of the company APPINA TRAVEL GmbH for contracts with resellers
1.1. The contractual obligation of the company (APPINA TRAVEL GmbH), hereinafter abbreviated as APPINA TRAVEL GmbH, is to provide the travel services specified in this contract (individual travel services or a combination of travel services, hereinafter referred to as Travel Packages) to the Client (hereinafter abbreviated as CL), and to the participants of its trips or events. APPINA TRAVEL GmbH’s obligations to provide services shall be governed by contractual agreements and these terms and conditions.
1.2. APPINA TRAVEL GmbH is directly accountable to CL for the provision of services, unless under the terms of this agreement or a separate contractual agreement, APPINA TRAVEL GmbH is not the sole responsible travel agent, pursuant to clause 12.7.
1.3. The entire legal and contractual relationship between APPINA TRAVEL GmbH and the CL shall be subject to specific agreements reached in individual cases, and thus subject to these terms and conditions and the provisions of the contract law on work and services §§ 631 et seq. of the German Civil Code (BGB), and also subject to German law, exclusively.
1.4. APPINA TRAVEL GmbH does not have the status of a package tour operator. The provisions of §§ 651a-m of the German Civil Code (BGB) and other legal provisions for package tours and package tour operators do not apply to the legal and contractual relationship between APPINA TRAVEL GmbH and the CL, neither directly nor mutatis mutandis. The application of such provisions shall be expressly excluded in the form of an express choice of law. The same applies to European Union regulations on package tour contracts and package tours.
1.5. Terms and conditions of the CL are not valid. This applies even if the CL declares such terms and conditions as applicable and APPINA TRAVEL GmbH does not explicitly contradict such a declaration in a specific case or in general.
1.6. These terms and conditions are valid in their current form. If no updated version is available, this present version shall apply to future contracts between APPINA TRAVEL GmbH and the CL, unless otherwise expressly agreed in a specific case.
1.7. These terms and conditions apply exclusively to contracts with commercial customers, who, as tour operators, market the travel services specified in this contract as package tour contracts or other services, thus acting as a direct contractual partner with their customers. Accordingly, these terms and conditions do not apply to contracts with individual or multiple consumers (consumer as defined in § 13 of the German Civil Code (BGB)).
1.8. No contractual relationships have been established between APPINA TRAVEL GmbH and the CL's participants.
1.9. For terms and conditions of service providers, in particular airlines, transport companies, ticket offices, hotels and other agencies the following shall apply:
a) the original agreements between APPINA TRAVEL GmbH and the CL have priority over the provisions of any such terms and conditions.
b) the provisions in these terms and conditions shall apply with respect to valid obligations of the beneficiary of the service, i.e. the CL and its participants, if and when they have been agreed between APPINA TRAVEL GmbH and the CL as a contractual duty of the CL, in accordance with the rules applicable to contracts between traders.
1.10. Terms and conditions, in particular conditions of passenger transport and fare tariffs (e.g. Deutsche Bahn AG or local public transport), which based on statutory provisions domestically or abroad are deemed valid without any express notification or agreement, shall apply in any legal relationship with the CL, even where the latter has no knowledge thereof or where APPINA TRAVEL GmbH has not pointed out their relevance or validity in terms of the contractual relationship and the respective services.
2.1. The CL may express an interest in booking a travel
service offered by APPINA TRAVEL GmbH via phone, email, fax, the Internet or in
writing. The booking enquiry is not binding for the CL or APPINA TRAVEL GmbH
and does not guarantee the formation of a contract.
2.2. On the basis of CL’s enquiry, APPINA TRAVEL GmbH shall
first provide information on the availability of the desired travel services and
offer suggestions on potential travel services and itinerary. Such suggestions
are non-binding and subject to confirmation for APPINA TRAVEL GmbH and the CL.
They do not constitute a claim to the formation of a contract. The same applies
to multiple or repeated presentations of such suggestions. Unless otherwise
expressly agreed beforehand, such suggestions and information shall be provided
to the CL free of charge.
2.3. In accordance with the provision stipulated in clause
2.2, APPINA TRAVEL GmbH shall submit a binding offer to the CL in writing, via
fax or email, which offers to form a contract with the CL on the basis of these
terms and conditions, all data and information provided in the offer, and,
where appropriate, expressly refer to price lists, brochures or other
information the form the basis of the offer.
2.4. Unless expressly stated otherwise, the offer can only
be accepted in writing or via fax, to the exclusion of the electronic text form
(email, Internet). The acceptance of an offer by the acceptance of a signed
copy of the contract as a PDF document email attachment is legally binding.
2.5. If the deadline for the acceptance of the offer is
explicitly stipulated in the offer, the offer shall only be binding for APPINA
TRAVEL GmbH until the said deadline has expired and may only be accepted by the
CL by submitting a letter of acceptance to APPINA TRAVEL GmbH within the period
stipulated, during normal business hours. APPINA TRAVEL GmbH shall be entitled,
but not obliged to accept late letters of acceptance. In such cases, APPINA
TRAVEL GmbH shall inform the CL immediately of the late submission and state
whether it accepts the latter's acceptance of the offer, despite the late
submission.
2.6. The offer can only be accepted by a letter of acceptance
signed by an authorised representative of the CL.
2.7. The contract shall be deemed legally binding upon
receipt of the letter of acceptance from the CL by APPINA TRAVEL GmbH, without
any need to provide acknowledgment of receipt or booking confirmation. APPINA
TRAVEL GmbH however generally provides the CL with confirmation in writing or
via fax upon receipt of its letter of acceptance and will simultaneously or
subsequently submit an invoice for the agreed payments or installments.
