Umfulana General Terms and Conditions
Last updated: 21 December 2012
Supplemental to Section 651a et seq. of the German Civil Code (BGB), the following General Terms and Conditions are agreed between UMFULANA GmbH, Karlheinz-Stockhausen-Platz 7, 51515 Kürten, Germany (hereinafter referred to as Umfulana) and the Customer:
§ 1 Conclusion of Travel Agreement
1. A booking request may be submitted by the Customer either in writing, orally or electronically and represents an invitation to contract.
2. A booking request becomes binding upon receipt by the Customer of Umfulana’s written acceptance of the order. No particular form is required for this notification. The Customer shall receive a written confirmation of the tour upon conclusion of the Travel Agreement or soon thereafter.
3. The obligations entered into by Umfulana shall derive from the description of the services on which the Agreement was based, any supplemental descriptions provided by Umfulana, and any special services agreed upon request, as well as the contents of the booking confirmation in reference to such requests.
4. Service providers (such as hotels and airlines) and travel agencies are not authorized by Umfulana to issue guarantees or make agreements that extend beyond or conflict with the tour description or booking confirmation provided by Umfulana or change the confirmed contents of the Travel Agreement. Umfulana shall not be liable for any claims lodged by the Customer as a result of such guarantees or agreements.
5. If, in exceptional cases, the details in the booking confirmation differ from the details in the booking request, the booking confirmation shall be deemed a new offer issued by Umfulana. Umfulana shall be bound by the new offer for a period of 10 calendar days. The Travel Agreement shall take effect on the basis of the new offer if the Customer agrees to the offer during the 10-day period by way of express consent or through the remission of a deposit or full payment.
6. If individual services are arranged by Umfulana on behalf of specified third parties (flights, rental cars, transportation, hotels, excursions, etc.) the contractual terms and conditions of the relevant service provider (particularly with respect to cancellations and changes) shall apply.
§ 2 Payment of Deposits and Balances
1. Upon conclusion of the Travel Agreement Umfulana shall provide the Customer with a Certificate of Security issued by insolvency insurer Reisegarant in accordance with legal provisions. A deposit of 20% of the tour price shall become due upon the Customer’s receipt of such Certificate. The deposit shall be credited towards the total price of the tour.
2. Payment of the full tour price (less the deposit) shall be rendered at least six weeks before the departure date. In the case of bookings made less than six weeks before departure, the tour price shall become due in full upon receipt of the Certificate of Security.
3. If payment of the deposit or balance becomes overdue for reasons within the Customer’s control , Umfulana shall issue a reminder stating a final deadline for making payment. If payment is not rendered by the stated deadline, Umfulana reserves the right to withdraw from the Travel Agreement and charge the Customer a cancellation fee as set out in Section 5 below.
4. The travel documents shall be sent to the Customer either directly or via an intermediate travel agency immediately upon payment of the full tour price.
§ 3 Service Changes
1. Umfulana has the right to make individual changes to the contracted services on justified grounds due to significant and unforeseeable circumstances, provided such changes are insubstantial, do not adversely affect the overall structure of the tour, became necessary after the conclusion of the Agreement and were not caused by a breach of good faith on the part of Umfulana.
2. Umfulana is required to notify the Customer of any service changes without delay.
3. In the event of significant changes to the contracted services, the Customer has the right to cancel the Travel Agreement without charge or demand another tour of equal value, provided that Umfulana has such a tour in its selection that can be offered without additional cost to the Customer. The Customer must exercise such rights without delay or at least within a period of 14 days after submission of Umfulana’s explanation for the price increase.
§ 4 Price Changes
1. Umfulana reserves the right to change prices confirmed on the booking date in the event of increases in transportation costs or increases in the fees for certain services, such as harbour and airport charges, or a change in the underlying exchange rates for the particular prices, as follows:
1.1. In the event of an increase in transportation costs, in particular the cost of fuel, Umfulana may increase the tour price in accordance with the following provisions:
a) If the transportation provider increases the fare on a per-seat basis, such increase may be passed on to the Customer.
b) If the transportation provider increases the price on a per-trip basis, the increase shall be divided by the number of seats, and the proportional increase per seat may be passed on to the Customer.
