Vendor Terms of TripUp GmbH, Hamburg
Version 1 June 2018
Introduction
TripUp GmbH, Hamburg (hereinafter „TripUp“ or „we“ and including all of its affiliates, subsidiaries, officers, and employees) operates the internet booking platform www.meine-landausfluege.de and all related internet domains and -presences (the „Platform“). The platform includes all site(s), apps, tools, platforms and / or other entities of TripUp and its affiliates, on which or through which the service is marketed to customers.
The platform enables end consumers (hereinafter „customers“) to book touristic services (hereinafter „services“) that are provided by sellers (hereinafter “seller”, the „provider“ or „he“).
The seller is legally considered as being the tour operator, whereas TripUp acts as the authorized and commissioned commercial agent of the provider and will at no time be a tour operator itself.
1. Scope of the conditions
These conditions (hereinafter the „conditions“ or „agreement“) apply to all providers whose services are offered via the platform and only to the relationship between the seller and TripUp.
The relationship between the customer and the provider is not subject to these conditions, but only the subject of individual contracts concluded between these parties.
In addition, the general terms and conditions of the provider of cruise trips and other tourist services (“Allgemeine Geschäftsbedingungen der Anbieter von Kreuzfahrtausflügen und anderen touristischen Dienstleistungen”) apply to the relationship between the provider and the customer.
The relationship between TripUp and the customer is subject to the general terms and conditions of TripUp GmbH, Hamburg (“Allgemeine Geschäftsbedingungen der TripUp GmbH, Hamburg”).
All mentioned documents can be found on the website www.meine-landausfluege.de in the current version. Only the respective current version shall be considered the valid one.
2. Services by TripUp
The provider instructs TripUp as commercial agent and empowers us to handle the initiation and the conclusion of the booking in relation to the service between the seller and the customer of the platform, and TripUp takes this job to the conditions set out below.
In addition, the provider authorizes TripUp and / or any third party authorized by TripUp, to conclude the cash-collection for booked services.
TripUp supports the conclusion of contracts between customers and providers via the platform. TripUp advertises the service of the providers and encourages the customers in general to give orders.
In addition, TripUp is responsible for all customer related correspondence (provision of booking confirmations and tour tickets, general attendance etc.). A direct communication between the seller and the customer may only relate to the actual handling and operation of booked services.
3. Obligations of the provider
3.1 Information obligations
The provider guarantees that all information transmitted to TripUp are always correct, true and not misleading in connection with its offer. These include in particular the excursion description, information about meeting points, group sizes (min. and max. number of participants), difficulty levels, the necessary equipment, catering etc. The provider transmits this information in German or English language to TripUp. Other languages are not permitted. If English information is provided, TripUp will undertake the translation into the German language and provide the seller on request a German version for review purposes.
The provider is obliged to verify in a timely manner that content uploaded to the platform about its offerings is correct, so that the accuracy of the information is ensured. The provider may be held liable for all claims of the customer, if these inaccuracies have been already included in the information originally provided to TripUp. Once the seller detects an inaccuracy in the transmitted or uploaded information, he shall inform TripUp immediately.
Bookings transmitted by TripUp have to be confirmed (or declined) by the provider within 48 hours, latest 15 days prior to the tour date. Additional short-term bookings (received within 14 days prior to the tour date) will be marked “URGENT” by TripUp and shall be confirmed (or declined) as soon as possible (max. 48 hours).
The seller will provide TripUp with an overview of public holidays in its destinations and other black-out dates when no service can be provided. TripUp will exclude the respective dates in its booking engine.
3.2 Legal obligations
The provider guarantees that the benefits are provided exclusively in accordance with all applicable laws, in particular in accordance with the laws of the country where the legal seat of the provider is established, and in accordance with all applicable laws of the country in which the services are executed, and that the provision of the services does not violate any rights of third parties. In particular, the seller guarantees that he (a) complies with all consumer protection and other intellectual property rights, information and consulting services and regulations, and (b) possesses all administrative and other permits and licenses as well as insurance and similar features that are required in the legal system of the country in which the services are executed. The provider is obliged to make available all respective evidence and documents on request by TripUp.