2.8. In the event that CL's letter of acceptance contains
additions, reductions or other changes, a contract shall only be made if APPINA
TRAVEL GmbH provides the corresponding reconfirmation to include these
additions, reductions or changes. Otherwise, it shall be deemed no contract has
been concluded. The same applies if the CL stipulates terms and conditions for
travel services or itinerary in its letter of acceptance that were not part of
the offer made by APPINA TRAVEL GmbH. In particular, these include conditions
for specific flight times, flight routes, hotels, specific tour guides or tour
routes).
2.9. The CL is therefore responsible for informing APPINA
TRAVEL GmbH immediately in the event it wishes any additions, reductions or
changes to the offer it has received and to request an appropriately revised
offer, if APPINA TRAVEL GmbH is willing and able to comply.
2.10. Although APPINA TRAVEL GmbH also offers travel
services or travel packages via direct booking without any prior written offer,
the contract shall, notwithstanding the aforementioned provisions, be formed
when the CL submits a binding booking reservation in writing or via fax to
APPINA TRAVEL GmbH (a booking form may be provided by APPINA TRAVEL GmbH) and
the APPINA TRAVEL GmbH confirms the booking in writing or via fax. In this
case, the CL is bound to APPINA TRAVEL GmbH's offer 5 working days after
receipt of its booking by APPINA TRAVEL GmbH. In the event the booking
confirmation from APPINA TRAVEL GmbH differs from the reservation made by the
CL, this shall be deemed a new offer from APPINA TRAVEL GmbH. As this is deemed
a new offer, the contract shall be concluded if the CL accepts this amended
offer by expressed consent or by acceptance inferred, in particular by payment
of the deposit or installments.
2.11. Options that apply include:
a) Options as defined in this provision are reservations of
individual travel services or complete tour packages for the CL prior to the
conclusion of the contract or, if the contract has already been concluded,
before a legally binding agreement on supplementary travel services.
b) Unless otherwise agreed, the options are, in principle,
fixed options. This means that the CL is subject to a binding purchase
obligation for the reserved travel services or tour packages after the expiry
of the option period, unless it has declared it will not acquire the reserved
travel services or tour packages before the option deadline.
c) This declaration must be submitted to APPINA TRAVEL GmbH
in writing or via fax before the deadline during normal business hours, to the
exclusion of the electronic text form (email, Internet), unless expressly
agreed that the declaration can also be submitted in other forms.
d) If, in exceptional cases, an expiry date option has been
agreed, this means that the reservation made by the CL can be forfeited without
any financial penalty if it does not expressly state that it does not wish to
acquire the travel services or tour packages by the agreed deadline. The
aforementioned provision regarding the nature and timing of the declaration
shall apply accordingly.
2.12. Changes,
additions, extensions, guarantees or collateral agreements after the contract
has been concluded must be in writing to the exclusion of the electronic text
form. In the event that these are agreed via telephone or verbally, the written
form shall be observed in accordance with the principles of commercial letters
of confirmation if APPINA TRAVEL GmbH confirms the corresponding agreements
with the CL in writing or via fax and the CL does not raise objection to such
confirmation immediately.
3.1. APPINA TRAVEL GmbH's obligations to provide services
are subject to contracts that are concluded on the basis of a written offer by
APPINA TRAVEL GmbH, which includes information on prices and services in
accordance with all the instructions contained in the offer.
3.2. For contracts
concluded on the basis of travel brochures or Internet advertising that result
in a direct booking by the CL and the corresponding confirmation by APPINA
TRAVEL GmbH (see clause 2.10), the obligation of APPINA TRAVEL GmbH shall be in
accordance with the brochure description or the information on the Internet.
This information shall be referred to in the booking confirmation provided by
APPINA TRAVEL GmbH.
3.3. In principle, APPINA TRAVEL GmbH, in accordance with
the aforementioned provisions, is only obliged to provide services to the
extent and nature specifically agreed upon. In particular, the CL is not
entitled make demands on any services or features on account of the total
price, the price of a single service, or the classification and category
details, if these were not specifically and expressly agreed. This shall apply
particularly to accommodation amenities (e.g. furnishing, mini bars, air
conditioning, lifts, extra charges).
3.4. If special requests made by the CL regarding the offer,
the booking confirmation or supplementary agreements or other contractual bases
are deemed as non-binding, APPINA TRAVEL GmbH's only obligation shall be in the
forwarding of such special requests to the participating service providers.
Special requests shall only be considered part of a binding contract with
express confirmation in writing or via fax. Confirmations made by service
providers are not binding for APPINA TRAVEL GmbH.
3.5. In case of flight bookings, non-stop flights shall only
be deemed mandatory by express agreement. Otherwise, the provision of air
services can, in principle, be supplied by direct flights, open jaw flights or
hub flights. In case of rail travel, the booking of a specific train type (e.g.
ICE or TGV) shall only be deemed mandatory if this has been expressly agreed.
3.6. Sales personnel, exhibition staff, travel brokers (e.g.
travel agencies) and service providers (e.g. hotels, transport companies) are
not authorised by APPINA TRAVEL GmbH to reach agreements, provide information
or make promises that may alter the agreed upon content of the contract, that
extend beyond the services contractually agreed upon by APPINA TRAVEL GmbH or
that conflict with it.
3.7. Pursuant to the provisions of the Legal Advice Act,
APPINA TRAVEL GmbH is not authorised to provide advice to customers on the
legal aspects of its travel offers, booking form (reservations), booking
confirmations or the processing of the booking. Accordingly, APPINA TRAVEL GmbH
is under no obligation to provide legal advice or information on such matters.
