General Terms & Conditions
Art. 1 Area of Application
(1) The ueberland Reisen Berlin GmbH, Arndtstr. 34, 10965 Berlin (hereinafter referred to as überland Reisen) intend to purchase touristic services in Germany and in the Area of the European Union for wholesale in package or individual deals by domestic and foreign tour operators.
(2) The present General Terms of Business (GTBs) shall determine subject to additional supplement agreements the contractual relationship between überland Reisen and the tour operator, in terms of sec. 1 (hereinafter referred to as Client). Any deviating terms of business of Client are hereby expressly excluded.
(3) Offers from überland Reisen are addressed to entrepreneurs only. Entrepreneur is deemed any natural or juristic person, or any partnership of legal capacity which at the time of transaction exercises its commercial or self-dependent professional activity (art. 14 BGB German Civil Code).
Art. 2 Contracting
(1) By booking the services offered by überland Reisen, Client makes a binding offer to überland Reisen for the conclusion of a contract. Client may make such booking in writing, by facsimile, e-mail or phone. The offer to contract of Client shall be based on the catalogues of services and prices let to überland Reisen, respectively such individualised package and individual services proposed upon request.
(2) Clients offer to contract shall be accepted by submission of the booking confirmation by überland Reisen in text form. In case the content of the booking confirmation deviates from the content of the booking, this shall be deemed a new offer by überland Reisen. The contract is deemed concluded on the basis of this new offer once the Client declares its acceptance, including by making the respective payment.
Art. 3 Services
(1) The type and scope of services owed under the contract are determined by the Specification of Services by überland Reisen on which the contract is based. No binding commitment to special request is made.
(2) The classification of tourist accommodation stated by überland Reisen in the Specification of Services refers to the system typical in the country concerned, unless überland Reisen specified a different classification.
(3) Unless expressly stated, hotel bookings shall not be deemed as equipped for disabled persons. Bookings of rooms suitable for handicapped persons is subject to special request and confirmation by überland Reisen in writing.
(4) Satisfaction of special requests as to rooms, equipment and beds which deviate from the Specification of Services of überland Reisen is in the sole province of the hotel, depending on its facilities and availability, and cannot be warranted by überland Reisen.
Art. 4 Terms of Payment, Delay
(1) überland Reisen shall invoice Client the contractual remuneration. The invoice amounts are understood as Euro unless specified otherwise, and include if pertinent statutory VAT as applicable at the date it is incurred. Payment shall be made in accordance with the terms stated in the invoice. Costs of money transfer shall be borne by Client. If no due date is indicated in the invoice, the amount claimed shall be due for immediate payment.
(2) überland Reisen shall be entitled to claim advance and/or part payment, in its own reasonable discretion, to be set off against the total price. To the extent überland Reisen intends to subject performance against full or partial advance payment only, it shall notify Client accordingly, prior to contracting.
(3) Dunning costs for late payment shall be billed at 5.00 EUR lumpsum. It is incumbent on Client to prove that überland Reisen did not incur any or a lower - loss.
(4) In the event advance payments, or the total respectively remaining amount is not paid by Client within the period agreed upon, überland Reisen may refuse performance and, after a reasonable grace period granted, withdraw from the contract once the service was not yet performed. In such event, überland Reisen shall invoice Client cancellation costs in accordance with art.
Art. 5 Amendment of Services, Adjustment of Price
(1) überland Reisen is entitled to amend contracted services in case of serious reasons which occur after contracting, and make such amendment inevitable. No amendments or deviations shall be admissible which substantially affect the overall character of performance respectively the package services or are unacceptable for Client in consideration of mutual interests, or discriminatory under the principle of good faith. Warranty claims shall remain unaffected as far as such amended services are flawed with defects.
(2) In the event price adjustments by its service providers after conclusion of the contract, überland Reisen is entitled to adjust the price agreed upon taking into account the interests of Client if such adjustment is compelling to avoid a cut of profits (provided that the circumstances resulting in such increase did not occur prior to contracting, and were not foreseeable at that time by the überland Reisen). To be valid, the notice of such increase must be given in writing, stating the relevant cost items, the time and allocation scheme of reference for such increase, and the respective calculation method.
(3) A price increase is admissible only in the event of increased transportation costs, duties and taxes for certain services, and of exchange rates they were based on, and such claim has to be stated by the 20th day before the performance of services.
a) In case transportation costs as in effect at the time of contracting are increased e.g. fuel cost überland Reisen may adjust the travel price in line with the following calculation scheme:
aa) In case of an increase per seat, überland Reisen may claim the increased amount per seat booked from Client. bb) In other instances, the additional transportation costs claimed by the transportation companies shall be divided by the number of seats in the conveyance agreed upon. überland Reisen may request Client to pay the resulting increase for the seats booked.
b) In the event of an increase of taxes and duties in effect at the time of contracting which are essential for, and included in, the agreed scope of services überland Reisen may increase the prorated amount accordingly.
c) In case of altered exchange rates after contracting, überland Reisen may increase the total by the amount the price of the service has increased for überland Reisen.
