Heidelberg Marketing GmbH Terms and Conditions of Travel for Group Package Vacations

Transcription

1 Heidelberg Marketing GmbH Terms and Conditions of Travel for Group Package Vacations To our guests: To the extent validly agreed, the following Terms and Conditions shall constitute part of the travel contract formed between you and Heidelberg Marketing GmbH referred to hereinafter as HDM in the event of a booking. They apply in addition to and supplement the statutory provisions set out in Sections 651a to m of the German Civil Code (Bürgerliches Gesetzbuch [BGB]) and the information regulations applicable to travel agencies pursuant to Sections 4 to 11 BGB-InfoV (BGB Ordinance on the Requirement to Provide Information and evidential obligations under the German Civil Code). Please read the Terms and Conditions of Travel carefully before making your reservation. 1. Conclusion of a travel contract; Status of the group client and group leader 1.1 The group client is the institution, legally recognized or unrecognized association with or without legal personality, the, company or other legal entity under public or private law, that commissions HDM to provide group travel services. 1.2 The group leader is the person acting on behalf of the group client, in particular the person who is appointed to be responsible for the group during a trip. 1.3 For trips involving closed groups as used defined by these Terms and Conditions of Travel, the trip participants are deemed to be travelers within the meaning of applicable statutory provisions and hold the status of a beneficiary of a contract in favor of a third party. 1.4 Group travel may only be booked in writing. 1.5 In the case of Group Travel (with overnight stay), upon request by the group client and coordination of the details, HDM shall issue a binding offer to conclude a travel contract to the group client as an independent party to the contract and party obligated to pay following a request by the group client and coordination of the details. The contract shall be concluded only upon receipt of the group client s written acceptance of the offer by HDM within the deadline for acceptance specified by HDM. Any written acceptance that includes amendments, restrictions or expansions in addenda with respect to the offer submitted by HDM shall not result in the conclusion of a contract. Customers are recommended to request a new offer should they wish to make changes. 1.6 The following applies to reservations for Special Activities (guided tours, excursions, boat trips, etc.): a) Upon submitting the booking, the group client makes a binding offer to HDM to conclude a travel contract as an independent party to the contract and party obligated to pay. The group client is bound by its offer to contract for 10 days. b) The contract is shall only be concluded upon receipt of the HDM s written booking confirmation/invoice by the group client. c) Should the content of the booking confirmation deviate from the content of the group client s reservation from the group client or if HDM first submits a binding offer to the group client without a preceding booking, the travel contract shall be concluded on the basis of the modified booking confirmation and/or the offer from HDM, if and insofar as applicable, to the extent the group client indicates its acceptance in writing within the period stipulated by HDM or otherwise within 10 days. 1.7 In the event these Terms and Conditions of Travel contain provisions applicable to Group Travel (with overnight stay) that vary from those applicable to Special Activities (guided tours, excursions, boat trips, etc.), the terms and conditions applicable to Group Travel (with overnight stay) shall apply exclusively in the case of a combination of these two forms of bookings. 1.8 HDM notes that based on, pursuant to the statutory provisions of Section 312 et seq. BGB, there is no right of withdrawal for either Group Travel or Special Activities, i.e. neither for the group client nor the participants. In such cases, only the statutory rights of withdrawal and termination shall apply. However, there is a right of withdrawal if the contract for travel services as defined in by Section 651a BGB was concluded off-premises (e.g., at home) unless the verbal negotiations on which the contract was concluded were conducted on the basis of a previous order by the consumer.

