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Terms and Conditions Corporate

General Terms and Conditions
For mediating flight services for SPOT Reisen GmbH distributors (dated 13.02.2012)

 

1.   Preamble

1.1.
The following “General Terms and Conditions for mediating flight services for SPOT Reisen GmbH distributors” are part of each tour operator contract concluded between the mediator, SPOT Reisen GmbH (hereinafter referred to as “SPOT”), and the distributor (hereinafter referred to as “tour operator”) in addition to the other statutory provisions.

1.2.
By signing the tour operator contract, the tour operator confirms the inclusion of these general terms and conditions and acknowledges the following provisions.

1.3.
The tour operator contract is only effective insofar as the tour operator is a registered trader or company in the sense of § 14 BGB [German Civil Code], a legal person of private or public law or entities incorporated under public law. It is not possible to conclude a contract between SPOT and a natural person.

1.4.
These general terms and conditions also apply to all future contractual relations between SPOT and the tour operator and indeed also if their inclusion is not expressly agreed again.

1.5.
Agreements and particularly general business, contract or implementation terms and conditions of the tour operator which differ from these general terms and conditions do not apply to SPOT insofar as their application has not been expressly agreed to in written form.

2.   Terminology

2.1.
“Mediator” is SPOT Reisen GmbH, Berliner Allee 40, 30175 Hannover, Germany (hereinafter referred to as SPOT). It charters seating capacities for one or more aeroplanes from the operator of a carrier and is party to the particular tour operator contract. The seating capacities or aeroplanes chartered by SPOT are the object of the particular contract, through which SPOT grants the tour operator the marketing of the objective capacities.

2.2.
The “tour operator” is the distributor of the flight services chartered by SPOT. It markets the flight services chartered by SPOT either individually vis-à-vis other distributors or the end user or as responsible package holiday organiser according to §§ 651 a et. seq. BGB [German Civil Code] vis-à-vis the end user. In relation to the carrier it is the sub-charterer and in relation to SPOT it is the charterer. It is party to the particular tour operator contract.

2.3.
The “carrier” is the operator of an airline company which carries out so-called “charter flights” as well as providing seating capacity for one or more aeroplanes from its stock in the particular charter contract concluded between it and SPOT and the flights listed in the Annex to that. It is not a party to the particular tour operator contract, but is the executing service provider (person helping in the performance of obligations) of the service owed under contract.

2.4.
The “charter contract” is any contractual agreement which constitutes the legal basis for one or more charter flights between SPOT and the carrier.

2.5.
The “tour operator contract” is a contractual agreement which constitutes the legal basis for one or more charter flights between SPOT and the tour operator.

2.6.
The “annex” is a part of the tour operator contract. it contains additional agreements to the contract in which detailed information regarding charter flights, flight plans, seating capacities, charter prices, aeroplane types etc. are contained. It also contains subsequent additions and changes to the contract.

2.7.
The “travel advice and security notes from the foreign office” (cf. paragraph 7. d)) are to be equated with results of “acts of God”.

2.8.
“Operative reasons” are reasons which prevent the carrier from carrying out the charter flights within the scope of the execution of the charter flights. This includes, for example:

•     Weather-related limitations like storms, bad runway visual range, low-lying cloud at the destination, icy runways and taxiways etc;
    Illness or accident of the flight staff;
    Aircraft defects and faults through no fault of one’s own;
    Restriction on the use of the airspace and airports which were not known by the operation controllers when the flight was confirmed;
    Wrong behaviour by passengers.

2.9.
“Rescission” is the right of a party to the contract to disengage from the contract after the beginning of the execution of the contract, consequently after executing the first charter flight as planned.

2.10.
“Cancellation” means the cancellation of a single planned flight by the tour operator or by SPOT.

3.   Payment Terms and Conditions

3.1.
The agreed charter price shall, insofar as nothing else is agreed, be payable without discount at the latest 14 calendar days after receipt of the invoice. The validation date on SPOT’s account is decisive for the timeliness of the payment. Euro and US Dollars are valid currencies. SPOT is entitled to establish one of the above currencies as the controlling currency for the contract. In this case, the tour operator bears the currency risk insofar as it does not make the payment in the controlling currency despite it being established in the contract (e.g. US Dollars instead of Euro).

