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General Terms and Conditions of Lease

General Terms and Conditions of Lease

QONQER GENERAL TERMS AND CONDITIONS OF LEASE (version 8 February 2021)

1. DEFINITIONS
1.1. In these General Terms and Conditions, the capitalised terms below are defined as follows:
1.1.1. The ‘General Terms and Conditions’ are the present general terms and conditions of QonQer;
1.1.2. The ‘Deposit’ is the one-off payment owed by the Customer to QonQer at the start of the Lease, as stated in the Agreement;
1.1.3. The ‘Prospective Customer’ is any adult natural person or legal entity who/which wants to become a Customer and/or with whom/which QonQer is in discussion about concluding an Agreement;
1.1.4. The ‘Consumer’ is a natural person who is acting for purposes that are outside his/her trade, business or profession;
1.1.5. A ‘Third Party’ is the natural person for whom the Lease was concluded if the Customer is a business customer who has concluded a Lease for the benefit of a natural person such as an employee;
1.1.6. The ‘E-bike’ is the e-bike of the QonQer brand made available to the Customer by QonQer pursuant to the Lease;
1.1.7 The ‘Customer’ is any person as described in Article 2.5 with whom or legal entity with which QonQer has concluded a valid Agreement;
1.1.8. The ‘Lease’ is the hire-purchase agreement in respect of the E-bike concluded on the basis of the Agreement between QonQer and the Customer;
1.1.9. The ‘Monthly Amount’ is the payment owed by the Customer to QonQer for every calendar month, as stated in the Agreement;
1.1.10 The ‘Agreement’ is the agreement concluded between QonQer and the Customer concerning the Lease;
1.1.11. ‘Write-off’ has the meaning assigned to it in Article 8.3;
1.1.12. ‘QonQer’ is QONQER B.V., having its registered office at Pazzanistraat 41, 1014 DB Amsterdam, filed in the register of the Chamber of Commerce under number 74883518, telephone: + 31 20 705 2355, email: info@qonqer.nl, VAT ID: NL860061292B01;
1.1.13. ‘Store’ is an E-bike specialist shop, test site or other location designated by QonQer; and
1.1.14. ‘Website’ is the website accessible via www.QonQer.nl, where the Customer can apply for a Lease and visit his/her personal area.
1.2. To the extent required by the circumstances, the terms used in these General Terms and Conditions in the singular also include the plural and vice versa.

2. CONCLUSION OF AGREEMENT
2.1. These General Terms and Conditions apply to every Lease, and form part of the Agreement concluded between the Customer and QonQer. Insofar as any provision in the Agreement deviates from the General Terms and Conditions, the provision in the Agreement will prevail.
2.2. An Agreement, and therefore a Lease, is concluded as follows:
2.2.1. A Prospective Customer applies for a Lease through the Website or in a Store. The Prospective Customer may indicate which E-bike the Prospective Customer wishes to lease.
2.2.2. The application is handled and assessed by a QonQer employee. The Prospective Customer is requested to provide additional information, including at least a copy of an identification document and a letter from an official body stating the name and address of the Prospective Customer.
2.2.3. If the additional information in Article 2.2.2 has been received and is to QonQer’s satisfaction, and QonQer wishes to enter into an Agreement, QonQer will send or issue an Agreement to the Prospective Customer. The offer made by QonQer may differ from what the Prospective Customer has requested.
2.2.4. If the Prospective Customer agrees with QonQer’s offer:
2.2.4.1. the Prospective Customer signs and returns both the Agreement and the General Terms and Conditions, and the Customer authorises QonQer to debit the amounts owed in accordance with Article 12.1; and
2.2.4.2. the Prospective Customer pays the Deposit by one of the payment methods offered, to the extent the Prospective Customer has not already paid it.
2.2.5. The Agreement is concluded when the documents and payment or payments referred to in Article 2.2.4.1 and 2.2.4.2 have been received by QonQer. QonQer may revoke the offer until the Agreement has been concluded.
2.3. The Deposit is non-refundable, except in the case of a withdrawal as described in Article 15.
2.4. QonQer reserves the right to refuse a Prospective Customer in any part of the process described in Article 2.2 if:
2.4.1. the Prospective Customer has previously had a Lease or other agreement with QonQer concerning an E-bike, which was terminated by QonQer;
2.4.2. the Prospective Customer has previously had a Lease or other agreement with QonQer concerning an E-bike, whereby theft, misappropriation, loss or write-off occurred more than twice;
2.4.3. QonQer has other reasons to believe that the the Prospective Customer will not behave in accordance with the conditions of the Lease, the Agreement and/or these General Terms and Conditions.
2.5. A person of legal capacity of 18 years or older can become a Customer and take out a Lease. Minors of 12 years and older can become Customers and lease an E-bike with the written consent of their parent or guardian.
2.6. During the registration process, the Customer creates a password that grants him/her access to confidential information and functionalities on the Website. The Customer undertakes to keep the login data strictly confidential and inaccessible to third parties.
2.7. The Customer will notify QonQer immediately if the personal and/or payment details provided with the Agreement change.