The seller guarantees that all agents (e.g. tour guides) employed or mandated by him are in possession of all necessary approvals and comply with all legal requirements, including professional qualifications and authorizations. The provider is fully responsible for the behavior of his agents to the customers.
The provider is generally only entitled to offer his own services on the platform. If the seller acts as an intermediary or broker of services, he is treated as a party and may be held liable for any damages and claims.
The provider is obliged to conclude comprehensive general liability insurances for all services offered via the platform. The provider must necessarily have a sum insured that is appropriate for the specified booking volumes and risks. Moreover, the general liability insurance has to cover potential claims for compensation from TripUp. TripUp reserves the right to review the policy on demand and to require proof of payment of the insurance premium.
The provider is obliged to grant a so-called „back-to-ship-on-time“ guarantee. This means that the seller has to take precautions to ensure that customers are brought back to the cruise ship or to the contractually agreed place in time, regardless of all and any disruptions in the chain of services booked. In case of a delay in the services and in case the provider cannot make sure that the customers are brought back to their cruise ship or to the place contractually agreed in time for reasons the supplier is accountable for (that includes negligence but excludes “force majeure”), the provider has to cover all costs resulting from this delay. This includes the costs for the subsequent transport to the nearest port on the route of the cruise ship, accommodation and meals, any costs for clothing and other costs incurred by the customer resulting directly from missing the departure of their cruise ship. The supplier is also responsible for organizing the subsequent transport (e.g. booking of flights) and any hotel stays required.
In case the provider is not able to perform a service according to the terms and conditions agreed (e.g. no German speaking guide, no entrance to important sites) he will accept a lump-sum discount to the procurement prices negotiated with TripUp. The provider will inform TripUp without delay of such circumstances. TripUp and provider will agree by phone and e-mail with regard to the price discount.
3.3 Diligence obligations
The provider is required to validate the customer receipts. This means in particular to check the respective customer receipts at the beginning of the service ( „Voucher“ or e-mail confirmation) and compare these with his own reservation lists. If customers appear to the service, which are not included in the reservation lists of the provider, he shall directly liaise with TripUp. In case the issue cannot be clarified immediately, the provider has to carry out the service to the customers in question, provided sufficient capacities exist. TripUp will refund the seller any additional costs that may incur to the seller, if he can provide respective documents and bills.
Should a customer not appear at the agreed time and meeting place, the provider must first attempt to reach the customer on the phone. Does the provider have no (mobile) phone number of the customer in question or cannot reach the customer, he must hold immediate consultation with TripUp. Only if immediate clarification cannot be brought about either by the customer or with TripUp, the provider is entitled to perform the service without participation of the client concerned.
In some cases, TripUp will bundle customers from different cruise ships and book them on the same service. The provider is obliged to generally accept such bundlings and will apply every effort needed to find the best solution for such services together with TripUp, unless severe reasons prevent the service from being bundled to customers from different cruise ships.
The provider and his agents will always hold up signs stating the brand “Meine Landausflüge” and our logo when receiving customers from TripUp for their services.
Under all circumstances, the provider and his agents are obliged to inform TripUp immediately in case of any operational flaws (e.g. guide not being able to find the customers, accidents etc.)
4. Displayed content & Intellectual Property
The provider grants TripUp a non-exclusive, royalty-free and worldwide right, which entitles us to use the provided content. Use in this context means to reproduce, process, distribute, sublicense, and publish the content.
TripUp is not liable to the provider in any way for any acts or omissions of third-party sites. The sole remedy of the provider with respect to such third-party platforms is (a) is to require TripUp (wherein TripUp entitled to do so, but is not obligated) to disable or interrupt the connection to the relevant third-party platform, or (b) the termination of this agreement, both of which must be made in accordance with these conditions.
The provider is liable for all claims of third parties with respect to the violation of the copyright to the content that he has made available to TripUp.
5. Marketing
TripUp generally performs all (online-)marketing campaigns at its own expense and in its sole discretion.
TripUp is entitled to promote the services of the provider using the / name (s) of the provider via online marketing including email marketing and / or pay-per-click (PPC) advertising.
It is at the sole discretion of TripUp how the services of the provider are advertised on the platform or on the websites of third parties and in-line inter-network; this refers amongst others to the ranking and the promotions of the services when compared against other offerings and services.
