer does not comply, emmy can block the user account.

(Paragraph 2: Individual Rental Contracts/Rentals)

Upon registration, customers may rent a vehicle of their choice from emmy, on the basis of the base contract, insofar as it is available – i.e., not registered or rented by another customer and no technical or operational reasons prevent the rental of the vehicle. The cost and fee table valid during the conclusion of an individual contract as to be found on emmy’s internet site is also a subject of the contract. A customer may rent no more than one vehicle through an individual rental contract. The app allows the customers to see which vehicles are available at the desired time of rental. The rental contract for the use of an emmy vehicle shall be concluded by the customer selecting the rental function on the app and the computer of the emmy vehicle providing access to the helmets.

(Paragraph 3: Reservations as Part of Individual Rentals)

Customers may also reserve available emmy vehicles. The current maximum reservation time is stated on emmy’s internet site. Should a reserved vehicle not be rented by a customer after the reservation time, the vehicle will be made available to all customers for usage again. Emmy explicitly reserves the right, in case of a customer repeatedly reserving a single vehicle without renting it, to admonish this customer and if necessary terminate the base contract after formal notice.

§ 4 Duration of Individual Rentals, Battery Life of the Vehicles

(Paragraph 1: Limited Duration of Use)

The duration of the individual rental contracts is limited to the battery life of the rented emmy vehicle. As long as the battery of the emmy vehicle possess a charge sufficient for the ride, the customer may use or stop using the vehicle as they wish. Once the battery of the rented vehicle is depleted, the individual rental contract usage rights of the customer end and the customer is obligated to return the emmy vehicle according to these GTs (especially § 8 of these GTs). The remaining battery life is displayed to the customer on the speedometer-area of the vehicle and on the app. emmy notifies its customers that an orderly return of the vehicle is possible despite a depleted battery, and that an orderly termination of the individual rental contract is required by the customer, despite usage rights determined according to sentence 1.

(Paragraph 2: Charging the Batteries)

Emmy expressly notifies its customers that no replacement or charging of batteries will be made by emmy during the duration of an individual rental contract. Neither is the customer permitted to physically access, change, or charge the batteries. Emmy will ensure the drivability of the vehicle after the conclusion of the individual rental contract and offer this vehicle to all emmy customers when available.

(Paragraph 3: Billing Basis of an Individual Rental Contract)

Billing of a ride follows the actual time driven. Every partial minute is billed as a full minute by the system.

§ 5 Rights and Obligations of emmy

The following rights and obligations exist for emmy:

emmy is not obligated to provide an app for all terminals, according to § 2 paragraph 2 of these GTs.

emmy may send messages to its customers, informing them about news and developments.

emmy reserves the right to change the technical functions and the contents of the app.

emmy reserves the right to change its area of operation.

§ 6 Customer Obligations

In accordance with the following procedures, customers are obligated to the following – while the individual obligations also apply at all times for the duration of an individual rental contract:

1. Registration

Customers explicitly assure emmy that all data provided during registration is true and complete.

Customers are obligated to immediately inform emmy in writing about changes to their data (especially e-mail addresses, cell phone numbers, payment details, driver’s license restrictions)

2. App Usage

Transferring a customer’s smartphone with an installed app (access medium) or personal log-in data (username and password) to third parties is not permitted. The customer is liable for any resulting damages that emmy may incur through the loss or transfer of the access medium.

3. Checking Vehicles before Departure

Customers must assess the roadworthiness of a vehicle, especially by checking the tires, themselves before departure. If roadworthiness cannot be guaranteed, the vehicle may not be used. Visible damages/insufficiencies must be compared to the damage list of the app. Newly discovered insufficiencies/damages must be reported to emmy before departure. With the exception of damages already reported to emmy, a vehicle shall be considered visually and technically flawless, unless the customer reports new damages.

Customers may not perform repairs or modifications to the vehicles.