3. E-BIKE AND OWNERSHIP
3.1. QonQer will make an E-bike available to the Customer for the duration of the Lease.
3.2. The E-bike comes with a ring lock with two keys and a battery lock with two keys. The Customer must report the loss of one or more of the original keys to QonQer immediately. QonQer will provide new keys. The Customer will owe € 25 per lost key.
3.3. If the Customer takes an E-bike into use, this will be taken as proof that it is functioning properly and that it is free from defects.
3.4. QonQer is entitled, in consultation with the Customer, to take back the E-bike at any time and to replace it with a comparable E-bike.
3.5. The E-bike remains the property of QonQer.
3.6. When offering the Lease, QonQer will indicate a minimum and maximum value of the E-bike for purchase at the end of the Agreement. At the end of the Agreement, QonQer will make a definitive offer for the Customer for purchase of the E-bike made available under this Agreement at a price not exceeding the maximum stated by QonQer. If the Customer accepts this offer, this Agreement will end after QonQer has received the outstanding amounts. QonQer and the Customer will conclude a new agreement for the purchase of the E-bike.

4. MAINTENANCE, REPAIR AND OVERHAUL
4.1. The Customer will take the E-bike to the Store for maintenance at his/her own expense as indicated by QonQer. This obligation applies and will continue to apply for the duration of the Lease, even if there is a greater distance between the Customer and the Store due to relocation of the Customer or due to the closure/relocation of a Store.
4.2. The Customer will have minor maintenance work carried out at his/her own expense so that the E-bike is always in a roadworthy condition, including: (i) checking the tyre pressure regularly and adding air if necessary and (ii) keeping the movable parts in good working order and, if necessary, oiling and lubricating them. During the term of the Lease, the Customer will also be responsible, at his/her own expense, for maintenance and repairs of the E-bike insofar as these are the result of wear and tear during normal use. If desired, the Customer can take out a maintenance subscription, see Article 5.
4.3. The Customer is not permitted to carry out or have carried out any repairs or adjustments to the E-bike other than the work described in Article 4.2, unless QonQer has given its express written approval.
4.4. The Customer is responsible for timely notification of any defects and/or damage to the E-bike. If the Customer has doubts about the safety of the E-bike, the Customer should immediately contact QonQer.
4.5. QonQer is entitled to repair or have repaired damage to the E-bike at the expense of the Customer caused by circumstances that can be attributed to the Customer.
4.6. Subject to availability, the Customer will be able to make use of a loan bicycle during repairs and maintenance to the E-bike carried out by QonQer, if these take longer than 14 days.

