for Incoming Services in Commercial Business Transactions
I. Scope of Application
A. Curated & Bespoke GmbH, Am Sonnenhang 8, 82069 Hohenschaeftlarn/Munich, Germany, (hereinafter referred to as “Curated & Bespoke”) purchases touristic services in Germany and sells these as a wholesaler to domestic and foreign travel businesses in the form of package or individual services.
B. The following general terms of business (GTC’s) regulate – subject to supplementary additional agreements – the contractual relationship between Curated & Bespoke and the travel business or direct client, as defined in paragraph A hereof (hereinafter referred to as the “client”). Any deviating general terms of business of the client are hereby expressly excluded.
C. Offers made by Curated & Bespoke are directed to entrepreneurs and, on occasion, direct clients. An entrepreneur is a natural or legal person or a partnership with legal personality, which, at the time of entering into a legal transaction, acts in exercise of its trade, business or profession (§ 14 German Civil Code (BGB)).
II. Conclusion of the Contract
A. By booking the services offered by Curated & Bespoke, the client makes a binding offer to Curated & Bespoke for conclusion of a contract. The client may make such booking in writing, by e-mail or telephone. The offer shall be based on the catalogues of services and prices provided by Curated & Bespoke, respectively, any individualized package and individual services prepared upon request.
B. A booking will only be accepted by Curated & Bespoke upon receipt of a fully completed “agreement”, signed by the traveller, which forms part of the offer and must be completed by the traveller or their authorised representative
C. The client’s confirmation is accepted by transmission of the agreement / booking confirmation by Curated & Bespoke in written form. Should booking confirmation content deviate from the content of the booking, such shall be deemed to be a new offer by Curated & Bespoke. The contract shall be concluded on the basis of this new offer if the client declares its acceptance, which can also be given by making respective payment.
III. Services
A. The type and scope of contractually owed services are determined according to the specification of services given by Curated & Bespoke on which the contract is based. No binding commitment to special requests can be made.
B. The classification of tourist accommodation stated by Curated & Bespoke in the specification of services refers to the classification typical in the respective country, unless Curated & Bespoke has specified a different classification.
C. Unless expressly stated, it cannot be presumed that hotel bookings are equipped for disabled persons. Bookings of rooms suitable for disabled persons are subject to special request and confirmation by Curated & Bespoke in written form.
D. Curated & Bespoke does not warrant any special requests as to rooms, equipment, and beds, which deviate from its specification of services because it is the hotel which shall specify availability, depending on its facilities.
IV. Terms of Payment, Late Payments
A. Curated & Bespoke shall invoice the client the contractually agreed remuneration. The invoice amount shall be in Euros unless otherwise specified and shall include insofar as necessary, statutory VAT as applicable at the date the invoice is issued. Payment shall be made in accordance with the terms stated in the invoice. Costs of money transfers shall be borne by the client. If no payment date is indicated on the invoice, the amount claimed shall be payable and due immediately.
B. Curated & Bespoke shall be entitled to claim advance and/or part payments, in its equitable discretion, to be set-off against the total price. To the extent that Curated & Bespoke is only prepared to render the service with full or partial advance payment, it shall notify the client hereof, prior to conclusion of the contract.
C. Late payments shall be assessed a charge of a flat fee of EUR 50,00 per past due payment notice letter. The client is at liberty to prove that Curated & Bespoke didn’t incur any or a lesser damage.
D. Should advance payments or the total or remaining amount not be paid by the client within the agreed payment period, Curated & Bespoke can refuse performance of the services and, after setting a reasonable grace period, it can rescind the contract insofar as the service has not yet been provided. In such event, Curated & Bespoke shall invoice the client cancellation costs in accordance with paragraph VI hereof.
V. Amendment of Services, Adjustment of Price
A. Curated & Bespoke is entitled to amend contractually agreed services insofar as serious reasons for amendment occur after conclusion of the contract and such make amendment mandatory. No amendments or deviations shall be permitted which substantially affect the overall character of performance or the package services – or would be unreasonable for the client in consideration of a balancing of reciprocal interests or which would put the client at a disadvantage contrary to principles of good faith. Insofar as such amended services are defective, warranty claims remain unaffected.