3.8. The services provided by APPINA TRAVEL GmbH generally do
not included insurance for the CL. It is highly recommended that the CL takes
out personal injury and property damage insurance for tour operators or for its
other services offered, and in the case of air travel services to include
coverage for liability for contracting carriers.
3.9. Travel destination and hotel brochures, leaflets, or
information from other service providers, or information published on the
Internet pertaining to destinations or hotels, that have not been made a basis
of the APPINA TRAVEL GmbH’s contractual obligations by express agreement with
the CL shall not be deemed binding for APPINA TRAVEL GmbH or part of APPINA
TRAVEL GmbH‘s obligations. This shall apply even if such brochures were
supplied to the CL by APPINA TRAVEL GmbH along with the offer or later made
available for informational purposes.
3.10. In principle,
APPINA TRAVEL GmbH is entitled to make changes to its services offered, if the
CL's participants are obliged to accept such changes without the right to a
price reduction or the right to rescind the contract, in accordance with
statutory provisions and the applicable case law. This applies in particular
for minor changes to the itinerary, changes to flight times within the
contractually agreed arrival and departure dates, changes to the flight route
or the aircraft. In the case of sightseeing tours, this applies particularly
with regard to changes in the tour schedule or the substitution of planned
activities and sightseeing spots.
3.11. In case of air travel, the arrival and departure dates
shall serve as the dates of travel, not the recovery or activity schedule,
unless other arrangements have been expressly agreed. Changes in flight times
are to be reckoned with. The CL is expected to plan its own itinerary, transport
and times accordingly, in particular any bus or staff deployment should take
this into account. It should also ensure it reserves the right to accommodate
such changes vis-à-vis its participants.
3.12. Furthermore, changes to essential travel services agreed
upon in the contract that have become necessary after the contract has been
concluded and that were not caused by APPINA TRAVEL GmbH in bad faith are
permitted, provided that such changes are not significant and do not compromise
the overall design of the booked trip.
3.13. Any warranty claims by the CL shall remain unaffected
in the event that the amended services are flawed.
3.14. APPINA TRAVEL GmbH is obliged to inform the CL of any
significant changes to the services offered immediately upon becoming aware of
the reason for the change.
3.15. In case of a substantial change to an essential travel
service, the CL shall be entitled to withdraw from the contract free of charge,
if and when its tour participants exercise a corresponding right of rescission
against the CL on account of the substantial change immediately after the CL
notifies the participants of the change. The CL itself must exercise its own
right of withdrawal without undue delay if its participants declare the right
of rescission against it. The CL is obliged to agree on the services that are
subject to change without notice to the customer, particularly within its
travel conditions, in accordance with the requirements of law and case law.
4.1. The prices agreed between APPINA TRAVEL GmbH and the CL for each particular service shall apply. In the event that any price, such as for an additional service or a specific service, has not been agreed, the prices advertised or listed by APPINA TRAVEL GmbH that were proven to be accessible to the CL at the time the contract was concluded or that have been declared by APPINA TRAVEL GmbH as valid in some other way shall apply. Alternatively, the standard price or listed fee shall apply, pursuant to § 632 of the German Civil Code (BGB).
4.2. APPINA TRAVEL GmbH may request price increases, if this has been contractually agreed in specific cases. This shall apply in particular to price agreements in which the price agreed upon depends the number of participants, the type and scope of the actual services provided
or the date of the confirming the tour or number of participants. The same applies to price increases agreed upon when reducing or increasing the number of participants, services or contingents.
4.3. Irrespective of price increases under the aforementioned provision and in addition to any permissible price increases, APPINA TRAVEL GmbH reserves the right to change the contractually agreed prices in the event of an increase in transport costs, charges for certain services such as port or airport fees or a change in the exchange rates applicable for the particular package in accordance with the following provisions:
4.4. An increase in the price is only permitted if the interval between the conclusion of the contract and the agreed travel date is more than 4 months and the circumstances leading to the increase had not occurred nor could be foreseen by APPINA TRAVEL GmbH before the contract was concluded.
4.5. If there is an increase in transportation costs, especially fuel costs, after the travel contract has been concluded, APPINA TRAVEL GmbH shall be entitled to increase the price according to the following calculations:
a) In case of an increase on a per-seat basis, APPINA TRAVEL GmbH is entitled to charge the CL the amount of this increase.
b) Otherwise, the additional costs charged by the transport provider for the agreed mode of transport shall be divided by the amount of seats for the said transport. APPINA TRAVEL GmbH is entitled to charge to the CL the resulting increased sum per seat.
4.6. If charges or levies, such as port or airport duties, that APPINA TRAVEL GmbH has to pay increase above the costs at the time of concluding the travel contract, APPINA TRAVEL GmbH is entitled to increase the price by the corresponding proportional amount.
4.7. In case of variation in exchange rates
after conclusion of the contract, the price may be increased in line with the
amount by which the cost of the services has increased for APPINA TRAVEL GmbH.
4.8. In case of a subsequent change in price, APPINA TRAVEL GmbH has to inform the customer immediately upon becoming aware of the reason for the change. Price increases are only permitted up to the 25th day prior to CL's agreed departure date. In case of price increases exceeding 10 %, the CL is entitled to withdraw from the contract without incurring cancellation fees. Provided the conditions are appropriate, the CL must exercise its right of withdrawal against APPINA TRAVEL GmbH without undue delay upon notification from APPINA TRAVEL GmbH of the price increase.