5. SERVICE
5.1. If available in the region where the Customer lives, the Customer can take out a maintenance subscription for the E-bike.
5.2. The Customer may take out this maintenance subscription either when concluding the Agreement or at a later date. The maintenance subscription specifies the activities covered by the subscription, the annual costs and the Store to which the Customer can take the E-bike for maintenance. The Customer will take the E-bike to the Store for maintenance at his/her own expense. The Customer can also order the product RETURN TO SENDER via the website, in which case QonQer will arrange transport to and from a Store.
5.3. The maintenance subscription is automatically renewed, unless the Customer has terminated the subscription by email, with a month’s notice.
5.4. The Customer irrevocably authorises QonQer – or in the event of a transfer of the claim as referred to in Article 12.6, the party that has taken over the claim – by means of a SEPA authorisation, to collect all amounts due for the maintenance subscription at the expense of the Customer.

6. LEASE AND THIRD PARTIES
6.1. The Lease is strictly personal and the E-bike may only be used by the Customer, or if the Customer is a business customer, by the Third Party for whose benefit the Lease was concluded. The Third Party must have legal capacity and be of age. Minors may become Third Parties only with the consent of their parent or guardian.
6.2. If a Customer has taken out the Lease for the benefit of a Third Party, the Customer must ensure that the Third Party complies with all obligations under the Agreement and these General Terms and Conditions relating to normal use, maintenance and notification of changes, theft and the like. These include at least the maintenance obligations in Article 4, the general obligations in Article 7, the (notification) obligations in Article 8, the provisions regarding duration and termination in Article 9, and liability in Article 13. The Customer is liable for any damage suffered by QonQer as a result of the Third Party’s failure to fulfil his or her obligations.

7. GENERAL OBLIGATIONS OF CUSTOMER AND PENALTY
7.1. In addition to the other obligations under the law, these General Terms and Conditions and/or the Agreement, the Customer is obliged to:
7.1.1. behave with due care and to treat the E-bike carefully, taking into account the manual provided by QonQer and the locally applicable traffic laws and regulations;
7.1.2. always lock the E-bike and battery, with at least the ring lock and battery lock that belong to the E-bike; and
7.1.3. contact QonQer immediately if the E-bike shows an error message.
7.2. In addition to the other obligations under the law, these General Terms and Conditions and/or the Agreement, the Customer is not permitted to:
7.2.1. make changes to the E-bike that cannot be undone without damage to the E-bike. Bicycle seats and other accessories are allowed if they can be removed without damaging the E-bike;
7.2.2. use the E-bike for commercial purposes (such as (sub)letting and use for courier or (food) delivery services), cycling sports competitions, or tests;
7.2.3. ride the E-bike under the influence of alcohol or drugs;
7.2.4. use the E-bike for stunts;
7.2.5. exceed the maximum weight of the E-bike as specified by the manufacturer;
7.2.6. manipulate, decompile, reverse engineer or disassemble the electronics and/or software of the E-bike in any way, or to use them in any way for data collection;
7.2.7. park the E-bike in a place where this is not permitted;
7.2.8. create a security right on the E-bike; or
7.2.9. make or have made copies of the keys of the locks belonging to the E-bike.
7.3. If the Customer does not comply with the obligations set out in Article 7.2, the Customer will immediately and without prior notice of default be liable to pay a penalty of € 150 per event. If the event continues, this amount will be increased by € 50 per day that the event continues, up to a maximum of the value of the E-bike. This penalty is without prejudice to other rights of action available to QonQer, such as rights to damages, rescission, suspension and termination of the Agreement.

