1.1. GaPa-T shall merely act as an agent for the provision of accommodation services, provided no other agreements have been explicitly concluded.
1.2. Without prejudice to its obligations as an agent, GaPa-T shall under no circumstances whatsoever be held liable for information provided or specifications made by any hosts as regards prices and services.
1.3. These Terms and Conditions (if and as far as validly agreed upon) shall apply to the contractual relationship regarding the provision of accommodation services which have been booked on the basis of host directories, brochures or internet advertisements as published by GaPa-T acting as an agent.
1.4. Each host reserves the right to apply other terms and conditions than these Terms and Conditions or to conclude additional terms and conditions to or ones differing from these Terms and Conditions.
1.5. These Terms and Conditions shall not apply in relation to travel packages, contracts relating to tour guide services or other services offered by the Host or GaPa-T.
2.1 For all kinds of bookings the following shall apply:
a) Offers made by hosts and bookings consequently placed by clients shall be based on the descriptions of accommodation facilities as well as supplementary information (such as locality descriptions or classification specifications e.g.) as provided and available to the client at the time of booking.
b) None of the host’s agents other than GaPa-T are authorised to conclude agreements or to provide information or make specifications on behalf of the host which would amend the agreed contents of an agreement, or which would go beyond the contractual representations undertaken by the host or which would contradict the descriptions of the accommodation facilities and the host’s services.
c) Any specifications made in hotel guides and similar directories, not edited by GaPa-T or the host shall have no binding effect for the host nor shall they apply in relation to the host’s services if they have not been explicitly agreed between the host and clients by way of contractual representation.
d) If the host’s booking confirmation differs from a client’s booking request, such booking confirmation constitutes a new offer by the host. An agreement shall be concluded on the basis of such new offer, if the client accepts same, either by way of explicit declaration or tacitly by way of the client effecting partial or full payment in relation to such offer or by way of the client utilising the services accordingly offered.
2.2. With respect to bookings placed orally, by telephone, in writing, by email or facsimile, the following shall apply:
a) By way of placing a booking a client - in a contractually binding manner - furnishes an offer to the relevant host to enter into a contractual relationship for the provision of accommodation services.
b) The contractual relationship is concluded upon receipt of acceptance by the client which is not subject to any formality pre-requisites. Consequently, even oral confirmations or such provided telephonically have a legally binding effect for both, the client and the confirming host. In normal cases, the host or GaPa-T will furnish the client with a written booking confirmation in addition to the one previously given orally or telephonically. However, bookings which have been placed orally or telephonically by a client and which in turn have been confirmed also orally or telephonically by the relevant host or GaPa-T, shall always constitute a binding and legally valid contractual relationship, even if the client has not received a written booking confirmation by the relevant host or GaPa-T in the further course.
c) Contrary to the above provisions, in cases where a host offers a special arrangement following a client’s respective request, this special offer shall constitute a legally binding offer made by the host to the client. In such cases a contractual relationship shall be concluded without any explicit booking confirmation by the host becoming necessary, provided however the client accepts such offer without limiting, amending or widening the scope of the offer and within the acceptance period possibly specified in the offer as communicated by the host. Acceptance by the client to such an offer may be given by way of the client’s explicit statement to this effect or tacitly, by way of the client effecting a prepayment or other payments in consideration of the service offered or by way of the client utilizing the offered accommodation service as such.
2.3. As regards online bookings the following shall apply in relation to concluding a contractual relationship:
a) On the relevant web portal clients will find instructions outlining the procedure of generating online bookings. In order to correct any data entered by the client or to delete or reset the entire online booking form, the client may use a correction function the use of which is explained. The applicable contract language used to process an online booking is indicated accordingly. If and as far as contract wording has been saved by the host on the online booking system the client will be instructed about such saved wording and how to retrieve same.
b) By activating the button "zahlungspflichtig buchen“ (“binding booking resulting in a payment duty”) the client furnishes to the host or GaPa-T a binding offer to conclude a contractual relationship regarding the provision of accommodation services whereupon the client will automatically receive an electronic booking confirmation.
c) Transmitting an offer by way of activating the button “zahlungspflichtig buchen” shall not entitle the client to any rights regarding the conclusion of a contractual relationship on the basis of the booking made. The host remains free to decide whether to accept the client’s respective offer or not.
d) The contractual relationship shall be concluded upon the client receiving the respective booking confirmation.
