GENERAL TERMS AND CONDITIONS.

 

These General Terms and Conditions serve to regulate the business relationship between ViveLaCar Swiss AG, with its registered office in Hünenberg ("ViveLaCar"), and Subscribers. These General Terms and Conditions apply to all contracts concerning the booking of subscription offers that are made between ViveLaCar and Subscribers via the website www.vivelacar.ch or www.bmw-abo.ch or www.mini-abo.ch as well as via mobile applications, for example, the ViveLaCar app.

 

1. Subject matter

The subject matter of bookings of subscription offers is the mobility solution offered by ViveLaCar, which enables the Subscriber to use a vehicle as part of a mobility package for a flat monthly and mileage fee for a minimum period of 3 months and a maximum period of 24 months ("Car Subscription"). In addition to use of the vehicle, this all-inclusive monthly fee, as a flat fee, also includes the costs for registration with the brand authorised dealer ("ViveLaCar-Partner"), payment of the annual premium for liability insurance, partial coverage insurance and comprehensive insurance, the motor vehicle tax, the road tax disc, the seasonal tyres, maintenance and wear-and-tear repairs, and inspections according to the conditions below.

 

2. Booking and conclusion of contract

2.1 Car Subscriptions are booked online via the ViveLaCar website www.vivelacar.ch, or www.bmw-abo.ch, or www.mini-abo.ch. "The prerequisites for concluding a subscription are:

  • A positive credit check by ViveLaCar
  • Swiss driving licence
  • Copy of identity card (both sides)
  • For foreigners: copy of the residence permit B/C (both sides). A B permit must be valid for at least one month beyond the intended duration of the subscription.
  • Receipt of payment of the security deposit for the subscription

2.2 ViveLaCar may also make a subscription dependent on the existence of a clear criminal record. Even during the subscription period, ViveLaCar reserves the right to request an extract from the criminal records register from the Subscriber at any time and to terminate the contract extraordinarily for cause if this extract is not sent to ViveLaCar or is not clear.

The Subscriber initially has the option of enquiring about individual Car Subscriptions on the website, from the ViveLaCar-Partner or in the app without obligation.

2.3 If the Subscriber presses the "x" button on the website mentioned above in section 2.1., this shall represent a legally binding request to which the Subscriber is bound for 30 days. This period begins on the day of submitting the request (pressing the "x" button). If the Subscriber cancels his request within this period, he must pay ViveLaCar the initial flat-rate fee (see section 11.1 below). In this case, the costs for the starter package shall be due immediately upon cancellation. In the event of a cancellation after taking over the subscription vehicle, ViveLaCar will invoice for the monthly subscription costs for the entire term of the Car Subscription, as if the request had not been cancelled (see section 11.2 below).

2.4 The confirmation of receipt of the booking request sent to the Subscriber after the Subscriber has relayed his booking request does not yet constitute accepted of the request by ViveLaCar. ViveLaCar reserves the right to reject conclusion of a contract or the corresponding offer in the event of a negative credit check, without the need to provide further justification.

The request shall only be accepted (see section 2.4 above), and, therefore, a legally binding purchase contract only comes into being, when the vehicle is handed over from the dealer to the Subscriber and the Subscriber has signed the handover report after picking the vehicle up. If no contract is concluded because the vehicle cannot be handed over to the Subscriber, ViveLaCar will endeavour to obtain a replacement accordingly.

 

3. Subscribers, authorised drivers, authorised third parties

3.1 Subscribers may be private and corporate Subscribers who have their place of residence or registered office, respectively, in Switzerland. The vehicle may only be driven by the Subscriber and, additionally, by the drivers specified in the booking agreement in question, who must be named before the contract is concluded ("Authorised Drivers"). In the case of company Subscribers, the vehicle may only be driven by the natural persons specified as Authorised Drivers.

3.2 The Subscriber (if a natural person) and Authorised Drivers may hand the vehicle over, for individual journeys, to their respective relatives of the first degree (parents, children) and the spouse or non-marital common-law spouse of the Authorised Driver, if and insofar as these persons have the same place of residence (registered address) as the Subscriber or the Authorised Driver ("Authorised Third Parties"). The Subscriber must ensure that the obligations arising from the Car Subscription, including these General Terms and Conditions, are also observed by the Authorised Drivers and Authorised Third Parties. Upon request, the group of Authorised Drivers can be expanded at any time, provided that ViveLaCar has given its consent in text form.

