Terms of Service
Last updated on 25 January 2019
(1) These Terms of Service (“ToS”) regulate the business relationship between WIND Mobility GmbH, Leipziger Straße 26, 10117 Berlin (“we”, “us”, “our”, “WIND”) and natural persons who want to use our Bikes or as the case may be Electric Scooters in Germany (“You”, “Your”).
(2) These ToS and the current Price List shall apply to the Master Agreement which is created when You register a WIND user account, to each purchase of a Rental Pass, to each Subscription and to each Individual Vehicle Rental during Your WIND membership (“Individual Rental Contract”). By accepting these ToS You agree to be bound by its terms and the current Price List(“Price List”) as amended from time to time.
(3) This English Version of the ToS is intended for information purposes only. For customers who wish to rent out vehicles in Germany, the German text of these ToS is the legally binding version and for Customers who wish to rent out vehicles in other countries, the respective text of the ToS of that country is the legally binding version.
Terms in capitals used in these ToS shall have the meanings as defined in these ToS.
Bike means a bicycle made available by WIND for rent that is equipped with or consist of a bicycle frame, a handlebar, a basket, brakes, a chain, a front hub, a rear hub, tires, pedals, a bell, lights, a lock, and a global positioning system (GPS) device.
Bike Rental means the rental of a Bike via the WIND App.
WIND Account means a personal account provided to You by WIND after successful registration.
WIND App means the software application developed by WIND which operates on Android and iOS operational systems enabling Electric Scooter Rental and return of Vehicles.
WIND Website means the official website of WIND, accessible under http://www.WIND.de/.
Electric Scooter means the electric scooter made available by WIND for rent that is equipped with or consists of a board, a handle, a front and rear light, brakes, tires and a GPS device.
Electric Scooter Rental means the rental of an Electric Scooter via the WIND App.
Force Majeure Event means the occurrence of any event or circumstance beyond the control of WIND. Force Majeure Events include (i) natural disasters, explosions, fires, floods, earthquakes, epidemics, catastrophic weather conditions, atmospheric disasters or other elements of nature, (ii) acts of war (declared or undeclared), acts of terrorism, insurrection, riots, rebellion, sabotage, (iii) exceptional traffic and road situations and (iv) strikes, lock-outs, and civil unrest.
Individual Rental Contract means the contract that is concluded between You and WIND for each Individual Vehicle Rental.
Individual Vehicle Rental means each individual rental of a Bike and/or Electric Scooter beginning with the confirmation of the booking in accordance with section 4.1 paragraph (1) of these ToS.
Master Agreement means the agreement that is concluded between You and WIND at the time of registration of a WIND Account establishing mutual rights and obligations as specified in these ToS and the Price List.
Other Driver means any person using a Vehicle You rented on Your account with Your authorization.
Operating Area means the Area within the boundaries of which the Vehicles can generally be rented and returned. The Operating Area can be viewed, in its current form, on the WIND Website and in the WIND App.
Rental Pass means the different rental passes that may be available for purchase within the App, including a certain number of time limited vehicle rentals per day within a certain time period (e.g. one day pass or one month pass).
Rental Time means the period of time between the confirmation of the booking in accordance with section 4.1 paragraph (1) of these ToS and the end of the Individual Vehicle Rental in accordance with section 5 of these ToS.
Services means the rental of Vehicles together with the provision of the WIND App, as available in Your country of residence.
Subscription means the continuous subscription of a Rental Pass (e.g. monthly or annual pass subscription).
ToS means these terms of service including the Price List that apply to the Master Agreement and to each Individual Vehicle Rental, to purchased Rental Passes and Subscriptions.
Vehicle(s) means Electric Scooters and/or Bikes, as the case may be, made available by WIND.
WIND Account means a personal account provided to You by WIND after successful registration.
WIND App means the software application developed by WIND which operates on Android and iOS operational systems enabling rental and return of Vehicles.
WIND Website means the official website of WIND, accessible under http://www.wind.co/.