2.4 In cases where an electronic booking confirmation is triggered by and becomes visible on the screen immediately upon the client’s booking by way of the client activating the button „zahlungspflichtig buchen“ (real time booking), a contractual relationship is concluded upon the client receiving such booking confirmation, i.e. upon same appearing on the screen without any further notice by the host or GaPa-T becoming necessary. In such cases, the client may opt whether to electronically save or print such booking confirmation. Either way, a binding contractual relationship shall have been concluded, irrespective of whether the client opts to save or print the booking confirmation or decides to do neither. In normal cases the client will be sent a copy of the booking confirmation by email or email attachment, by postal mail or fax. In this respect a contractual relationship relating to the provision of accommodation services will be concluded in any case, irrespective of whether such additional booking confirmation has been duly received by the client or not.
2.5 In accordance with the applicable obligations as provided by law, the client is herewith duly informed that pursuant to the relevant legislative provisions (as stipulated in section 312g paragraph 2 sentence 1 no. 9 of the German Civil Code) the following applies: The client shall have no right to object to a contractual relationship concluded for the purposes of providing accommodation services, that has been concluded remotely (i.e. by way of letter, brochure, telephone, facsimile, email, via text messages as well as by way of broadcasting services via radio or TV): In such cases the client’s rights are limited to the statutory provisions applicable in the event of rental services not being utilized (section 537 of the German Civil Code. In this respect, please refer also to the provisions stipulated in Article 6 hereunder). The client does however have a right to object if the contractual relationship relating to the provision of accommodation services has been concluded outside of business premises, unless however, either one of the aforementioned constellations applies or the oral negotiations on the basis of which the contractual relationship was concluded, were conducted following the client’s respective request. In such cases the client shall have no right to object.
3.1. Non-binding reservations which entitle the client to cancellation free of charge shall only be possible if explicitly agreed with the host.
3.2. Commercial clients may also place reservations by way of binding option bookings (i.e. booking becomes binding if it is not cancelled within a defined period of time) or by way of expiring option bookings (i.e. booking expires automatically if not confirmed within an agreed period of time). In the absence of differing individual agreements options are generally deemed to be expiring option bookings.
3.3. If no reservation has been agreed, a booking placed in accordance with section 2 of these Terms and Conditions shall constitute a binding agreement between host and client.
3.4. If in relation to private clients a non-binding reservation has been agreed, the client shall be obliged to inform the host within the period defined whether such non-binding reservation is to become a binding booking. If the client fails to inform the host accordingly within the time specified, the reservation expires without the host nor GaPa-T having any obligation as to informing the client about such expiry. If the client informs the host accordingly within the time specified the reservation shall be automatically converted to become a binding booking without any additional confirmations by the host becoming necessary.
4.1. The prices as published or communicated (in host directories, host’s offer, internet or otherwise) are final consumer prices and include V.A.T. charges as well as surcharges, provided that surcharges are not specifically mentioned separately. In addition, locally charged visitor’s or tourism taxes as well as individual consumption fees (electricity, water, gas, fire wood) may be charged. The same applies for fees relating to facultative or additional services which are booked locally at the accommodation facility.
4.2. The booking confirmation as well as the published information regarding the accommodation facilities and the host’s services as well as any individual agreements possibly made between the client and the host shall be the sole basis for defining the scope of services due to be performed by the host.
5.1. Following conclusion of a contractual relationship the host may demand a prepayment of up to 20% of the sum of the total accommodation price and all charges for additional services booked, provided nothing contrary has been agreed upon by way of an individual agreement between the parties.
5.2. Residual amounts become due for payment at the clients‘ departure, provided nothing contrary has been agreed.
5.3. Payments in foreign currencies shall not be possible. Payment by credit card shall only be possible, if accordingly agreed upon by the parties or communicated by the host be it by displaying relevant signs or otherwise. Payments becoming due at the end of a client’s stay shall not be possible by bank transfer.
5.4. If an agreement has been reached between the client and the host whereby payment is to be effected by the client upon receipt of the host’s invoice, the entire invoiced amount shall be due for payment within 10 days of the invoice date (if not indicated otherwise).
