General Terms and Conditions of Plus Subscriptions & Services Version of December 2013

Transcription

1 General Terms and Conditions of Plus Subscriptions & Services Version of December 2013 These General Terms and Conditions are applicable to the Services offered to the Customer by The New Motion. By activating his Charge Card online, the Customer expressly agrees to these General Terms and Conditions. 1. Definitions 1.1 General Terms and Conditions: these General Terms and Conditions, including any appendices. 1.2 Consumer: the Customer, being a natural person not acting in the conduct of a profession or business, who concludes a Distance Contract with The New Motion for the purchase of one or more Products and/or Services. 1.3 Consumer Purchase: the purchase effected between The New Motion and a Consumer in respect of one or more Products, such Product(s) being movable property. 1.4 Services: the services offered to the Customer by The New Motion via the Website or otherwise (including but not limited to charging services, helpdesk services, settlement services, direct debit, electronic invoicing, electronic communication services including access to information regarding use, and other services as further specified at my.thenewmotion.com). 1.5 End User: the natural person or legal entity who makes use of The New Motion s Services under the terms and conditions laid down herein. 1.6 Electric Vehicle: a road vehicle that is fully propelled by an electric motor, and/or a hybrid vehicle that is partly propelled by an electric motor, whether or not said vehicle makes use of electricity that is stored in a battery, rechargeable through use of a Charge Point. 1.7 Helpdesk: The New Motion s customer service, which may be called on in the event of questions and/or complaints. 1.8 The New Motion Charge Card: the Charge Card that offers access to the Charge Point and, depending on the type of subscription, to The New Motion Network and (where possible) the interoperable Partner Network. 1.9 Customer: the natural person or legal entity that concludes this Contract with The New Motion for the purchase of one of more Services; a Customer may also be an End User if he (also) personally makes use of The New Motion s Products and/or Services Distance Purchase: a Distance Contract that is a consumer purchase Charge Point: a facility at a particular location that can be used to charge an Electric Vehicle s battery, including Private Charge Points and Public Charge Points Network: The New Motion Network and Partner network(s) jointly Contract: the contract between The New Motion and the Customer pertaining to The New Motion Services, of which these General Terms and Conditions form an inseparable part Distance Contract: the Contract in respect of which, in the context of a system for distance selling or distance service provision organised by The New Motion, exclusive use is made of one or more distance communication technologies, including but not limited to telephony and Internet, up to and including the conclusion of the Contract Distance Contract for the Provision of Services: the Distance Contract for the provision of Services between The New Motion and a Consumer Partner Network: the complex of all Charge Points outside The New Motion Network where Customers or End users can charge their Electric Cars Private Charge Point: a Charge Point located on private property (whether or not the owner of the Charge Point concerned makes it available to an authorised user group) 1.19 Products: the products offered by The New Motion, including but not limited to the Charge Points.Public Charge Point: a Charge Point located in a public area, whether or not said Charge Point belongs to a Partner Network.

2 1.20 The New Motion: the provider of the Services, being The New Motion B.V., having its registered office in Amsterdam and registered with the Chamber of Commerce under number References in these General Terms and Conditions to The New Motion also refer to our group companies, including but not limited to The New Motion Snellaad B.V The New Motion Network: the complex of all Charge Points over which The New Motion can exercise control (whether or not in concert with the owner of the Charge Point) as regards the granting of access to third parties Website: The New Motion s secured Customer website, which is accessible via the URL my.thenewmotion.com or or any other website used by The New Motion at any time in the context of the Services. 2. Plus charging subscription 2.1 A Plus charging subscription gives the Customer access to a Charge Point for the charging of his Electric Vehicle and, depending on the type of subscription, to a Network of Charge Points. The rates that apply for the various types of subscriptions and Services are shown on the website The costs of the charging itself are not included in the price and are payable separately. 2.2 The New Motion Charge Card is covered by a standard 2 year guarantee against defective material and manufacturing defects. If the Charge Card no longer works, but this is not due to a manufacturing defect or defective material, a fee of EUR 10 will be applied for the replacement of the Charge Card. 2.3 If the Charge Card is lost, the Customer shall inform The New Motion of this as quickly as possible via telephone +31 (0) or by to care@thenewmotion.com. The New Motion will then block The New Motion Charge Card and will send the Customer a new one against payment of EUR 10. All transactions made with The New Motion Charge Card before it is reported to us as lost will be at the Customer s expense. 2.4 Plus charging subscriptions are made online. With regard to such services purchased online, the consumer may unilaterally terminate and/or cancel the Contract within seven (7) days of its conclusion, without paying a penalty or providing reasons. 2.5 When concluding the Contract at my.thenewmotion.com,the Customer is asked to provide certain data. The Customer warrants The New Motion that the data provided are current, complete and correct, that he is authorised to provide these data and that any changes to these data will be reported to The New Motion immediately in writing (including by or via the Website). 3. Costs 3.1 No costs will be payable for use of The New Motion Charge Card at the Private Charge Point indicated on activation (except for the electricity costs paid via the energy bills of the distributor that supplies electricity to the Charge Point) unless the Charge Point is set to refund for guest use and/or settlement via the employer. 3.2 For charging at Charge Points in The New Motion Network, costs are payable as indicated at The access to and/or charging at Public Charge Points or at Private Charge points that are publicly available is/are made available at the rates and under the terms and conditions published by the provider. The Customer may choose to agree to such terms and conditions and to activate The New Motion Charge Card for these Charge points as well, or have the relevant elements of The New Motion subscription deactivated. 3.4 Where The New Motion Charge Card is used to charge in the Partner Network, The New Motion is dependent on the Charge Card s operation owner for the data concerning charging and the costs calculated for the same.