2 2. Contractual basis; Goods and services; Travel agent; Third-party brochures 2.1 HDM s contractual duty of performance is based on the trip description in along with the booking confirmation and all supplemental information from HDM related to the respective trip if and insofar as this is available to the group client. If and insofar as HDM has submitted an offer to the group client in accordance with Section 1.5 or Section 1.6 c), the basis for the contractual duty of performance solely comprises the content of such offer and the other information and statements regarding the goods and services to be provided by HDM contained therein. 2.2 Service providers (e.g., hotels or transportation companies) and agencies are not authorized to enter into agreements, to provide information or to provide warranties that modify the agreed content of the travel contract, that go beyond the goods and services HDM has agreed to provide or that conflict with the trip description. 2.3 City and hotel brochures that have not been provided by HDM are not binding on HDM and its duty of performance unless they have not been included in the trip description or HDM s duty of performance by means of an express agreement with the group client. 3. Payment 3.1 Any obligation to make advance, outstanding or other payments on the part of the group client presupposes the provision of a guarantee certificate by HDM in accordance with Section 651k BGB. 3.2 HDM may issue the group client either a group guarantee certificate for all participants or a guarantee certificate for each participant subject to the condition, provided that the group client, at HDM s option, shall undertake to either issue them to the individual participants or to hold them for the in trust on behalf of participants as a fiduciary. The group client shall ensure that it has either the group guarantee certificate or the individual guarantee certificates prior to pursuing collections against the participants in accordance with Section The group client is responsible for collecting the travel price from its participants. Unless otherwise expressly agreed in writing, the group client shall ensure that participants make payments exclusively to the group client and not directly to HDM. The group client is itself required to pay the entire sum to HDM in one payment. 3.4 The group client is liable to HDM for culpable breaches of its duty to collect as set out above for which it is at fault if and insofar as HDM is required to accept a default in payment on the part of the participants caused by a breach of these duties. Regardless of any corresponding breach of a duty, the group client is liable for the entire payment if and insofar as it has assumed the corresponding duty by virtue of an express and specific declaration. 3.5 In accordance with the foregoing provisions, in particular with regard to the guarantee certificate, the group client shall make an advance payment in the case of Group Travel (with overnight stay) payable immediately. The amount of the advance payment is ten percent (10%) of the trip price. 3.6 If and insofar as HDM has complied with its duty to provide the guarantee certificates in accordance with the foregoing provisions, payment and/or payment of the amount outstanding, respectively, is due for payment 30 days prior to departure once it is clear that the trip may no longer be cancelled in accordance with Section 7 of these Terms and Conditions of Travel due to the failure to reach a minimum number of participants. The entire trip price is payable immediately in the case of for bookings made less than 30 days prior to departure. 3.7 If and insofar as HDM is ready and able to provide the contractually agreed travel services and the group client has no statutory or contractual right of retention, there is no right to demand the travel services or the delivery of travel documents without full payment of the trip price. 3.8 In the event that the advance payment and/or remaining payment of the amount outstanding are not made in accordance with the terms of the agreed payment deadline, HDM is entitled to withdraw from the travel contract upon issuance of a warning and granting a grace period, and is entitled to charge the group client for cancellation costs as provided in Section 5 of these Terms and Conditions of Travel. 4. Group client s payment obligation in the case of an agreed minimum number of participants; Graduated pricing 4.1 In the event that a specific minimum number of participants is agreed as a price basis with the group client, the group client shall owe the respective trip price as an independent payment obligation independently, regardless of the actual number of participants and without prejudice to the right of HDM to withdraw from the contract where appropriate in accordance with the provisions of Section 7 of these Terms and Conditions.

3 4.2 In the event that graduated pricing has been agreed with the group client such that the price per participant increases should a certain minimum number of participants is not be reached, the group client shall owe the corresponding payment as an independent payment obligation independently, regardless of the payment obligations of the participants themselves. 5. Withdrawal by the customer prior to departure/cancellation costs 5.1 The group client and the participants may cancel the trip at any time prior to departure. Notice of withdrawal must be submitted to HDM at the address indicated in these Terms and Conditions. The group client/participants are advised to provide notice of withdrawal in writing. If the group client is a merchant or legal entity under public or private law, it shall provide written notice of withdrawal. 5.2 If the group client or the participant withdraw from the contract prior to departure or if participants fail to make the trip, HDM shall forfeit its claim to the trip price. However, this is without prejudice to the group client s payment obligations on the part of the group client as set out in Section 3 of these Terms and Conditions. To the extent it is not responsible for If and insofar as the withdrawal is not attributable to HDM or in the case of a force majeure event, HDM may demand reasonable compensation for any travel preparations it undertook prior to withdrawal as well as its expenses in relationship to terms of the respective trip price. The group client and participant shall be jointly and severally liable with respect to such cancellation costs as a joint and several liability. 5.3 HDM has graduated its right to compensation based on time, i.e. taking proximity of notice of withdrawal to the contractually agreed departure date into account on a pro rata basis to the trip price at fixed levels and has given consideration to, taking into account expenses that it may expect to save and common potential utilization of travel services. This compensation is calculated from the date of receipt of the customer s cancellation notice as follows: a) for Group Travel (with overnight stay): Up to 31 days prior to departure, 10%; From the 30th to the 21st day prior to departure, 25%; From the 20th to the 15th day prior to departure, 50%; From the 14th to the 7th day prior to departure, 80%; From the 6th day and in the case of a no-show, 90%; b) for Special Activities (guided tours, excursions, boat trips, etc.) From the 9th to the 5th day prior to departure, 50%; From the 4th day and in the case of a no-show, 90%. 