3.3 Authorised Drivers must be in possession of a driver's licence of the kind required to drive the vehicle that is valid in Switzerland and which they have held for at least 2 years, without any interruptions, and must meet all the conditions and requirements contained therein. In the case of vehicles with an engine output of more than 250kW, all Authorised Drivers and Authorised Third Parties must be at least 30 years of age and in possession of a valid driving licence that they have held continuously for at least five years. In the case of vehicles in the M-Class, all Authorised Drivers and Authorised Third Parties must be at least 30 years of age and in possession of a valid driving licence that they have held continuously for at least five years.

3.4 ViveLaCar is entitled at any time during the term of the Car Subscription to electronically check the the driving licence of the Subscriber, insofar as he is a natural person, i.e., to request a current copy of the valid driver's licence, which the Subscriber is obliged to send immediately.

3.5 Subscribers must independently check before the start of every journey whether the relevant Authorised Driver or Authorised Third Party is fit to drive, is in possession of a driver's licence that is valid in the territory of Switzerland, and fulfils the requirement under section 3.3; the same applies mutatis mutandis for an Authorised Driver who hands over the vehicle to an Authorised third party. In addition, the Subscriber must ensure that ViveLaCar is able to be informed at any time about who, as Authorised Driver, has used the vehicle at what time.

3.6 ViveLaCar reserves the right to make the handover of the vehicle dependent on it being sent a current driver's licence and a copy of the identity card (or foreigner's ID/copy of a passport) of Authorised Drivers. Should an Authorised Driver or Authorised Third Party not satisfy the personal requirements under section 3 of these General Terms and Conditions, this shall not effect the contractual obligations of the Subscriber, in particular, the payment of the monthly fee plus the minimum kilometres. In other respects, the obligation to pay the monthly fee plus the minimum kilometres shall also persist if the Subscriber no longer fulfils the requirements under section 3.3 after conclusion of the contract. This shall automatically trigger the notice period (see section 15).

The Subscriber and every Authorised Driver undertake to notify ViveLaCar immediately of the loss of their driving licence, a driving ban or the seizure or confiscation of their driving Licence and to strictly refrain from driving the vehicle during this time.

3.7 The Subscriber must ensure that the obligations arising from these General Terms and Conditions, are also observed by the Authorised Drivers and Authorised Third Parties. Subject to the motor vehicle insurance protection in existence after the booking, which also exists for the benefit of Authorised Drivers and Authorised Third Parties, the Subscriber shall be liable for Authorised Drivers and Authorised Third Parties in the same way as for his own culpability, i.e., he must be responsible for their culpable behaviour.

3.8 The Subscriber is obliged to provide immediate notification of any changes to his details (name or company name, address, bank details), any change of employer or any significant deterioration in his income, and to provide information at any time upon request about Authorised Third Parties who drive or have driven the vehicle.

 

4. Services included in the Car Subscription

4.1 The selected vehicle is made available to the Subscriber for use in return for a monthly flat-rate fee plus kilometre costs. The registration costs, the motor vehicle insurance for liability insurance, partial coverage insurance and comprehensive insurance, the motor vehicle tax, the road tax disc and the costs for maintenance and wear-and-tear repairs and inspections, including the accident prevention regulation (UVV) inspection for company Subscribers, are included in the total monthly costs.

The selected vehicle is registered at the registered office of the ViveLaCar-Partner. The Subscriber shall receive the vehicle registration certificate before the vehicle is leased, but at the latest when the vehicle is handed over.

ViveLaCar will assume the costs for the motor vehicle inspection (MFK) as well as all maintenance and wear-and-tear work required during the term of the subscription in accordance with the agreed kilometrage and in line with the service intervals of the relevant manufacturer.

4.2 ViveLaCar shall also ensure year-round tyres and wear-and-tear related tyre changes. ViveLaCar is responsible for selecting the size, make and material of the tyres and rims.

The subscription offer does not include the consumption of any kind of operating fluids (e.g., fuels, AdBlue, windscreen washer fluid, motor oil). These costs must be borne by the Subscriber, and necessary operating fluids must be filled up according to the operating instructions of the vehicle; the liability of the Subscriber for incorrect operation remains unaffected.

4.3 ViveLaCar takes out partial coverage insurance and comprehensive insurance for the vehicle, with an excess, on behalf of the Subscriber, which includes the Subscriber, the Authorised Drivers and Authorised Third Parties as insured persons. The general conditions for the motor vehicle insurance of the insurer apply, which are made available to the Subscriber before the booking is concluded and stored in the customer login area. The excess in the event of damage under comprehensive insurance is CHF 1000, in the event of parking damage is CHF 300, and in the event of damage under partial coverage insurance is CHF 500, with the km packages S, M, L, XL, XXL.

