GENERAL TRAVEL TERMS AND CONDITIONS (ARB 1992)
Adaptation
to the amendment to the Consumer Protection Act, Federal Law Gazette
247/93 and to the Warranty Right Amending Law, Federal Law Gazette I
No. 48/2001
Jointly discussed in the consumer-political advisory
body of the Federal Minister for Health, Sports and Consumer Protection
in accordance with § 73 subsection 1 of the Trade, Commerce, and
Industry Regulation Act 1994 [Gewerbeordnung] and § 8 of the regulation
of the Federal Minister for economic affairs in the version dated 1994
on the provisions regarding the exercise of the travel agency industry
[Ausübungsvorschriften für das Reisebürogewerbe] (now § 6, according to
Federal Law Gazette II No. 401/98).
The travel agency may act as agent (section A) and/or as tour operator
(section B).
The
agent accepts the obligation to make an afford to provide an
entitlement for services of other parties (operators, carriers,
hoteliers, etc.).
Tour operator is the company either offering
several touristic services at a package price (package holiday/travel
organisation) or promising to render individual touristic services as
services on own account and for this purpose usually providing own
brochures, advertisements, etc.
If third party services are
arranged (e.g. optional trips at the holiday resort), a company acting
as tour operator may also act as agent if it refers to this function as
agent.
The following conditions constitute the contractual text
usually used by travel agencies as agents (section A) or as tour
operators (section B) to conclude contracts with their
customers/travellers (annotation: in the sense of the Consumer
Protection Act).
The special conditions
- - of the arranged tour operators,
- - of the arranged carriers (e.g. train, bus, airplane and
ship) and
- - the other arranged service providers
prevail.
A. THE TRAVEL AGENCY ACTING AS AGENT
The following conditions are the bases of the contract (agent’s
contract) concluded between customers and an agent.
1. Booking/contract conclusion
The
booking can be effected in writing, per telephone or verbally. The
travel agency should immediately confirm verbal bookings or bookings
per telephone in writing.
Travel agencies should use booking
notes containing all necessary details regarding the customer's order
and referring to the travel advertisement (catalogue, brochure, etc.)
forming the basis of the booking.
With regard to its own
services or arranged services, the agent must – according to § 6 of the
provisions regarding the exercise of the travel agency industry – refer
to these applicable GENERAL TRAVEL TERMS AND CONDITIONS. In case of
differing travel terms and conditions, he must demonstrably advise the
customer of these differences and hand them out before contract
conclusion.
If services of foreign contractors (service providers, tour operators)
are arranged, foreign law may apply as well.
Whoever
completes a booking for himself or for a third party, is regarded as
principal contractor and in default of differing declarations, accepts
the obligations under the contract award towards the travel agency
(payments, contract cancellation, etc.).
In the booking, the
travel agency may request a service charge and a (minimum) deposit.
Both the balance and the compensation of cash expenses (telephone
expenses, fax costs, etc.) become due upon the hand-over of the travel
documents (these do not include personnel documents) of the respective
tour operator or service provider at the travel agency.
Upon or
immediately after the contract conclusion, travel organisations
accepting bookings are obliged to communicate a confirmation regarding
the travel contract to the traveller (travel confirmation).
2. Information and other incidental services
2.1 Information on passport, visa, foreign currency, customs
and health Regulations
It is commonly known, that a valid passport is needed for travels
abroad.
Additionally
the travel agency must inform the customer about the corresponding
foreign passport, visa and health entry provisions and – upon request –
about foreign currency and customs regulations if they can be obtained
in Austria. The customer himself is responsible for compliance with
these regulations. If possible, the travel agency will – against
compensation – take charge of the provision of a visa that might be
necessary. Upon request, the travel agency will - if possible - give
information about special regulations for foreigners, stateless persons
as well as persons holding a double citizenship.
2.2 Information regarding the travel service
The
travel agency is obliged to present the service of the tour operator or
the service provider to the best of its knowledge in consideration of
the characteristics of the arranged contract and the circumstances in
the respective country or destination.
3. Legal status and liability
The travel agency’s liability covers
- -
the thorough selection of the respective tour operator and/or service
provider as well as the thorough analysis of gained experience;
- -
the unobjectionable provision of services including the corresponding
information of the customer and the delivery of the travel documents;
- -
the demonstrable forwarding of notices, declarations of intent and
payments between the customer and the procured company and vice versa
(like e.g. of changes in the agreed service and the agreed price,
notices of cancellation, complaints).