2.1 Subject to the terms of these ToS and the Price List, as amended from time to time (see section 10 of these ToS), WIND offers You the possibility to rent and use Vehicles on a pay per ride basis and, as the case may be, under a one-day or one-month rental pass or under a subscription as indicated in the WIND App and Price List, subject to availability. The categories and location of available Vehicles at Your place of residence will be displayed on the map screen in the WIND App. Vehicles are and shall remain the exclusive property of WIND at all times.
2.2 Electric Scooters are currently only offered at certain locations in Spain.
3. WIND APP AND WEBSITE; ACCOUNT
You can rent the Vehicles via the WIND App which can be downloaded from online application stores or the WIND Website. Solely WIND and its licensors are entitled to all the intellectual property rights in or to the WIND App.
(1) Before You can start using our Services and renting Vehicles, You must download the WIND App and register a user account. When registering, You must provide Your phone number to WIND. Alternatively, You can also create an account by using Your Facebook account. In order to register, You must be 18 years of age or older. After successful registration, WIND will provide You with Your personal WIND Account.
(2) Registration for the Services is free.
(3) You agree to provide accurate and complete information during Your registration and to maintain it updated.
(4) You are obliged to inform WIND immediately of any changes to Your personal information, in particular regarding Your billing information.
(5) Your WIND Account will be assigned uniquely to You, and You may neither transfer or otherwise make available Your WIND Account to others, nor use anyone else’s WIND Account at any time. You are responsible for maintaining the confidentiality of Your WIND Account information (including usernames, passwords, and billing information). WIND is not liable for any loss that You may incur as a result of someone else using Your account, except if such use was caused willfully or negligently by WIND. You are liable for any losses or damages incurred by WIND or any third party as a result of someone else using Your account, provided that such use was willfully or negligently caused by You. If You become aware of any event of theft, unauthorized use, or any other breach of security on Your account, You must notify WIND immediately under the contact details as provided at the end of these ToS.
3.2 NETWORK ACCESS AND DEVICE
(1) You are responsible for Your device´s network connections required to use the Services and for any access or data fees incurred from third parties (such as Your Internet provider or mobile carrier) in connection with Your use of Our Services. Your mobile network's data and messaging rates and fees may be applied if You access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary for the access and use of the Services and any updates thereto.
(2) You acknowledge that WIND´s Services are provided over the internet and mobile networks; therefore the quality and availability of the Services may be affected by factors outside of WIND´s control. WIND does not guarantee that the Service, or any portion thereof, will function on any particular hardware or device.
By creating a WIND Account, You agree that WIND may send You informational text messages (SMS), emails, as well as push notifications as part of the normal business operation of Your use of the Services. We only send You promotional messages, if You have expressly authorized it.
4. INDIVIDUAL VEHICLE RENTAL AND USE
4.1 VEHICLE RENTAL PERIOD
(1) The Individual Vehicle Rental will commence once You indicate Your wish to rent a Vehicle through the WIND App and WIND has confirmed the rental, in case of a Bike Rental by opening the bicycle lock of the respective Bike, and in case of an Electric Scooter Rental by activating the electric power of the Electric Scooter.
(2) The Individual Vehicle Rental will end once a Vehicle is returned in accordance with section 5 of these ToS or if WIND terminates the Individual Vehicle Rental in accordance with these ToS.
(3) During the Rental Time You are responsible for the Vehicle. Therefore, any incident/damage occurred to the Vehicle during the Rental Time may be directly imputed to You, subject to section 8.1 of these ToS.
(4) You may not leave a Vehicle unattended at any time during the Rental Time and You must use the kickstand every time a Vehicle is parked.
(5) Generally You may only rent one Vehicle at a time on Your WIND Account. If and to the extent this is expressly offered via our App, You may rent up to 5 Vehicles at a time. If You rent more than one Vehicle at a time and leave one or more Vehicles to Other Drivers, You are responsible to inform such Other Drivers about all obligations arising from these ToS as well as for their compliance with them. While Other Drivers use the Vehicles, You are responsible for the culpability in the use of the Vehicles attributable to such Other Drivers.