4.4 The Subscriber shall receive an insurance certificate, which dictates that if a Car Subscription come into effect, the Subscriber will simultaneously become the insured person under a group insurance contract concluded between ViveLaCar and the insurer. The rights and obligations of the Subscriber under the insurance contract are dictated by the insurance certificate and the insurance conditions, which can be read before or at the time of successfully booking a subscription in the separate insurance certificate and the insurance conditions.

According to the principles of comprehensive and partial coverage insurance, no insurance cover is provided, in particular, for damage that the Subscriber, the Authorised Driver or Authorised Third Party has caused intentionally ("Loss of Insurance"). In the event of damage caused by the named persons as a result of gross negligence, the insurance benefit will be reduced, in accordance with the principles of comprehensive and partial coverage insurance, in a proportion that is commensurate with the severity of fault on the Subscriber's part.

If the aforementioned Loss of Insurance or the reduction in the comprehensive and partial coverage insurance benefit is due to the behaviour of an Authorised Driver or an Authorised Third Party, the Subscriber shall be liable for that lack of coverage.

The Car Subscription vehicle has motor vehicle liability insurance that corresponds to the requirements of the Federal Law on Insurance Contracts (VVG) and the requirements of the Road Traffic Act (SVG) and the Traffic Insurance Ordinance (VVV). The sum insured under this is CHF 100 million for personal injury, property damage and financial losses. The amount insured for personal injury is a maximum of CHF 15 million per injured person.

For each case of damage, the Subscriber is entitled to claim on the liability insurance (e.g., damage to a third-party vehicle), the partial coverage insurance (e.g., in the event of stone chips or glass breakage) and the comprehensive insurance (e.g., accident damage for which the Subscriber himself is at fault, vandalism, trivial damage while parked or when parking). For each case of damage, the Subscriber is obliged to pay the excess for the partial coverage or comprehensive insurance specified in the Car Subscription and must follow the damage reporting and claim settlement procedure described in section 10 of the General Terms and Conditions in each case of damage.

In the event of levels of damage that do not exceed the relevant excesses of the partial coverage or comprehensive insurance in a given individual case of damage, the Subscriber shall bear the repair costs incurred directly. The execution of the repairs, the coordination between ViveLaCar and the Subscriber, and the approval are based on section 7.8 of these General Terms and Conditions.

4.5 For every kilometre driven during the term within the maximum defined number of kilometres that may be driven per month, the exact monthly kilometrage will be billed after 4 weeks; however, the agreed minimum kilometrage will be billed at a minimum. Excess kilometres will be billed at the stated kilometre costs, kilometres not used will then be credited to the next month. A new subscription can be taken out at any time, but notification must be given. In this case, the vehicle that has already been leased is to be given back at the same time as and in return for the handover of the newly subscribed vehicle. The handover and return for the vehicles shall be based on section 6 of these General Terms and Conditions. ViveLaCar reserves the right to make the rebooking dependent on the same requirements as the original contract.

4.6 The ViveLaCar-Partner reserves the right to:

  • contact the customer during the subscription term and ask for the kilometrage on the speedometer, if necessary, together with a picture. The customer undertakes to comply with this request within a maximum of 3 days.
  • charge the customer for the excess kilometres according to the speedometer after comparing the kilometrage according to the transmitted data from the vehicle speedometer against the kilometrage reported via the tracker/dongle.

 

5. Vehicle handover, damage to the vehicle

5.1 The ViveLaCar-Partner will immediately notify the Subscriber of the availability of the booked vehicle and will arrange a handover date and a handover location. Unless otherwise stated in the booking documents, the Subscriber will pick up the vehicle at the specified handover location at his own expense on the agreed date. At the handover location, or, in the case of deliveries, at the delivery location, the Subscriber or a person authorised by him to accept the vehicle (Authorised Driver or Authorised Third Party) must present a driver's licence that is valid in Switzerland and which authorises the driver to drive the vehicle in question as well a valid identity card (or a valid foreigner's ID card for foreigners) and proof of the current address of the person collecting the vehicle.

5.2 The vehicle will be handed over to the user in a roadworthy condition with reserve filling in the tank, or, in the case of electric vehicles, at the minimum charge level, with a minimum range of 100 km. If the ViveLaCar-Partner exceeds the delivery time by more than 2 weeks for reasons for which he is responsible, the Subscriber shall have the right to extraordinary termination of the booking agreement. Any advance payments, security deposit payments and the costs of the starter package (section 11) will be hereby reimbursed to the Subscriber.

