Terms & condition
1. General provisions
1.1 These Terms of Service (hereinafter also referred to as “TOS”) apply to the relationship between MAHLE Smartbike Systems SLU, Orfebres 10, Palencia, 34004 Spain, tax identification number B 34273367, registered at the Commercial Register of Palencia volume 492, page 131, sheet number 7461, e-mail firstname.lastname@example.org (hereinafter referred to as “Provider” or “we”) and the user (“User” or “you”) and regulate the access and use of the Services as defined in section 5 below (hereinafter referred to as “Services”) accessible through the User Dashboard under https://my-smartbike.com/user/login or via the mobile App “My SmartBike” (hereinafter jointly referred to as “Platform”) offered by the Provider.
1.2 The access to the Services listed below requires the registration of the User in the terms described below, and the prior acceptance of these TOS.
1.3 The contractual partner of the Provider is the User named during registration with the Provider according to section 2 below.
1.4 The User declares that he/she has the capacity to conclude contracts. If you are a minor, you will need authorisation from your parents or guardians.
1.5 We are entitled to change and review these TOS at any time by posting any changes on the Platform. In this case we will announce the changes or revisions have been made to the User via email. The changes shall be deemed to be agreed upon if the User does not object in writing to the changes within six weeks after receipt of the announcement. In the announcement we will separately explain this deadline and the legal consequences of a possible objection.
1.6 Deviating or conflicting general terms and conditions of the Users do not become part of the user agreement, unless the Provider expressly agrees to their validity.
2. Services and Registration
2.1 Via the Platform the Provider offers the possibility to store, evaluate and analyse the ebike and user data provided by the User. To use all the functionalities of the Platform, the User will have to link his/her ebike to the mobile App “My SmartBike”.
2.2 The presentation of the Platform does not constitute a binding offer by the Provider for use of the Platform by the User. Rather, the User is given the opportunity to submit an offer for the conclusion of the Platform usage agreement.
2.3 The User must provide true and current information of his/her personal data, address and any other information that may be required as part of the registration process and/or continued use of the Platform. The User is responsible for maintaining the confidentiality of his/her password and account information, and is responsible for all activities that occur in connection therewith. The Provider cannot and will not be liable for any loss or damage from the User’s failure to maintain the security of his/her account and password.
2.4 The User submits the offer to use the Platform by completing the registration process. The User is obliged to provide the information requested by the Provider in the registration process and represents and warrants that all information provided to the Provider is accurate and current. Incomplete or false information entitles the Provider to refuse or withdraw the right to use the platform.
2.5 After complete registration, the User will receive a confirmation from the Provider immediately to the email address provided by him/her. With this confirmation the Provider and the User conclude a user agreement based on these TOS.
3. Access to the Platform
3.1 The Provider provides the User with password-protected access to the Platform.
3.2 The access data consists of the email address provided by the User during registration and an individual user password.
3.3 The right of access is limited to the registered User. The scope of permissible use is governed by clause 6 (“Rights of Use”) of this Agreement.
3.4 The User ensures the Provider that the access data is kept secret. Furthermore, the user undertakes to inform the Provider immediately if there is any suspicion of misuse of the access data.
3.5 The Provider reserves the right to deny access to the Platform if there are indications that the end devices used by the User or the manner of use endanger the functionality and security of the Platform.
4. Required hardware and software
4.1 The User himself/herself is responsible for creating and maintaining the technical requirements necessary for the collection of ebike data or the use of the Platform. In particular, the User must ensure that his ebike is connected to the mobile App “My SmartBike”.
4.2 The Provider endeavours to keep the Platform up to date at all times in order to provide the User with the best possible user experience. For this reason, the Platform is constantly being further developed technically. It is the User’s responsibility to adapt his/her end devices and software to this technical development. If such a further development of the Platform leads to a not only insignificant impairment for the User, he/she is entitled to terminate the user agreement without notice within six weeks after the further development goes live (special right of termination).
4.3 When using the Platform access, the User is obliged to always use appropriate up-to-date software to defend against computer viruses and other malware.
5. Scope of services and availability
5.1 The scope of services and their limitations are set out in the product description, which can be accessed here https://my-smartbike.com/en/onboarding. This is a description of the nature of the product, which is not associated with a representation or warranty of characteristics; the same applies to descriptions in the Provider’s advertising material and similar documents.
5.2 The Provider aims to achieve an availability of the Platform of not less than 90% per month. This availability does not include periods of non-availability due to maintenance work that is appropriate in terms of its duration, planned and announced in advance. Also not covered are periods of non-availability due to mandatory unscheduled maintenance work, unless this is based on an intentional or grossly negligent breach of duty by the Provider or on a breach of cardinal obligations. Not included are also times of unavailability due to internet disruptions that cannot be influenced by the Provider or due to other circumstances for which the Provider is not responsible, in particular due to force majeure.