B. Curated & Bespoke shall be entitled to adjust the contractually agreed price after conclusion of the contract, taking into account the interests of the client when, due to price adjustments of its service providers, such a price adjustment is absolutely necessary in order to avoid reduction of profits and the circumstances resulting in such increase did not occur prior to conclusion of the contract and were not foreseeable at that time by Curated & Bespoke. Declaration of such an increase shall only be valid if made in writing, stating the relevant cost items, the decisive reference periods of the allocation standard applied for the individual cost items as well as the respective calculation method.
C. A price increase shall only be permissible in the case of increased transportation costs, duties, and taxes for certain services as well as the underlying exchange rates. Any such claim must be made up to the 20th day prior to performance of services.
(1) Should the transportation costs applicable at the time of conclusion of the contract increase – e.g., fuel costs – Curated & Bespoke may adjust the travel price according to the following calculation scheme: In case of an increase per seat, Curated & Bespoke may claim the increased amount from the client per seat booked.
(2) In other cases, the additional transportation costs claimed by the transportation companies per conveyance shall be divided by the number of seats in the conveyance agreed upon. Curated & Bespoke may claim the resulting increase for the seats booked from the client.
(3) Should taxes and duties in effect at the time of conclusion of the contract which are essential for and included in the agreed scope of services increase, Curated & Bespoke may add this to the agreed price in the amount of the pro rata sum.
(4) In case of altered exchange rates after conclusion of the contract, Curated & Bespoke may increase the total price by the amount that the price of the service has increased for Curated & Bespoke.
D. Curated & Bespoke shall inform the client without undue delay regarding amendments as defined in paragraph I to III hereof. In the event of a substantial change of essential services, including the price, the client is entitled to rescind the contract at no charge. With amendments as defined in paragraph I above, instead of rescinding the contract, the client may request a service of at least the same value if Curated & Bespoke is able to offer such to the client without additional cost from its offerings. The client must claim this right vis-à-vis Curated & Bespoke without undue delay following receipt of the declaration regarding the amended service.
VI. Payments, Rescission of the Client prior to Commencement of the Services, Cancellation Costs
At the time of booking and in order to confirm all travel arrangements, Curated & Bespoke shall invoice and expect payment within 5 working days of a non-refundable deposit of 30% of the total cost of the planned itinerary. A final payment of 70% (which will then equal full prepayment) will be due no later than 45 days prior to the arrival date as set out in the travel itinerary. If the client or traveller wishes to amend or cancel travel arrangements made by Curated & Bespoke, the following charges shall apply:
A. for trips still under the deposit of 30%
Travellers wanting to reschedule their trip may do so up to one year from the date of their originally booked trip. The deposits already paid, will be credited towards the future trip less any non-refundable items as well as an administrative fee of 10% to cover the rescheduling of the program. Travellers will be liable for any eventual increase in tariffs.
B. for trips already fully prepaid
All monies for bookings already paid for in full will remain with Curated & Bespoke, shall be held in a dedicated bank account and will be applied to re-booking for up to one year from the date of the traveller’s original trip. The amount will be credited as follows: Original trip cost less non-refundable items and an administrative fee of 10% to cover the rescheduling of the program. Travellers will be liable for any eventual increase in tariffs.
Above and beyond the aforementioned amendment and cancellation costs, and especially in light of the now-recent Covid-19 pandemic, Curated & Bespoke implements “good will policies” and shall review each and every amendment, postponement or cancellation on an individual and case-by-case basis.
VII. Alteration of Bookings
A. After receipt of the booking confirmation, the client may no longer claim any changes regarding the time of performance, the scope or place of services, accommodation and means of transportation (change of booking). Should the client nevertheless wish to make a change of booking at its cost, it is requested to contact Curated & Bespoke in a timely manner. Curated & Bespoke shall use best efforts to comply with such request, in agreement with the client.
B. Change of bookings wished by the client, which are made within four weeks prior to the planned execution of services, can, insofar as the performance is at all possible, be made only by way of rescission pursuant to paragraph VI hereof and a simultaneous new booking. This shall not apply to claims of changes which only cause minor costs.