5.3 If the Subscriber or the person authorised to accept the vehicle does not accept the vehicle on the agreed handover date at the handover location or delivery location, or the vehicle cannot be handed over to the Subscriber or the person authorised by him to accept the vehicle on the agreed handover date for the reasons described above, an alternative date will be agreed for the cost of CHF 199.00, at the Subscriber's expense. For each additional replacement date, costs of CHF 250.00 will be charged to the Subscriber, unless the Subscriber is not responsible for the failure of the first handover or the failure of the relevant replacement date.

5.4 During the handover, the vehicle in question will be inspected by a competent employee of the ViveLaCar-Partner, and an obligatory handover report will be drawn up (see section 2.4 above). Any damage will be recorded in this report. The completeness of the accessories will also be recorded in the report. This report must be signed by the Subscriber or his authorised agent. If the Subscriber or his authorised agent does not agree with the findings in this report or parts thereof, this must be noted in the report.

 

6. Vehicle return

6.1 At the end of the notice period and at the end of the contract term, the ViveLaCar-Partner will arrange an appointment with the Subscriber for the vehicle to be returned at the registered office of his business or at the delivering branch. The vehicle must be returned within 5 working days of the end of the notice period/contract term. In the event of a late return, the Subscriber shall owe ViveLaCar a contractual penalty of CHF 200.00 per day, unless he can prove that he was not at fault for the delay.

Unless otherwise stipulated in the Car Subscription, the Subscriber shall bring the vehicle to the return location at the agreed appointment time at his own expense. The vehicle must be cleaned outside and inside. Damage that was not previously known about must be reported at the handover. When the vehicle is returned, the return check is carried out and a return report is signed. This must then be signed off by the Subscriber.

If the vehicle fails to be returned, an alternative date will be agreed at the Subscriber's expense of CHF 199.00. For each additional replacement date, costs of CHF 250.00 will be charged to the Subscriber, unless the Subscriber is not responsible for the failure of the first return or the failure of the relevant replacement date.

6.2 At the return, the vehicle in question and its accessories will be inspected by a competent employee of the ViveLaCar-Partner. Any defects (e.g., damage to the vehicle/accessories, missing accessories, etc.) will be recorded in a report. This report, containing the findings made, will be signed by the Subscriber or his authorised agent (see section 6.1. above). If the Subscriber or his authorised agent does not agree with the findings or parts thereof, this must be noted in the report.

If no agreement is reached as to the condition of the vehicle when the vehicle is returned, ViveLaCar shall have the right to obtain an expert opinion commissioned by ViveLaCar from an independent expert to make a final evaluation of the vehicle (see 6.5 below). This shall not affect the right to assert claims for damage or defects that cannot be identified during the vehicle return.

6.3 If, at the return or expert appraisal, the vehicle is not in a perfect, complete condition, as well as a roadworthy and operationally safe condition in line with the kilometrage under the contract (see also return check, including washed exterior and cleaned interior and, if necessary, cleaned second tyres, among other things) or if the vehicle is not returned to the ViveLaCar-Partner with all keys and provided documents (in particular, the vehicle registration certificate and service book) as well as accessories, or if the prescribed maintenance and inspections cannot be proven, the Subscriber will be obliged to compensate for the damage incurred.

6.4 The Subscriber shall not be liable for damage that is fully covered by the existing insurance (excluding the personal excess). There is no obligation to compensate for traces of use in line with the contract that are appropriate for the age and kilometrage of the vehicle, or for conditions which are documented by the handover report to have already been present at the time of the handover to the Subscriber, in other words, so-called pre-existing damage.

6.5 If no agreement is reached on the condition of the vehicle or the level of damage at the vehicle is return or other expert assessment, an independent vehicle expert selected by ViveLaCar will be commissioned to assess the scope of the defects and the level of damage or repair costs and/or the depreciation in value. If the motor vehicle expert determines that there are conditions present in the vehicle which are not in line with the contract, which cannot be attributed to traces of use or pre-existing damage already reported by the Subscriber, the Subscriber shall bear the costs of this expert assessment. If the vehicle and/or the accessories are shown not to be defective, the costs for the expert report will be borne equally by the parties. The expert report resulting from the examination by the expert shall become the basis for the damage calculation in the relevant final settlements.

 

7. Contractual use

7.1 The Subscriber undertakes to treat the vehicle with care in accordance with the operating instructions, to keep it in a roadworthy and operationally safe condition and not to use it for anything other than the contractual use, and to always properly lock the vehicle. The Subscriber undertakes to comply with the legal requirements placed on a vehicle owner.