4.9. In case of an increase in VAT on prices of contractually agreed travel services, APPINA TRAVEL GmbH is entitled to demand a corresponding price increase from the CL, provided that APPINA TRAVEL GmbH proves that it is obliged to pay the VAT hike.
4.10. The right to increase prices on contractual arrangements in individual cases is, in accordance with the aforementioned provisions and statutory guidelines, irrespective of whether and to what extent the CL is factually and legally able to pass on such price increases to its customers. The onus is on the CL to conclude agreements that establish an opportunity to pass on such price increases to its customers through the relevant law and case law.
5.1. Upon conclusion of the contract, APPINA TRAVEL GmbH can stipulate following terms for the payment of the deposit:
a) the deposit is due for payment after the contract has been concluded.
b) the amount and due dates for payment are irrespective of whether and to what extent the CL is itself able to claim the corresponding payments from its customers.
c) the amount of the deposit and the due date for payment of the deposit shall be as contractually agreed on a case-by-case basis.
d) explicit agreements concerning the amount of the deposit have not been made, thus the deposit is % of the total price.
e) If the total price rises as a result of an increase in the services provided, contingents or numbers of participants, or due to other circumstances or contractual agreements that lead to a price increase, the difference between the original deposit and the deposit calculated for the increased total price shall also be payable without undue delay at same time as stipulated in the corresponding legally binding agreements or as the occurrence of the circumstances that led to the price increase.
5.2. Installment payments that follow the deposit and the due dates for these remaining payments shall be in accordance with the relevant contractual agreements.
5.3. The remaining payments are due as contractually agreed. If no specific agreement has not been reached, the final payment shall be due no later than before the trip begins.
5.4. Payments shall generally be made by the method expressly agreed. If no explicit agreements have been made on the payment method, payments shall be made only via bank transfer.
5.5. Place of fulfilment for any payment is the head office of the bank for which APPINA TRAVEL GmbH has provided its bank details for payment with the proviso that the payment obligation is only fully satisfied when the amount due has been timely credited in the bank account specified.
5.6. Payments, especially from abroad, shall be received in full, without any deductions to the agreed sum for bank or transfer charges. Payments in foreign currencies are excluded, unless otherwise expressly agreed in individual cases.
5.7. In accordance with the terms of due dates for payment, a default of payment shall result in the issuing of a reminder letter, which can also be issued verbally and in electronic text form. A
default may occur without a reminder letter, if the CL does not pay within 30 days after the due date and the receipt of an invoice or equivalent payment notice. If the date of receipt of the invoice or payment notice is uncertain, the CL shall be deemed in default no later than 30 days after the due date and receipt of the service.
5.8. In case of default, the CL shall pay interest of 8 per cent above the base rate. APPINA TRAVEL GmbH reserves the right to claim for further damages caused by the default.
5.9. Provided APPINA TRAVEL GmbH is willing and able to provide the services specified in this contract, and CL has no contractual or statutory right to refuse the services the following shall apply:
a) Without full payment of the total price in accordance with agreed due dates, the CL has no claim to the provision of the services specified in this contract or the handover of travel documents.
b) In the event that the CL fails to pay the deposit, installments or final payment by the agreed due dates, APPINA TRAVEL GmbH shall be entitled to rescind the contract after issuing a reminder letter with a final deadline, and demand payment for cancellation costs from the CL within the contractually agreed limits, particularly in accordance with these terms and conditions or by law.
5.10. In the event the CL makes a claim for right of retention or right of offset against APPINA TRAVEL GmbH’s request for payment and this is not recognised by APPINA TRAVEL GmbH, APPINA TRAVEL GmbH shall be entitled to demand that the CL pay the amount due via an irrevocable, unconditional and unlimited bank guarantee by a German commercial bank or savings bank, or deposit the corresponding amount at the local court (Amtsgericht) that holds jurisdiction, in accordance with statutory provisions.
5.11. In case of default on payment, APPINA TRAVEL GmbH is entitled to charge € 10 per reminder letter and demand a refund on any bank fees incurred as a result for bank withdrawals or debit transactions.
6.1. The onus is on the CL to comply with all requirements of law and case law for the types of activity and marketing, which are relevant to the services at the subject of this contract. For package tours, in particular, this applies to all requirements of law and case law for package tour operators.
6.2. The CL is not permitted to present APPINA TRAVEL GmbH to its participants as the tour operator or co-tour operator in any way or in any document, or to make representations of APPINA TRAVEL GmbH as an organiser or co-organiser in marketing material that does not offer package tours. The CL shall only be permitted to make references to the contract with APPINA TRAVEL GmbH and the provision of services by APPINA TRAVEL GmbH in the form expressly agreed beforehand with APPINA TRAVEL GmbH.
6.3. The CL shall create its own tour advertising strictly in accordance with the agreements with APPINA TRAVEL GmbH on the services specified in this contract, and with respect to the services to be provided by APPINA TRAVEL GmbH shall not advertise aspects of the services that confirm, guarantee or inform the customer about travel services, which contradict the scope of services agreed with APPINA TRAVEL GmbH or go beyond that. The CL's right and freedom of choice to organise its own transport and other services, and to offer such services as the subject of its own contract and tour packages with its participants, shall remain unaffected by this obligation.
