ARB
General Terms and Conditions of Travel (ARB 1992)
Adapted to the Amendment to the Consumer Protection Act (Federal Law Gazette No. 247/93) and to the Amendment to the Law on Guarantees (Federal Law Gazette I No. 48/2001)
Adopted jointly by the Consumer Policy Advisory Council of the Federal Minister for Health, Sport and Consumer Protection in accordance with Section 73( 1 of the Trade Regulation Act 1994 (GewO 1994) and Section 8 of the Ordinance of the Federal Minister for Economic Affairs, as amended in 1994, on the rules governing the operation of the travel agency trade (now Section 6, pursuant to Federal Law Gazette II No. 401/98).
The travel agency may act as an intermediary (Section A) and/or as a tour operator (Section B).
The intermediary undertakes to endeavour to secure a claim to services provided by others (tour operators, transport companies, hoteliers, etc.).
A tour operator is a company which either offers several tourist services at a package price (package holiday/organised tour) or undertakes to provide individual tourist services itself and, for this purpose, generally makes its own brochures, prospectuses, etc. available.
A company acting as a tour operator may also act as an agent when arranging third-party services (e.g. optional excursions at the holiday destination), provided that it makes clear that it is acting in this capacity as an agent.
The following terms and conditions constitute the standard contract text on the basis of which travel agencies usually conclude contracts with their customers/travellers (Note: within the meaning of the Consumer Protection Act (KSchG)) either as intermediaries (Section A) or as organisers (Section B).
The specific terms and conditions
- of the tour operators on whose behalf the booking is arranged,
- of the transport operators for which services are arranged (e.g. rail, coach, air and sea) and
- other service providers for which arrangements are made
take precedence.
A. THE TRAVEL AGENCY AS AN AGENT
The following terms and conditions form the basis of the contract (agency agreement) which the customer enters into with an agent.
1. Booking/Conclusion of Contract
The booking may be made in writing or (remotely) verbally. (Remote) verbal bookings should be confirmed in writing by the travel agency without delay. Travel agencies should use booking forms that contain all essential details of the customer’s order, with reference to the travel brochure (catalogue, leaflet, etc.) on which the booking is based.
With regard to its own services and the organiser’s services it has arranged, the agent must, in accordance with Section 6 of the Regulations Governing the Travel Agency Trade, draw the customer’s attention to these
GENERAL TERMS AND CONDITIONS OF TRAVEL, draw attention to any travel conditions that deviate from them in a verifiable manner and, in such cases, hand them over before the contract is concluded.
Where services provided by foreign operators (service providers, tour operators) are arranged, foreign law may also apply. Any person making a booking on their own behalf or on behalf of a third party is thereby deemed to be the client and, in the absence of any statement to the contrary, assumes the obligations arising from the placement of the order vis-à-vis the travel agency (payments, withdrawal from the contract, etc.).
When making a booking, the travel agency may charge a handling fee and require a (minimum) deposit. The balance of the payment, as well as reimbursement of out-of-pocket expenses (telephone charges, telex costs, etc.), is due upon handover at the travel agency of the travel documents (which do not include personal documents) issued by the relevant tour operator or service provider.
Travel operators that accept bookings are obliged to provide the traveller with confirmation of the travel contract (travel confirmation) upon conclusion of the contract or immediately thereafter.
2. Information and other ancillary services
2.1. Information on passport, visa, foreign exchange, customs and health regulations
It is assumed that travellers are aware that, as a general rule, a valid passport is required for travel abroad.
The travel agency must inform the customer of any additional foreign passport, visa and health-related entry regulations, as well as, upon request, of foreign exchange and customs regulations, insofar as these can be ascertained in Austria. Furthermore, the customer is personally responsible for complying with these regulations. Where possible, the travel agency will, for a fee, arrange any necessary visas.
Upon request, the travel agency shall, where possible, provide information on special regulations for foreign nationals, stateless persons and holders of dual nationality.
2.2. Information on the travel service
The travel agency is obliged to describe, to the best of its knowledge, the service to be arranged by the tour operator or service provider, taking into account the specific features of the relevant contract and the circumstances
of the respective destination country or location.
3. Legal Status and Liability
The travel agency’s liability extends to the
- the careful selection of the relevant tour operator or service provider, as well as the careful evaluation of experience gained
- the proper provision of services, including providing the customer with appropriate information and issuing the travel documents
- the verifiable forwarding of notifications, declarations of intent and payments between the customer and the arranged company and vice versa (such as changes to the agreed service and price, notices of cancellation and complaints).
