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
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.
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:
1. 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.
2. 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.
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.
II. FURTENBACH ADVENTURES Supplementary Travel Terms and Conditions
1. Heightened Risk Factor on Mountain Expeditions and Adventure Tours
On all expeditions / trips, participation is based on independent climbing / travelling. All expeditions or trips are at your own risk, under the direction and leadership of the respective mountain/ hiking/ expedition/ tour guide. A significant degree of caution and care is expected of each participant. Expeditions and adventure travel naturally pose an increased level of overall risk which may lead to an heightened chance of accidents and/or injuries, which can not be completely prevented even by careful planning and precautionary measures. FURTENBACH ADVENTURES accepts no responsibility for accidents, damages or other irregularities that occur during a tour. The tour participant acknowledges this with the submition of their application. The conditional, health and technical requirements for participants – referred to in the description of each trip – are to be taken seriously. FURTENBACH ADVENTURES prepares all trips conscientiously. However, there is no guarantee regarding summit successes or fulfillment of subjective travel goals. It is in the nature of the trips that a certain residual risk and uncertainty exists for participants. In some countries, for a lack of alternatives, local transportation will need to be used which may not meet European or American safety standards. This may pose additional risk which FURTENBACH ADVENTURES has no control over and for which it can not accept any liability. In case of unforeseen events program modifications are expressly reserved.
2. Group Leadership and Participants‘ Obligations
The group is led by an expedition or tour guide appointed by FURTENBACH ADVENTURES. The guide’s decisions and instructions during the trip are in the interest of the group and must be followed. Should a participant repeatedly oppose the decisions of the guide, he/she may be excluded from the tour by the guide. The excluded participant is responsible for departing at their own expense as soon as circumstances allow. The excluded participant has no right to claim financial reimbursement from the organizer. If the expedition or tour guide becomes unavailable before the trip, the operator will provide a substitute or cancel the trip. If the expedition or tour guide becomes incapacitated during the expedition / trip due to accident, illness, etc. FURTENBACH ADVENTURES must be notified immediately, so that FURTENBACH ADVENTURES can appoint and dispatch a new expedition or tour guide as soon as possible.
In the interest of a successful tour, all participants are expected to practice mutual recognition and helpfulness. Participants also undertake to observe the laws, manners and customs of host countries. In the interests of participants‘ families and relatives, no information regarding the tour (or any accidents which may occur during the tour) is to be passed on to the public or to the media without the tour guide’s express prior consent. This includes information regarding the events and circumstances leading up to the accident as well as the identities of those involved. Furthermore, all participants agree not to make any privately received information or messages public.
The client shall be liable without exception for all culpably caused damages or injuries to persons and/or property and is to release FURTENBACH ADVENTURES from any liability toward third parties and from any claims made against FURTENBACH ADVENTURES by third parties arising from the participants‘ actions.
The scope of services can be found in the detailed program valid for the travel period as well as in the information contained in the travel confirmation. FURTENBACH ADVENTURES reserves the right to modify the original information on justifiable grounds, due to unforeseeable circumstances which may arise after the signing of the contract. The character of an expedition / adventure tour may deviate from the original description under certain circumstances. This is especially true with changing road and route conditions, schedule changes, overbooked accommodation, extreme weather conditions, bureaucratic arbitrariness (e.g. visa-granting), etc. Travel and tour descriptions represent the planned itinerary, without specifying the actual itinerary in detail.
5. Entry Requirements
If it is possible, we will inform you of important changes to the general requirements as described in the detailed information prior to commencing travel. However, you alone are responsible for compliance with passport, customs, currency and health regulations on your own costs. All costs and damages arising from non-compliance with these regulations shall be at your expense, even if these regulations should be altered after booking. FURTENBACH ADVENTURES is not liable for the timely issue or necessary visas from the respective diplomatic representation, unless the tour participant has expressedly commissioned FURTENBACH ADVENTURES for this purpose, and FURTENBACH ADVENTURES was responsible for any delay or lack of access.
6. Minimum Number of Participants
If the tour requires a minimum number of participants, the minimum number of participants will be stated in the individual travel information. Unless otherwise specified, a minimum of 6 participants is required for tours to take place.
7. Cancellation Fees Specific to FURTENBACH ADVENTURES
Contrary to paragraph 7.1. lit.c of the GENERAL TRAVEL CONDITIONS (ARB 1992), the following fees apply for cancellations on the part of the client prior to travel:
until 30 days prior to departure…………………………. 30%
29 – 20 days prior to departure…………………….. 40%
19 -10 days prior to departure…………………….. 70%
9 – 4 days prior to departure………………………… 80%
from the 3rd day prior to departure (72 hours)………100%
on the day of departure………………………………… 100% of the tour fee.
For brokered services, such as individual flights or heliski, the cancellation policy of the particular operator / airline applies. Please note that the cancellation policies, conditions and fees of the respective airlines (e.g. for scheduled / charter flights) apply for air travel brokered by FURTENBACH ADVENTURES.
For expeditions to 7000 and 8000 meter peaks the following fees apply for cancellations on the part of the client prior to travel: until 3 months prior to departure 50%, within 3 months prior departure 100%.
FURTENBACH ADVENTURES can not be held responsible if the entry to a country or issue of a visa, a mountain permit or a permit to travel through a specific area is refused to a participant. In such a case the above-mentioned cancellation policy will be applied. It’s the responsability of each participant to check prior his/her booking, if the necessary permits can be obtained by him/her.