7.2 The vehicle may, in particular, not be used:

for motorsport purposes, especially driving events where importance is placed on achieving a maximum speed, or for the transfer journeys associated with these (this includes, in particular, drives on racetracks, circuits or traffic areas which are used for such purposes as well as training drives or competitions on open terrain or in sports driver training courses), for vehicle tests or driver safety training, for the commercial transport of people or goods (e.g., use as a taxi, Uber, driving school car, for courier, express or parcel services, for patient transport, or similar), for journalistic purposes (publication of test reports and testimonials to the press or publication on the Internet, e.g., in social media, etc.), for rental, whether or not against a fee, including car sharing, for committing crimes, even if they are only threatened with punishment under the law of the state where the act was committed, for the transport of highly inflammable, toxic or other dangerous substances.

7.3 Smoking is strictly prohibited in the vehicle; in the event of non-compliance, the Subscriber will be charged an additional lump-sum cleaning fee of at least CHF 300.

7.4 The costs for fuel, usage costs (e.g., tolls), fines and penalties for traffic violations as well as the cost for cleaning and maintaining the vehicle booked in each case shall be borne by the Subscriber during the term in question of the booking. The Subscriber shall confirm by providing his signature that the vehicle will be used primarily in Switzerland. Temporary uninterrupted use abroad may not exceed 8 weeks and may only take place in the approved countries (see section 7.6. below).

7.5 Modifications of a technical or optical nature (such as the application of stickers, conversions or vehicle tuning) may not be made to the vehicle at any time and in any way without the prior written consent of ViveLaCar. Manufacturer-induced recall campaigns are excluded. If the Subscriber makes changes of this kind to the vehicle, he shall owe ViveLaCar a contractual penalty of between CHF 2,500.00 and CHF 10,000.00.

7.6 Apart from the national territory of Switzerland, the vehicle that is booked may only be operated in the following countries:

Austria, Germany, Northern Italy (down to Milan), Spain, Portugal France, Belgium, Netherlands, Denmark, Norway, Sweden, Finland, Liechtenstein, Luxembourg. Taking the vehicle to any country or territory not listed here is expressly prohibited. When traveling abroad, the Subscriber is obliged to carry all necessary documents and safety accessories, such as sufficient warning vests, in the vehicle. The Subscriber bears the full risk that arises from using the vehicle outside of Switzerland, insofar as it is not covered by the protection under motor vehicle insurance. In the event of claims abroad, the Subscriber may have to pay the costs of handling the claims.

7.7 The Subscriber undertakes to have the necessary maintenance and wear-and-tear repairs carried out during the term and within the kilometrage agreed in the booking in accordance with the service intervals of the relevant manufacturer, the costs of which shall be borne by ViveLaCar in accordance with section 4.1, and to operate the vehicle in accordance with the operating instructions. The Subscriber is obliged to immediately notify ViveLaCar of messages from the vehicle's electronics regarding maintenance, inspections, damage or malfunctions. The ViveLaCar-Partner is the workshop responsible for this.

7.8 Maintenance, repairs and workshop work on the vehicle may only be carried out at the relevant ViveLaCar-Partners within Switzerland with the prior written consent of ViveLaCar. This also applies to the installation or removal of accessory parts, maintenance and repairs within the intended maintenance and inspection intervals.

The Subscriber is liable for any damage resulting from the violation of the above provisions, in particular, later additional costs for repair and maintenance, any depreciation in value of the vehicle, and limitations to or aspects not covered by the manufacturer and/or dealer guarantee. This does not apply if damage in this regard is attributable to the fault of third parties or if the Subscriber is not responsible for the breach of duty. The burden of proof lies with the Subscriber.

7.9 In the case of black ice, slippery, hard-packed snow, slush, slippery ice or slippery frost, the vehicle may only be driven with tyres that are suitable for such weather. The vehicle is equipped with seasonal tyres (winter or summer tyres). For special use on ice and snow and driving over closed snow cover, the use of snow chains is recommended, which are to be obtained at the Subscriber's own expense. The Subscriber shall coordinate the tyre change to winter or summer wheels with the ViveLaCar-Partner, who must be notified at least 1 week before the need arises.

7.10 If the vehicle is delivered on all-weather tyres, please note that some countries have a winter tyre requirement. The Subscriber is obliged to inform himself of such requirements beforehand and bears the risk in the event of damage.