1.2. If harbour or airport charges owed by Umfulana increase after conclusion of the Travel Agreement, the tour price may be increased on a proportional basis.
1.3. If exchange rates change after conclusion of the Travel Agreement, the tour price may be increased by the extent the actual cost increase incurred by Umfulana for the provision of the travel services.
2. Umfulana agrees to provide the Customer with the price calculations and to explain the calculations upon request.
3. An increase in the tour price is only permitted if a period of at least four months lies between the conclusion of the Agreement (Customer’s receipt of the booking confirmation) and the departure date, and the circumstances leading to the change occurred after the conclusion of the Travel Agreement.
4. Umfulana must notify the Customer of any post-contractual changes in the tour price without delay, and in any case at least 20 days prior to departure. No changes in prices are permitted thereafter.
5. In the event of a price increase in excess of 5%, the Customer has the right to cancel the Travel Agreement without charge or demand another tour of equal value, provided that Umfulana has such a tour in its selection that can be offered without additional cost to the Customer. The Customer must exercise such rights without delay or at least within a period of 14 days after submission of Umfulana’s explanation for the price increase. If the Customer accepts Umfulana’s offer for an alternate tour, a new Agreement is thereby entered into; any down payment already made shall be credited towards the new tour. Should the Customer decline Umfulana’s offer for an alternate tour, the original Travel Agreement is cancelled.
6. If, in such cases, the Customer elects to cancel the Travel Agreement, all payments made to Umfulana shall be promptly refunded in full.
§ 5 Cancellation by the Customer Prior to Departure, Cancellation Fees, Changes, Reassignment
1. The Customer may cancel the Travel Agreement at any time prior to the departure date by issuing notice to Umfulana. If the tour was booked through a travel agent, the cancellation notice may be submitted to the travel agent. The submission of a written notice of cancellation is recommended. The date of receipt of the cancellation notice by Umfulana is deemed the cancellation date.
1.1. If the tour is cancelled by the Customer, Umfulana loses its claim to the tour price, but may charge an appropriate fee for making the travel arrangements and to cover its own expenses. Until the cancellation invoice is sent, Umfulana has the right to choose between a realistically calculated appropriate compensation according to § 651 i paragraph 2 BGB and the settlement of cancellation fees as listed under sub-section 1.2. The Customer reserves the right to prove that lower or no expenses were incurred by Umfulana. If the tour is cancelled due to a force majeure or for reasons attributable to Umfulana, no cancellation fee shall apply.
1.2. Umfulana shall be entitled to the following compensation (cancellation fee), taking commonly saved expenses and the possible reassignment of the travel services into account:
1.3. Higher cancellation fees may be applied if Umfulana can prove that higher expenses were incurred than those specified above in subsection 1.2. In this case, Umfulana is required to quantify and document the higher compensation. The compensation amount will be determined by the tour price, less the value of saved expenses and the possible reassignment of the travel services.
1.4. If the Customer proves that lower or no expenses were incurred, the Customer shall only be liable for the actual costs incurred.
2. If the client fails to take the booked tour, Umfulana shall also be entitled to fees in accordance with the provisions of sub-sections 1.1 to 1.4 above.
3. Booking changes (such as a change of hotel, rental car category or travel dates) can be made at the request of the Customer up to 21 days prior to departure for bookings that have been confirmed by Umfulana to the Customer or to an intermediate travel agency.
3.1. Umfulana will charge the Customer a rebooking fee of EUR 25.00 per changed item. Any necessary telephone, fax or telegram costs may be added to the rebooking fee. The Customer reserves the right to prove that lower or no rebooking fees were incurred by Umfulana.
3.2. Booking changes requested less than 21 days before departure can only be carried out - if the changes are possible at all - by cancelling the Travel Agreement in accordance with the provisions of sub-sections 1.1 to 1.4 above and entering into a new Agreement. This does not apply to minor changes for which immaterial costs are incurred.
4. The Customer may request at any time before departure that a third party take the tour in his/her place (reassignment) and that the rights and obligations arising from the Travel Agreement be transferred to that third party.
4.1. Umfulana may refuse the reassignment if the third party is unable to meet the special requirements of the tour in question or to comply with legal provisions or official directives.