6.1. The client’s arrival will be at the time agreed upon by the parties, without respective agreement, latest by 6 p.m. on the booked day of arrival.
6.2. For later arrivals, the following shall apply:
a) The client will inform the host, if the client expects to arrive late or, in relation to stays of more than one day, if the client chooses to arrive the day following his booked arrival.
b) If the client fails to duly notify the host of his delayed arrival in accordance with the provisions hereunder, the host shall be entitled to allocate the client’s room to another party. In cases where the host cannot allocate a room to another party the provisions stipulated in section 7 hereunder apply accordingly.
c) If the client notifies the host of his delayed arrival, the client shall nonetheless be liable to pay the unused portions of his stay less deductions which are to be made by the host in relation to unexpended costs in accordance with the provisions stipulated in section 7.4 and 7.5 hereunder. In cases where, by contract or law, the host is responsible for the client’s due arrival at the accommodation facility, the client shall not be liable to make any payments to the host in this respect.
6.3. On departure day, the client shall vacate the room at the time agreed upon by the parties. In cases where no agreement has been made in this respect the room shall be vacated latest until 12.00 noon of that day. If a client fails to vacate the room within the times specified above, the host shall be entitled to charge additional fees. Moreover, the host shall be entitled to claim compensation for damages exceeding such additional room charges.
7.1. If the client cancels his accommodation booking or fails to arrive at the booked accommodation facility, the host remains entitled to payment of the accommodation price, including victualling fees as well as fees for additional services booked by the client.
7.2. The host shall, within the course of his ordinary business apply reasonable endeavours to allocate the client’s unused accommodation services to another party but shall not be obliged to apply extraordinary efforts in this respect, taking into consideration also the specific room type (non-smoking / family room) in each case.
7.3. All proceeds collected by the host due to allocating the client’s accommodation services to a third party as well as all costs which have remained unexpended, shall be deducted from any claims held by the host towards the client pursuant to section 6.1 above.
7.4. In accordance with the - judicially recognised - percentages set out here below with respect to the valuation of costs remaining unexpended by a host in case of non-utilization of an accommodation booking, a client shall be obliged to pay the following amounts. The below percentages refer to the total accommodation price including all applicable surcharges, however excluding possibly applicable local tourist or guest taxes:
♦ Regarding holiday flats / apartments
♦ without board services 90%
♦ Regarding accommodation services
♦ including breakfast 80%
♦ Regarding half board services 70%
♦ Regarding full board services 60%
7.5. The client explicitly retains the right to positively prove that costs which have remained unexpended by a host were significantly higher than the deductions made according to the percentages set out above or that the booked accommodation service have been re-assigned by the host to another party. In such cases the client shall only be obliged to pay an accordingly reduced amount.
7.6. It is urgently recommended to take out travel cancellation insurance.
7.7. For technical reasons, any cancellation of services booked via GaPa-T, specifically those booked via GaPa-T’s website are to be notified to GapPa-T, in all other cases they are to be notified exclusively to the host and – in the client’s best interest - should ideally be made in writing (email sufficient).
8.1 The client shall be obliged to use the accommodation facilities and amenities only for their respective purposes and with reasonable care and to comply with any given facility rules and conditions (e.g. swimming pool and sauna).
8.2 The client shall without unreasonable delay notify the host of any defaults possibly occurring, thereby demanding that same are to be removed. Respective notifications of GaPa-T shall not suffice. Should the client fail to comply with his obligations to notify the host, the client’s resulting claims may be jeopardized wholly or in part.
8.3 The client shall only be entitled to cancel an accommodation service for reasons of default, in cases of material defaults. Prior to cancellation the client shall be obliged to first claim removal of the default setting a reasonable period for such removal. This shall not apply if such removal is factually impossible or has already been rejected by the host or the client’s immediate cancellation is to be deemed reasonable, given the client’s particular (and for the host recognisable) interests or if the client for such reasons cannot reasonably be expected to continue using the accommodation services.
7.8. Pets shall only be allowed within the accommodation facility subject to explicit agreement and if the acceptance of pets has been advertised accordingly by the host. In relation to using accommodation services with pets the client shall be obliged to duly and truthfully inform the host previously about the kind and size of pet which the client intends to travel with. In case of clients breaching such obligations the host shall be entitled to summarily cancel the agreement.