4.2 AVAILABILITY; MAINTENANCE
(1) Rental of the Vehicles is subject to availability on a first-come, first-serve basis, and although WIND makes an effort to meet the demand for the Vehicles by customers, WIND cannot guarantee that supply will be adequate to provide a Vehicle to every customer at any time.
(2) WIND is responsible for the daily operation maintenance and repair of the Vehicles. However, this shall not mean that WIND guarantees that all Vehicles available are in a trouble-free condition at any time.
4.3 CONDITIONS OF USE
(1) As a precedent condition for each Individual Vehicle Rental You acknowledge and agree that:
a) You are experienced and familiar with the safe operation of an electric scooter or a bicycle, as the case may be;
b) You are physically and mentally fit to ride the Vehicle You chose;
c) In case local regulations oblige You to wear a helmet to drive the Vehicle You will use a helmet which is approved in accordance with current legislation and You will wear this helmet at any time You drive the Vehicle.
d) You are familiar with all applicable local, state, and county rules, regulations, codes, and laws that relate to the safe and legal operation of an electric scooter or a bicycle as the case may be.
(2) You further acknowledge and agree that:
a) You are fully aware that riding an electric scooter or a bicycle on streets poses a risk of accident due to motorists, pedestrians, and road conditions, and You must keep a proper lookout to avoid such accidents;
b) You are fully trained and capable of operating and riding the chosen Vehicle and You are not relying on WIND to explain to You how to operate or ride such Vehicle;
c) You are solely responsible for obtaining and using a helmet and/or other protective gear when this is required by any local or state rules, regulations, laws or, in general, the current legislation;
d) You are solely responsible for the quality and correct use of any equipment such as helmets and/or protective gear You use;
e) You are solely responsible for operating and riding the Vehicle in a careful and competent manner;
f) You are aware that a helmet and protective gear, even when used, do not eliminate the risk of bodily injury in the event of an accident;
g) You are solely responsible for any traffic violations and/or fines incurred by You while using the Vehicle, including any fees for parking the Vehicle in prohibited locations as set forth in applicable laws, or for any fine imposed for not wearing a helmet when driving the Vehicle, if its use is mandatory in accordance with the local or state current regulation applicable for the Operating Area;
h) WIND reserves the right to identify You before Public Administration Authorities in the event that You have committed a traffic infraction during Rental Time or You have parked in a prohibited area according to the corresponding local regulations, or in any other case where WIND is legally required to do so;
i) WIND is not obligated to provide insurance of any kind related to You;
j) If You cause any damages to another person while operating or in possession of the Vehicle, You are solely liable for such damage or injury according to the applicable laws, except if and to the extent such Damages are caused by a willful or negligent act of WIND;
k) You shall at all times adjust Your riding behavior according to weather conditions;
l) You may not remove or modify any accessories, parts, or components of any Vehicle;
m) You may not use a Vehicle without intention to pay the charges;
n) You may return the Vehicle outside the Operating Area as shown in the App, subject to additional fees in accordance with the Price List.
4.4 DUTIES IN CASE OF AN ACCIDENT
You are obliged to notify WIND under the contact details provided at the end of these ToS as well as the local police without undue delay in the event (i) an accident occurs during Your rental of the Vehicle involving not only You but also third-parties and/or their property, or (ii) if a Vehicle is stolen during Rental Time. Failure to do so shall result in You being liable for damages incurred by WIND resulting from violation of said obligation;
4.5 INSPECTION OF THE VEHICLES
Before and during each use of a Vehicle, You shall familiarize Yourself with the following:
a) Inspect the visible parts of the Vehicle that You wish to rent prior to Your use in order to ensure that it is in a good operating condition;
b) Test the Bike’s operating components (brakes, tires, gears, wheels, pedals, lights, frame, and saddle) and/or the Electric Scooter’s operation components (board, a handle, a front and rear light, brakes, tires and a GPS device);
c) Promptly notify the WIND customer service (under the contact details provided at the end of these ToS) if it is apparent to You that the Vehicle has any kind of technical defect or malfunction that could affect its roadworthiness. WIND will cancel the Individual Rental Contract free of charge, if You inform WIND about a defect that may affect a Vehicle´s roadworthiness within the first 10 minutes after rental. Subject to section 8.2 paragraph 2 (WIND´s LIABILITY), the Vehicle is regarded as free from damages, if You do not inform WIND of a defect within the first 10 minutes after rental. The aforementioned limitations do not apply in the event of intentional or grossly negligent breach of a duty on the part of WIND or in the event of injury to life, body or health.
