General Terms and Conditions for Customised Travel Services
Dear customer,
To the extent that they have been validly agreed, the following terms and conditions form part of the service contract concluded between the Customer and Stuttgart Marketing GmbH (hereinafter referred to as “STMG”) concerning the provision of travel services and other services. They supplement the statutory provisions set out in Sections 611 et seq. German Civil Code (BGB). Please read these terms and conditions carefully before making your booking.
1. Status of STMG; applicable law
1.1. STMG renders the customised travel services specified (e.g. tours, tickets, courses, reservation and tourism services (hereinafter referred to collectively as “Adventure Travel Services”)) as the service provider and the direct contractual partner of the Customer.
1.2. The legal relationship between the Customer and STMG is governed primarily by the agreements concluded with STMG, as well as by these general terms and conditions and, on a subsidiary basis, the statutory provisions on service contracts set out in Sections 611 et seq. BGB.
1.3. Unless the mandatory provisions of international or European law which are applicable to the legal relationship with STMG are more favourable for the Customer, German law exclusively applies to the entire legal and contractual relationship with STMG
1.4. The following provisions only apply to the Adventure Travel Services provided by STMG. STMG’s general terms and conditions for travel services are applicable to package holiday contracts and multi-day adventure trips, to the extent that these services are offered.
2. Conclusion of contract, position of group client
2.1. The following applies to all bookings and Adventure Travel Services:
a) Bookings are accepted in writing, over the telephone, by fax, by email or online.
b) The basis of STMG’s offer and the Customer’s booking are the description of the offer of travel services and the additional information in the booking basis, insofar as they are available to the Customer upon booking.
c) If the content of the order confirmation deviates from the content of the booking, this will constitute a new offer by STMG. The contract will be concluded based on this new offer if the Customer declares their acceptance by making an express declaration, making a down-payment, paying an outstanding balance, or utilising the services.
d) The Customer making the booking is liable for the contractual obligations of the other travel participants on whose behalf they make the booking to the same extent as they are liable for their own contractual obligations. This only applies if the Customer making the booking has assumed the relevant obligation by means of a separate, express declaration.
2.2. If a client makes the booking, i.e. an institution or a company (private group, adult education centre, school class, association, travel operator, incentive or event agency, travel agency), this client, as the Customer, is the sole contractual partner of STMG with regard to the service contract, provided that the agreements concluded do not expressly stipulate that the client is acting as the legal representative of the later participants. In this case, the payment obligation will apply to the client in full with regard to the agreed fees or other contractual payment claims.
2.3. The following applies for bookings placed by telephone, in writing, by email or by fax:
a) By placing their booking, the Customer submits a binding offer to STMG to conclude the travel agreement. The Customer is bound by the booking for 3 working days.
b) The contract is concluded upon receipt of the booking confirmation (declaration of acceptance) issued by STMG in text form.
2.4. With regard to bookings made electronically (e.g. online, app, email), the following applies for the conclusion of the contract:
c) The procedure for electronic bookings is explained to the Customer in the corresponding application of STMG.
d) An option is available to the Customer to correct the information they have entered or to reset the entire booking form. An explanation on how to use this option is provided.
e) The available contract languages for making the online booking are stated. Only the German language version is legally authoritative.
f) If the contract text is saved in STMG’s online booking system, the Customer will be informed of this and about the possibility of retrieving the text at a later point.
g) By clicking on the “book for a fee” button, the Customer submits a binding offer to STMG to conclude the travel services agreement. The Customer remains bound by this contractual offer for three working days after sending the electronic declaration.
h) The receipt of the booking will be confirmed to the Customer electronically right away.
i) The transmission of the booking by clicking on the “book for a fee” button does not automatically entitle the Customer to conclude a travel services agreement based on their booking data. Rather, STMG is free to decide whether to accept the Customer’s contractual offer or not.
j) The contract is concluded upon the Customer receiving the booking confirmation from STMG
2.5. STMG points out that, according to the statutory provisions (Section 312g para. 2 clause 1 no. 9 BGB), there is no right of withdrawal, even if the services contract was concluded as a distance-selling transaction. This shall not affect the Customer’s other statutory rights of withdrawal and termination.