The travel agency will not be liable for the provision of the service
procured and/or obtained by it.
Together
with the travel confirmation, the travel agency must notify the
customer about the company name (product name), the address of the tour
operator and – if applicable – of an insurer if this information is not
already contained in the brochure, catalogue or other detailed means of
advertising. If it does not do so, it is liable towards the customer as
operator and/or service provider.
4. Impairments of performance
If
the travel agency violates the duties incumbent on it under the
contractual relationship, it is obliged to compensate the customer the
resulting damage unless it proves that it has neither acted
intentionally nor in a grossly negligent way.
For breaches of
contract due to slight negligence, the travel agency is obliged to
compensate the customer the resulting damage up to the amount of the
commission of the procured business.
B. THE TRAVEL AGENCY AS TOUR OPERATOR
The
following conditions are the bases of the contract – hereinafter
referred to as travel contract – concluded between the booking party
and a tour operator either directly or through an agent. In case of a
direct conclusion, the agent’s obligations analogously apply to the
tour operator.
The tour operator generally accepts the
applicable GENERAL TRAVEL TERMS AND CONDITIONS, deviations are
highlighted in all its detailed advertising documents according to § 6
of the provisions regarding the exercise on of the travel agency
industry.
1. Booking/contract conclusion
The travel
contract is concluded between the booking party and the tour operator
if there is an agreement regarding the material parts of the contract
(price, service and date). This results in rights and duties for the
customer.
2. Change in the person of the traveller
A
change in the person of the traveller is possible if the replacing
person meets all conditions regarding the participation and can be
completed in two ways.
2.1 Assignment of the claim to the travel service
The
booking party’s obligations under the travel contract remain effective
if it assigns all or single claims under this contract to a third
party. In this case, the booking party will bear the resulting
additional costs.
2.2 Transfer of the travel event
Where the
customer is prevented from proceeding with the package, he may transfer
his booking to another person. The tour operator must be informed about
the transfer either directly or via the agent within a reasonable
period before the departure date. The tour operator may notify a
specific period in advance. The transferring party and the replacing
person will be jointly liable for both the unbalanced remuneration and
the additional costs arising from the transfer.
3.Contents of the contract, information and other incidental
services
Exceeding
the duty to inform also applicable to the agent (namely information on
passport, visa, foreign currency, customs and health entry
regulations), the tour operator must provide sufficient information
about the service offered. The service descriptions in the catalogue
and/or brochure valid at the time of the booking as well as the other
information contained therein are the subject matter of the travel
contract, unless differing agreements have been made at the booking. It
is, however, recommended to record such agreements in writing.
4. Travels including special risks
If
travels include special risks (e.g. expeditions), the tour operator
will not be liable for the consequences of risks outside of his scope
of duty.
The tour operator’s obligation to thoroughly prepare
the journey and to thoroughly select the persons and companies
commissioned with the provision of the single travel services remains
unaffected.
5. Legal bases in case of impairments of performance
5.1 Warranty
If the service has not been rendered or only been rendered imperfectly,
the customer has a right to claim.
The
customer agrees that instead of his claim to conversion or price
reduction, the tour operator will – within a reasonable period –
provide an unobjectionable service or improve the imperfect service.
Remedy
can take place by removing the failure or by providing an equal or
better replacement service that is subject to the customer’s explicit
consent.
5.2 Compensation
If the tour operator or his
assistants violate the duties of the contractual relationship either
intentional or by negligence, the tour operator is obliged to
compensate the damage.
To the extent, the tour operator is
responsible for other persons than his employees, he will only be
liable – except in cases of personal injury – if he does not prove that
they have acted in an intentional or grossly negligent way.
Except
in case of intention or gross negligence, the tour operator will not be
liable for objects that are usually not brought along unless he has
taken these objects in custody knowing the circumstances.
The
customer is therefore advised not to carry along objects of special
value. Moreover, it is recommended to orderly keep the objects that
have been brought along.
5.3 Notification of failures
The
customer must immediately inform the tour operators representatives of
every failure in the performance of the contract that he locates during
the journey. This implies that the customer has been notified about a
representative and that the latter is available on site without
considerable efforts. If this notification is omitted, this will not
affect the customer’s right to claim described under 5.1. This omission
can, however, be imputed to him as contributory negligence and thus
decrease his possible claims for damages. In this respect it is,
however, necessary that the operator has informed the customer about
this duty of notification in writing, either directly or via the agent.