3 4. Payment 4.1 The subscription costs - if applicable - and the costs for paid charging in the Network - also if applicable - are invoiced on a monthly basis (unless agreed otherwise). These costs will be charged each month by means of direct debit to the bank account stated by you as laid down in the direct debit authorisation. The Customer shall ensure at all times that the amounts to be paid via direct debit are collectible via his bank account. If the direct debit cannot be executed successfully, The New Motion is authorised to claim an amount of EUR 40 in collection costs from the Customer in accordance with Article 6:96 of the Dutch Civil Code. With direct debit, the Customer may reverse an entry during 56 days following collection of the amounts. In addition, the Customer may contest a collection for up to 13 months of the date of payment. 4.2 The billing address is the address as notified to The New Motion by the Customer. 4.3 The New Motion sends its invoices by to the address of which it has been notified by the Customer. 4.4 In determining the amounts owed at any time (including charging costs from any charge sessions in the Partner Network), The New Motion s records are binding, unless it is demonstrated that these data are not correct. 4.5 Any complaints regarding an invoice must be reported to The New Motion within 30 days of the invoice date (in writing, by or by telephone). If the Customer regularly, i.e. more than three times per calendar year, complains about an invoice unjustly, The New Motion is entitled to charge administration costs of at least EUR Changes to the bank account number, billing address and/or address can be notified by sending an to care@thenewmotion.com or by passing these changes on via my.thenewmotion.com. 5. Term and termination 5.1 The Contract pertaining to the subscription for love to load Services is concluded for a term of 12 months commencing on the date on which the Customer activates his Charge Card. After this 12- month period, the Contract will be automatically converted into a subscription for an indefinite period of time. After the first twelve months, both the Customer and The New Motion may terminate the Contract at any time, with due observance of a notice period of 30 days. 5.2 Termination within the meaning of this Article 5.1 can be effected by sending an o address care@thenewmotion.com, stating the Customer name and address, postcode, place of residence or business and the desired date of termination. 5.3 The New Motion may terminate the Contract with immediate effect: a. if the direct debit cannot be executed successfully on several occasions; or b. in the event of bankruptcy, suspension of payments, debt management/restructuring or placement under guardianship of the Customer. In such a case, the Charge Card will be blocked immediately. 5.4 On termination of the Contract, the Customer shall return the Charge Card(s) made available to him to The New Motion immediately.