4. During the ride

The customer must carry a valid driver’s license during every ride. Driving permission is contingent upon adhering to all stipulations of the driver’s license.

In the interest of all customers, the environment, and the public, customers must drive safely and follow all traffic safety rules.

The customer must make careful use of the vehicles, which includes not dirtying the seat or the helmet.

When parking, the customer may only park the vehicles on areas designated by Nr. 5 of this paragraph and may only end the rental there.

Upon emmy’s request, the participant must provide the exact location of the vehicle at all times and ensure the inspection of the vehicle. This applies especially to rentals exceeding 24 hours.

Should customers be outside of emmy’s area of operation during the ride, they are required to ensure the orderly return of the rented vehicle on time (in accordance with § 4 and § 8 (in accordance with Nr. 5 of this paragraph)) and completion of the rental contract. Returns must be made within emmy’s areas of operation.

The customer must immediately inform emmy by telephone of insufficiencies, technical difficulties, or other interferences with the rental contract use. This also applies should a third party unjustly claim rights to the vehicles.

5. Parking

The customer is required to return emmy vehicles orderly and, according to the German Road Traffic Act [StVO], to a public parking place only (which also includes metered public parking spaces as long as a valid parking authorization exists).

Moreover, parking on parking spaces for the disabled, areas with waiting and parking restrictions, taxi parking spaces, and private parking spaces (e.g., parking garages, supermarket parking places or other special use parking areas) is not permitted.

The customer may only park the vehicle on areas with time or day restrictions on parking (e.g., waiting restriction signs reading “6:00 AM until 3:00 PM” or “30 March 2015 until 30 April 2015 from 8:00 AM until 6:00 PM”), if the restrictions on parking only enter into effect 72 hours after parking the vehicle. This also applies to decreed but not yet valid parking restrictions (e.g., “due to construction”). In case of a violation, the customer shall be liable for all fines and towing charges.

6. Returning the Vehicle

The customer is required to the return the vehicle orderly, in accordance with § 8 of these GTs.

Objects belonging to the vehicle may not be removed by the customer beyond the rental.

Upon completion of the rental, the customer must ensure that both helmets and if applicable the keys are returned to the helmet box.

When parking and concluding the rental, the customer must protect the helmet box against theft.

The customer must ensure that, upon returning it, the vehicle is accessible to other registered customers of emmy at all times. Should this only be possible after emmy parking the vehicle, the customer will cover the costs according to an agreed fee list, unless the customer can prove that emmy incurred no or minimal costs. Upon receipt of the evidence, emmy reserves the right to claim damages from the customer beyond the fees listed. The agreed fee list is valid as mentioned on the internet site of emmy.

7. Accidents, Theft, Destruction or Other Damages

In case of accidents, theft, fire, damages caused by animals, or other damages, the customer is obligated to contact the police immediately if a third party was injured or acted as a possible (co-) perpetrator or another’s property, besides the emmy vehicle, was damaged.

The police/fire department must be informed that the vehicle involved in the accident is an electric vehicle.

In case of damages involving third parties, the customer may only make an admission of guilt upon receiving emmy’s permission.

The customer is required to first contact emmy immediately by phone about damages and to subsequently inform emmy in writing about all details. The customer must notify emmy in writing within seven days after the damages occurred. If within this period the customer does not file a damage notification, the accident can not be handled by the insurance company and emmy reserves the right to charge all accidental costs to the customer.

In case of an accident outside of the defined areas of operation, the customer shall cover all costs incurred by returning the vehicle to the area of operation upon completion of repairs. Emmy may charge the customer for additional costs incurred through damages for an accident caused by the customer in part or in whole, according to the current fee list on the internet site of emmy, unless the customer can prove that emmy incurred no or minimal damages. Emmy reserves the right to claim damages from the customer beyond the fees listed. Even in cases of an accident, individual rental contracts are only completed upon the orderly return of the vehicle, in accordance with § 8 of these GTs. Should the vehicle no longer be roadworthy or operational due to an accident, the individual rental contract shall end upon agreement with emmy.