The provider will at no point in time contact customers of TripUp for marketing purposes or to sell his services directly to them. Under no circumstances will he use transmitted e-mail addresses and / or telephone numbers for any other reason but to settle operational issues on or before the tour date. TripUp reserves all legal rights to claim any damages resulting from providers directly approaching customers for marketing purposes.
The provider is aware of the technology of search engines (e.g. “spidering” of content and URL rankings). If the provider becomes aware of conduct on third-party platforms that violates the rights of intellectual property of the provider, he will inform TripUp in writing of the details of the behavior. TripUp will ensure to commercially viable extent that the third party concerned shall take the necessary steps to remedy the breach property rights of the provider.
6. Cancellations
TripUp’s customer cancellation periods are as follows:
- until 29 days before the date of service: free of charge
- 28 to 15 days prior to the date of service: 50% free of charge
- beginning with the 14th day prior to the date of service: full charge
TripUp will be allowed to cancel any booking 14 days prior to the tour date without any charges.
Should the provider offer its services to retail clients and applies stricter cancellation rules than the ones listed above, the above listed periods and charges will apply to TripUp customers nevertheless.
7. Extraordinary cancellations
The provider and TripUp may cancel services due to “force majeure” without observing a cancellation period. “Force majeure” in this context may mean extraordinarily severe weather conditions, a strike, government action, and all other unforeseeable or unavoidable external circumstances that make it impossible, extremely difficult or dangerous to carry out the service.
In this case, the provider is obliged to refund payments already received to TripUp. This is done to the exclusion of any liability or other claims on what legal basis whatsoever.
“Force majeure” is also valid for route changes of cruise ships on short notice, particularly port omissions and (significantly) shortened berthing times, as a result of which the service cannot be performed. It is recommended that the provider holds himself harmless against all claims from subcontractors (guides, drivers) in such cases.
Short-term cancellations by the provider due to unavailability of subcontractors (guides, drivers) will only be accepted in case of severe reasons (e.g. sickness) and against provision of respective documents proofing such reason.
8. Customer complaints
The provider will handle complaints or claims regarding the services or specific issues raised by the customer related to the services. TripUp is entitled at any time and in its sole discretion to (a) offer support services to a customer or (b) act as an intermediary between the provider and the customer, or (c) support the customer otherwise in their communications with or the assertion of claims against the provider.
9. Cash settlement between TripUp and the providers
For exclusive services for TripUp customers, TripUp is negotiating purchase prices for the services with the providers and, in turn, offers these services to customers at retail prices. In this way the commission is earned. The determination of the retail price lies in the discretion of TripUp, and TripUp is thus free to reduce the retail prices or the commission to increase occupancy and consequently reduce average purchase prices of certain services.
The billing to the provider is done on a case-by-case basis of respective booked quantities and purchase prices. 14 days prior to the excursion date TripUp will determine whether the excursion will take place or not. In case the excursion will take place, TripUp will transfer the respective monetary amount promptly to a bank account of the suppliers choice. The supplier will issue a formal invoice for the service to TripUp. Any taxes and other costs that are borne by the provider will not be replaced separately.
Payments by TripUp made to the provider are processed via bank transfer to the specified account from the manufacturer. Alternative transfer technologies like PayPal are possible. Direct debit transactions from the provider to TripUp are not possible.
In case of public (non-exclusive) tours offered by the provider, retail prices are defined by the provider. TripUp and the provider will negotiate a respective commission for these services. TripUp will offer such services via the platform applying the retail prices determined by the provider. Short-term promotional measures and discounts are generally allowed for TripUp, however only if TripUp has informed the provider and the provider has agreed to such measures.
TripUp processes all payments from the customers via a payment service provider. If customers cancel their payment before the booked service is executed, or payment is not processed for any other reason, TripUp will inform the provider immediately. In this case the customer does not have any claim to participate in the services, and the provider is responsible for not letting him, should the customer still want to participate in the service. The cancellation procedures according to Section 6 shall apply notwithstanding. Should TripUp however not be able to (pro rata) cash-in the customer payments, no (pro rata) claim from the provider can be made against TripUp.
TripUp is not obliged to take legal actions, of whatever kind, against customers who do not pay or cancel a specific service or revoke their payment.