 

8. Traffic violations

8.1 The Subscriber ensures that in the event of traffic violations related to the vehicle, the necessary measures will be taken in relation to the regulatory authorities. ViveLaCar will notify the regulatory authorities of the Subscriber, indicating that the duties of keeper of the vehicle have been placed upon the Subscriber, and will also notify them of the names of the Authorised Drivers designated by the Subscriber in the booking agreement, together with the information as to who is considered to be an Authorised Third Party. The Subscriber releases ViveLaCar in full from all claims and costs in the event of traffic violations related to the vehicle for which the Subscriber, the Authorised Driver or an Authorised Third Party is responsible.

Particular attention is drawn in this context to specifics, including those of the Austrian and Swiss Road Traffic Regulations, which may lead to the criminal prosecution of organs of the authorisation holder in the event of violations and non-compliance (notice of intended prosecution).

8.2 In the event that claims are brought against the ViveLaCar-Partner, as keeper of the vehicle, for violations of the law that are committed abroad in connection with the use of the vehicle (e.g., parking violations, speed violations, etc.), the fine or penalty fee (financial penalty) may be paid and subsequently invoiced to the Subscriber. The amount is in principle collected together with the monthly statement, and is shown separately.

8.3 The processing of administrative offences or criminal proceedings by ViveLaCar will be invoiced to the customer separately at the value of CHF 20, including VAT, for each individual case.

 

9. Downtime

In the event that the Subscriber cannot use the vehicle either temporarily or permanently for reasons for which ViveLaCar is not responsible, he shall have no claims against ViveLaCar or the ViveLaCar-Partner for compensation for usage downtime and/or reimbursement of rental car costs.

 

10. Claims settlement

10.1 In accordance with the principles of comprehensive and partial coverage insurance and the motor vehicle liability insurance under the terms of Allianz, which form a part of the ViveLaCar General Terms and Conditions and are stored in the customer login area, the Subscriber is obliged to report any damage to the vehicle immediately.

10.2 In accordance with the principles of comprehensive and partial coverage insurance and the motor vehicle liability insurance under the terms of Allianz, the Subscriber must do everything that is necessary in order to clarify the insurance case and the extent of the liability to pay the claim. The Subscriber is obliged to ensure that all measures necessary to reduce damage and preserve evidence are taken. This includes, in particular, that the Subscriber, Authorised Driver or Authorised Third Party not give any acknowledgment of guilt and that no information of any kind relating to the matter be given to the insurers of other parties involved in the accident.

10.3 If the Subscriber deliberately violates any of the points under 10.1–10.2 above, he shall have no insurance cover in accordance with the principles of comprehensive and partial coverage insurance from Allianz. If the Subscriber violates his obligations through gross negligence, ViveLaCar shall be entitled, in accordance with the principles of comprehensive and partial coverage insurance under the terms of Allianz, to reduce the claim in proportion to the degree of culpability. In deviation from this, ViveLaCar shall be obliged to pay the claim if the Subscriber proves that the breach of duty was neither the cause of the insurance case nor the cause of the determination or extent of the liability to pay the claim. This shall not apply if the Subscriber fraudulently violates its duty.

10.4 Accidental damage must be reported immediately in text form and may only be had repaired by the Subscriber after consulting with and gaining the approval of ViveLaCar. As a rule, repairs should always be carried out in the ViveLaCar-Partner's workshop. In the event that the Subscriber is released from liability according to the provisions of the existing motor vehicle liability insurance, ViveLaCar will decide whether the vehicle should be repaired. Für den Fall, dass der Abonnent nach den Bestimmungen der bestehenden Motorfahrzeughaftpflichtversicherung von der Haftung freigestellt ist, wird ViveLaCar entscheiden, ob eine Reparatur des Fahrzeugs erfolgen soll.

10.5 The processing of all vehicle-related damage within the context of the insurance is carried out exclusively by ViveLaCar, and damage to the vehicle for which a third party or its insurer or the Subscriber is responsible will be remedied on behalf of and for the account of ViveLaCar by the ViveLaCar-Partner who owns the vehicle.

10.6 ViveLaCar can, if necessary, and at its own free discretion, weighing up the interests of both parties, commission a specialised lawyer to settle claims and to coordinate with the Subscriber for the purpose of the claims to be pursued. If there is a Loss of Insurance or a reduction in the claim payment in the event of damage, the costs of the legal proceedings will be invoiced to the Subscriber in accordance with the proportion of Loss of Insurance, in line with the culpability of the Subscriber.

10.7 ViveLaCar and the ViveLaCar-Partner shall be entitled to any and all compensation payments from third parties or their insurers that result from vehicle-related damage. The Subscriber shall be obliged to deliver all details and documents required for this purpose, in particular, relating to the course of events that led to the damage, the cause of the damage, and the anticipated extent of the damage. A damage form is available on the website at https://www.vivelacar.com/storage/vivelacar/magento/CH/Schadenanzeige_BMW_ABO_E.pdf.