4.6 RESTRICTED USES
The Vehicles may not be used under the following conditions:
a) In case of the Bikes, if the person who is supposed to ride the Bike is younger than 16 years of age, unless this person is accompanied by an adult; in case of the Electric Scooter, if the person who is supposed to ride the Electric Scooter is younger than 18 years of age, unless this person is accompanied by an adult;
b) If the person who is supposed to ride the Vehicle has any existing physical or mental condition that would prevent such person from safely operating the Vehicle;
c) While carrying any item that would impede the driver’s ability to safely operate the Vehicle.
d) If the person who is supposed to ride the Vehicle is under the influence of alcohol, drugs, or any other substance that may impair the person's ability to safely operate the Vehicle;
e) While using any cell phone or mobile electronic device, including, but not limited to, for the purposes of phone calls, text messages, listening to music or any other use that distracts the driver from the safe operation of the Vehicle;
f) If the Bike basket is overfilled with any kind of objects or in case objects are placed into the basket weighing in total more than 5 kilogram;
g) During adverse weather conditions like hail, dust storms, heavy fog, heavy rains, or thunderstorms;
h) If the Vehicle has any obvious technical defect that could affect the Vehicle's roadworthiness;
i) For violating the regulations of the German Road Traffic Act (StVO), if You are using the Services in Germany or for violating the regulations of the Royal Decree 6/2015 of Spain, approving the revised text of the Law on Traffic, Circulation of Motor Vehicles and Road Safety and of the Royal Decree 1428/2003, approving the Spanish General Regulation of Circulation and of the rest of the local legislation on traffic and circulation, if you are using the Services in Spain.
j) For racing, tricks riding, jumping, stunt riding and/or off road riding;
k) For any commercial purposes;
l) For towing, pulling, carrying, or pushing any person or object with a Vehicle.
5. END OF THE INDIVIDUAL VEHICLE RENTAL AND RETURN OF THE VEHICLE
5.1 You must return the Vehicle in the same condition as when received.
5.2 In case of a Bike Rental, the Individual Vehicle Rental ends, (i) when the Bike is properly parked and locked at any legal, freely accessible parking location within the boundaries of the Operating Area (ii) and WIND confirms the return of the Bike via the WIND App. In case of an Electric Scooter Rental, the Individual Vehicle Rental ends (i) when the Electric Scooter is properly parked and locked at any legal, freely accessible parking location within the boundaries of the Operating Area, (ii) You have indicated the end of the Individual Vehicle Rental via the WIND App and (iii) WIND confirms the return of the Electric Scooter via the WIND App. You may return a Vehicle outside the Operating Area in accordance with the aforementioned provisions subject to additional fees as set out in the current Price List. Upon Return of a Vehicle, You can view the completed rental process including the total Rental Time and total fees in the WIND App.
5.3 If the return of a Vehicle fails, for example due to low battery of Your device or missing internet connection, You must notify the WIND customer service as soon as possible via the WIND App or via the contact details provided at the end of these ToS. In such a case WIND will manually end the Individual Vehicle Rental. In addition, WIND reserves the right to end Individual Vehicle Rentals if You do not use a Vehicle within a period of 24 hours after commencement of the Individual Vehicle Rental.
5.4 You must be able to provide information in regards to the exact location of a returned Vehicle upon request by WIND for a period of 48 hours following the return of a Vehicle.