4.2. Umfulana shall be entitled to charge a fee for any additional costs incurred by the reassignment.
4.3. The original Customer and the third party shall be co-liable for the tour price and any additional costs incurred by Umfulana.
§ 6 Travel Insurance
Cancellation insurance or coverage of return transportation in the event of an accident or illness is not included in the tour price. Cancellation fees will apply if the tour is cancelled before the departure date. Return transportation and other costs may arise if the tour is aborted. The purchase of appropriate coverage is therefore recommended.
§ 7 Obligations of the Customer in the Event of Complaints
1. If a service is not provided in accordance with the provisions of the Travel Agreement, the Customer may request a remedy. Umfulana may only refuse a remedy if unreasonable expense would be required. The Customer is obligated to report any complaints without delay to the tour guide commissioned by Umfulana or the local tour agency.
1.1. The Customer shall be given the contact details of the tour guide or local agency upon provision of the travel documents, at the latest.
1.2. If Umfulana does not provide a tour guide and is not required to do so under the terms of the Travel Agreement, the Customer is obligated to report any complaints directly to Umfulana without delay and request a remedy. Umfulana can be reached at the address specified in the travel documents. The Customer’s obligation to report complaints without delay is inapplicable only in such cases where reporting the complaint would require unreasonable effort or expense on the part of the Customer.
2. If Umfulana fails to provide a remedy within a reasonable time, the Customer may seek his/her own remedy and request reimbursement of the necessary expenses. Documentation must be submitted to Umfulana for any such expenses claimed by the Customer. It is not necessary for the Customer to set a deadline for remedial action, provided Umfulana has definitively refused to provide a remedy and the taking of immediate action is rendered necessary by a special interest on the part of the Customer.
The failure to report complaints without delay will result in the forfeiture of the right to reimbursement unless such failure is due to reasons beyond the Customer’s control.
3. The Customer is entitled to a reduction of the tour price for travel services which do not conform to the terms and conditions of the Agreement. The right to a reduction will not apply if the complaint is not reported without delay due to negligence on the part of the Customer.
4. If the value of a tour is significantly impaired by a deficiency and Umfulana fails to provide a remedy within a reasonable time period, the Customer is entitled by law to cancel the Travel Agreement. Cancellation is only permitted after Umfulana or one of its agents (tour guide, local agency) has failed to provide a remedy within a reasonable time period. It is not necessary for the Customer to set a deadline if no remedy is possible or if Umfulana or its agent has refused to provide a remedy or if cancellation with immediate effect is justified by a special interest on the part of the Customer. The same applies if the Customer cannot be reasonably expected to continue a tour for just cause.
5. The Customer shall take care to minimize the claim, to avert the occurrence of a claim if possible, and to inform Umfulana of the likelihood of an exceptionally large claim of which Umfulana neither was nor should have been aware.
§ 8 Deadline for Reporting Complaints
1. Any claims relating to the non-performance of services under the Travel Agreement must be submitted to Umfulana within one month of the scheduled return date.
2. Valid claims must be notified to Umfulana within the above period at the address specified in the travel documents and the booking confirmation.
3. Claims may only be submitted after expiration of the above period if the deadline could not be met for reasons beyond the Customer’s control.
§ 9 Lost or Damaged Baggage
Any claims relating to lost or damaged baggage must be reported to the relevant carrier without delay. This applies in particular to baggage lost or damaged during flight (the reporting deadline is 7 days for lost luggage and 21 days after delivery of delayed luggage). Failure to report the loss or damage may result in the forfeiture of claims. The carrier is required to issue a written confirmation of the claim report.
§ 10 Liability
1. Umfulana’s liability for damages other than bodily injury is limited if:
a) The Customer’s loss or damage was not caused intentionally or through gross negligence; or
b) Umfulana is held responsible for loss or damage that is solely the fault of a service provider.
2. Umfulana’s liability in tort for material damage not caused intentionally or through gross negligence is limited per member of the travelling party to 300% of the tour price. Possible baggage claims beyond that in accordance with the Montreal Convention remain unaffected thereby.