8. THEFT, MISAPPROPRIATION, LOSS, WRITE-OFF
8.1. In the event of theft, misappropriation, loss, damage or write-off of the E-bike, the Customer is obliged to report this to QonQer by email immediately, but no later than within 24 hours after discovery. In the event of theft, misappropriation or loss, the Customer is also obliged to report this to the police in the same period.
8.2. After receipt of the police report and all original keys delivered with the E-bike, QonQer will replace the E-bike with one that is as similar as possible, unless one or more of the situations referred to in Article 8.5 have occurred.
8.3. If the E-bike is damaged to such an extent that the repair costs exceed the value of the E-bike, the E-bike will be considered a write-off. In the event of a write-off, QonQer will replace the E-bike with one that is as similar as possible, unless one or more of the situations referred to in Article 8.5 have occurred. The Customer must return the E-bike to QonQer at his/her own expense.
8.4. For each time that a case as described in Article 8.2 and/or 8.3 occurs, the Customer will owe QonQer an excess amount of € 300.
8.5. The Customer will owe QonQer reasonable compensation for any loss or loss of profit by QonQer (at least equal to the value of the E-bike as stated in the Agreement) in the event that one or more of the following situations applies:
8.5.1. the theft, misappropriation, loss, damage and/or write-off is the result of the Customer’s own fault, deliberate action and/or wilful recklessness. This will in any event be the case if the Customer has not or not sufficiently locked the E-bike, or has not otherwise sufficiently protected the E-bike against theft, misappropriation or loss, or if the damage and/or write-off is the result of improper use of the E-bike (e.g. use of the E-bike contrary to these General Terms and Conditions); or
8.5.2. the Customer cannot present the original keys of the E-bike and/or the police report to a Store after (alleged) theft, misappropriation or loss of the E-bike.
8.6. In the event of theft, misappropriation, loss of or damage to the E-bike, the Customer is obliged to report this to QonQer by email immediately, but no later than within 24 hours after discovery. In the event of theft, misappropriation or loss, the Customer is also obliged to report this to the police within the same period.
8.7. For each time that a case as described in Article 8.6 occurs, the Customer will owe QonQer an excess amount of € 200.
8.8. QonQer will replace the battery after payment of the excess as described in Article 8.7 and if (i) signs of force show that the battery had been locked, and (ii) the Customer submits the police report to QonQer. Failing this, the Customer will owe QonQer € 400 compensation for a battery of 418 Wh (or lower than 418 wh) and € 500 for a battery of 504 Wh (and higher). The same applies in the event of damage to the battery which is the result of the Customer’s own fault, deliberate action and/or wilful recklessness. After payment of the compensation, QonQer will replace the battery.

9. DURATION AND TERMINATION
9.1. The Lease is entered into for a period of three years.
9.2. The Customer may terminate the Lease subject to a one-month notice period. The Customer will then owe 60% of the remaining Monthly Amounts, unless the Customer terminates the Lease following a price increase which involves a price increase to a level higher than the price stipulated when the Agreement was concluded, as described in Article 11.2.
9.3. If the Customer wishes to take out another Lease after termination, this Lease will be concluded in accordance with Article 2. This means that the Customer will again owe a Deposit.
9.4. QonQer may terminate the Lease at any time with immediate effect and without prior notice to the Customer if:
9.4.1. the situations referred to in Article 12.4 or 12.5 (last sentence) occur;
9.4.2. the Customer is a legal entity which or an entrepreneur who, at the time of signing the Agreement, was acting in the exercise of his/her independent professional or business activity and there is a suspension of payments, bankruptcy, liquidation and/or dissolution, or the statutory debt rescheduling arrangement is declared applicable to him/her, or the control over the legal entity changes;
9.4.3. the Customer provided incorrect details at the start of or during the term of the Lease;
9.4.4. fraud has been committed or QonQer has reasonable indications to assume that fraud has been committed;
9.4.5. the Customer refuses to present the E-bike to a Store for maintenance or repair or otherwise makes it difficult for maintenance or repairs to be carried out;
9.4.6. a situation described in Article 8.5 occurs;
9.4.7. the Customer is in default of payment of the compensation referred to in Article 8.5;
9.4.8. there is a second case of theft, misappropriation, loss and/or write-off;
9.4.9. the Customer imputably fails to fulfil the provisions of the Agreement or these General Terms and Conditions and fails to remedy the consequences of such failure(s) without delay;
9.4.10. any of the circumstances mentioned in Article 7.2 occurs.
9.5. If QonQer terminates the Lease on the basis of one or more of the grounds stated in Article 9.4, the Customer must immediately return the E-bike at his/her own expense to a Store as described in Article 10.