Equally, the customer must have been notified at the same time that any
omission regarding this notification will not affect his right to
claim, that it can, however, be imputed as contributory negligence.
If
applicable and for lack of a local representative, it is recommended to
either inform the respective service provider (e.g. hotel, airline) or
the tour operator himself about failures and to request remedy.
5.4 Special liability laws
Regarding
flights, the tour operator will – inter alia – be liable under the
Warsaw Convention and its additional conventions, in journeys by train
and bus under the Railway and Motor Vehicle Liability Law.
6. Assertion of possible claims
In
order to simplify the assertion of claims, the customer is advised to
obtain a written confirmation regarding the non provision of services
or improper performance respectively to secure receipts, evidences and
witnesses.
Consumer warranty claims can be asserted within 2 years.
Claims for damages will become time-barred after 3 years.
In
the interest of the traveller, it is recommended to immediately assert
claims after having returned from the journey directly at the tour
operator or via the procuring travel agency as upon an increasing
delay, difficulties regarding the evidence have to be anticipated.
7. Cancellation of the contract
7.1 Cancellation on the part of the customer before the
beginning of the Journey
a) Cancellation without cancellation fees
Apart
from the legally granted cancellation rights, the customer may –
without the operator having claims against him - cancel the contract if
the following cases occur before the beginning of the service:
If material components of the contract including the travel price are
changed to a considerable extent.
The
frustration of the conditioned purpose and/or character of the travel
event as well as an increase in the agreed travel price by more than
10% effected according to section 8.1 will in each case constitute such
contract modification.
The tour operator is obliged to
immediately notify the customer the contract modification either
directly or via the procuring travel agency and to simultaneously
instruct him regarding the existing option to either accept the
contract modification or the cancel the contract; the customer must
immediately exercise his option.
If the operator is responsible
for the occurrence of the event entitling the customer to the
cancellation, the operator is obliged to compensate the customer’s
damages.
b) Claim to replacement services
If he does not
make use of the cancellation possibilities according to letter a) and
in case of cancellation by the tour operator without the customer’s
fault, the customer may – instead of the contract rescission – request
the contract performance by means of the participation in any other
equal journey if the operator is able to provide this service.
Apart
from the right to the option, the customer is also entitled to a claim
for damages due to non-performance of the contract, unless the cases of
7.2 take effect.
c) Cancellation with cancellation fees
The
cancellation fee is a percentage of the travel price and with regard to
its amount, depends on the time of the notice of cancellation and the
respective type of journey. The travel price or the package price is
the overall price of the contractually agreed service.
In all
cases not mentioned under letter a), the customer is – against payment
of a cancellation fee – entitled to cancel the contract. In case the
cancellation fees are not reasonable, they can be abated by court.
Depending on the type of journey, the following cancellation rates
result per person:
- Special
flights (charter), group IT (group package tours using regular
service), motor-bus group excursions (journeys lasting several days)
until 30 days prior to departure...................................10%
29 to 20 days prior to departure..................................25%
19 to 10 days prior to departure..................................50%
9 to 4 days prior to departure ....................................65%
as of 3 days (72 hours) prior to departure ......................85%
of the travel price.
- Individual IT (individual package tours using regular
service), train group excursions (except for special trains)
until 30 days prior to departure ..................................10%
29 to 20 days prior to departure .................................15%
19 to 10 days prior to departure..................................20%
9 to 4 days prior to departure ....................................30%
as of 3 days (72 hours) prior to departure.......................45%
of the travel price.
Special
conditions apply for hotel accommodation, holiday flats, ship travels,
one-day bus travels, special trains and scheduled flights at special
tariffs. The latter are to be listed in the detailed program.
Notice of cancellation
When cancelling the contract, you have to note the following:
The
customer (principal) may inform the travel agency at which the travel
has been booked at any time that he will cancel the contract. In case
of cancellation, it is recommended to do this
- - by registered letter or
- - personally, with a simultaneous written declaration.
d) No show
No
show means if the customer does not appear for the departure, whether
he does not want to travel or if he misses the departure for any
negligence for which he is responsible or for any coincidence that
happens to him. If it has been clarified that the customer cannot or
does not want to make use of the remaining travel service, he must pay
according to the type of journey 85% of the package price (e.g. special
flights) and respectably 45% of the package price (e.g. individual IT).