3.2.
If the tour operator defaults on its payment, SPOT is authorised to demand interest for default amounting to 8 percentage points above the particular base rate of interest. SPOT expressly reserves the right to claim further damages arising from default.

3.3.
In the case of delayed or incomplete payments by the tour operator, SPOT reserves the right to cancel the charter at the expense of the tour operator or to rescind the contract with costs and to refuse to carry the passengers. In this respect, the rescission, termination and cancellation terms and conditions below are decisive as concerns the amount of the costs.

3.4.
If there is a period of more than four weeks between the conclusion of the contract and the particular flight date, SPOT is authorised to pass on the price increases effected to the tour operator.

3.5.
Insofar as it is not included in the charter price, all taxes, fees and other expenses which were incurred through government, local or other authorities as well as airport companies in relation to the tour operator’s passengers or for their claims for services, are to be paid in addition to the charter price.

3.6.
The tour operator has the possibility to deposit a securities account without interest with a grading of EUR 100,000.00 / 200,000.00 / 300,000 with SPOT to offset its particular accounts payable. With a deposit of EUR 100,000.00 SPOT guarantees a price reduction of 1 % from the respective charter price; with a deposit of EUR 200,000.00 SPOT guarantees a price reduction of 2 % of the respective charter price; and with a deposit of EUR 300,000.00 SPOT guarantees a price reduction of 3 % of the respective charter price. Upon written request of the tour operator, the deposited security amount shall be paid back to the tour operator within two weeks. All costs, taxes and fees in connection with the money transfer shall in this case be carried by the tour operator.

4.   Security Deposit

4.1.
The tour operator is obligated to pay SPOT a security deposit.

4.2.
The amount of the security deposit amounts to EUR 50,000.00.

4.3.
Insofar as 20 % of the total order volume exceeds the value of EUR 50,000.00 the tour operator is obligated to pay SPOT a security deposit amounting to 30 % of the total order volume.

4.4.
Insofar as the total order volume does not amount to EUR 50,000.00, the tour operator is obligated to pay SPOT a security deposit amounting to 50 % of the total order volume.

4.5.
The security deposit is payable 4 weeks before the start of the execution of the contract, consequently 4 weeks before the execution of the first flight. Should there be less than four weeks between the conclusion of the contract and the execution of the first flight, the security deposit is payable immediately, but at the latest seven work days before the beginning of the execution of the contract. The validation date on SPOT’s account is decisive for the timeliness of the payment.

4.6.
The security deposit remains without interest.

4.7.
Should the tour operator not pay the security deposit, not pay it on time or only pay it in part, SPOT is entitled to withdraw from the contract. In this case, the tour operator is to pay compensation for damages amounting to 50% of the charter price agreed for all charter flights. The tour operator is still able to prove that lower damages are owed to SPOT. The payment shall be payable after 14 calendar days following the declaration of withdrawal.

5.   Execution

5.1. Aeroplane and Crew

5.1.1.
SPOT is obligated to guarantee the provision of an aeroplane manned as prescribed with flight staff, properly equipped and with fuel at the agreed start of the charter flight through the carrier.

5.1.2.
Insofar as SPOT or the carrier is not in the position to provide an aeroplane of the agreed kind, SPOT/the carrier is free to provide an aeroplane of the same value, and in case of emergency also an aeroplane of lower value, also through another airline. The additional expenses arising from deviating from the original contract can be passed on by SPOT and the tour operator insofar as the inability is not due to fault by SPOT. In the case of reduced costs, the tour operator is entitled to adjust the price vis-à-vis SPOT which is oriented to the normal market price insofar as the inability is caused by the fault of SPOT.

5.1.3.
The carrier or the executing airline company is authorised, for security reasons or technical considerations, to decide independently about the execution or omission of a flight, the conducting or omission of a landing or such like without the tour operator’s right to object. Claims for compensation for this are in accordance with the statutory provisions insofar as these are not excluded or limited in individual contracts or by these general terms and conditions.