5.4 In any event, the group client and the participant remain free to provide evidence to HDM that it the latter has incurred no or significantly lower damages than the fixed amount it has requested. 5.5 HDM reserves the right to demand higher, specific damages in lieu of the fixed amounts listed above. In such cases, HDM shall undertake to specifically calculate the amount of compensation sought under consideration of, taking into account any expenses it has saved or any other utilization of the travel services, and to provide evidence thereof. 5.6 The group client is advised to strongly recommend to the participants that they purchase travel cancellation insurance as well as insurance to cover the costs of repatriation in the event of an accident or illness. Participants are strongly advised to purchase such insurance cover themselves and independently, regardless of any corresponding actions taken by or offers from the group client. 5.7 The foregoing provision is without prejudice to the customer s statutory right of the customer to transfer the contract to substitute participant as provided in Section 651b BGB. The group client and the group leader are further entitled to transfer the contract to a substitute participants based on the analogous application of the provisions of Section 651b BGB. 6. Unused goods and services If the group client and/or the participants fail to avail themselves of specific travel services to which they were duly offered to them for reasons attributable to them (e.g. due to early return or other compelling grounds), they shall have no right to a proportionate refund of the trip price on a pro rata basis. HDM shall attempt to secure a refund of saved expenses from the service provider. This obligation shall not apply in the event that such services are entirely immaterial or if a refund conflicts with statutory or official regulatory provisions.

4 7. Cancellation by Heidelberg Marketing GmbH due to failure to secure the minimum number of travelers 7.1 In the event that the minimum number of participants is not reached, HDM may withdraw from the contract with the group client and the participants in accordance with the following provisions: a) The minimum number of participants and the latest point at which HDM may withdraw must be included in the specific travel description or, in the case of standard rules for all trips or certain types of trips, in a general description of services. b) HDM shall indicate the minimum number of participants needed and the latest point at which it may withdraw in the booking confirmation or; alternatively, the booking confirmation shall reference to the relevant information in the brochure. c) HDM shall undertake to provide notice of withdrawal to the participants immediately once becoming clear that the trip will be cancelled due to the failure to reach the minimum number of participants. d) HDM is not permitted to withdraw later than 4 weeks prior to departure. e) In the event of a cancellation, the customer may demand participation in a trip that of at least equivalent value, provided HDM is able to offer the customer such a trip without extra costs from being incurred by the latter as a result of this offering. The customer shall assert this right by notifying Heidelberg Marketing GmbH immediately after upon receiving notice that the trip has been cancelled. 7.2 If, as a result of this, the trip is not carried out, the customer will receive refund of shall immediately be refunded any advance payment of the trip price made without delay. 8. Termination on conduct-related grounds 8.1 HDM may terminate the travel contract without the need to give prior observing a notice period if the group client and/or the group leader and/or the participant, despite a warning from HDM, is continuously disruptive or the same acts in a manner that so contravenes the contract to such a degree that the immediate dissolution of the contract is justified. In the event that the group client and/or the group leader acts in breach of the contract, HDM is only entitled to terminate contracts with the individual participants insofar that it is objectively impossible or unreasonable for HDM to execute the trip as a result of conduct on the part of by the group client and/or group leader that is in breach of the contract. 8.2 Should HDM terminate the contract, it retains the right to receipt of the trip price. However, it must provide credit for saved expenses saved and the benefits it receives from applying unused goods/services for other purposes, including amounts refunded by service providers. 9. Duties of the customer 9.1 When travelling with HDM, the duty to provide notice of defects imposed by Section 651d Paragraph 2 BGB is subject to the following specific requirements: a) Regardless of the corresponding independent obligation on the part of the group client and/or group leader, respectively, each participant shall undertake to notify HDM immediately of any defects and demand the remedy of the same. b) Participants shall receive information on the contact person, availability and HDM contact information not later than such time as they are provided the travel documents. c) Claims by the part of a participant fail to remain valid if the participant fails to provide notice due to circumstances attributable to him/her. 9.2 Tour guides, agencies and employees of service providers are not authorized, nor have they been granted any authority by HDM, to remedy defects or acknowledge any claims against HDM. 9.3 The group client or the participant may terminate the contract if a trip is significantly affected by a defect. The same shall apply if the group client or the participant cannot be reasonably expected to continue a trip for good cause that is apparent to HDM. The following applies to the right of termination: a) Termination is only permitted once HDM, or, to the extent that its agents (tour operator, agency) are available and have been contractually agreed as contact persons, has permitted a reasonable deadline set by the participant to expire without providing a remedy. b) No deadline is necessary if a remedy is impossible or HDM, or its agents, refuse to provide a remedy, or if termination of the contract without notice is justified by a legitimate interest of the participant. c) The group client s right of termination shall only apply in relation to, and only for, participants who meet the requirements for termination set out above unless the defects resulting in the termination are so objectively severe that the participant and/or group client itself cannot reasonably be expected to continue the trip.