The travel agency is not liable for the provision of the service it has arranged or procured. The tour operator must provide the customer, together with the travel confirmation, with the company name (product name), the address of the tour operator and, where applicable, that of an insurer, provided that this information is not already contained in the brochure, catalogue or other detailed promotional material. If it fails to do so, it shall be liable to the customer as the organiser or service provider.
4. Breaches of Contract
If the travel agency breaches the obligations incumbent upon it under the contractual relationship, it shall be obliged to compensate the customer for any resulting loss, unless it can prove that it was not at fault through either wilful misconduct or gross negligence.
In the case of breaches of contract due to slight negligence, the travel agency shall be liable to the customer for compensation for any resulting damage up to the amount of the commission on the transaction brokered.
B. THE TRAVEL AGENCY AS A TOUR OPERATOR
The following terms and conditions form the basis of the contract – hereinafter referred to as the ‘travel contract’ – which the booking party concludes with a tour operator either directly or through an intermediary. In the event of a direct contract, the tour operator shall be subject to the obligations of an intermediary mutatis mutandis.
The tour operator generally acknowledges these GENERAL TERMS AND CONDITIONS OF TRAVEL; any deviations are set out in all its detailed promotional materials in accordance with Section 6 of the Implementing Regulations.
1. Booking/Conclusion of the Contract
The travel contract is concluded between the person making the booking and the tour operator once agreement has been reached on the essential elements of the contract (price, services and dates). This gives rise to rights and obligations for the customer.
2. Change of traveller
A change in the identity of the traveller is possible provided that the replacement person meets all the conditions for participation, and may take place in two ways.
2.1. Assignment of the right to travel services
The booker’s obligations under the travel contract remain in force if they assign all or some of their claims under this contract to a third party. In this case, the booker shall bear any additional costs arising therefrom.
2.2. Transfer of the travel package
If the customer is unable to take part in the tour, they may transfer the contractual relationship to another person. The organiser must be notified of the transfer either directly or via the agent within a reasonable period prior to the departure date. The tour operator
may specify a specific deadline in advance. The transferor and the transferee shall be jointly and severally liable for any outstanding payment and, where applicable, for any additional costs incurred as a result of the transfer.
3. Contractual Content, Information and Other Ancillary Services
In addition to the information obligations also incumbent on the agent (namely information on passport, visa, foreign exchange, customs and health-related entry requirements), the tour operator must provide sufficient information about the services it offers. The service descriptions in the catalogue or brochure valid at the time of booking, as well as the other information contained therein, form part of the travel contract, unless otherwise agreed at the time of booking. It is, however, strongly recommended that such agreements be recorded in writing.
4. Trips involving particular risks
In the case of trips involving special risks (e.g. of an expeditionary nature), the tour operator shall not be liable for the consequences arising from the occurrence of such risks if this falls outside the scope of its obligations.
This does not affect the tour operator’s obligation to prepare the trip with due care and to select with due care the persons and companies commissioned to provide the individual travel services.
5. Legal basis in the event of disruption to services
5.1. Warranty
The customer is entitled to a warranty claim in the event of non-performance or defective performance. The customer agrees that, in lieu of their claim for rescission or a price reduction, the organiser shall, within a reasonable period, provide a service free from defects or rectify the defective service. Remedial action may take the form of rectifying the defect or providing a replacement service of equal or higher value, which must also be expressly approved by the customer.
5.2. Compensation
If the tour operator or its agents culpably breach the obligations incumbent upon the tour operator under the contractual relationship, the tour operator shall be liable to the customer for compensation for the resulting damage.
Insofar as the tour operator is responsible for persons other than its employees, it shall be liable – except in cases of personal injury – only if it fails to prove that such persons acted without either intent or gross negligence.
Except in cases of wilful misconduct or gross negligence, the tour operator accepts no liability for items that are not normally taken on a trip, unless it has taken them into safekeeping in full knowledge of the circumstances. The customer is therefore advised not to take any items of particular value with them. It is also recommended that items brought along be stored securely.