Credit card and bank charges for customer payments to TripUp are borne by TripUp. Credit card and bank charges for transfers to the seller will be borne by either party (TripUp covering charges of its own bank, provider the charges of provider’s bank).
10. Customer ratings
After execution of a service, customers have the opportunity to evaluate the booked services using the evaluation system of TripUp. The aim of the evaluation system is to create meaningful and accurate feedback and profiles of providers in terms of their performance, their reliability and their seriousness. These profiles of the services (not of the providers) are public and can be viewed by each visitor on the platform. All content provided in this evaluation system is the property of TripUp. The provider is not allowed to publish assessments without the prior written consent of TripUp on his own website / third-party websites.
11. Data privacy protection
The provider confirms that he has reasonable security procedures and controls installed and maintained, and that he will establish and maintain this in order to prevent the inadvertent disclosure of and unauthorized access to, or the unlawful use of personal data or information from customers.
Neither the provider nor its affiliates participate directly or indirectly in marketing or promotional activities to customers, or similar messages to customers who have booked with them through the platform.
The provider is obliged to treat all customer-related information (e.g. email data or phone numbers) in accordance with the EU General Data Protection Regulation (and all adopted within the framework of laws) in their amended, updated, replaced or expanded form. At the request of TripUp the provider is obliged to prove that he has installed and maintained adequate technical and organizational security measures governing the processing of personal data.
TripUp will forward any and all customers’ request with regard to nature, extent, and localization of their personal data being stored to the provider. The provider is obliged to answer to such requests without undue delay. Should customers require to have their personal data being completely deleted, the provider will confirm to TripUp to have completely deleted all personal data related to the customer in a timely manner, and (technical feasibility provided) give proof of such deletion.
12. Warranties
In addition to any other representations and warranties of the provider in these conditions he ensures that (a) he has authorized the person signing this agreement to act on his behalf, (b) this contract represents a valid and binding obligation against him in accordance with his provisions and can be enforced against him, (c) fulfilling his obligations under these conditions is not against agreements or obligations between him and a third party, (d) he owns all rights, licenses, permits and authorizations needed to offer the services and comply with his obligations under these terms (or that the owner of such rights has given his consent).
13. Liability of TripUp
TripUp makes no warranties and bears no guarantees with respect to the platform, such as a temporary or permanent interruption of the operation of the platform.
TripUp bears no risk in terms of number, frequency or type of service bookings on the platform.
The liability of TripUp under the conditions is limited to the correct transmission of data indicated by the customer when booking a service on the platform.
TripUp is liable for data loss only up to the amount of typical restoration costs that would be incurred if properly and regularly backup measures had been taken.
A greater possible liability for TripUp is excluded.
14. Duration and termination of contracts
Contracts under these conditions are closed with unlimited duration.
The provider and TripUp are entitled to terminate contracts under these conditions at any time without giving reasons. Here, a notice period of three months is considered and contracts terminate at the end of the calendar year. Confirmed bookings must be serviced as scheduled by the provider.
An extraordinary termination on serious grounds remains unaffected.
15. Amendments
TripUp reserves the right to change the provisions of these terms at any time and introduce new or additional provisions. TripUp will inform the provider with a message via e-mail of any changes to these conditions.
If the service provider does not accept such amendments he is entitled to cancel his contract with TripUp and announce this fact in writing. If the provider does not make use of such right within thirty (30) days of notification of a change or new or additional provisions of these terms, this means that he has accepted the amendments in question.
16. Final provision
Subsidiary agreements have not been made. All changes and additions to this contract must be in writing, in order to be legally effective.
Credits and receivables of the seller resulting from this contract may not be assigned or transferred to third parties without the prior written consent of TripUp.
These conditions and all claims arising from or in connection with contracts based on these conditions are subject to German law excluding the rules of private international law and must be interpreted in accordance with this law. Place of performance and the exclusive venue for any disputes arising out of or in connection with the services is Hamburg, Germany.
Should one of the above provisions be legally invalid, a legally valid version shall take its place which corresponds to the purpose of the provision in question to the best extent possible. All other provisions shall remain valid independent of it.
TripUp GmbH
Mönckebergstr. 13
20095 Hamburg
Deutschland