3. Services, right to replacement; other agreements; amendments to material services; service period; weather conditions
3.1. The performance owed by STMG consists of rendering the respective services according to the service specifications and the additional agreements concluded. Any information provided about the period during which services are rendered, including information about tours and guided tours, is approximate.
3.2. Any information and assurances provided by third parties or agreements with third parties (including travel agencies, accommodation businesses, transport companies) about the scope of the contractual services which conflict with the service specifications or the agreements concluded with STMG are not binding on STMG.
3.3. Amendments or additions to the contractually agreed services require an express agreement with STMG; it is strongly recommended to make these amendments or additions in writing for reasons of proof.
3.4. Amendments to material services which deviate from the agreed content of the contract and become necessary after the conclusion of the contract (including amendments during the period when services are rendered) and which were not made necessary by STMG in bad faith, are permitted, provided that the amendments are not material and also do not affect the basic character of the service. Any guarantee claims which the customer may have in the event of such amendments to material services are unaffected.
3.5. The following applies to weather conditions and the effect they have on the agreed services:
a) Unless expressly agreed otherwise in individual cases, the agreed services will be rendered in all weather conditions.
b) Weather conditions do not give the Customer any right to withdraw from the contract free of charge or to terminate the contract with STMG. This does not apply if the weather conditions affect the Customer’s body, health or ownership rights to the service to such an extent that rendering the service is no longer reasonable for the Customer.
c) If these conditions prevail at the start of the period when the services are to be rendered or, considered objectively, can be expected at that time, the Customer and STMG reserve the right to terminate the contract for the service on ordinary or extraordinary grounds.
d) If STMG terminates the contract according to this provision, neither the guest nor the client has any claims to the reimbursement of costs, including travel and accommodation costs, unless such contractual or statutory claims of the guest or the client are based on damages or compensation for expenses.
4. Rendering of services and payment methods
4.1. The agreed services include rendering the Adventure Travel Services and any other advertised or agreed services.
4.2. Entry fees and the cost of catering and transportation by public and private means of transport, city maps, brochures, museum guides and guided tours at sights visited as part of Adventure Travel Services are only included in the agreed price if they were expressly listed under the services forming part of the Adventure Travel Services or have been agreed on separately.
4.3. Unless agreed otherwise, the full price of the travel service falls due for payment when the booking is made.
4.4. If the Customer does not pay the fee in accordance with the agreed payment deadlines even though STMG is prepared and able to provide the contractually agreed services and the Customer has no statutory or contractual right of retention, STMG is entitled to withdraw from the contract following a warning with a deadline and may charge the Customer any withdrawal costs in accordance with Clause 6, unless the Customer was not responsible for the payment delay.
5. Failure to utilise the services
5.1. If the Customer does not utilise the agreed services or a part thereof (and STMG is not responsible for this), particularly by failing to appear for the respective service without terminating the contract first even though STMG was ready and able to provide the services, there is no claim to reimbursement of any payments which have already been made.
5.2. The relevant statutory provisions (Section 615 sentences 1 and 2 BGB) apply to the fees:
a) The agreed fees must be paid; there is no claim to subsequent performance.
b) However, STMG must permit deductions to be made for any savings it makes on the fees as well as for any fees which STMG earns (or maliciously fails to earn) by rendering the services to someone else.
6. Termination and withdrawal by the Customer, return of entry tickets
6.1. The Customer is entitled to withdraw from the contract at any time before the commencement of the travel services under the contract. Notice of withdrawal must be given to STMG at the below address. The Customer is advised to submit the withdrawal notice in text form.
6.2. Unless otherwise stated in the service specification, STMG has set the following lump sum compensation, taking into account the period between the withdrawal notice and the commencement of the travel services as well as the expected savings on expenses and the expected earnings through other uses of the Adventure Travel Services. Compensation will be calculated as follows after the notice of withdrawal is received, using the respective cancellation scale:
- 30 days or more before services commence 20%
- less than 30 days before services commence 50%
- less than 3 days before services commence (including the day when services commence) or, in the event of a no-show, 100% of the price for the service.