10.8 The ViveLaCar-Partner shall be entitled to compensation payments from third parties or their insurers for depreciation in value. If, when settling accounts on the basis of an expert assessment/a repair cost calculation, the amount shown in the expert assessment/repair cost calculation exceeds the repair costs actually paid out, the Subscriber shall not be entitled to this amount. The Subscriber shall not be entitled to replacement mobility in the event of damage.

 

11. Starter package, subscription costs, kilometre costs, invoicing, payment terms

11.1 Each time a booking agreement is concluded, the Subscriber will be invoiced for the costs for the starter package, in the amount of CHF 299. This figure includes the provision of the booked vehicle.

11.2 The amount of the monthly subscription costs for the booked Car Subscription can be found in the booking documents; these costs will be invoiced by ViveLaCar every 4 weeks, together with the costs for excess kilometres (kilometres driven – however, at least the agreed minimum kilometres using the agreed centime factor) and any costs incurred as a result of traffic violations. If the vehicle handover or return does not take place on the first or last day of a month, respectively, the first or last monthly subscription instalment, as the case may be, for the first and final month will be calculated pro rata by the day up until the day the vehicle is actually returned. The kilometrage is transmitted to the central data centre of ViveLaCar at the end of the month and forms the basis for the calculation. Deviations in the kilometrage must be reported immediately.

11.3 The data that is transmitted is binding. The Subscriber is free to prove circumstances to the contrary. The prices stated in the booking are inclusive of VAT at the statutory rate applicable in each case.

11.4 Payments by the Subscriber can only be made in cashless form via SEPA direct debit or credit card to be effective. If a return debit note is issued in the context of a direct debit for which the Subscriber is responsible, the Subscriber must pay a flat-rate fee for reimbursement of costs of CHF 30. The Subscriber reserves the right to prove that no or lower costs have been incurred.

11.5 The Subscriber agrees that the invoices are strictly to be sent in electronic form to the email address provided by the Subscriber. The Subscriber agrees that he will not receive paper invoices.

11.6 As part of the billing model, the Subscriber expressly consents to the kilometrage data and GPS data being stored for 24 months. The data may only be used by ViveLaCar and the ViveLaCar-Partner and serve the exclusive purpose of billing the kilometres driven.

 

12. Deposit and late payment

At the beginning of the contract, a deposit is to be paid that is equal to the amount of one monthly subscription fee. If a subsequent direct debit cannot be collected from the specified account, ViveLaCar shall be entitled to offset the amount against the deposit held. Furthermore, ViveLaCar shall be entitled to terminate the Car Subscription for cause following a one-time request to settle the outstanding items within 14 days.

 

13. Liability and warranty

13.1 ViveLaCar is not liable for force majeure. Liability for the violation of contractually regulated obligations is also limited, except in the case of intent or gross negligence, including intent and gross negligence on the part of representatives and vicarious agents. In the event of a slightly or moderately negligent breach of essential contractual obligations that is not based on injury to life, limb or health, the liability of ViveLaCar is limited in scope to compensation for foreseeable damage of the type typical for such a contract.

13.2 The ViveLaCar-Partner provides the Subscriber with a vehicle as part of the brokered Car Subscription.

13.3 If, within the context of the Car Subscription, the proper functioning of the vehicle is impaired, this will be referred to a specialist company recognised by the manufacturer, and the costs for wear-and-tear repairs or repairs due to material defects will be borne. Further claims of the Subscriber due to material defects in the vehicle provided are excluded.

13.4 The Subscriber indemnifies ViveLaCar against all costs that are not covered by the motor vehicle liability insurance, partial coverage insurance or comprehensive insurance (namely excesses, costs due to exclusions of liability, etc.) and which fall back on ViveLaCar, provided the Subscriber or one of his agents (e.g., Authorised Drivers or Authorised Third Parties) have caused these costs. This applies regardless of whether there is any fault on the part of the Subscriber or his agents.

 

14. Dispositions, enforcement, right of retention, set-off, assignments

14.1 The Subscriber may not dispose of the vehicle. In particular, any pledging or assignment of the vehicle as a security on the part the Subscriber is not permitted.

14.2 The Subscriber is not entitled to any right of retention on the vehicle.

14.3 The Subscriber may only set off claims against claims of ViveLaCar if the Subscriber's claims are undisputed or established by a court of law.

14.4 ViveLaCar is entitled to assign claims under the contractual relationship, among other things, for the purposes of refinancing.