The customer may only leave the scene of the accident after the police recorded the events and the vehicle has been transferred to a towing company, or, after consulting emmy, placing it somewhere within the area of operation. Continuation of the ride is only allowed by obtaining emmy’s express permission.

Only emmy may select the repair workshop.

Required operation of emmy’s technician: Should they, due to improper use of the vehicle or its technical equipment, force emmy’s technicians to be deployed, the customer shall be required to cover the costs of deployment in accordance with the fee list, to be found on emmy’s internet site, unless the customer can prove that emmy incurred no or minimal costs. Emmy may claim additional damages if emmy can demonstrate that greater damages were incurred than stated in the fee list. In cases of improper use, no deductions shall be made for customers.

The obligations of the customer, according to Nr. 7 of this paragraph, do not apply if, as participant in the accident, the customer had to be removed from the scene of the accident due to injuries sustained. In such cases, the customer shall be required to resume his responsibilities from Nr. 7 of this paragraph as soon as their condition allows.

§ 7 Rental Prohibitions

A customer is contractually prohibited from renting emmy vehicles, should any of the following apply:

Operating the vehicles under the influence of alcohol, drugs or medication that compromise one’s ability to drive. There is a strict prohibition on alcohol of 0.0%.

Using the vehicles when the customer is not in full possession of their mental faculties.

Using the vehicles for cross country drives, motor sports events, races of any kind, vehicular testing, driver’s education, or as a for-profit transportation service.

Transporting objects or substances whose state, size, shape, or weight could threaten traffic safety.

Using the vehicles to commit unlawful acts.

Transporting easily flammable, poisonous, or other dangerous substances with the vehicles.

Transporting more than two people (including the customer) with the vehicles.

Transporting children who are not tall enough for their feet to reach the pedals or not strong enough to hold on to the driver.

Traveling into a foreign country with the vehicle.

Violations caused by renting a vehicle and breaching one of the prohibitions stated above permit emmy to cancel or void rental contracts with the customer in question without notice and to terminate the base contract. In such cases, customers cannot claim compensation. Emmy’s damage claims against a customer who violated a rental prohibition remain unaffected.

§ 8 Completion of Individual Rental Contracts and Return of the Vehicles

By ending the rental in the app, the rental agreement between the parties is completed when the vehicle is properly returned. The return is considered proper if…

…The vehicle was parked in a permissible area within the operating area designated for the vehicle (see § 6 Nr. 5 of these GTs),

both helmets and if necessery the vehicle‘s keys were deposited at the designated spot in the helmet box,

The helmet box was locked properly,

A cellular phone connection can be established at the area where the emmy vehicle is returned and

the end of the rental is confirmed via app-pop-up or email.

In cases of improper returns, emmy reserves the right to claim damages incurred e.g., from having to park the vehicle somewhere else.

§ 9 Fine Procedures

The customer is fully liable for all unlawful acts committed by them during the rental period. Unlawful acts especially include traffic safety violations during the rental period (traffic rules) and breaches of prohibitions decreed by the owner of the area (property rights). For these reasons, the customer agrees to exempt emmy from any fines, costs, legal fees, or other expenses that authorities or other third parties could claim against the emmy customer for unlawful acts stated above with this base contract. Administrative expenses incurred by assessing such claims (e.g., processing requests or correspondence over regulations) shall be covered by the customer per case in accordance with the fees listed under prices on the internet site of emmy, unless the customer can prove that emmy incurred no or minimal expenses. emmy reserves the right to claim damages from the customer beyond the fees listed.

§ 10 Insurance, Excesses

(Paragraph 1: General)

Liability insurance exists for all vehicles. Further exists a liability limit in favor of the customer, which corresponds to a comprehensive insurance including partial coverage. The maximum deductible per case can be found on the current fees table on the internet site of emmy.