6.4. APPINA TRAVEL GmbH reserves the right, insofar as contractually agreed, to request that the CL submits a copy of its tour advertising to APPINA TRAVEL GmbH before publication for checking, in particular, before going to print with a travel catalogue or other print advertising formats. The same applies for Internet publishing. This obligation of submission is limited to the tour advertisement itself; the CL is not required to disclose its prices or calculations. APPINA TRAVEL GmbH reserves the right to demand corrections to tour descriptions if APPINA TRAVEL GmbH is able to prove that the intended publication contains obvious errors or omissions that are in breach of mandatory competition law or travel law regulations, or may otherwise be subject to claims from third parties against APPINA TRAVEL GmbH, especially from CL's customers.
6.5. Irrespective of any statutory or contractual obligation of its participants to register complaints against it, the CL is obliged to immediately notify the APPINA TRAVEL GmbH designated local representative or the service provider of any problems that may arise and request the matter to be remedied, unless otherwise agreed. If remedial action is denied or inaccessible, the CL shall immediately notify APPINA TRAVEL GmbH of complaint in question and the request for remedial action.
6.6. The CL is obliged to contribute to the prevention and elimination of disruptions to the itinerary, as well as accommodation and transport problems or other hindrances to the proper fulfilment of the travel services or the itinerary as a whole. It shall, as far as possible, agree appropriate measures with APPINA TRAVEL GmbH beforehand. In fulfilling these duties, the CL is also obliged to makes advance payments for certain expenses, where such payments can prevent or eliminate disruptions to the itinerary, accommodation and transport problems or other hindrances, which would result in the considerably higher costs for APPINA TRAVEL GmbH compared to the expenses paid by the CL, or would result in claims against the former. The CL's basic statutory duty to mitigate loss shall remain unaffected.
6.7. In the event the CL fails to meet one or more of the aforementioned obligations, this shall void warranty claims and claims for compensation made by CL insofar as APPINA TRAVEL GmbH would have be willing and able to remedy the situation and the problem that occurred could have been eliminated or minimised.
7.1. APPINA TRAVEL GmbH shall advise the CL about passport, visa and health regulations for German nationals before signing the contract as well as any amendments to such regulations prior to the start of the trip. The obligation to provide the said advice to nationals from other European Union States shall only apply if an agreement to this effect was made prior to the conclusion of the contract with regard to the possible participation of such citizens. There is no obligation to provide advice for participants of the CL belonging to nationalities outside the European Union.
7.2. In providing advice in accordance with the aforementioned provision, it shall be assumed that there are no special circumstances attached to the customer or any fellow travellers (e.g. dual nationality, statelessness).
7.3. Unless explicitly stipulated in the contract, APPINA TRAVEL GmbH is under no obligation to procure documents required for CL's participants to gain entry into the contractually agreed countries. This shall apply, in particular, for the procurement of visas.
7.4. If APPINA TRAVEL GmbH has undertaken the procurement of visas or other documentation necessary for CL's participants to gain entry into countries by express contractual agreement, APPINA TRAVEL GmbH shall not be liable for ensuring that the said visas are issued in good time or for the timely receipt of such documentation by the CL. The risk of dispatch shall be borne by the CL, regardless of whether the documentation has been dispatched directly by the relevant consular office or the required documents and certificates were dispatched by another issuer or by APPINA TRAVEL GmbH.
7.5. In accordance with legal requirements, the CL is responsible, both as a package tour operator, as well as in any other function required by law and case law, for complying with its own obligations for providing advice on passport, visa and health regulations. The onus is therefore upon the CL, as a separate contractual obligation to APPINA TRAVEL GmbH, to enquire independently about such regulations and necessary documentation, and in addition to the information provided by APPINA TRAVEL GmbH, ensure its participants comply.
7.6. If there are omissions or contradictions with respect to information and documentation supplied by APPINA TRAVEL GmbH and the information acquired by the CL, itself, the CL shall notify the APPINA TRAVEL GmbH immediately of this and come to an agreement with APPINA TRAVEL GmbH on what information is required.
7.7. All losses incurred by the CL or its participants due to non-compliance of the aforementioned obligations of the CL, particularly those resulting in cancellation costs, shall be borne by the CL. This applies only if and insofar as the losses or costs incurred are not caused partly or entirely by a culpable violation of relevant contractual or legal obligations
by APPINA TRAVEL GmbH.
8.1. Unless otherwise expressly agreed in specific cases by contract, the CL shall have no right to revoke the contract or to terminate or withdraw from individual contractual agreements. Withdrawal rights by virtue of commercial usage, in particular for contractual agreements on accommodation contingents, are expressly excluded. Equally excluded is the right of termination in accordance with § 649 of the German Civil Code (BGB). The following provisions relating to extraordinary termination due to shortcomings in APPINA TRAVEL GmbH's contractual service or due to force majeure shall remain unaffected.
8.2. Cancellation as referred to in the following provisions is both the exercise of a contractual right of rescission, as is any other declaration of the CL pertaining to the non-acceptance of individual services specified in the contract, or the overall services at the subject of this contract.
8.3. The cancellation of contractually agreed rights must be done in writing or via fax, to the exclusion of the electronic text form (email, Internet), unless otherwise expressly agreed for a specific case.
8.4. For a cancellation request to be deemed punctual, this shall depend on when it was received by APPINA TRAVEL GmbH during normal business hours; and for telephone cancellations on when the request was subsequently received in writing or via fax. Service providers, sales representatives and other third parties are not authorised to accept cancellation requests.
8.5. In the event of cancellation or non-acceptance without such a cancellation request from the CL, APPINA TRAVEL GmbH shall be entitled to the contractually agreed flat rate or the specifically agreed sum of compensation.