5.1.4.
The carrier or the executing airline company is authorised to refuse the carriage of flight passengers and luggage without the tour operator receiving a right of rescission if
•     Passengers suffer from a virulent illness, the carrier or the executing airline company suspects a risk to the security of the flight or if the carriage violates or attempts to violate regulations from aviation authorities, border police or customs authorities.
•     Luggage poses a security risk and therefore endangers the execution of the flight.

5.1.5.
The contract and carriage terms and conditions of the carrier or the executing airline company have additional application insofar as they concern the tour operator. They shall be provided to the tour operator insofar as they are not already known.

5.2. Flight Plan

5.2.1.
The flight plan shall be established in the annex of the tour operator contract and is binding for the tour operator. The times given in the flight plans and in the carriage documents are approximate times. SPOT undertakes no guarantee for observing these times. SPOT is authorised to deviate from the times specified if circumstances lie outside SPOT’s sphere of control or it is necessary for reasons of air security.

5.2.2.
Insofar as passengers do not arrive on time at the airports or luggage is not prepared on time for loading, there is no obligation to execute the flight at a later time.

5.2.3.
Insofar as a flight cannot be executed or can only be partly executed for reasons which neither SPOT/the carrier nor the tour operator are responsible – such as acts of God in particular – the tour operator is only obligated to pay the proportionate charter price for the actual distance put aside.

5.3. Seating Capacities

5.3.1.
Should the aeroplane be reconfigured by official decree after the conclusion of the tour operator contract so that only a lower number of seats is provided than originally agreed, the tour operator is entitled to claim a corresponding (pro rata) reduction of the charter price.

5.3.2.
Further claims for compensation by the tour operator are excluded in this case.

5.4. Catering
Unless offered by SPOT/the carrier, the tour operator is to provide food and drink services during the flight. The tour operator carries the costs for this.

5.5. Observing Administrative Formalities

5.5.1.
The tour operator’s passengers must follow all requirements of the states from which they fly from, fly over or approach. The same applies for all rules and instructions from SPOT/the carrier in this regard. SPOT is not liable for consequences which arise for the tour operator’s passengers from omitting to obtain the necessary papers or from not following requirements or instructions coming into consideration.

5.5.2.
The tour operator’s passengers must show entry and exit papers, health certificates and other documents which are required by the particular states. SPOT/the carrier has the right to exclude a passenger from the flight who does not follow the relevant requirements or whose documents are incomplete. SPOT is not liable to the tour operator for losses of expenditure arising from a passenger having not followed this provision.

5.5.3.
Insofar as SPOT is deemed to pay or deposit penalties or fines because the passenger of the tour operator does not follow the entry, exit or travelling conditions of the state in question or the required documents are incomplete, the tour operator is obligated to compensate SPOT the paid or deposited amounts.

5.5.4.
Each passenger of the tour operator is on request to be present for searching checked-in or non-checked-in luggage. SPOT is not liable for damages arising from not observing this provision.

5.5.5.
The tour operator is obligated to provide the carrier or its handling agent with a proper passenger list at the latest 48h before the particular flight which includes all required notes e.g. transit passengers, allocation of particular seats, aid for passengers etc.

6.   Other Duties of Tour Operator

6.1.
The tour operator is expressly forbidden to deliver any legal statements in the name of SPOT/the carrier, in particular to identify SPOT/the carrier as contract partner and/or travel organiser of the passengers.

6.2.
The tour operator knows that the connection of this flight service with further touristic services regularly makes the tour operator travel organiser in the sense of §§ 651 a BGB vis-à-vis its passengers and is liable according to these requirements. It assures that it will inform itself about its duties as travel organiser concerning the relevant requirements in this regard and to adhere to these. In this regard, the tour operator releases both SPOT and the carrier from all losses which can arise from not observing these requirements.

6.3.
The tour operator guarantees that the luggage to be carried does not contain any objects which can be used to put people or the aeroplane at risk, or the carriage of which is forbidden on the basis of statutes, regulations or other provisions of a state involved with the flight. It further guarantees that the luggage to be carried is suitable for air transport and has been packed in an appropriate way.