(4) überland Reisen shall inform Client immediately about the alterations contemplated in sec. 1 to 3. In the event of a substantial alteration of essential services, including the price, Client is entitled to withdraw from the contract free of charge. In case of changes in terms of sec. 1, Client is entitled to request a service of at least the same value, instead of a withdrawal, provided that überland Reisen is able to offer such to Client without additional cost. Client shall exercise such right toward überland Reisen immediately upon receipt of the notification regarding the altered service.
Art. 6 Withdrawal of Client before beginning of Performance, Cancellation Costs
(1) Client may withdraw from the contract at any time prior to the execution of services. The withdrawal shall be declared toward überland Reisen in writing.
(2) In the event Client withdraws prior to execution, or declines the acceptance of services, überland Reisen is not entitled to claim the agreed remuneration. Instead, überland Reisen may claim a reasonable compensation of provisions and expenses incurred so far depending on the respective total price unless User is liable for such withdrawal, or the cause is an act of force majeure.
(3) überland Reisen took into account a lump-sum compensation claim, prorated in time i.e. depending on the closeness of the time of withdrawal to the agreed beginning of services and the agreed price with an allowance for saved expenses and a different use of services, as the case may be. The lump-sum cancellation rates and times may differ depending on the service respectively package and shall be notified to Client for each individual case in the Specification of Services and the booking confirmation.
(4) überland Reisen reserves the right to claim a compensation higher than the above lump sum in specific cases, provided that überland Reisen proves that he has incurred much higher expenses than covered by the applicable lump sum. In such instances, überland Reisen is obligated to totalise and document such compensation, taking into account if pertinent any saved expenses and different use of services.
(5) Ticket costs shall be billed separately and in full despite a cancellation if überland Reisen is unable to return the tickets to the respective presenter against repayment, or to use them otherwise.
(6) In case of a partial cancellation, the Parties shall agree on a new price, in consideration of their mutual interests and opportunities. If such agreement cannot be reached, the cancellation is deemed as a total cancellation, and the cancellation fee pursuant to sec. 3 applied.
(7) The Client may prove that the loss überland Reisen incurred by such cancellation was nil or substantially lower than the lump sums under sec. 3, as specified in the Speci-fication of Services and the booking confirmation.
Art. 7 Alteration of Bookings
(1) After receipt of the booking confirmation, Client is no longer entitled to claim a change of the time of performance, the scope or place of services, or the accom-modation and means of transportation (change of booking). Should Client request such change of booking with costs, he ought to contact überland Reisen at his earliest convenience. überland Reisen shall endeavour to comply with such request, in concertation with Client.
(2) Claims for a change of booking by Client made within four weeks before the planned execution of services can be honoured if at all only by way of withdrawal pursuant to art. 6 and simultaneous new booking. This shall not apply to claims of changes involving minor costs only.
Art. 8 Substitute
Travellers Client is free to alter the names and persons prior to the beginning of the trip, provided that the substitute travellers meet the specific requirements for making such trip, and the participation of the substitute traveller(s) is not excluded by statutory provisions or orders from the authorities. Any additional costs thus incurred shall be borne by Client, and may be charged at a lump sum of EUR 30.00 per person, unless überland Reisen proves having incurred higher expenses. Client is free to prove that überland Reisen did not incur such higher expenses, or in a substantially lower amount only.
Art. 9 Rescission in case of shortfall of minimum number of group travellers
(1) überland Reisen may withdraw from the contract for services to be provided for group tours because of a shortfall of the minimum number of participants, provided that
a) the respective Specification of Services defined a minimum number of participants and the latest date by which Client must have received the declaration of withdrawal, prior to the agreed beginning of services, and
b) the booking confirmation clearly indicates the minimum number of participants and latest date of withdrawal, or contains a reference to these requisites stated in the travel advertisement.
(2) In such event, the withdrawal shall be declared immediately, and must be received by Client by the latest at the time specified in sec. 1 a). The price paid by Client shall be reimbursed immediately, too.
(3) Sec. 1 and 2 shall not apply if überland Reisen guaranteed the execution of the services (execution guarantee). In that event, überland Reisen may adjust the services agreed to the actual size of the group, in his reasonable discretion. Art. 5 sec. 1 and 4 shall apply accordingly.