5.5 You are obliged to follow road traffic regulations and specific conditions of the Operating Area when parking. You must make sure that the Vehicle does not hinder other road or sidewalk users or other third parties. In particular, You must not park the Vehicle at trees, traffic signs, traffic lights, parking meters, parking ticket machines, fences to property of third parties, benches, containers, litter bins, in front of or near emergency exits and fire department service zones, in front of driveways and exits, lowered curbstones, on access paths to public transportation, bicycle lanes, orientation aids for the blind, pedestrian crossings, in buildings, backyards, vehicles, parks and green spaces or where the Vehicle covers advertisements, urban furniture when the destination or functionality of the covered item is impaired or when the Vehicle damages or deteriorates the item´s condition, in the areas reserved for loading and unloading, in places reserved for other users or services and, in general, in any other places forbidden by local regulations of the city in which You are driving the Vehicle.
5.6 You are responsible for checking that there are no temporary prohibitions (for works, markets, parties, tree pruning, filming, etc.) in a parking area. You may not end the Individual Vehicle Rental by parking a Vehicle in areas with daily or time parking restrictions, if the restriction starts in less than 24 h after the vehicle has been parked. For example, if the parking ban starts on Tuesday at 09.00 am, You are not allowed to park the Vehicle in the restricted area after 09.00 am of the previous Monday.
5.7 If You park the Vehicle in breach of the aforementioned provisions, additional charges may apply in accordance with the current Price List. In case the Vehicle has been parked in breach of the provision as set out in section 5.2 above, the Rental Time also continues to run, subject to charges, until the respective Vehicle is returned in accordance with such provisions, but no longer than 48 hours after the Vehicle has been parked in breach of such provisions. The respective fees will not be charged to the extent that You prove not to be responsible for the damages incurred to WIND, that no damage occurred or that the actual damage incurred is significantly lower than the fees imposed on You.
6. PAYMENT AND BILLING
6.1 WIND will charge You on the basis of the prices applicable at the time of booking. The current Price List is available on the WIND Website and in the WIND App. WIND is entitled to amend the Price List at any time for future bookings in accordance with section 10 of these ToS.
6.2 If a Vehicle is returned outside the Operating Area as defined on the WIND Website and in the WIND App additional fees are due according to the current Price List.
6.3 Different rates apply for the Bike Rental and the Electric Scooter Rental and different rates may apply to different categories of Bikes and/or Electric Scooters as indicated in the WIND App or WIND Website.
6.4 Payments for an Individual Vehicle Rental are payable at the end of the Individual Vehicle Rental. Payments for a Rental Pass shall be payable at the time of booking. Payments for Subscriptions (Monthly or Yearly) shall be payable at the beginning of each subscription term.
6.5 After Registration, WIND sets up a credit account (“Credit Account”) for You, which You may charge with money at any time in order to pay any fees incurred. Besides You can choose between different payment methods as Your preferred payment method (“Preferred Payment Method”). You have the option to pay the amounts due by means of credit card (Visa, Mastercard or American Express) or with PayPal. For payment by Credit Card WIND uses the Stripe Sdk and for payments with PayPal, WIND uses the PayPal Sdk (for more information see section 9 of these ToS). If You choose to pay with PayPal You will be asked to log in to Your PayPal account with Your email address and password to confirm the payment. You may change Your Preferred Payment Method at any time.
6.6 If and to the extent You have a credit balance (“Credit Balance”) on Your Credit Account, Your Credit Account will be used first for any payments due and Your Preferred Payment Method will be used for any remaining amounts due. WIND may from time to time and at its own discretion provide You with bonus amounts (“Bonus Amounts”). Bonus Amounts are kept by WIND on a separate account (“Bonus Account”) within the WIND App. You can view the total balance of Your Credit and/or Bonus Account at any time in the WIND App. If and to the extent You have a balance on Your Bonus Account, WIND will use first and foremost such balance. If there is no credit on the Bonus Account or if the Services cannot be offset with the Bonus Account, BKYE debits the (remaining) charges from the Credit Account and/or Your Preferred Payment Method.