6.3. No reimbursements will be made for entry tickets or other tickets.
6.4. In any case, the Customer is at liberty to prove to STMG that STMG has not suffered any damage/loss at all or that the damage/loss is significantly lower than the compensation claimed.
6.5. The above provisions on termination do not affect the statutory or contractual termination rights of the Customer relating to defects in the Adventure Travel Services provided by STMG or any other statutory guarantee rights.
7. Liability of STMG; insurance
7.1. STMG is not liable for damage/loss that is not caused by the breach of a material obligation, the fulfilment of which makes the proper performance of the service contract possible, or the breach of which jeopardises the achievement of the purpose of the contract or results in the death or injury of the Customer, provided that the damage/loss was not caused by STMG, its legal representatives or vicarious agents either intentionally or as a result of gross negligence.
7.2. STMG is not liable for the services, measures or omissions of accommodation or catering establishments, or any other providers visited within the context of the services, unless the damage/loss is caused by (or partially caused by) a culpable breach of duty on the part of STMG
7.3. The services agreed under the contract only include insurance in favour of the Customer if this has been expressly agreed.
7.4. The Customer is expressly advised to take out travel cancellation insurance.
8. Withdrawal by STMG due to failure to reach the minimum number of participants
8.1. STMG may withdraw from the contract according to the following provisions if the minimum number of participants is not reached:
a) The minimum number of participants and the latest time of withdrawal by STMG must be clearly stated in the specific service description or, in case of uniform regulations for all Adventure Travel Services or certain types of Adventure Travel Services or ticket services, in a general catalogue note or a general service description.
b) STMG must clearly state the minimum number of participants and the latest time when notice of withdrawal can be given or must make reference in the booking confirmation to the relevant information in the brochure.
c) STMG has an obligation towards the Customer to give notice of the cancellation of the travel service without undue delay when it becomes certain that the travel service will not be rendered due to the minimum number of participants not being reached.
d) If a minimum number of participants has been agreed, the down-payment specified in the advertisement will fall due for payment when the booking is made; the outstanding balance falls due for payment when confirmation is given that the services will be rendered.
8.2. If the travel service is not rendered for this reason, the Customer will be reimbursed for any payments which they have already made on the price.
9. Termination for reasons relating to behaviour
9.1. STMG is entitled to terminate the service contract with immediate effect if the Customer continues to cause disruption in spite of being warned by STMG or if the Customer behaves in a way which breaches the contract to such an extent that the immediate cancellation of the contract is justified.
9.2. If STMG terminates the contract, STMG will still be entitled to the price of the services; however, STMG must accept deductions from the price for any savings made and any benefits which STMG has obtained by rendering the services which were not utilised by the Customer to someone else.
10. Service periods, Customer’s obligations
10.1. The Customer is required to provide a mobile phone number when booking or in good time before the agreed date of the adventure travel, on which they can be contacted in the event of extraordinary events. As a rule, STMG will also provide the Customer or a nominee with a mobile phone number.
10.2. Agreed service schedules must be adhered to punctually. If the guest is late, they are obliged to notify the provider of the Adventure Travel Service of this delay by the time when the agreed service should commence at the latest and also inform the provider of their estimated time of arrival. The provider may refuse to commence the Adventure Travel Service at a later point if postponement is objectively impossible or unreasonable, including where subsequent services or other fixed business or private appointments of the provider would be impossible to render/attend. As a rule, postponements of more than 30 minutes entitle the provider to cancel the Adventure Travel Service. In such cases, the provisions set out in Clause 6 of these terms and conditions apply to the provider’s claim to payment.
10.3. The guest, or the person acting on behalf of the group client, must notify the provider of any defects in the Adventure Travel Service and the agreed services immediately and request a remedy. Claims due to the performance of the provider being defective or incomplete will only lapse if the party obliged to make such a notification fails to do so and is at fault for this.