(Paragraph 2: Exclusion of Liability Limitations on Excesses)

Limitations on excess liability, insofar as these GTs do not state otherwise, do not apply, especially when damages resulted from improper use and/or operation of the vehicle, such as ignoring warning lights or carrying prohibited freight. Insurance does not extend to damages caused intentionally by a customer (according to § 10), neither do limitations on the customer’s liability or excess. In cases of liability claims against a customer without vehicle insurance, emmy shall be exempt from third party claims against the customer. If the customer caused the damages through gross negligence, both parties agree that the seriousness of the responsibility of the customer shall be weighed reasonably against the limited liability agreed upon which shall be reduced accordingly. For the previously-stated insurance and liability limitations, the general terms of the German Insurance Association [Gesamtverband der Deutschen Versicherungswirtschaft e. V. GDV] for vehicle insurance apply, unless stated otherwise in these GTs. In cases of damage payments by insurers or third parties to emmy, emmy shall deduct these payments from its claims against the customer.

§ 11 emmy’s Liability

(Paragraph 1: Extent of Liability)

emmy shall only be liable – regardless of the legal reason – in cases of…

a) … absence of the guaranteed conditions;

b) … liable injuries to life, one’s body, or health;

c) … if damages result from liable violations of contractual obligations (“cardinal duties”). The term “cardinal duty” abstractly describes obligations on whose fulfillment the proper execution of the contract depends and to whose adherence the contract parties regularly rely; and

d) … if damages can be traced to gross negligence or were intentionally caused by emmy.

(Paragraph 2: Liability Limitations)

In cases of cardinal duty violations (paragraph 1 c); liability – insofar as damages merely result from negligence – is limited to damages whose occurrence is typically to be expected within the contractual framework.

(Paragraph 3: emmy Employees)

Liability limitations resulting from paragraph 1 and paragraph 2 applies to employees and contractors of emmy.

(Paragraph 4: Product Liability Law)

Liability, according to product liability law, remains unaffected by this stipulation.

(Paragraph 5: Liability Restrictions)

Liability does not extend beyond the previously stated cases.

§ 12 Customer Liability

(Paragraph 1: General)

The customer is liable for damages to or loss of the vehicles, individual vehicle parts, and rented equipment, according to the laws of liability, if no other agreements were made. The customer is also liable for contractual violations.

(Paragraph 2: Extent of Liability)

Customer liability also extends to additional damage expenses, e.g., assessment costs, increased insurance premiums, valuation losses, towing costs, legal costs, and downtime costs.

(Paragraph 3: Infringements and Legal Offenses)

Customers are fully liable for any legal offenses committed, in accordance with § 9 of these GTs.

(Paragraph 4: Full Liability)

Likewise, the customer is fully liable beyond deductibles for total damages, if emmy incurs damages caused intentionally or by gross negligence of the customer who was fully aware of the stipulations for vehicular use §§6 and 7 of these GTs. If the customer causes damages through gross negligence, both contract parties agree that the customer’s responsibility shall be weighed reasonably against the limited liability agreed upon which shall be reduced accordingly.

§ 13 Payment Conditions

(Paragraph 1: Payment and Billing)

Customers will be charged prices and fees (both hereafter referred to as fees) which apply at the time of their rental and can be found on the fee list, viewable on the internet site of emmy under prices. All fees are in Euros including value added taxes. Price and fee discrepancies which may have been loaded from caches (e.g., browser caches, proxies, etc.) do not apply. Prices are established through the duration of use for each individual rental. Fees are due upon completion of the rental and will be properly billed to the customer. Invoices will be sent via e-mail no later than 32 days after the completion of the rental.