7.   Rescission/Cancellation by SPOT
SPOT can cancel or rescind the tour operator contract without observing a period of notice and without affecting the rescission and cancellation provisions stipulated in the contract

  a) If the opening of an insolvency or clearing procedure is requested or introduced over the assets of the tour operator or also if the right of disposal of his assets is removed in another way. A cancellation/rescission does not occur insofar as the petition for insolvency proceedings is withdrawn within a period of 3 weeks.
  b) If the execution of the contract is not or is no longer possible because of acts of God or for flight safety or technical impediments which SPOT/the carrier is not responsible for or operative reasons which are not due to the fault of SPOT/the carrier.
  c) If the tour operator does not provide the security services demanded.
  d) If the foreign office for the agreed destination airport has issued current travel advisory and security notices which raise concerns about dangers to the aeroplane and/or air passengers.
  e) If the tour operator breaches it obligations arising from the contract not only insignificantly, in particular if it is responsible in two cases for the agreed flight service not being carried out (e.g. cancellation of the flight). (In this case only cancellation, not rescission, is possible.)

In these cases, the tour operator cannot claim compensation for damages or rescission, cancellation or similar fees from SPOT.

8.   Rescission/Cancellation by Tour Operator

8.1.
If the tour operator can rescind the tour operator contract on the basis of an individual contractual agreement for other reasons for which SPOT is not responsible, it is obligated in this case to pay SPOT compensation for damages amounting to 50 % of the agreed charter price for all charter flights. The tour operator may still prove that SPOT incurred lower damages. The payment is due at the end of 14 days after declaring rescission. This also applies if SPOT agreed to the validity of corresponding business, contract or execution terms and conditions of the tour operator.

8.2.
The tour operator is to inform SPOT immediately about the rescission in writing, stating the reasons.

8.3.
If the tour operator may on the basis of an individual contractual agreement cancel because of another reason which SPOT is not responsible for, it is obligated in this case to pay SPOT compensation amounting to

  a) 40% of the charter price for the remaining flights if more than 75 % of all the flights agreed in the contract are dropped on the basis of the cancellation.
  b) 30 % of the charter price for the remaining flights if more than 50 % of all the flights agreed in the contract are dropped on the basis of the cancellation.
  c) 25 % of the charter price for the remaining flights if less than 50 % of all the flights and more than one flight agreed in the contract are dropped on the basis of the cancellation.

8.3.1.
If the contract is only for an individual flight service or if the cancellation only affected one flight, the cancellation terms and conditions stipulated below apply.

8.3.2.
Payment is due at the end of 14 days after the declaration of cancellation. The tour operator may still prove that SPOT incurred lower damages. The provisions under 8.3. also apply if SPOT agreed to the validity of corresponding business, contract or execution terms and conditions of the tour operator.

9.   Cancellation of Individual Flights

9.1.
Insofar as the tour operator is permitted on the basis of an individual contractual agreement, it can cancel individual flights.

9.2.
In the case of cancellation of individual flights by the tour operators, the following cancellation fees are payable immediately:

  a) Cancellation of a flight up to 14 days before departure, 10 % of the charter price allotted to the flight.
  b) Cancellation of a flight within 13 to 7 days before departure, 20 % of the charter price allotted to the flight.
  c) Cancellation of a flight within 6 to 3 days before departure, 35 % of the charter price allotted to the flight.
  d) Cancellation of a flight within 71 to 48 hours before departure, 50 % of the charter price allotted to the flight.
  e) Cancellation of a flight within 47 to 24 hours before departure, 75 % of the charter price allotted to the flight.
  f) Cancellation of a flight less than 24 hours before departure, 100 % of the charter price allotted to the flight.

9.3.
SPOT is authorised to cancel an individual flight if, because of acts of God or for flight safety or technical impediments which SPOT/the carrier is not responsible for or operative reasons which are not due to the fault of SPOT/the carrier, the execution of the flight is not or is no longer possible. A cancellation fee or similar for this cancellation cannot be claimed by the tour operator from SPOT in this case.

10.   Liability

10.1.
SPOT’s contractual liability for damages which are not bodily injuries, in particular for pre-contractual, sub-contractual and post-contractual breaches of obligations is – irrespective of other statutory provisions, regulations and conventions – restricted to three times the charter price of the respective contractually-owed service, insofar as a damage incurred by the tour operator or its passengers is based on gross negligence or intent.