8.6. In the event that no flat rate or specified compensation sum has been agreed in a specific case, APPINA TRAVEL GmbH shall be entitled to the compensation outlined below, the calculation of which takes into account the usual expenses saved and the possible redeployment of travel services. The compensation shall be calculated from the date of receipt of the withdrawal request by CL as follows:
8.7. The CL reserves the right to furnish evidence to show APPINA TRAVEL GmbH that, with regard to the calculation of fees agreed in individual cases or the aforementioned flat rate cancellation fees listed by APPINA TRAVEL GmbH, either absolutely no loss has been incurred or that the loss incurred is significantly lower than the amount demanded.
8.8. APPINA TRAVEL GmbH is entitled to deviate from the flat rates specified above and demand a higher fixed fee, provided that APPINA TRAVEL GmbH can prove it incurred significantly higher costs than the respective applicable fees. In such cases, APPINA TRAVEL GmbH is obliged to list its compensation demand in detailed figures and provide supporting evidence, taking into account expenses saved and the redeployment of travel services.
8.9. For replacement participants, the following rules shall apply:
a) Unless otherwise agreed in individual cases, the CL shall be entitled to swap one tour participant for another, at any time.
b) If this is done after the agreed deadline for registration of participant names and rooming lists has expired, APPINA TRAVEL GmbH is entitled to charge a processing fee of € 25 per participant, unless expressly agreed otherwise.
c) Any additional costs incurred due to the participant swap, in particular for ticket changes,
shall be borne by the CL.
d) APPINA TRAVEL GmbH is entitled to object to a participant swap, if the replacement participant does not meet the special requirements necessary for taking part in a particular activity (e.g. health concerns) or for the trip itself (e.g. immigration or health regulations), or if the participation of the replacement participant would be in conflict with statutory regulations or government licensing requirements, or if the acceptance of the replacement participant is deemed impossible or unreasonable by APPINA TRAVEL GmbH for compelling organisational reasons.
e) If the participant swap impacts the assignment of accommodation or seats on flights, trains, buses, etc. or impacts the itinerary in any other way, the resulting consequences and costs arising from the swap shall be borne by the CL.
8.10. Upon conclusion of the contract, the CL has no entitlement to changes (rebooking) with respect to the travel dates, the destination, the place of departure, the accommodation or the mode of transport, unless otherwise contractually agreed. If, however, a rebooking is granted at the request of the CL, APPINA TRAVEL GmbH shall be entitled to charge a rebooking fee per transaction. Where no separate agreement was in place before the rebooking is accepted, the rebooking fee per transaction up until the commencement of the second tier of the agreed cancellation fee scale shall be € per transaction. Rebooking requests made by the CL after the expiry of this deadline may, if all possible, only be made by cancellation, in accordance with the cancellation terms and conditions stipulated in this contract or in separate agreements, followed by a new booking. This shall not apply to rebooking requests that cause only minor additional costs.
9.1. A free reduction or limitation in the number of participants, services or contingents (in particular for meals, the number of paid excursions and sightseeing trips and other additional services) is possible only by express agreement between the CL and APPINA TRAVEL GmbH. Otherwise, the aforementioned provisions for cancellation fees shall apply.
9.2. The minimum number of participants as agreed between the CL and APPINA TRAVEL GmbH shall apply as follows:
a) if it is agreed that the CL is entitled to withdraw from the contract with APPINA TRAVEL GmbH in the event of failure to attain the minimum number of participants, the CL is obliged to regularly inform APPINA TRAVEL GmbH about the current number of participants signed up, at least once a week. If it has been established that the minimum number of participants has been attained, this information must be passed onto the APPINA TRAVEL GmbH without undue delay.
b) if the minimum number of participants attained falls short after the deadline for penalty-free withdrawal from the contract with APPINA TRAVEL GmbH by CL (statutory right of termination of participants in package tour contracts pursuant to § 651i of the German Civil Code (BGB)), the CL shall not be entitled to subsequently exercise the right of withdrawal without incurring a fee. On the contrary, the cancellation of travel services, individually or collectively, in this case is only possible in accordance with the cancellation arrangements agreed in individual cases or in these terms and conditions.
c) if the minimum number of participants attained falls short after the deadline for penalty-free withdrawal from the contract by CL due to cancellations by tour participants on account of force majeure pursuant to § 651j of the German Civil Code (BGB), the following provisions on cancellation due to force majeure shall apply.
9.3 The aforementioned provisions shall apply unless otherwise agreed in individual cases, mutatis mutandis also for agreements on the number of participants that have an impact on the price or places available or other conditions, especially for participant-dependent tiered pricing.
10.1. For cancellations by the CL before or after the commencement of the contract, or the tour or travel services, due to failings in the travel services the following shall apply:
a) cancellation is permitted only if the CL points out the failings to APPINA TRAVEL GmbH and allows a reasonable time for remedy, unless remedial action of the shortcomings is deemed impossible.
b) a complaint report and request for remedial action must be sent immediately to the office specified by APPINA TRAVEL GmbH, taking reasonable advantage of all available means of communication at the resort. In this regard, the authorised representative shall be the local service provider or local agency specified; if neither is reachable or refuse to provide an appropriate remedy, then the CL must sent a complaint report and request for remedial action to APPINA TRAVEL GmbH without undue delay via the forms provided by APPINA TRAVEL GmbH.