6.7 You are not able to transfer Your Bonus Amount or Credit Balance to other users of the WIND App or any other third party.
6.8 There is no expiry date for Your Credit Balance during the term of the Master Agreement. In the event of termination, any Credit Amounts existing at the end date of the Master Agreement shall upon Your request be transferred to a designated bank account as set out in section 7.1 paragraph (5) of these ToS. Remaining Bonus Amounts existing at this date shall expire automatically and will neither be returned to You nor can such amounts be used to reduce any amounts owed by You to WIND.
6.9 Any charges applicable for WIND´s Services are inclusive of applicable taxes required by law.
6.10 Should it be impossible to process a payment due to reasons for which You are responsible, WIND will charge You with expenses that may be incurred due to such default in accordance with the Price List, unless You can prove that no expenses incurred at all or the actual expenses incurred were lower than indicated. WIND will also charge reminder fees to You, as defined in the Price List. In addition, if You are in default of payment, the outstanding amount shall bear interest at the rate of five percent (5%) over the then current basic rate of interest.
6.11 If the payment is delayed, WIND is upon a warning authorized to discontinue the Service until You meet Your payment obligations.
6.12 WIND will debit any charges due automatically via Your Preferred Payment Method without the requirement of prior payment request. Objections to the charges must be submitted in writing to WIND within 14 days of receipt of the invoice.
7. TERM AND TERMINATION; SUSPENSION OF THE SERVICES
7.1 TERM AND TERMINATION OF THE MASTER AGREEMENT
(1) The Master Agreement shall be concluded for an indefinite period of time if not terminated according to this section 7.
(2) The Master Agreement can be terminated by WIND with a notice period of 3 days by sending You a termination notice via the WIND App, by email or text message (SMS).
(3) You may terminate the Master Agreement at any time by sending us a notification in text form (e.g. email).
(4) A termination of the Master Agreement is not possible during an Individual Vehicle Rental. If a minimum term has been agreed under a Subscription, the Master Agreement may only be terminated as to the end of the agreed minimum term.
(5) After termination of the Master Agreement, WIND will collect any outstanding amounts within 14 working days and refund any remaining balance of Your Credit Account within another 14 working days after You have submitted to the WIND customer support (see section 17 of these ToS) a German or a Spanish bank account, as the case may be.
7.2 TERM AND TERMINATION OF SUBSCRIPTIONS AND INDIVIDUAL RENTAL CONTRACTS
(1) The Subscriptions have an indefinite contract term.
(2) The monthly pass Subscription can be cancelled by You at any time prior to the end of a contract month and by WIND with a notice period of 3 days to the end of a contract month. If a Subscription for example starts on the 13th of a month, it can be cancelled with effect to the 12th of each following month. If neither party cancels the Subscription, it is automatically extended for an additional month.
(2) The annual pass Subscription can be cancelled by You at any time prior to the end of a contract year and by WIND with a notice period of 3 days to the end of a contract year. If the Subscription begins for example on April 13 of a year, it can be cancelled with effect to April 12 of each following year. If neither party cancels the Subscription, it is automatically extended for an additional year.
(3) Notice of termination from WIND must be given in text form (e.g. by email, SMS or by App notification). You may cancel a Subscription directly in the App under the menu item "My tariff" or by sending us a termination notice in text form (e.g. via email).
(4) You can terminate an Individual Rental Contract at any time by returning the Vehicle in accordance with section 5.2 of these ToS.
7.3 EXTRAORDINARY TERMINATION RIGHT
The parties´ right of extraordinary termination remains unaffected by section 7.1 and 7.2 of these ToS.
8. LIABILITY AND LIMITATION OF LIABILITY
8.1 YOUR LIABILITY
(1) You use the Services at Your own risk. If You cause damages to a Vehicle or a Vehicle is stolen during Rental Time resulting from gross negligence or willful conduct, You are liable for losses WIND suffers arising from such damages or theft on the basis of statutory liability regulations. Your liability in case of slight negligence is limited to a maximum amount of EUR 300 for damages to a Bike and to a maximum amount of EUR 450 for damages to an Electric Scooter.