10. RETURN OF E-BIKE ON TERMINATION
10.1. If the Customer and QonQer have concluded an agreement for the purchase of the E-bike before the day on which the Agreement is terminated or ends (the ‘End Date’) and the Customer has paid all fees, the Customer does not have to return the E-bike.
10.2. The following applies in other cases.
10.3. After termination of the Agreement, the Customer will return to QonQer at his/her own expense the E-bike, including the battery, the ring lock and all the keys delivered with the E-bike in the same condition as they were made available to the Customer, after removal of any additions or changes made by the Customer.
10.4. The Customer will return the E-Bike no later than on the End Date. If the E-bike has not been handed over to QonQer on the End Date, the Customer will owe a penalty of € 5 per day until the E-bike is handed over to QonQer.
10.5. If the Customer has not returned the E-bike to QonQer by the seventh day after the End Date, QonQer will report it to the police as stolen. The Customer will owe QonQer the value of the E-bike, as described in the Agreement. QonQer is entitled to take possession of the E-bike or have it repossessed at the Customer’s expense. The Customer will continue to owe the Monthly Amounts until the E-bike is returned to QonQer’s possession. This will not affect any other rights of QonQer to compensation or otherwise.
10.6. The period of seven days referred to in Article 10.5 will not apply in the case of Article 9.5, in which case the consequences referred to in Article 10.5 will apply immediately.

11. PRICE AND PRICE INCREASE
11.1. The Client will owe a Monthly Amount for the Lease. The level of the Monthly Amount is stated in the Agreement with the Customer.
11.2. QonQer may reasonably increase the price in the interim, for example if suppliers or insurers of QonQer increase their prices, or if taxes or other government levies increase. The price increase will not take effect until QonQer has notified the Customer by email of the price increase and the time at which it will take effect. If the Customer is a Consumer, the following applies: the price increase will be announced more than one month in advance, so that the Customer can terminate the Agreement if the final price is more than 5.01% higher than the price stipulated when concluding the Agreement. This maximum percentage will not apply if the price increase is lawful (e.g. due to an increase in the applicable VAT rate) or if the price increase is in line with the CBS (Statistics Netherlands) consumer price index. If QonQer increases the price within three months of entering into the Lease, the Customer will be entitled to terminate the Agreement immediately.
11.3. The first Monthly Amount owed will be due and payable from the day the E-bike is received by the Customer. The Monthly Amount will be debited monthly in advance by QonQer or a third party designated by QonQer.
11.4. The Monthly Amount is also owed during the time that the Customer does not have access to the E-bike due to maintenance, repairs, theft, misappropriation, loss and/or write-off.

12. PAYMENT AND ARREARS
12.1. The Customer irrevocably authorises QonQer, or in the event of a transfer of the claim as referred to in Article 12.6, the party that has taken over the claim, to collect all amounts due and payable under this Agreement and/or these General Terms and Conditions at the expense of the Customer by means of the payment method specified at registration.
12.2. The first due and payable Monthly Amount will be debited just before or just after the E-bike is received by the Customer.
12.3. If a debit is unsuccessful, the Customer will immediately owe QonQer € 25. The Customer will remain liable for payments which QonQer has been unable to collect.
12.4. If (i) QonQer has made two unsuccessful attempts to debit the Monthly Amount, and (ii) QonQer has sent the Customer a payment reminder, and (iii) the Customer fails to pay the amount due within 14 days after payment should have been made, QonQer will be entitled to terminate the Agreement with immediate effect in accordance with Article 9.4.
12.5. In derogation from the above, it may be agreed with business Customers that they pay by periodic invoicing. Article 12.4 will continue to apply in full.
12.6. QonQer reserves the right to transfer its claims against the Customer under the Agreement and/or these General Terms and Conditions to a third party.

13. LIABILITY
13.1. The use of the E-bike is at the Customer’s own risk. QonQer is not liable for any damage suffered by the Customer as a result of the use of the E-bike.
13.2. QonQer is not liable for any damage suffered by the Customer as a result of a defect in the E-bike, except in the case of intent or deliberate recklessness on the part of QonQer. Under no circumstances will the obligation to pay compensation exceed the value of the E-bike at the time the Agreement was concluded.