5.3. Notification of defects
The customer must immediately notify a representative of the organiser of any breach of the contract which they discover during the trip. This presupposes that the customer has been informed of the organiser’s representative and that the representative can be reached on the spot without significant difficulty. Failure to make such a notification does not affect the customer’s warranty claims as described in clause 5.1. However, it may be regarded as contributory negligence on the customer’s part and, to that extent, may reduce any claims for damages they may have. The organiser must, however, have informed the customer of this duty to notify in writing, either directly or through the intermediary. Likewise, the customer must have been informed at the same time that a failure to provide such notification does not affect their warranty claims, although it may be taken into account as contributory negligence.
Where appropriate, in the absence of a local representative, it is advisable to inform either the relevant service provider (e.g. hotel, airline) or the organiser directly of any defects and to demand that they be rectified.
5.4. Special legislation on liability
In the case of air travel, the tour operator is liable, amongst other things, under the Warsaw Convention and its Supplementary Convention; in the case of rail and coach travel, under the Railways and Motor Vehicles Liability Act.
6. Asserting any claims
To facilitate the assertion of claims, the customer is advised to obtain written confirmation of the non-performance or defective performance of services, or to secure supporting documents, evidence and witnesses.
Warranty claims may only be made within 6 months. For bookings made on or after 1 January 2002, a two-year time limit applies to consumers. Claims for damages become time-barred after 3 years.In the traveller’s own interests, it is advisable to make claims immediately upon return from the trip, either directly with the tour operator or via the travel agency acting as an intermediary, as delays are likely to make it more difficult to provide evidence.
7. Withdrawal from the contract
7.1. Cancellation by the customer before the start of the trip
- Withdrawal without a cancellation fee
Apart from the statutory rights of withdrawal, the customer may withdraw from the contract without the tour operator having any claims against them in the following cases occurring before the start of the service:
If essential elements of the contract, including the tour price, are significantly altered. In any event, the frustration of the agreed purpose or nature of the holiday, as well as an increase in the agreed holiday price of more than 10 per cent in accordance with Section 8.1, constitutes such a change to the contract.
The organiser is obliged to notify the customer of the change to the contract without delay, either directly or via the acting travel agent, and to inform the customer of their option to either accept the change to the contract or withdraw from the contract; the customer must exercise their right to choose without delay. If the organiser is at fault for the occurrence of the event entitling the customer to withdraw, the organiser is liable to pay compensation to the customer.
- Entitlement to compensation
If the customer does not make use of the options to withdraw and the tour operator cancels the trip through no fault of the customer, instead of the rescission of the contract, demand that it be fulfilled by participating in another equivalent tour organised by the tour operator, provided that the tour operator is in a position to provide this service.
In addition to the right to choose an alternative, the customer is also entitled to compensation for non-performance of the contract, provided that the cases set out in clause 7.2 do not apply.
- Withdrawal with cancellation fee
The cancellation fee is a percentage of the tour price and its amount depends on the time at which notice of withdrawal is given and the type of tour in question. The tour price or package price is to be understood as the total price of the contractually agreed service.In all cases not specified under (a), the customer is entitled to withdraw from the contract upon payment of a cancellation fee.
If the cancellation fee is deemed unreasonable, it may be reduced by the court. Depending on the type of trip, the following cancellation rates apply per person:
1. Special flights (charter), group IT (group package tours on scheduled services), coach tours (multi-day trips)
up to 30 days before the start of the trip………………………………10%
from the 29th to the 20th day before the start of the trip…………………….25%
from the 19th to the 10th day before the start of the trip.. ………………….50%
from the 9th to the 4th day before the start of the trip………………………..65%
from the 3rd day (72 hours) before the start of the trip………85%
of the tour price.
2. Individual IT (individual package tours on scheduled services), railway company tours (excluding special trains)
up to the 30th day before departure………………………………10%
from the 29th to the 20th day before the start of the trip…………………….15%
from the 19th to the 10th day before the start of the trip.. ………………….20%
from the 9th to the 4th day before the start of the trip………………………..30%
from the 3rd day (72 hours) before the start of the trip………45%
of the tour price.Special conditions apply to hotel accommodation, holiday flats, cruises, one-day coach trips, special trains and scheduled flights at special fares. These must be specified in the detailed itinerary.
Notice of Cancellation
In the event of withdrawal from the contract, please note:
The customer (client) may at any time notify the travel agency through which the trip was booked that they are withdrawing from the contract. In the event of cancellation, it is advisable to do so –
by registered letter
or – in person, accompanied by a written statement.