10.4. The guest or the client are only entitled to abort or terminate the Adventure Travel Service after the service has commenced if the service rendered by the provider has material defects and these defects are not remedied despite being reported as required. If the service is aborted or terminated without justification, there is no claim to reimbursement. This does not affect the guest’s or client’s guarantee claims if the performance of the Adventure Travel Service is defective.
11. Specific obligations of the Customer in relation to Adventure Travel Services involving physical activities
11.1. The guest must check prior to booking or participating in the Adventure Travel Services whether these services are appropriate for them in view of their physical condition.
11.2. In the absence of an express agreement, STMG does not have any obligation to provide the guest with any specific (including personal) medical advice or information.
11.3. STMG or its vicarious agents (guides, etc.) may exclude the guest from the service (either partially or fully) if there are any indications that the Adventure Travel Services could exceed the Customer’s abilities and this could result in the guest endangering themselves or others. Clauses 5 et seq. apply mutatis mutandis.
11.4. If the guest leaves or aborts the tour due to an injury or illness for which the provider is not responsible, or at their own request, the provisions of Clauses 5 et seq. apply.
11.5. Even though the adventure travel tours are accompanied by a guide, they require a high level of self-responsibility on the part of the guest.
11.6. Guests are advised to wear clothing which is appropriate for adventure travel and to bring protection against strong sunlight, rain and wind. We also advise guests to take a change of clothes with them. If the guest appears in clothes or shoes which are not suitable for adventure travel, the provider of the Adventure Travel Services reserves the right to fully or partially exclude the guest from participation for safety reasons.
11.7. Any instructions which the guide gives before or during the adventure travel tour must be followed.
11.8. Non-swimmers may not participate in adventure travel tours which take place on water.
12. Special provisions relating to pandemics (including coronavirus)
12.1. The parties agree that the agreed services will be performed by STMG in compliance and in accordance with the official requirements and stipulations which are applicable during the period when services are rendered.
12.2. The parties expressly agree that there is no right of termination due to force majeure or material changes to the services due to conditions imposed by authorities on the performance of the Adventure Travel Services under this contract if the respective agreed Adventure Travel Service has not generally been prohibited by the authorities at the time when the service commences.
12.3. The Customer agrees to observe reasonable usage regulations or restrictions of STMG when using services; this also applies insofar as facilities of third parties (e.g. museums, exhibitions, events, sports facilities, gastronomy or other facilities) are visited as part of the services and special access requirements apply for the visit there). The Customer hereby agrees to inform STMG without delay if they develop any typical symptoms of illness.
12.4. The contract is expressly agreed subject to a right of withdrawal of STMG if the agreed maximum number of participants at the time of service provision is not permitted at all times according to the regulatory requirements applicable to the respective agreed Adventure Travel Service.
13. Choice of law; place of jurisdiction; consumer dispute settlement
13.1. German law applies exclusively to the entire legal and contractual relationship between STMG and the Customer. The Customer may only bring legal action against STMG at the location of STMG’s registered company address.
13.2. Where STMG can bring legal action against the Customer depends on where the Customer has their place of residence. For action brought against customers who are merchants, legal persons under public or private law, or persons who have their place of residence or habitual residence abroad, or whose place of residence or habitual residence are not known at the time when the action is brought, the location of STMG’s registered office is agreed as the place of jurisdiction.
13.3. The above provisions do not apply
a) if and to the extent that mandatory provisions of international conventions which cannot be deviated from by contractual agreement and which apply to the service contract between the Customer and STMG are more favourable to the Customer, or
b) if and to the extent that mandatory provisions in the EU member state to which the Customer belongs which are applicable to the service contract are more favourable to the Customer than the above provisions or the corresponding German provisions.
13.4. With regard to the law on consumer dispute settlement, STMG hereby indicates that STMG will not participate in any voluntary consumer dispute settlements. If a consumer dispute settlement becomes mandatory for STMG after these terms and conditions have gone to print, STMG will inform the consumers of this in an appropriate form. STMG refers to the European online dispute resolution platform https://ec.europa.eu/consumers/odr for all contracts concluded in electronic commerce.
© copyright Noll | Hütten | Dukic Lawyers,
Munich | Stuttgart, 2020