14. PRIVACY
14.1. QonQer may store and process personal and other data of the Customer and make offers and personalised offers to the Customer on the basis of the personal and other data known to it.

15. RIGHT OF WITHDRAWAL FOR INTERNET ORDERS
15.1. If the Customer is a Consumer and the Lease has been concluded via email or the Website, the Customer has the right to withdraw from the Agreement and consequently the Lease without giving reasons within 14 days in accordance with this Article 15.
15.2. The period of 14 days starts on the day after QonQer has received the documents referred to in Article 2.2.4.1.
15.3. In order to make use of the right of withdrawal, the Customer must inform QonQer unequivocally of his/her wish to withdraw from the Agreement and therefore from the Lease. If the Customer wishes to do so, he/she can use the withdrawal form that was made available to the Customer when the Agreement was concluded and/or that can be found on the Website.
15.4. If the Customer cancels the Agreement, the Customer will receive the Deposit back from QonQer. QonQer will refund the Deposit within 14 days after the Customer has notified QonQer of the withdrawal. Payment will be made by the same means with which the Customer made the original transaction, unless the Customer has expressly agreed to a different method of payment.
15.5. If the Customer has already received the E-bike at the time of withdrawal, the Customer will return the E-bike to QonQer at his/her own expense and within 14 days.
15.6. If the Customer has used the E-bike during the withdrawal period, the Customer will pay to QonQer an amount equal to the Monthly Amount. QonQer may set off this amount against any amount it owes to the Customer.

16. FINAL PROVISIONS
16.1. QonQer reserves the right to make reasonable changes to these General Terms and Conditions. QonQer will inform the Customer at least 30 days before any change to these General Terms and Conditions becomes applicable to the Customer. If the Customer is a Consumer, changes are in any case deemed reasonable if they are the result of changes in legislation, case law or changed market conditions.
16.2. Unless otherwise stated, all notifications that the Customer wishes to make or must make to QonQer under these General Terms and Conditions can be made in writing, by telephone or by email using the contact details stated in the preamble under 1.1.12 and on the Website. This also applies to any complaints.
16.3. If one or more provisions of these General Terms and Conditions are found to be invalid, unlawful, unreasonably onerous or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected.
16.4. Sections 207, 208, 210 and 216 (2) and (3) of Book 7 of the Dutch Civil Code do not apply insofar as the Customer is not a Consumer. For Sections 207 and 208 this applies only insofar as it concerns defects which QonQer did not know or should not have known at the time the Agreement was concluded.
16.5. The Customer consents to information about the Agreement and/or the General Terms and Conditions being sent only in electronic form, for example by email to the email address used for registration.
16.6. In the event of force majeure, QonQer is not obliged to fulfil any obligation from the Lease, under the Agreement and/or the General Terms and Conditions. A force majeure situation is deemed to exist, among other things, if QonQer cannot fulfil its obligations due to a pandemic, fire, water damage, frost, flooding, strikes, government measures and/or changes to applicable laws or regulations.
16.7. This Lease, the Agreement and these General Terms and Conditions are governed exclusively by Dutch law. Applicability of the United Nations Convention on Contracts for the International Sale of Goods, Vienna, 11.04.1980 (Vienna Sales Convention) is excluded.
16.8. All disputes that may arise in connection with the Lease, the Agreement and/or the General Terms and Conditions, or any other legal relationship arising therefrom between QonQer and the Customer, will be settled by the competent court of the Amsterdam District Court.
16.9. Insofar as QonQer must incur extrajudicial collection costs, these will be estimated at 15% of the principal sum, unless the Customer is a Consumer, in which case these will be calculated on the basis of the Extrajudicial Collection Costs (Standards) Act and the accompanying Decree.
16.10. Rights of the Customer arising from the Lease, the Agreement or these General Terms and Conditions cannot be transferred without the prior written permission from QonQer. This provision will be deemed to be a clause having effect under property law as referred to in Section 83(2) of Book 3 of the Dutch Civil Code.

Version 8 February 2021

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