10.2 If the provision of the services specified in this contract are significantly disrupted, jeopardised or impaired due to force majeure, which was not foreseeable at the time the contract was concluded, the following shall apply:
a) In this case, both APPINA TRAVEL GmbH and the CL are entitled to terminate the contract in accordance with the following provisions.
b) The termination must be declared in writing and be substantiated by the circumstances that both parties will consider justified grounds for termination. If, in case of termination by the CL, the claim of force majeure is not accompanied by such a statement stating the grounds for termination, the notification by the CL shall be treated as a standard cancellation, with the relevant cancellation fees payable. A request for the right of termination due to force majeure at a later time is not possible.
c) Only circumstances which directly affect the provision of services by APPINA TRAVEL GmbH shall be deemed justified grounds for termination due to force majeure. Accordingly, circumstances that disrupt, jeopardise or impair the provision of travel services or the tour itself that fall under the responsibility of the CL shall not be deemed justified grounds for cancellation due to force majeure. This applies in case of transport organised by the CL itself for its participants, especially for road closures or closures of airspace, vehicle breakdowns or other malfunctions under the CL.
d) In case of a justified cancellation due to force majeure, APPINA TRAVEL GmbH is entitled to
invoice the CL for half of the costs, which would have been incurred if cancellation fees had been charged at the time the termination request due to force majeure was received by APPINA TRAVEL GmbH. APPINA TRAVEL GmbH reserves the right to claim half the proven costs. The CL reserves the right to furnish evidence to show APPINA TRAVEL GmbH that it incurred either no costs or significantly lower costs than those on which its claim is based.
e) APPINA TRAVEL GmbH's contractual services include transport for CL's participants, thus additional costs shall be incurred for arranging return transportation for the participants in the event the cancellation due to force majeure that occurs during a trip or event, of which APPINA TRAVEL GmbH and the CL shall each bear half.
f) Any other costs relating to a justified termination due to force majeure during a trip or event, such as the CL's staff costs and the cost of a prolonged accommodation of the CL's participants at the event or travel destination beyond the contractually agreed travel dates shall be borne by the CL.
11.1. The CL is obliged to immediately notify APPINA TRAVEL GmbH of any personal injuries or damage to property that occur during the trip or event, where such personal injuries or damage could make APPINA TRAVEL GmbH liable to pay compensation to the CL or its participants. Provided the CL has been given an emergency number for APPINA TRAVEL GmbH, the CL must notify its tour guide or other agents of any such occurrences.
11.2. In case of such events, the CL is obliged to secure all the evidence, in particular the names and addresses of eligible witnesses. It shall ensure the police are contacted to record the event and provide the necessary data and documents to the relevant investigative authorities.
11.3. The CL shall take all measures to eliminate or reduce to damage incurred.
11.4. The CL is obliged to ensure the aforementioned obligations are fulfilled by issuing appropriate instructions to tour guides, employees or other representatives.
11.5. If the CL is marketing the services specified in this contract to its participants as part of a package tour contract, it shall ensure, through the use of terms and conditions corresponding to law and case law, that its participants are made aware of the statutory limitation period, the requirements for its compliance, and the consequences of missing the deadline.
11.6. In the event that the CL wishes to assert a claim against APPINA TRAVEL GmbH on account of fact that its tour participants have made claims against it, it is obliged to immediately submit all information and documents, especially letters of complaint to APPINA TRAVEL GmbH, without prejudice to the aforementioned agreed deadline for filing such claims against it. This obligation to provide information also includes information on APPINA TRAVEL GmbH held by the CL on whether and to what extent it has liability insurance with respect to claims made against it, whether it has made a report, as well as any correspondence and the claim number of the liability insurance.
11.7. Before the settlement of a claim of its participants, for which the CL will assert claims against APPINA TRAVEL GmbH, the CL first must consult APPINA TRAVEL GmbH. If no agreement can be reached, the CL shall be entitled to claim for damages against APPINA TRAVEL GmbH only in the amount that customer would have been entitled to according to the law and case law.
11.8. For claims by CL's participant of over € 2,000 in case of personal injury or damage to property, the CL is obliged initiate litigation against the customer, upon equest by APPINA TRAVEL GmbH, and to declare APPINA TRAVEL GmbH a party in this litigation, provided that APPINA TRAVEL GmbH or its liability insurance, reject the nature and amount of the claims.
11.9. The CL is obliged to check travel documents and other documentation for accuracy, integrity and compliance with contractual agreements and to inform APPINA TRAVEL GmbH of any errors in the content or missing documents immediately. Failing this, and where errors were recognised by the CL, the CL shall bear any possible consequences at its own expense, as APPINA TRAVEL GmbH would have been able to remedy the errors if immediate notification had been forthcoming.
11.10. The delivery of travel documents, in particular air tickets, admission tickets, vouchers and other documents is at the risk of the client. APPINA TRAVEL GmbH shall not be liable for the loss of such documents in transit, provided that the loss is not as a result of wilful intent or gross negligence on the part of APPINA TRAVEL GmbH or its representatives.
12.1. APPINA TRAVEL GmbH shall not be liable for services or parts thereof, which have been added by the CL - with or without the knowledge of APPINA TRAVEL GmbH - to the services offered, organised and realised by the APPINA TRAVEL GmbH, irrespective of the type of additional service the CL offers its customers. These include in particular:
a) arrivals and departures organised by the CL to the travel destination contractually agreed with APPINA TRAVEL GmbH as well as local transport during the trip,
b) events not included in the range of service offered by APPINA TRAVEL GmbH, before or after the journey, and tours, excursions, encounters, etc. at the destination.
12.2. APPINA TRAVEL GmbH shall not liable for the consequences and costs that arise from impairments to contractual services to be rendered by APPINA TRAVEL GmbH or to the itinerary as a whole, which are caused by the execution, disruption or failure of additional services, sightseeing tours, events, encounters or any other circumstances organised and conducted by the CL itself, on its own accord.