4 6. Charging services and use of Charge Points 6.1 When using the Charge Points, the Customer shall comply with all rules and regulations applicable to and in connection with the charging as prescribed by The New Motion and the operators of the Charge Points and/or Partner Networks, as well as any applicable statutory regulations (including safety regulations). 6.2 The New Motion does not guarantee any density and/or accessibility of Charge Points. Nor does The New Motion guarantee that the Charge Points will function without interruption and/or failure at all times or that they will be available. 6.3 As regards a Charge Point within the Partner Network, the terms and conditions of the relevant operator of the Charge Point apply to use of that Charge Point. 6.4 The New Motion is entitled at all times, without prior notification, to remove one or more Charge Points from the Network and/or to discontinue providing access to any Partner Network. 6.5 If a Customer chooses to make a Private Charge point available to third parties (and thus has the third party included in the Network), the Customer must ensure at all times that the user is referred to the instructions for use regarding safe charging. 7. Helpdesk 7.1 The Helpdesk offers assistance in response to questions from and/or complaints by the Customer or End User regarding the The New Motion s Products and Services. 7.2 The Helpdesk is available: on working days from 7 a.m. to 10 p.m. and on Saturdays and Sundays from 9 a.m. to 7 p.m. The New Motion uses an external call centre outside these hours and on national holidays. You can contact The New Motion via ons/contact 7.3 The New Motion does not guarantee that the Helpdesk will be available at all times without interruption and/or failure at all times or that particular results will be achieved through use of the Helpdesk Services. 8. Website and love to load App 8.1 The Websites and my.thenewmotion.com. provide general information regarding the Products and Services offered by The New Motion. The New Motion does not guarantee the accuracy of completeness of this information, nor does it guarantee that use of the Website and any Service offered via the Website will lead to the correct results or that the information is suitable for specific objectives. 8.2 The love to load App may be downloaded to a smartphone free of charge. This App gives a real- time indication of the Charge Points available at the Customer s present location. The Customer can also search for a Charge Point. This information is obtained via third parties. The New Motion offers the App without any guarantee as regards the accuracy of information or the availability of data. 9. Assignment by the Customer to third parties 9.1 The Customer is not permitted to assign this Contract to a third party without The New Motion s prior written consent. 9.2 The Customer is fully liable vis- à- vis The New Motion for any acts and/or omissions by the End User(s) to whom the Customer has granted access to use of the Products and/or Services as if such acts and/or omissions were by the Customer personally.

5 10. Liability 10.1 Charge Points function with the assistance of the communication infrastructure (whether or not public) necessary to this end, such as (mobile) Internet connections. The New Motion does not guarantee that such infrastructure will function without interruption or failure. The New Motion is in no way liable for damage resulting from failures in the communication infrastructure The Customer is liable for damage resulting from inexpert or careless use of a Charge Point and all related materials made available, such as The New Motion Charge Cards and charging cables, and indemnifies The New Motion against any claim by third parties in this respect. The Customer also indemnifies The New Motion against any claim by third parties in connection with any conduct or circumstances which are for the account and/or risk of the Customer The New Motion is liable for damage suffered by the Customer as a result of an imputable failure by The New Motion in the performance of its contractual duties vis- à- vis the Customer below provided that the Customer informs The New Motion of the shortcoming or irregularity within 10 working days of the date on which he discovered it or could reasonably have discovered it, giving notice of The New Motion s default to the extent that the law so requires and offering it a reasonable period in which to remedy the failure The liability referred to in the previous paragraph of this Article is - if and in so far as possible with due observance of the mandatory legal provisions regarding liability - limited to compensation for direct damage up to an amount that is equal to 12 times the monthly payment owed and paid by the Customer for the Services concerned The New Motion is not liable for damage that the Customer may suffer as a result of not being able to charge the Electric Vehicle (fully or partially), or in connection with or as a result of the use or functioning of a Charge Point. The New Motion is not liable in the event that the Electric Vehicle cannot be charged, or cannot be charged safely, due to a defect in the Electric Vehicle and/or the auxiliary materials used, such as charging cables Liability of The New Motion for indirect damage is excluded The limitations referred to in the foregoing paragraphs of this Article lapse if and to the extent that the damage is the result of intent or gross negligence on the part of The New Motion The New Motion is not required to fulfil any of its obligations in the case of force majeure. Force majeure is understood to include to include force majeure of suppliers and/or third parties engaged by The New Motion. 11. Intellectual Property 11.1 The Customer agrees that all intellectual property rights (including but not limited to the copyright, trademark rights, design rights and patent rights) in the Products and/or Services remain the property of The New Motion and/or its licensors. In the context of the supply of the Products and/or Services, The New Motion may use or develop products, materials and methods containing data provided by the Customer or information derived therefrom, which will subsequently form part of The New Motion s property rights The Customer is not permitted to remove or change any notice regarding the confidential nature of, or relevant intellectual property rights in, the software, equipment, Websites or materials. The circumvention or removal of technical security features or restrictions on use that pertain to the Services is not permitted The New Motion Charge Card and the electronic data processed on it are the property of The New Motion.