(2) If due to a breach of these ToS, in particular with section 5 of these ToS, a Vehicle has to be relocated by public authorities or by WIND, and WIND is subject to a fine and/or other costs, such as relocation costs, such fine and/or costs will be passed on to You. In addition, WIND will charge a service fee according to the current Price List.
(3) You agree to defend, indemnify, and hold WIND, its officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses arising out of or in any way connected with (i) Your willful or negligent violation of these ToS, (ii) Your willful or negligent violation of third party rights, or (iii) Your leaving of Vehicles to Other Drivers.
8.2 WIND’S LIABILITY
(1) WIND shall be unrestrictedly liable towards You in the event of a culpable breach of material contractual duties (“Cardinal Obligations”) by WIND, its legal representatives or vicarious agents. Cardinal Obligations are all obligations whose breach would jeopardize the achievement of the contractual purpose, as well as all obligations whose fulfillment enables the proper performance of the agreement in the first place and on which You can generally rely. However, where a breach of a Cardinal Obligation is due only to slight negligence and does not result in death, personal injury or damage to health, Your claims will be limited to damages in the amount of the typically foreseeable damage at the time the respective service was performed.
(2) WIND shall be unrestrictedly liable in cases of intent and gross negligence and for death, personal injury or damage to health caused by WIND, its legal representatives or vicarious agents.
(3) WIND shall be liable in accordance with the German Product Liability Act in the event of product liability.
(4) In all cases other than described in section 8.2 paragraph 1 to paragraph 3, WIND or WIND’s legal representatives, employees, or vicarious agents are not liable for any claims. WIND shall be excused from the performance of the Services for any period and to the extent that it is prevented from performing the Services, in whole or in part, as a result of a Force Majeure Event.
(5) To the extent WIND’s liability is limited or excluded under the above provisions; this shall also apply to the personal liability of WIND’s legal representatives, employees, and vicarious agents.
9. DATA PRIVACY
9.1 WIND collects, processes and uses personal data which You provide during registration and use of the Services, such as Your mobile phone number, email address and bank details as well as personal data related to Your usage of the Vehicles, such as the start location and destination, start time and the duration of use, insofar as required for performance of the Services and in compliance with the provisions as set forth in the European General Data Protection Regulation (“GDPR”) and associated implementation provisions. This data processing is based on Art. 6 para. 1 letter b of the GDPR. Furthermore WIND processes such data to identify any usage of Vehicles in breach of these ToS and/or in breach of road traffic rules and to process recourse claims for which WIND would be liable as the Vehicle keeper on the basis of Art. 6 para. 1 letter b and c of the GDPR.
9.2 WIND uses Google Maps API applications to determine the current location of a Vehicle and display the nearest available Vehicle. Google Maps is provided by Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA (“Google”). The Google Maps API is essential for the functionality and availability of the Services. Google Maps API applications record the destination, departure and arrival times and duration of use of Vehicles. When using Google Maps, information about Your use of the WIND App or WIND Website is transmitted and stored on servers belonging to Google in the USA. The transfer of all locational data to Google occurs anonymously.
9.4 As for Stripe and Google, the data are transferred to a country outside the European Union. Such transmissions are allowed under the EU commission’s decision about the adoption of the EU-US data protection framework “Privacy Shield” (https://www.privacyshield.gov/welcome). Stripe and Google are certified under this EU-US Privacy Shield Framework.
10. MODIFICATIONS TO THESE TOS AND THE Price List
10.1 WIND expressly reserves the right to amend these ToS and the Price List pursuant to the following provisions.
10.2 WIND is entitled to amend these ToS and the Price List at any time without giving reasons for future Individual Vehicle Rentals or Rental Passes. WIND will notify You of any such changes at least
3 days prior to such changes. Individual Vehicle Rentals included in Rental Passes or active Subscriptions that (i.e. the Rental Passes or Subscriptions) were purchased before the notification on amendments shall not be affected during the current contract/subscription period.