- No-show
A no-show occurs if the customer fails to depart because they lack the intention to travel, or if they miss their departure due to negligence on their part or due to unforeseen circumstances. Furthermore, if it is established that the customer can no longer or does not wish to make use of the remaining travel services, they must pay, for travel types as per point c 1 (special flights, etc.) 85 per cent of the tour price, and for the types of tour specified under (c) 2. (individual IT, etc.) 45 per cent of the tour price.
Should the above rates be deemed unreasonable, they may be adjusted by the court on a case-by-case basis.
7.2. Cancellation by the organiser prior to the start of the trip
a) The organiser shall be released from its contractual obligations if a minimum number of participants, specified in the itinerary from the outset, is not reached and the customer has been notified in writing of the cancellation within the time limits specified in the description of the tour or as follows:
- up to the 20th day before the start of the trip for trips lasting more than 6 days,
- up to the 7th day before the start of the trip for trips lasting 2 to 6 days,
- up to 48 hours before the start of the trip for day trips.
If the organiser is at fault for the failure to reach the minimum number of participants to an extent exceeding slight negligence, the customer may claim compensation; this is calculated as a lump sum equal to the amount of the cancellation fee. This does not preclude the customer from claiming damages in excess of this amount. b) Cancellation shall be due to force majeure, i.e. due to unusual and unforeseeable events over which the party invoking force majeure has no control and whose consequences could not have been avoided despite the exercise of due care. However, this does not include overbooking; it does, however, include government orders, strikes, war or war-like conditions, epidemics, natural disasters, etc. c) In cases a) and b), the customer shall be refunded the amount paid. The right of choice in accordance with 7.1.b, first paragraph, applies.
7.3. Cancellation by the organiser after the start of the trip
The organiser shall be released from the obligation to fulfil the contract if, in the context of a group tour, the customer persistently disrupts the conduct of the tour through grossly improper behaviour, notwithstanding a warning.
In this case, provided the customer is at fault, they shall be obliged to compensate the organiser for any resulting damage.
8. Amendments to the contract
8.1. Price changes
The organiser reserves the right to increase the tour price confirmed at the time of booking for reasons beyond its control, provided that the departure date is more than two months after the conclusion of the contract. Such reasons are limited exclusively to changes in transport costs – such as fuel costs – charges for specific services, such as landing fees, embarkation or disembarkation fees at ports and corresponding charges at airports, or the exchange rates applicable to the tour in question.8In the event of a price reduction for these reasons, this must be passed on to the traveller. Within the two-month period, price increases may only be made if the reasons for these were negotiated in detail at the time of booking and noted on the booking voucher.
From the 20th day prior to the departure date, no price changes shall be made.
A price change is only permissible if, provided the agreed conditions are met, precise details of how the new price is calculated are also provided. The customer must be informed immediately of any price changes and the circumstances surrounding them. In the event of changes to the tour price of more than 10 per cent, the customer may in any case withdraw from the contract without incurring a cancellation fee (see Section 7.1.a.).
8.2. Changes to services after the start of the trip
- In the event of changes for which the organiser is responsible, the provisions set out in Section 5 (Legal Basis for Disruptions to Services) shall apply.
- If, after departure, it transpires that a significant part of the contractually agreed services will not be provided or cannot be provided, the organiser must, at no additional cost, make appropriate arrangements to ensure that the tour can continue.If such arrangements cannot be made, or if the customer does not accept them for valid reasons, the organiser must, at no additional cost, arrange for an equivalent alternative, where necessary, to transport the customer to the place of departure or to another location agreed with them. Furthermore, in the event of non-performance or defective performance of the contract, the organiser is obliged to do its utmost to assist the customer in overcoming any difficulties.
9. Disclosure of Information to Third Parties
Information regarding the names of tour participants and the whereabouts of travellers shall not be disclosed to third parties, even in urgent cases, unless the traveller has expressly requested such disclosure. Any costs incurred in the transmission of urgent messages shall be borne by the customer. Travellers are therefore advised to provide their relatives with their exact holiday address.
10. General
The sections listed under B: 7.1(c), formerly 7.1(b) (cancellation), 7.1(d), formerly 7.1(c) (no-show) and 8.1. (price changes) are classified as non-binding industry recommendations under 1 Kt 718/91-3 and are now registered as such under 25 Kt 793/96-3 in the Cartel Register.