3. Umfulana shall accept no liability for disruptions to services, for bodily injury or for material damage relating to services provided by third parties for which Umfulana merely acts as an intermediary (such as transportation to or from a destination specified in the itinerary booked as a supplement to the itinerary, sporting events, theatre performances, exhibitions, excursions, etc.) and are explicitly designated in the general or specific service descriptions as third-party services which are not a component of the services provided by Umfulana.
This exclusion of liability does not apply to:
a) The conveyance of the Customer from the specified point of departure to the specified tour destination, transportation between destinations and accommodation provided during the tour; or to the extent that
b) loss or damage was incurred by the Customer due to a violation on the part of Umfulana of its informational, instructional or organisational responsibilities.
§ 11 Limitation Periods, Assignment of Claims, Offsetting Amounts
1. The limitation period for travel-related claims is one year under Sections 651 c to 651 F BGB. The limitation period does not apply to:
a) Claims for bodily injury or health-related claims; or
b) claims based on gross negligence on the part of Umfulana.
The limitation period in such cases is two years.
The limitation period is measured from the day after the scheduled conclusion of the tour. The limitation period is suspended during negotiations between the Customer and Umfulana regarding the claim or the circumstances on which the claim is based, and is not reinstated until one of the two parties involved refuses further negotiation. The period of limitation shall not take effect less than three months after the conclusion of negotiations.
2. Claims stemming from tours conducted by Umfulana may not be assigned to a third party. This does not apply to family members or common-law partners who took part in the tour, or other members of the party included in the tour booked by the Customer.
3. Customers may only offset claims that are undisputed by Umfulana and have been awarded by a final court ruling.
§ 12. Passport, Visa, Health, Customs and Currency Regulations
1. Umfulana is required by law to inform citizens of a European Union Member State in which a tour is offered of the passport, visa and health regulations of the tour destination prior to the conclusion of the Travel Agreement. Umfulana shall assume for this purpose that the situation of the Customer and any other members of the travelling party do not involve special circumstances (such as statelessness or dual citizenship).
Citizens of countries outside the EU may contact the appropriate consulate for information on applicable regulations.
2. It is the express responsibility of the Customer to obtain the necessary travel documents and vaccinations and to conform with customs and currency regulations.
3. If the Customer commissions Umfulana to procure any necessary visas, Umfulana shall not be liable for the timely issuance and delivery of visas by the relevant diplomatic agency unless a delay was attributable to negligence on the part of Umfulana.
§ 13. Information on the Identity of the Operating Air Carrier (EC Regulation No. 2111/05)
1. When a tour is booked, Umfulana is required by law to inform the Customer of the identity of all operating air carriers providing transportation services within the framework of the booked tour. If the identity of the operating air carrier is not available at the time the tour is booked, Umfulana shall name the probable air carrier. The Customer shall subsequently be informed by Umfulana without delay when the actual identity of the operating air carrier has been established. Umfulana shall also take all appropriate measures to inform the Customer without delay of any change of air carrier that may occur. The “Blacklist” of airlines banned in the EU can be found here: http://air-ban.europa.eu.
§ 14 Applicable Law, Jurisdiction
1. The Travel Agreement and the whole of the legal relationship between the parties shall be governed by the laws of Germany.
2. If, based on the merits of the case, Umfulana is ruled liable by a foreign court of law not subject to the laws of Germany, the legal consequences (type and extent of award) shall be exclusively subject to German law.
3. The venue for all legal taken against Umfulana shall be the location of its registered office in Germany.
4. The venue for legal action taken against the Customer/contracting party shall be that party’s place of residence unless the respondent is a registered trader, a person who has no general domestic place of jurisdiction, a person whose general place of residence has been transferred abroad since conclusion of the Travel Agreement, or a person whose general place of residence is unknown at the time the legal proceedings are instituted. In such cases the place of jurisdiction shall be deemed the location of the tour operator’s registered office.
5. The above provisions (Sub-sections 1-4) do not apply if:
a) Binding international agreements which apply to the Travel Agreement diverge from the above provisions in favour of the Customer; or
b) binding legal provisions of an EU Member State or of the EU itself apply to the Travel Agreement and diverge from the above provisions or from German law in favour of the Customer.
§ 15 Miscellaneous Provisions
Should any of these provisions be or become ineffective, the validity of the other provisions and the Travel Agreement itself shall remain unaffected thereby.