(Paragraph 2: Payment Modalities)

Payments incur according to the chosen payment method. By concluding a contract, the customer confirms their disposition over their account. The customer must ensure sufficient account coverage for the chosen payment method. If fees cannot be collected due to insufficient coverage or other reasons, emmy may add the resulting costs or a flat fee to the customer’s charges, in accordance with the fee list on the internet site of emmy, unless the customer can prove that emmy incurred no or minimal damages. emmy reserves the right to claim damages from the customer beyond those incurred from additional banking fees. Emmy may assign its claims against the customer to third parties (collection agencies) for debt collection.

(Paragraph 3: Price and Fee Changes)

emmy reserves the right to adjust the price and fee list.

§ 14 Duration, Cancellation and Blockage of the Base Contract

The base contract is concluded for an indefinite period and may be cancelled by either party in writing within 6 weeks until the end of the month. Both parties retain the right of extraordinary termination of the base contract, according to the general legal requirements, unless additional agreements were made. Instead of extraordinary termination, emmy is also authorized to ban a customer from future rentals for a sufficient reason. This applies especially when emmy’s claims from previous rentals remain unfulfilled despite repeated notices, lack of cooperation in determining the cause of damages, blocking of a vehicle due to repeated reservations without rental, extensive accumulation of bonus minutes over a conventional amount or after repeated violations of contractual obligations by the customer.

§ 15 Privacy Policy

(Paragraph 1: Privacy Statement)

emmy is aware of the sensitivity of personal data and will adhere to the legal requirements for personal data protection when dealing with the customer’s personal data. The German Telecommunications Act (TMG), the German Federal Data Protection Act (BDSG) and the German Teleservices Data Protection Act (TDDSG) provide the legal basis for data protection. Further information can be found on emmy’s privacy statement on its Internet site.

(Paragraph 2: Data Protection Permissions)

emmy is permitted to save and utilize personal data provided by customers, including usage and vehicular data for locating vehicles, insofar as it is used to execute the base contract and is required for fulfilling the individual rental contracts. To determine the exact billing for a customer’s usage, individual rental contracts are assessed based on their location, departure time, duration of use, destination and arrival time. This data is used by emmy to determine invoices. Furthermore, vehicles will not be located while in proper use by customers. In case of violations of the return requirements, or in other cases of contractual violations, emmy may locate their vehicle. In cases of infringement or traffic safety violations, the customer’s personal data (surname, first name, address) will be provided to the traffic authorities. Emmy may also contact the customer by telephone in case of disturbances during the rental or usage period to determine the cause of the disturbance.  Provision of customer data to third parties only incurs insofar as it is permitted or required by current law.

(Paragraph 3: No Data Transfer to Unauthorized Persons)

emmy will, under no circumstances, provide personal data to unauthorized persons. In addition, in accordance with legal requirements, emmy will inform the customer immediately and free of charge about which personal data emmy stores upon request.

§ 16 General Credit Protection Agency (SCHUFA) Clause, Credit Assessment

emmy reserves the right to transmit data about the conclusion of a base contract to the General Credit Protection Agency (SCHUFA Holding AG (SCHUFA)) or any other rating-agency and to receive data about customers from them. Emmy reserves the right to refuse base contracts to customers based on negative data.

§ 17 Offsetting and Transfering Rights

Offsetting customer counterclaims is not permitted, insofar as they do not relate to undisputed or legally-binding claims, or counterclaims recognized by emmy. The parties may only transfer the rights and obligations resulting from this contract to third parties upon receiving written confirmation by the remaining parties.

§ 18 Final Provisions

(Paragraph 1: Place of Jurisdiction)

Unless, as a consumer, the customer’s place of jurisdiction lies outside of Germany, the only place of jurisdiction for any disputes arising from this legal relationship shall be the court of emmy’s registered office.

(Paragraph 2: Applicable Law)

The laws of the Federal Republic of Germany shall be applicable to this legal relationship. The place of fulfillment shall be emmy’s registered office.

(Paragraph 3: Severability Clause)

Should a provision of these GTs prove invalid or unenforceable, this shall not affect the remaining provisions. The appropriate legal requirement shall replace the invalid provision. The same applies to any loopholes.