5.3 The Provider endeavours to keep the content of the Platform always up to date. However, completeness and accuracy of content cannot be guaranteed.
6. Rights to use the Platform and the Data
6.1 Upon conclusion of the user agreement, the User acquires a non-exclusive right to use the Platform in accordance with these TOS limited to use for his own purposes, non-transferable and non-sublicensable. The right of use permits read access to the Platform, furthermore research on the Platform and individual downloading of his/her own data.
6.2 Any use beyond the scope of Section 6.1 is not permitted and requires the prior written consent of the Provider.
6.3 The Provider is entitled to take technical measures to ensure that the use does not exceed his/her rights as set out in clause 6.1. In the event of misuse of the Platform by the User, the Provider is entitled to block access, without prejudice to further claims. Misuse shall be deemed to exist in particular in the event that the User uses automated search programs on the Platform. Further rights of the Provider, such as the right to extraordinary termination and claims for damages, remain unaffected.
7. Data Protection
8.1 In the event that the Platform has technical defects, the Provider shall rectify these within a reasonable period of time. The Provider is only responsible for the possibility of retrieving contents of the Platform from the Internet, but not for the data transfer to the User or the display on the User’s end device.
8.2 The Provider shall not be liable for any damages that may arise from interferences, omissions, interruptions, computer viruses, breakdowns and/or disconnections in the operational functioning of the electronic system or in the User’s devices, caused by reasons beyond the Provider’s control, which prevent or delay the use of the Platform, nor for delays or blockages in use caused by deficiencies or overloads in the Internet system or in other electronic systems, nor for the impossibility of providing the service or allowing access for reasons beyond the Provider’s control and due to Users, third parties, failures in the computer systems of our partners and suppliers or force majeure.
8.3 The Provider does not control, in general, the use that users make of the Platform. In particular, under no circumstances does the Provider ensure that users use the Platform in accordance with the Law, these TOS, accepted uses and customs and public order. Consequently, the Provider shall not be held responsible for the use that users make of the content that may involve a violation of any law, intellectual property rights or any other third party rights.
8.4 To the extent permitted by law, the Provider is exclusively liable according to the following clauses 8.3 to 8.5, and any further liability of the Provider, its officers, directors, employees, representatives or other persons involved in the creation, sponsorship, promotion or making available of the Platform is excluded.
8.5 The Provider is liable without limitation for damages due to injury to life, body or health as well as for damages based on intent or gross negligence of the Provider or a legal representative or vicarious agent, as well as for damages covered by a guarantee or warranted characteristic provided by the Provider and for fraudulently concealed defects.
8.6 The Provider is liable for damages resulting from a negligent violation of essential contractual obligations by the Provider or his legal representatives or vicarious agents; however, liability is limited to the replacement of the contract-typical foreseeable damage for such damages.
8.7 The liability according to the product liability act remains unaffected.
9. Start, duration and termination of the user agreement
9.1 The term of the user agreement begins with the confirmation of the registration by the User (see number 2.4 above) and is concluded for an unlimited time.
9.2 The User may terminate his/her use of the Platform and/or terminate the Services, with or without cause at any time by notifying the Provider in writing, via email or by correspondence.
9.3 The Provider may at any time and for any reason terminate the Services, terminate the user agreement, or suspend or terminate the User’s account.
10. Intellectual property
The contents of the Platform, including, among others, the images and texts, whatever their format, programming language and form of representation, are the property of the Provider, or it has acquired the corresponding rights from their owners, and are protected by the laws on Intellectual Property. Pursuant to the provisions of articles 8 and 32.1, second paragraph, of the Spanish Intellectual Property Law, it is expressly prohibited to copy, reproduce, sell, transmit, distribute, republish, modify or display the contents for commercial use without the prior consent of the Provider. The User undertakes to respect the Intellectual Property rights owned by the Provider.
11. Final provisions
11.1 Should any provision of these TOS or become invalid, this shall not affect the validity of the remaining provisions.
11.2 The Platform originates from Palencia, Spain. These TOS will be governed by the Laws of Spain without regard to its conflict of law principles to the contrary. Neither the User nor the Provider will commence or prosecute any suit, proceeding or claim to enforce the provisions of these TOS, to recover damages for breach of or default of these TOS, or otherwise arising under or by reason of the TOS or the user agreement, at other than in courts located in Palencia (Spain). By using the Platform, the User consent to the jurisdiction and venue of such courts in connection with any action, suit, proceeding or claim arising under or by reason of these TOS or the user agreement.
However, if the User is a consumer habitually resident in the European Union, the User will also be protected by any mandatory provisions of the law of his/her country of residence. In such case the parties agree to submit to the non-exclusive jurisdiction of Palencia (Spain), to the extent that the User may assert his/her rights as a consumer in relation to these TOS both in Palencia and in his/her Member State of residence in the European Union.
Status of the TOS: 1st April 2022