12.3. APPINA TRAVEL GmbH shall not be liable for actions or failures of the CL or its representatives, tour guides, bus drivers, or any of the tour guides recommended by APPINA
TRAVEL GmbH during or after the trip, especially in cases where APPINA TRAVEL GmbH has not been consulted
a) changes to the services specified in this contract,
b) instructions to local guides, service providers and agencies,
c) separate agreements with different service providers,
d) information and assurances to its customers.
12.4. Insofar as APPINA TRAVEL GmbH's warranty and liability to the CL is linked the tour price, only the price agreed between the CL and APPINA TRAVEL GmbH is significant, without taking into account the margin, or surcharges of any kind, which the CL has factored in the tour price or in extra charges.
12.5. As far as APPINA TRAVEL GmbH's warranty and liability are concerned, liability for consequential damages shall be, in principle, excluded, in claims by the CL's participants against APPINA TRAVEL GmbH, provided that APPINA TRAVEL GmbH is not guilty of gross negligence or wilful intent, except where claims against the APPINA TRAVEL GmbH relate to claims arising from injury to life, body or health. This shall apply particularly for payments by the CL to its participants for claims for damages or for useless of wasted holiday time, or for the lack of consecutive bookings by the CL's participants or group of participants affected.
12.6. APPINA TRAVEL GmbH's relationship is exclusively with the CL for the provision of flights, and not with the participating contracting carrier as defined by national, international and European law on air traffic regulations. APPINA TRAVEL GmbH is by no means the operating air carrier.
12.7. APPINA TRAVEL GmbH shall not be liable for information about prices and services or for personal injuries and damage to property of any kind where the relevant information has been specifically published in the tour brochure, the offer, the confirmation or other documentation. Any liability of APPINA TRAVEL GmbH arising from a breach of its obligations as an agent shall remain unaffected.
12.8. Insofar as tour guides are recommended at the request of the CL, after the appropriate contractual agreement has been concluded, these persons shall be deemed neither representatives nor employees of APPINA TRAVEL GmbH. APPINA TRAVEL GmbH shall not be liable for their services, activities, failures, contractual violations or legal obligations, in particular where such actions result in tour disruptions, itinerary problems, service failings or personal injuries and damage to property, unless the resulting loss or the emergence of a corresponding claims is found to be due to a breach of duty on the part of APPINA TRAVEL GmbH, particularly gross negligence or intentional fault in selection.
13.1. For the assertion of claims by the CL against APPINA TRAVEL GmbH pertaining to the contract and legal relationship as a whole the following shall apply:
a) claims based on non-contractual rendition of the services agreed are to be asserted in writing by the CL within 2 months of the date of the contractually scheduled end of the tour
b) the limitation period does not generally apply to claims arising from injury to life, body or health of the participants.
13.2. For package tour contracts with its participant, the CL is bound, in its contractual relationship with APPINA TRAVEL GmbH, and in accordance with legal information requirements for tour operators to point out the statutory limitation period pursuant to § 651g of the German Civil Code (BGB) for the assertion of any claim of by participants against its tour operator the CL as well as the regulations on the limitation of any claims by a participant against the CL.
13.3. The CL's contractual claims that are based on injury to life, body or health of the owner, managing directors, staff members or the CL's participants, based on an intentional or negligent breach of duty by APPINA TRAVEL GmbH or one of its representatives, shall be time-barred after three years. This shall also apply to claims for compensation for other damages based on an intentional or grossly negligent breach of duty by APPINA TRAVEL GmbH or one of its representatives.
13.4. All other contractual claims are time-barred after one year.
13.5. The limitation period for claims shall begin at the end of the year in which the claim arose
and the CL acquired knowledge of the facts giving rise to the claim against APPINA TRAVEL GmbH, and APPINA TRAVEL GmbH, against whom claims are asserted, obtained knowledge or became aware without gross negligence.
13.6. Provisions for longer or shorter periods of limitation in international regulations and agreements, as well as in European Union regulations, which are applicable to the legal or contractual relationship between APPINA TRAVEL GmbH and the CL, shall remain unaffected, with the proviso that the longer limitation periods contained therein shall apply in favour of the CL, if such longer limitation periods cannot be effectively waived in contracts between companies or traders.
13.7. If there are ongoing negotiations between the CL and APPINA TRAVEL GmbH about the claim or the circumstances giving rise to the claim, then the statute of limitations shall be suspended until the CL or APPINA TRAVEL GmbH refuses to continue the negotiations. The limitation period shall expire no earlier than three months after the end of the suspension.
14.1. APPINA TRAVEL GmbH is not permitted to outsource the provision of travel services for the CL specified in this contract to third parties, in particular to other travel companies, or to allow these to make the services accessible or available in any other way, without express prior agreement
14.2. The assignment of any of the CL's warranty and damage claims against APPINA TRAVEL GmbH to third parties, in particular to customers is excluded. Also excluded is the assertion of such claims by third parties in its own name due authorisation from the CL. Subrogation to employers, social security agencies and others shall remain unaffected.
14.3. The sole place of jurisdiction for any legal dispute between APPINA TRAVEL GmbH and the CL is the seat of the headquarters of APPINA TRAVEL GmbH. This shall not apply where applicable provisions in German law, international regulations or agreements or in European Union regulations on jurisdiction and choice of jurisdiction are included in the legal and contractual relationship, whereby contracts between companies cannot effectively be changed or waived.
© Copyright protected; VPR Internationaler Verband der Paketer e.V. and solicitor Rainer Noll, Stuttgart, 2010-2014