7.9. The host shall also be entitled to cancel an agreement without notice, if the client despite a respective warning by the host, continually disturbs the hosts accommodation business or the provision of accommodation services or if the client is in breach of contractual obligations which are so material that an instant cancellation may be deemed legitimate. In cases where the host cancels agreements with tour operators, section 5 shall apply in relation to payments consequently becoming due to the host.
8.1. The host’s liability pertaining to the performance of accommodation services pursuant to section 536a of the German Civil Code for damages which do not result in death or bodily injuries shall be excluded in all cases, unless damages have been caused directly by gross negligence or wilful acts or omissions committed by the host or its legal representatives or persons assisting the host in performing his contractual obligations such as the host’s employees, suppliers or subcontractors.
8.2. The host’s liability pursuant to sections 701 and subsequent sections of the German Civil Code in relation to damages caused to objects introduced by a client remains unaffected by this provision.
8.3. The host shall not be liable deficiencies or defaults in relation to services which are recognisably provided by third party providers during the client’s stay and which have merely been (recognisably) brokered by the host to the client (e.g. sports events, theater performances, exhibitions etc.). The same applies in relation to third party services which have been brokered by the host already on the occasion of the client’s booking, provided that such services have been explicitly indicated as third party services.
9.1. Contractual compensation claims of the client due to bodily injuries, death or illness, including compensation for pain and suffering, towards the host (pertaining to accommodation agreements) or towards GaPa-T (in relation to its agent services) which arise as a consequence of negligent or wilful breaches of contractual obligations committed by the host or GaPa-T or any of their legal representatives or persons assisting the host or GaPa-T in performing their respective contractual obligations such as employees, suppliers or subcontractors are subject to a limitation period of three years. The same shall apply in relation to claims for compensation of other damages which arise as a consequence of reckless or wilful breaches of contractual obligations committed by the host or GaPa-T or any of their legal representatives or persons assisting the host or GaPa-T in performing their respective contractual obligations such as employees, suppliers or subcontractors.
9.2. All other contractual claims are subject to a period of limitation of one year only. If the last day of such limitation period is a Sunday, Saturday or an official state wide public holiday at the place where the claim is to be made, the period ends on the next working week day following immediately after such days.
9.3. Periods of limitation each commence at the end of the calendar year in which a claim arises and in which the client becomes aware of or may be reasonably expected to become aware of facts which constitute such claim.
9.4. In the event of any negotiations pending between clients and the host or GaPa-T in relation to claims or facts potentially constituting a claim the limitation of such claims shall be suspended until the client or host or GaPa-T refuse to continue such negotiations. The aforementioned period of limitation of one year shall not commence earlier than three years following the end of its suspension due to pending negotiations.
10.1. With respect to the newly introduced legislation regulating the settlement of consumer disputes (Gesetz über Verbraucherstreitbeilegung) the host points out that at the time of printing these conditions, material elements of such law had not been enacted. The host currently does not participate in any such voluntary settlement programme. In the event that the participation in such a programme became obligatory in the further course after printing and publishing these terms and conditions, the host will duly inform its clients accordingly. In relation to all contractual relationships concluded electronically, the host makes reference herewith to the European dispute settlement platform http://ec.europa.eu/consumers/odr/.
10.2. The contractual relationship between the host and the client as well as that between GaPa-T and the client will be exclusively governed by German law. The same shall apply to all other legal relationships between the client and the host..
10.3. Law suits by a client against a host or GaPa-T shall be brought before the court of competent jurisdiction at the host’s or GaPa-T’s registered seat.
10.4. Law suits by a host or GaPa-T against a client shall be brought before the court of competent jurisdiction at the client‘s residence. Law suits against clients who are merchants in accordance with the German Commercial Code or legal persons of civil or public law who have their residence or registered business seat or whose usual place of stay is either abroad in a foreign country or unknown at the time when the law suit is brought, the parties agree that such law suits shall be brought before the court of competent jurisdiction of the plaintiff, i.e. the host or GaPa-T.
10.5. The above provisions shall not apply if and as far as provisions of the European Union or international law apply which cannot be waived.
© Copyright Noll & Hütten Rechtsanwälte, Stuttgart | München, 2004 – 2017.
Acting as Agent:
Legal entity: Markt Garmisch-Partenkirchen