5 10. Specials terms and conditions for closed group travel 10.1 HDM is not liable for goods or services, or parts thereof, of any form whatsoever where such goods or services are offered, arranged, executed and/or provided to the participants by the group client /group leader in addition to those offered by HDM whether or not HDM has notice, regardless of HDM s knowledge thereof. In particular, this includes: a) Travel to and from the contractually agreed departure and arrival points contractually agreed with HDM as arranged by the client. b) Events prior to or following the trip or at the destination not included within the HDM scope of HDM s services. c) Tour guides arranged through HDM at the client s request of the customer HDM is not liable for the actions and omissions of the group client, the group leader or a tour guide who has merely been arranged by HDM, whether during or after the trip, in particular for the following if not coordinated with HDM: a) Changes. b) Instructions to local guides. c) Special arrangements with various service providers. d) Statements and warranties provided to trip participants In the event If and insofar as HDM s liability on the part of HDM in relation to a participant is based on the trip price, the trip price for the participant(s) agreed between the group client and HDM is solely determinative, without consideration of surcharges of, in any form whatsoever, to the participant(s) by the group client Neither the group client nor the group leader, or a tour guide merely arranged by HDM, are entitled or authorized or granted the authority to acknowledge complaints or claims asserted by participants on behalf of HDM, whether before or after a trip Notice of defects given by participants exclusively to the group client and/or group leader, as applicable, are is insufficient. However, the group client and/or group leader, as applicable, is however obligated to shall undertake to immediately notify the tour operator or agency engaged by HDM of such notice of defects without delay. Notice must be provided immediately to the HDM head office should the contractual terms do not require the designation of a tour operator or agency as point of contact for notice of defects Regardless of the trip participants obligation to provide notice of defects and from the obligation on the part of the group client and/or group leader, as applicable, to report defects of which it has been notified and to immediately forward the same to HDM in accordance with Section 10.5, the group client/group leader has a separate obligation to immediately report defects and to request they be remedied Claims by the group client and those of trip participants fail to remain valid if they fail to give notice due to circumstances attributable to the same. 11. Limitation of liability 11.1 HDM s contractual liability for damages not related to injury to life, limb or health shall be limited to three times the trip price, a) If and insofar as damages to the group client/participant were not attributable to intent or as a result of gross negligence; or b) If and insofar as HDM is liable for damages to the group client/participant for reasons attributable solely due to the fault of a service provider Tortious liability on the part of HDM for property damage not attributable to intent or as a result of gross negligence shall be limited to three times the trip price HDM is not liable for impairment of performance, personal and property damage related to services that were merely arranged as third-party services (e.g., excursions, sporting events, theater visits, exhibitions, transportation services to and from the listed point of departure and destination) if such services are explicitly labeled in the trip description and booking confirmation, and the third party who has been engaged to provide such services is indicated in such a way that it is clear to the customer that it is not part of the travel services provided by HDM. However, HDM is liable: a) For services that include the transportation of the participants from the listed departure location listed for the trip to the listed destination listed, transportation during the trip and accommodations during the trip. b) If and insofar as damages on the part of the group client/participant is due to a breach of HDM s duty to notify or inform or any organizational duties of HDM.