Contrary to paragraph 7.1. lit.d of the GENERAL TRAVEL CONDITIONS (ARB 1992), 100% of the fee is to be paid by the customer in case of a no-show.
9. Flight Schedule Changes
For domestic flights in countries with mountainous regions, flight cancellations or flight schedule changes may occur due to weather conditions or other reasons. FURTENBACH ADVENTURES is not liable for a resulting need to rebook or for additional fees which may arise due to these conditions.
10. Travel Insurance
It is mandatory that our cleints ensure they have travel insurance. Upon registration, the participant confirms to be adequately insured against all of the expedition / travel risks and dangers, such as illness, accident, baggage, rescue, repatriation and theft. FURTENBACH ADVENTURES also strongly recommends taking out travel cancellation insurance.
11. Package Travel Directive & Insolvency Insurance
(RSV & Insolvenzversicherung (vgl. deutscher „Reisesicherungsschein“, s.u.))
FURTENBACH ADVENTURES LTD is registered in the Tour Operator Directory of the Federal Ministry of Science, Research and Economics (Veranstalterverzeichnis des Bundesministeriums für Wissenschaft, Forschung und Wirtschaft). Details on the business antitlement of Furtenbach Adventures GmbH can be found on the website https://www.gisa.gv.at/abfrage with GISA number 21322426. A clients‘ deposits for package tours offered by the tour operator are protected under the following conditions: payment is made less than eleven months prior to the end of the trip and is a maximum of 20 % of the price. The balance must be paid no earlier than 20 days prior to departure – against delivery of travel documents to the traveler. Any additional or early prepayments or residual payments may not be demanded and are not covered. FURTENBACH ADVENTURES has insured all participants in the event of insolvency by means of a bank guarantee with the liability number 70.045.315 deposited with the Raiffeisen Bank Kematen , Sandbichlweg 2, 6175 Kematen in Tirol, Austria. This insurance covers the already paid tour price, limited by the total amount of outstanding guarantees. If the bank guarantee is not sufficient to cover all claims, these will be covered proportionally. All claims need to be asserted within 8 weeks from the occurrence of an insolvency with the competent liquidator:
Europäische Reiseversicherung AG, Kratochwjlestraße 4, 1220 Vienna, Austria, Tel.: +43 (1) 317.2500, Fax: +43 (1) 319.9367
Note to German customers: Instead of the Travel Insurance Certificate (Reisesicherungsschein) common to Germany, Austrian legislation requires an entry in the Tour Operator Directory of the Ministry of Science, Research and Economics (the Austrian BMWFW). This simultaneously entails the protection of customer funds via bank guarantee.
12. Booking and Payment
By submitting their registration form, clients confirm the conclusion of a binding travel contract with FURTENBACH ADVENTURES. The contract comes into force with a written confirmation from FURTENBACH ADVENTURES. Unless agreed otherwise, the client is to make a deposit of 20% of the tour fee when booking , but no earlier than eleven months prior to the end of the trip. The balance of the tour fee must be paid without the need for an additional reminder earlier than 20 days prior to departure, against delivery of the travel documents. In case of brokered travel services, the payment terms of the respective tour operator or service provider apply. In case of default of payment on behalf of the client, FURTENBACH ADVENTURES reserves the right to withdraw from the provision of services. Unless otherwise agreed, FURTENBACH ADVENTURES will only accept bank transfer as a means of payment. In case the client can not partake in the booked travel as described in point B.2.1 of the General Travel Terms and Conditions, or the client wishes to transfer the booking to someone else according to point B.2.2. of the General Travel Terms and Conditions, then an additional fee of at least 100 Euros will apply. The deadline for a transfer of the booked services according to point B.2.2. of the General Travel Terms and Conditions is at least 14 days prior to the date of departure.
13. Data Protection and Copyright
Photos and videos taken by representatives or employees of FURTENBACH ADVENTURES during tours and excursions are the copyrighted property of FURTENBACH ADVENTURES. FURTENBACH ADVENTURES reserves the right to use this material for advertising purposes, even if participants are recognizable, without the need for FURTENBACH ADVENTURES to financially reimburse these participants. FURTENBACH ADVENTURES is entitled to disclose the names and addresses of participants to other participants and to FURTENBACH ADVENTURES business partners.
14. Applicable Law
Austrian law is applicable to the contractual relationship between the customer and FURTENBACH ADVENTURES.
15. General Information
The place of fulfilment and jurisdiction is the registered location of FURTENBACH ADVENTURES. Unless inconsistent with mandatory legal provisions, the exclusive legal venue and place of jurisdiction for all types of proceedings or disputes arising from the contractual relationship between the client and FURTENBACH ADVENTURES will be Innsbruck, Austria.
Verbal agreements with a FURTENBACH ADVENTURES mediary, with FURTENBACH ADVENTURES, or with a guide employed by FURTENBACH ADVENTURES are only effective if they are confirmed in writing by FURTENBACH ADVENTURES. Guides are not authorized to provide assurances or warranties which deviate from the contract with FURTENBACH ADVENTURES. Printing and calculation errors can be corrected by FURTENBACH ADVENTURES at any time.
Should any of the above provisions be invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by one which is valid and effective, and which suitably reflects the purpose of the invalid provision.
Version: 22nd January 2019