10.2.
For damages which are not bodily injuries, in particular for pre-contractual, sub-contractual and post-contractual breaches of obligations, SPOT is not liable – irrespective of other statutory provisions, regulations and conventions – insofar as they are based on simple negligence. This does not apply for the breach of material contractual duties.

10.3.
Liability for injury to life, body and health is in accordance with the statutory requirements.

10.4.
In cases of acts of God or in cases in which the breach of duty is based on technical, security or operative reasons for which SPOT/the carrier is not responsible, SPOT is not liable.

10.5.
SPOT is in particular not liable for damages incurred through the delay of passenger and/or luggage transports or arrival from alternative airports which SPOT is not responsible for.

10.6.
The tour operator is obligated to keep suspected or incurred damages as low as possible. It is to notify if there is the possibility of particularly high damages.

10.7.
The exclusion and limitation of SPOT liability applies analogously to the benefit of its employees, representatives and especially for its people assisting in the performance of obligations.

11.   Transferring Claims for Compensation for Damages Against Third Parties to SPOT
In all cases in which the tour operator is not liable for lack of fault, the tour operator is obligated to transfer claims for compensation to SPOT which it is entitled to against third parties (sub-contracted companies, passengers etc.) in connection with the enforcement of the tour operator contract.

12.   Other Transfers by Tour Operator
The tour operator is only authorised to transfer its claims from the tour operator contract in whole or in part to a third party with the written consent of SPOT.

13.   Off-setting/Right of Retention
The tour operator is only entitled to offset with undisputed or legally established claims vis-à-vis SPOT which originate from the concrete contractual relationship concluded between it and SPOT. The same applies to the exercise of a right of retention.

14.   Prescription
Claims by the tour operator from and in connection with the tour operator contract prescribe after one year, except such claims on the basis of bodily harm or death which prescribe after three years. The beginning of the prescription period is the particular flight/carriage date.

15.   Applicable Law

15.1.
The law of the Federal Republic of Germany, the relevant regulations of the European Union, as well as these general terms and conditions as agreed apply to all disputes which result from and in connection with the tour operator contract, its amendments, additions and supplementary agreements.

The following codifications apply in particular:

  • Provisions of the “Bürgerliches Gesetzbuch” [German Civil Code];
  • Provisions of the “Handelsgesetzbuch” [German Commercial Code];
  • Provisions of the “Luftfahrtgesetz” [German law on air travel] as well as the regulations issued here, official regulations and requirements for carriage within the Federal Republic of Germany;
  • EU Regulation 2027/97;
  • EU Regulation No. 889/2002;
  • EU Regulation No. 785/2004;
  • Warsaw Convention.
The particular current version is authoritative.

15.2.
The tour operator knows the diverse statutory and official limitations and requirements concerning “Bedarfsluftfahrt” and line traffic.

15.3.
For disputes over the interpretation of these general terms and conditions, the German version is authoritative.

16.   Jurisdiction

16.1.
For disputes arising from and in connection with the tour operator contract, its amendments, changes and supplementary agreements, the jurisdiction of the factually competent court in Hannover (post code 30175), Lower Saxony, Germany is agreed.

16.2.
SPOT is however at liberty to file suit against the tour operator in its general jurisdiction.

17.   Requirements of Writing

17.1.
Changes and amendments to the tour operator contract and its annex are to be made in writing and are to be indicated expressly as such (Annex).

17.2.
Oral agreements do not initiate any legal consequences.

17.3.
The requirement of writing is observed if the telecommunication is made with fax or another electronic media like email.

17.4.
The written form is also required to remove the requirement of writing.

18.   Severability Clause

18.1.
Should individual provisions of these general terms and conditions prove to be ineffective in whole or in part or become ineffective as a result of changes in legislation following conclusion of the contract, the remaining provisions and the effectiveness of the contract as a whole remain unaffected.

18.2.
The statutory provision which comes as close as possible to the sense and purpose of the ineffective provisions replace the ineffective provisions.

18.3.
If the contract turns out to be incomplete as a whole, the provisions which correspond with the spirit and purpose of the contract, and would have been agreed if they had been considered, are valid as agreed.

Dated 13 February 2012