10.3 In case of monthly Subscriptions, WIND is entitled to change these ToS and the Price List without giving reasons with effect to the next contract month. WIND will notify You of any such changes at least 3 days prior to the end of the current contract month. Any communicated amendments are considered approved if You do not object to them in text form (e.g. email) within 1 week upon notification. In case You object to the amendments, the Subscription shall be automatically terminated. WIND will specifically point the aforementioned consequences out in WIND’s notification of amendments.
10.4 In case of annual Subscriptions, WIND is entitled to change these ToS and the Price List without giving reasons with effect to the next contract year. WIND will notify You of any such changes at least 3 days prior to the end of the current contract year. Any communicated amendments are considered approved if You do not object to them in text form (e.g. email) within 4 weeks upon notification. In case You object to the amendments, the Subscription shall be automatically terminated. WIND will specifically point the aforementioned consequences out in WIND’s notification of amendments. WIND is only entitled to adjust or change these ToS with effect to the current contract year, if required due to a change of significant technical, commercial or legal framework conditions. Any communicated amendments with effect to the current contract year shall take effect and are considered approved if You do not object to them in text form (e.g. email) within 6 weeks upon notification. WIND will specifically point the aforementioned consequences out in WIND’s notification of the amendments. In case mandatory changes are required by applicable law, court orders or orders by public authorities the above notification period might have to be shorter, depending on the respective law, court order or public order. If You object to the amendments, the ToS remain in force unchanged. WIND is in this case however entitled to terminate the Master Agreement and the respective Subscription with a notice period of 3 days following Your objection.
10.5 WIND will notify You of any changes pursuant to section 10.2 to 10.4 by email, SMS or notification within the Bike App and by publication of the new ToS and prices on the WIND Website and in the WIND App.
10.6 Notwithstanding sections 10.1 to 10.5, any alterations or amendments to these ToS and/or the Price List agreed between You and WIND are only valid and binding if agreed in text form. This shall also apply to this text form requirement itself.
11. THIRD PARTY INTERACTIONS
11.1 During the use of the Services, You may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party providers, advertisers or sponsors showing their goods and/or services through the WIND App or the WIND Website. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between You and the applicable third party.
11.2 WIND does not endorse any applications or sites on the Internet that are linked through the WIND App or WIND Website and is not responsible for any content, products, services, or other materials on or available from such sites or third-party providers.
12. APPLICABLE LAW
The agreement, including these ToS and the Price List, shall be governed by the laws of Germany, for customers using our Services in Germany, and by the laws of Spain for customers using our Services in Spain, excluding the regulations of the UN Sales Convention (CISG).
13.1 WIND is entitled to assign its rights and obligations under the Master Agreement as specified in these ToS to a third party at any time without Your consent. WIND is however obliged to notify You in text form of a transfer in due time prior to any such transfer. Upon notification of a transfer, You are entitled to terminate the Master Agreement extraordinarily within six (6) weeks. WIND will point out this right again in the notification.
13.2 You are under no circumstances entitled to transfer or assign rights from the Master Agreement to third parties without the prior written consent of WIND.
14. NO WAIVER
WIND’s failure to insist upon or enforce strict performance of any provision of these ToS shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any part of these ToS. No waiver by WIND shall be construed as a waiver of any preceding or succeeding breach of any provision in these ToS.
If any provision of these ToS or in the current Price List is held by a court of competent jurisdiction to be invalid or void, the remaining provisions of these ToS shall remain in full force and effect.
16. NOTE ON DISPUTE RESOLUTION
WIND is not obliged nor willing to participate in dispute resolution proceedings before a consumer conciliation agency within the meaning of the Act on Alternative Dispute Resolution in Consumer Matters. You can find information about alternative dispute resolution on the European online-platform for dispute resolution https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home.chooseLanguage.
17. CUSTOMER SUPPORT
If You encounter any problem using our Service, You can report it in the WIND App by clicking on the “Custom Service” button. WIND encourages You to submit Your comments. Besides, You can contact us by email (firstname.lastname@example.org).