Art. 10 Unclaimed Services
In case Client respectively his travellers do not make use of particular services properly offered for reasons Client or these travellers are answerable for, they have no claim for a compensation of the prorated price. überland Reisen shall endeavour to compensate expenses saved at the service providers. However, such obligation shall not apply to insignificant services, or is excluded because of regulatory provisions or orders from the authorities.
Art. 11 Termination Right of the überland Reisen
überland Reisen may terminate the present contract without notice in the event that individual travellers seriously disturb the travelling despite a warning by überland Reisen, or misbehave in such manner which justifies an immediate rescission of the contract. In the event of a termination by überland Reisen, the latter is still entitled to the payment of the price, to be set off against saved expenses and such benefits as obtained from a different use of unclaimed services including any amounts credited by the service providers.
Art. 12 Clients Obligations to notify and co-operate
(1) Client shall inform überland Reisen if he did not receive the necessary travel documents (e.g. tickets, hotel vouchers) within the period specified by überland Reisen. Client is obligated to check on the accuracy and completeness of the travel documents received in particular their compliance with the booking. Furthermore, Client is obligated to immediately notify überland Reisen on discrepancies, lacking documents or other inconsistencies. In case Client is liable for non-compliance with this obligation, he shall bear co-liability for any loss thus incurred (art. 254 BGB).
(2) It is incumbent on Client to notify überland Reisen of any defects/ deficiencies discovered if at fault for not doing so, the price shall not be reduced. The notification of defects is not subject to a specific form but it is recommended it be made in writing. Such notification is unnecessary if fruitless for obvious or unacceptable for other reasons, or überland Reisen must have been well aware of the defect anyway.
(3) Prior to the execution of services, Client shall be provided with an emergency phone number or other data for immediate contact to überland Reisen. Client is obligated to forward the contact data to all participating travellers.
(4) Client shall inform his travellers on their obligation to pay themselves for any extra services at site not contained in the Specification of Services of überland Reisen, such as e.g. visitors tax, other local levies, costs of Pay-TV, minibar or underground parking. überland Reisen will not bear any of these costs.
(5) Furthermore, Client shall inform his travellers on guarantees by credit card or cash deposits local service providers may require to be made. überland Reisen shall inform Client in due time of such requirements.
(6) It is incumbent on Client alone to notify his travellers in due time on pertinent passport, visa and healthcare regulations, as well as any amendments thereof.
Art. 13 Exclusion of Claims, Statute of Limitation
(1) Claims based on deficient services shall be stated by Client toward überland Reisen within one month following the scheduled rendering of such service. After this period, claims may be made only in case überland Reisen could not meet this deadline without his own fault.
(2) Clients claims shall be barred of limitation subject to other mandatory regulations after one year. The shorter statute of limitation shall not apply to claims for losses caused by gross negligence, and bodily harm.
Art. 14 Limited Liability
(1) By statute, überland Reisen shall be liable for damage to life, the body and health resulting from intentional or reckless breach of duties by überland Reisen, his statutory representatives or vicarious agents. überland Reisen shall also be liable for damage not covered by sent. 1 but resulting from intentional or reckless breach of duties by überland Reisen, his statutory representatives or vicarious agents in line with the pertinent statutory regulations.
(2) überland Reisen shall also be liable for losses caused by negligence to the extent they result from a violation of rights to be granted by Client in line with the content and purpose of the contract, and/or by a breach of duties required in the first place for the proper implementation of the contract on which Client does and may normally rely (cardinal obligations). Liability for material damages and pecuniary losses hereunder is limited to the foreseeable loss typical for such contract.
(3) In other respects, liability for material damages and resulting pecuniary losses is limited to [XXX] euros per occurrence, even in case of a breach of a material contractual obligation.
(4) The above limitations of liability shall apply accordingly in favour of the bodies corporate, statutory representatives and other vicarious agents of überland Reisen.
(5) In other respects, liability is excluded unless mandatory by statute.
Art. 15 Sundry Provisions
(1) Subject to other individual agreements, the entire covenant between überland Reisen and Client shall be governed by German law.
(2) If Client is deemed a qualified businessman, a legal entity or publiclaw person, or holds special public assets, exclusive jurisdiction for all claims resulting from or related to this contract is agreed upon to be the domicile of überland Reisen. The same shall apply to persons having no general court venue in Germany, or having moved their domicile or usual abode abroad, after contracting, or persons of unknown domicile or usual abode at the time of suing.
(3) Client shall be entitled to setoff only in the event his counter-claims are established by final judgement, or uncontested by überland Reisen, or in close reciprocal connection with überland Reisens claim. Client is only entitled to exercise a withholding right if his counter-claim is based on the same contractual relationship.
(4) Client is not entitled to assign his claims against überland Reisen hereunder without the consent of the latter.
(5) Any invalidity of individual provisions hereof shall not result in the invalidity of the contract as a whole.