6 12. Privacy 12.1 When offering Products and Services, The New Motion processes certain data of the Customer or the End User, including personal data. Personal data are data that enable a particular person to be identified, such as details of their name, address and place of residence The New Motion observes the applicable regulations in the processing of personal data, including the Personal Data Protection Act. How The New Motion deals with the Customer s personal data is described in the Privacy Policy, which is appended to these General Terms and Conditions. The Privacy Policy is also published on The New Motion s Website The Customer is advised that, pursuant to Article 8(b) of the Personal Data Protection Act, in the context of performance of this Contract The New Motion may provide third parties with personal data that the Customer and/or End User has provided in the context of a Contract. Pursuant to the aforementioned Act, The New Motion may be obliged to provide personal data of the Customer to third parties if necessary pursuant to a statutory provision. The New Motion does not require the Customer s consent for the aforementioned purposes. 13. Right of withdrawal 13.1 Applicability The Articles referred to in this chapter apply to all Distance Contracts for the provision of Services concluded between the Consumer and The New Motion Products As regards the purchase of Products, the Consumer has the option for a period of seven working days of terminating the contract without providing reasons. This period commences on the day following receipt of the Product by or on behalf of the Consumer During this period, the Consumer shall handle the Product, the Product s components, the accompanying documentation and the packaging with care. The Consumer shall only unpack or use the product to such extent as is necessary to assess whether he wishes to keep the Product The Consumer s right of withdrawal will cease to apply once the Consumer uses or damages the Product. Use of the Product includes the situation where the Consumer purchases an installation Service and has it performed with his consent, which results in use of the Product The Consumer is at liberty to test the Product pursuant to Article In respect of a Charge Point, the Consumer may conduct a test session, for example to see whether the Charge Point charges the Electric Vehicle. Testing a product does not in any event include actual use of the product to the extent that such use involves more than the testing of the product. It is not necessary for a Charge Point to be installed in order to test it. Having a Charge Point installed before the reflection period (Article ) has expired amounts to effective use of the Charge Point. The Consumer s right of withdrawal will cease to apply as a result of the foregoing If the Consumer avails himself of his right of withdrawal, he shall return the Product with all supplied accessories in the original state and packaging to The New Motion in accordance with The New Motion s reasonable and clear instructions. The Consumer may contact The New Motion to this end: orders@thenewmotion.com or tel: +31 (0) Return costs are payable by the Customer, except for any costs associated with The New Motion taking receipt of of the Product. The latter costs are payable by The New Motion.

7 Following receipt and inspection of the returns, if applicable The New Motion shall reimburse an amount paid by the Consumer within 30 days of termination by the Consumer Exclusion of right of withdrawal for Products The right of withdrawal is excluded for the following products: a. Products created by The New Motion in accordance with the Consumer s specifications; b. Products that are clearly of a personal nature; c. Products that, by their nature, cannot be returned; d. Audio and video recordings and computer software the seals of which have been broken by the Consumer Services On the conclusion of a distance contract for the provision of a service, the Consumer has the option, for a period of seven working days, of terminating the contract without providing reasons. This period commences upon conclusion of the contract If the Consumer avails himself of his right of withdrawal, he shall contact the New Motion within the period mentioned in paragraph 1 and shall act in accordance with the reasonable and clear instructions provided by The New Motion with the offer or with the supply of the Service at the latest. The Consumer may contact The New Motion at installaties@thenewmotion.com or tel.: +31 (0) If The New Motion commences provision of its service with the Consumer s consent before the period mentioned in Article has expired, the Consumer cannot invoke the Contract s termination option mentioned in Article If applicable, The New Motion shall reimburse an amount paid by the Consumer within 30 days of termination by the Consumer. 14. Other provisions and applicable law 14.1 The New Motion is authorised to change the content of the Services at any time. The New Motion is also authorised to change these General Terms and Conditions unilaterally The New Motion is entitled to engage third parties in the performance of the Contract or to assign the rights and obligations under the Contract to a third party, in full or in part. The Customer hereby gives advance consent for the assignment of his legal relationship with The New Motion to a third party Should any provision of these General Terms and Conditions, for any reason whatsoever, be invalid or null and void or be avoided, the other provisions will remain in full force and the parties will provide in joint consultation for a replacement provision that preserves, as far as possible, the purpose and purport of the provision to be replaced This Contract and these General Terms and Conditions are governed by the laws of the Netherlands. Any disputes that relate to and/or arise from the same will be submitted to the competent court in Amsterdam. Amsterdam, December address telephone kvk The New Motion Keizersgracht DR Amsterdam The Netherlands info@thenewmotion.com website btw NL B01 bank