If the rates mentioned above are not reasonable, they can be abated by
court in the special case.
7.2 Cancellation by the tour operator prior to departure
a)
The tour operator will be released from the contract if a minimum
number of participants specified in the advertisement is not achieved
and if the customer has been notified about the cancellation in writing
within the following periods or those mentioned in the travel
description:
- - until 20 days prior to departure in journeys of more than
6 days,
- - until 7 days prior to departure in journeys of 2 to 6
days,
- - until 48 hours prior to departure in day trips.
If
the operator is responsible for the non-achievement of the minimum
number of participants to an extent exceeding slight negligence, the
customer is entitled to request compensation. This compensation is
limited by the amount of the cancelation fee. The assertion of any
damage exceeding this amount is, however, not excluded.
b) The
cancellation is based on force majeure, i.e. due to exceptional and
unforeseeable events that cannot be influenced by the party referring
to force majeure and the consequences of which couldn’t have been
avoided despite applying the necessary care. This does, however, not
include overbooking, but it includes governmental orders, strikes, war
or situations similar to war, epidemics, natural disasters, etc.
c)
In cases of letters a) and b), the customer will be compensated the
deposited amount. He is entitled to the option according to 7.1.b, 1st
paragraph.
7.3 Cancellation on the part of the tour operator after the
beginning of the journey
The
tour operator is released from the contract performance if within the
scope of a group travel, the customer lastingly and despite a warning
disturbs the travel performance by grossly improper behaviour.
If it was the customers fault, the customer is obliged to compensate
the tour operator for the damage he has incurred.
8. Changes in the contract
8.1 Price revisions
The
tour operator reserves the right to increase the travel price confirmed
in the booking for reasons not depending on his will if the period
between the conclusion of the contract and the departure is longer than
two months. Such reasons only include changes in the transportation
costs, e.g. the fuel costs, the dues, taxes or fees chargeable for
certain services, like landing taxes, embarkation and disembarkation
fees in harbours and corresponding fees on airports or the exchange
rates to be applied to the particular package.
In case of a price reduction for these reasons, it must be passed on to
the traveller.
Within
the two-month period, price increases may only be effected if the
reasons for this have been separately negotiated in the booking and
stated on the booking note.
During the 20 days prior to the departure date stipulated, the price
stated in the contract shall not be increased.
A
price revision is only admissible if upon compliance with the agreed
requirements, an exact description for the calculation of the new price
has been provided, as well. The customer must be immediately notified
of the price revision and its reasons. If the price increase is more
than 10 percent, the customer is entitled to withdraw from the contract
without cancelation fees. (see section 7.1.a.).
8.2 Service modifications after beginning of the travel
- -
In changes for which the operator is responsible, the regulations as
specified in section 5 (legal bases in case of impairments of
performance) will apply.
- If it turns out after the departure
that a significant proportion of the contractually agreed services will
or cannot be provided, the operator must – without additional
remuneration – make suitable alternative arrangements so that the
journey can be continued. If it is impossible to make such arrangements
or these are not accepted by the consumer for good reasons, the tour
operator shall, where appropriate, provide the consumer, at no extra
cost, with equivalent transport back to the place of departure, or to
another return-point to which the consumer has agreed. Furthermore, in
the case of non-performance or improper performance of the contract the
tour operator is obliged, to assist the customer to the best of his
abilities in the solution of problems.
9. Provision of information to third parties
Even
in urgent cases, information regarding the names of the travellers and
their whereabouts will not be provided to third parties unless the
traveller has explicitly requested an information provision. The costs
caused by the transmission of urgent messages are for the customer’s
account. Thus, the travellers are advised to notify their relatives the
exact holiday address.
10. General
Sections 7.1. letter
c, formerly letter b (cancellation), 7.1. letter d, formerly letter c
(no-show) as well as 8.1. (price revision) listed under section B are
non-binding association recommendations under 1 Kt 718/91-3 and as such
are now registered under 25 Kt 793/96-3 in the Register of Cartels.
Imprint: Owner, publisher: Fachverband der
Reisebüros in der Wirtschaftskammer österreich, Wiedner Hauptstraße 63,
1045 Vienna
This is a translation
from the German original. Only the German original is of binding
validity.