6 The foregoing provisions are without prejudice to any liability on the part of HDM attributable to a breach of its duties as a travel agent. 12. Claims and limitation period 12.1 Claims related to providing travel services that do not conform to the contract must be asserted by the group client and/or the participant, as applicable, within one month of the contractually stipulated date of the end of the trip. If the last day of this period falls on a Saturday, Sunday, on or an official holiday at the location where the claim is asserted, the last day of the period shall be the next business day Claims may only be asserted within this deadline period if sent to HDM at the address set stipulated below Upon the expiration of this period, the group client/the client/participant may only assert claims if they were prevented from complying with the deadline for not attributable to them. This same deadline likewise shall apply to providing notice of luggage damage or delays in delivering luggage in connection with flights if warranty rights are asserted under Sections 651c Paragraph 3, 651d, 651e Paragraphs 3 and 4 BGB. Any claim for damages related to luggage damage must be asserted within 7 days, and any claim for damages related to a luggage delay must be asserted within twenty-one 21 days, of delivery Claims by the customer pursuant to Sections 651c to f BGB related to an injury to life, limb, or health resulting from intentional or grossly negligent breach of duty by HDM or an agent or statutory representative of HDM, shall lapse after two years. The same shall apply to claims for compensation for other damages resulting from an intentional or grossly negligent breach of duty by HDM, one of its legal representatives or vicarious agents All other claims under Sections 651c to f BGB shall lapse after one year The limitation period referred to in Sections 12.3 and 12.4 shall commence on the day following the day on which the trip was scheduled to end in accordance with the contract. Section 12.1 Sentence 2 shall apply mutatis mutandis If the customer and HDM are negotiating regarding a claim or the circumstances thereof, the claim, the limitation period shall be suspended until such time as the customer or HDM refuses to continue the negotiations. The limitation period shall end three months after the end of said suspension at the earliest. 13. Passport, visa and health regulations 13.1 HDM shall inform the group client and/or the participants, as applicable, of any passport, visa and health regulations applicable to citizens of a Member State of the European Union in which the trip is offered prior to conclusion of the contract as well as changes, if any, prior to departure. In connection with the foregoing, it is assumed assumes that there are no special issues related to the customers or any fellow travelers (e.g., dual citizenship, statelessness). Citizens of other countries may ask for such information at the respective consulate The participant is responsible for obtaining and carrying any required travel documents, obtaining any required immunizations, as well as for complying with customs and currency regulations. The participant is liable for any detriments resulting from the failure to comply with such regulations, e.g., payment of cancellation fees. The foregoing shall not apply if HDM provided insufficient or incorrect information. 14. Information regarding alternative dispute resolution bodies 14.1 In respect of the German Consumer Dispute Resolution Act (Gesetz über Verbraucherstreitbeilegung), HDM notes that material provisions of this legislation had not yet entered into force as of the printing of these Terms and Conditions of Travel. HDM does not participate in voluntary consumer dispute resolution HDM shall provide the traveler appropriate notice in the event consumer dispute resolution becomes obligatory for HDM following the publication of these Terms and Conditions of Travel Please refer to the European online dispute resolution platform for all lodging contracts concluded by electronic means. 15. Applicable law and place of jurisdiction 15.1 The contractual relationship between the group client and/or participant, as applicable, and HDM is exclusively governed by German law. This shall apply mutatis mutandis to their entire legal relationship The group client and/or the participant, as applicable, may only file suit against HDM at the location of its registered office.

7 15.3 The customer s place of residence is determinative in the event that HDM files suit against the group client and/or a participant, respectively. The Parties agree that the place of jurisdiction shall be the location of the HDM s registered office for suits filed by HDM against group clients and/or participants that are merchants, legal entities under public law or private law or are persons whose residence or habitual place of abode is located outside of Germany or whose residence or habitual place of abode is unknown at such time a law suit is filed The foregoing provisions hall not apply if and insofar as applicable and non-waivable provisions of national law in a Member State of the European Union of which the participant is a citizen are more favorable to the customer and/or group client, as applicable, than the provisions set out above or the corresponding provisions under German law. Important information: All offers in this catalog may also be booked by resellers (travel organizers, travel agencies, event and marketing agencies). Please note that the Terms and Conditions of Travel printed in this catalog shall not apply to bookings made by such companies, but rather; instead, the Heidelberg Marketing GmbH Terms and Conditions For Marketing Tourism-related Services to Resellers shall apply. We will provide the terms and conditions referred to above to interested parties. In the case of overnight stays by groups outside of package arrangements, i.e. not in combination with additional travel services, the Terms and Conditions of Travel printed here are likewise inapplicable. Instead, they are governed exclusively by the Heidelberg Marketing GmbH Terms and Conditions for Guest Accommodations and Agency Services. Interested parties will receive the aforementioned terms and conditions together with our booking confirmation at the latest. These Terms and Conditions of Travel are protected by copyright. Noll & Hütten Rechtsanwälte, Stuttgart Munich, Tour organizer: Heidelberg Marketing GmbH Managing Directors: Mathias Schiemer, Nicole Huber Neuenheimer Landstraße Heidelberg, Germany Telephone: + 49 (0) Fax: + 49 (0) info@heidelberg-marketing.de Commercial register number: HRB Registration court: Local Court of Mannheim Sales tax ID no.: DE