14.5 The Subscriber hereby already declares his consent to a security or securities being assigned for financing purposes.

14.6 In the event of assignment of claims under this agreement and the transfer of the booking agreement to another party, ViveLaCar shall be entitled to transmit the Subscriber's personal data and contract data.

 

15. Term, termination

15.1 The term of the Car Subscription is at least three months, starting on the day the booked vehicle is handed over, or from the time the replacement mobility is made available, and shall be extended to a maximum of 24 months in total. The Car Subscription can be terminated by the Subscriber by providing notice of termination of 3 months. Notice of termination must be given in text form and can be given by letter or email. It always ends automatically upon expiry of the contract period – therefore, at the latest after a term of 24 months.

Tacit extension of a Car Subscription for which notice of termination has been issued is excluded. This also applies, and, in particular, if the vehicle is returned late after the end of the contract term.

15.2 The right to extraordinary termination without notice for cause, with the provision of three days's notice, remains unaffected. A reason for extraordinary termination shall exist, in particular, if the Subscriber is more than 14 days late in paying the basic costs plus the minimum kilometre costs or has an entry (or several entries) in the register of criminal records.

15.3 ViveLaCar shall also be entitled to extraordinary termination if the Subscriber, an Authorised Driver or an Authorised Third Party significantly endangers the vehicle leased to the Subscriber by neglecting the duty of care to which he is beholden, or if the vehicle is handed over without authorisation to a third party (in particular, in an unauthorised manner that is contrary to the agreement in the booking or the provisions of these General Terms and Conditions), or if the Subscriber provides incorrect information or fails to disclose facts (e.g., loss/withdrawal of his driver's licence) when concluding the contract or during the term of the contract and therefore it is not reasonable to continue the contract until expiry of the notice period or until the user relationship has otherwise ended. ViveLaCar shall in addition be entitled to extraordinary termination if, in the event of an insurance case, the Subscriber does not pay the excess that is to be paid in order to settle the claim within a reasonable period after two written warnings. If the loss ratio for any calendar year exceeds a total of CHF 5,000, extraordinary termination shall also be permitted.

15.4 Upon extraordinary termination being issues, the Subscriber shall lose the right to use the vehicle provided and shall be obliged to return the vehicle together with all keys and all documents provided (e.g., vehicle registration certificate, Subscriber service booklet, or the like) at his own expense and risk, in observance of the return process.

If the Subscriber does not surrender the vehicle, the keys or the documents within the period for surrender, he must reimburse the costs of locating the items and of replacing the vehicle keys and documents as well as any further damage resulting therefrom, unless the Subscriber is not responsible for the late surrender. However, the Subscriber shall be responsible for late surrender or non-surrender of the items on the part of the Authorised Driver as he would be for his own actions.

In the event of the vehicle being secured, the inspection upon the vehicle return, within the meaning of these General Terms and Conditions, shall no longer be required. ViveLaCar or its partners shall then be entitled to carry out an expert assessment and to charge the Subscriber for any damage.

The right to assert claims for damages in the event of extraordinary termination remains reserved.

 

16. Other agreements

16.1 Swiss law applies to the exclusion of the Federal Code on Private International Law (IPRG).

16.2 The place of jurisdiction is Zurich if the Subscriber is a merchant or a legal person, or if the Subscriber relocates his domicile or habitual place of residence outside of Switzerland after conclusion of the contract, or if his domicile or habitual place of residence is not known at the time an action is filed.

16.3 Should individual provisions of this agreement be ineffective, this shall not affect the effectiveness of the remainder of this agreement. In this case, the parties undertake to replace the ineffective provisions with such provisions that correspond to the original objective of the ineffective provision.

16.4 Side agreements, amendments and addenda to these General Terms and Conditions shall only be effective if they are agreed in writing at the time of or after the conclusion of the contract and are expressly designated as side agreements, amendments or addenda. This also holds for this clause itself.

16.5 ViveLaCar will notify the Subscriber in writing of any changes to these General Terms and Conditions. If the Subscriber does not object to the changes within 4 weeks of receiving notification of them, the changes shall be deemed to have been agreed. Upon being notified of the change to the contractual terms, the Subscriber will be separately informed of the right to object and the legal consequences of remaining silent. In the event that an objection is raised in a timely manner, the original regulations shall remain unchanged in place of the change.

16.6 ViveLaCar reserves the right to exchange vehicles after a two-years of a subscription term. ViveLaCar shall endeavour to provide the Subscriber with an equivalent vehicle. The subscription costs may adjust accordingly. The Subscriber must agree to the new vehicle.

 

Last updated: 1st January 2020