VIII. Substitute Travellers
Prior to commencement of the trip, the client is free to undertake changes to the names and persons insofar as the substitute travellers meet the specific requirements for making such a trip and participation of the substitute traveller(s) is not precluded by statutory provisions or orders of public authorities. Any additional costs thus incurred shall be borne by the client and may be charged at a flat rate of EUR 50,00 per person, unless Curated & Bespoke proves that it incurred greater costs. The client is at liberty to prove that Curated & Bespoke did not incur such greater costs or only a substantially lesser amount.
IX. Rescission in Cases of Shortfall of Minimum Number of Group Travellers
A. Curated & Bespoke may rescind the contract for services to be provided for group tours due to a shortfall of the minimum number of participants, provided that
(1) the respective specification of services defined a concrete minimum number of participants and stated the latest date at which the client must receive the declaration of rescission, prior to the contractually agreed commencement of services, and
(2) the booking confirmation clearly indicates the minimum number of participants and the latest date of rescission or contains a reference to respective information in the travel advertisement.
B. In such event, rescission shall be declared without undue delay and must be received by the client at the latest at the time specified in paragraph IX. A (1) above. The price paid by the client shall be reimbursed to it without undue delay.
C. Paragraph IX. A and B hereof shall not apply if Curated & Bespoke guaranteed performance of the services (performance guarantee). In such a case, Curated & Bespoke shall be entitled at its equitable discretion to adjust the services agreed to the actual size of the group. Paragraph V., A and D shall apply accordingly.
X. Unclaimed Services
Should the client or its travellers fail to make use of particular services properly offered for reasons which are to be ascribed to the client or these travellers, they shall have no claim to pro rata reimbursement of the price accruing hereon. Curated & Bespoke shall endeavor to reimburse expenses saved from its service providers. However, such obligation shall not apply with regard to completely insignificant services, or such reimbursement is precluded due to statutory provisions or orders public authorities.
XI. Termination Right of Curated & Bespoke
Curated & Bespoke may terminate the contract without notice insofar as individual travellers seriously disrupt the performance of the trip in spite of a warning by Curated & Bespoke or such persons conduct themselves in violation of the contract to such an extent that immediate cancellation of the contract is justified. Should Curated & Bespoke terminate the contract, it shall still be entitled to payment of the price but with set-off of saved expenses and such benefits as obtained from a different use of unclaimed services, including any amounts credited by the service providers.
XII. The Client’s Obligations to Notify and Cooperate
A. The client shall inform Curated & Bespoke if it fails to receive the necessary travel documents (e.g., tickets, hotel vouchers) within the period notified by Curated & Bespoke. The client is obligated to check the accuracy and completeness of the travel documents received, in particular, their conformity with the booking. Furthermore, the client is obligated to immediately notify Curated & Bespoke regarding discrepancies, missing documents, or other inconsistencies. Should the client culpably fail to meet this obligation, it shall also be liable for any damage resulting here from (§ 254 German Civil Code (BGB)).
B. It is incumbent on the client to notify Curated & Bespoke of any defects, which occur. If it culpably fails to do so, the price shall not be reduced. Notification of defects is not subject to a specific form, but it is recommended that it be made in writing. Such notification is unnecessary if it is apparent that such shall have no prospect of success or would be unreasonable for other reasons or Curated & Bespoke could not have been unaware of the defect.
C. Prior to commencement of performance of the services, the client shall be provided with an emergency phone number or other data for immediate contact with Curated & Bespoke. The client is obligated to forward the contact data to all participating travellers.
D. The client shall inform its travellers of their obligation to pay any extra services on site themselves which are not contained in Curated & Bespoke’s specification of services, such as e.g., visitor’s tax, other local charges, costs of Pay-TV, minibar, or underground parking. Curated & Bespoke will not assume any of these costs.
E. Furthermore, the client shall inform its travellers that local service providers may require guarantees by credit card or cash deposits. Curated & Bespoke shall inform client in due time of such requirements.
F. It is incumbent on the client alone to notify its travellers in due time regarding pertinent passport, visa, and healthcare regulations as well as any amendments thereof in due time prior to commencement of the trip.
XIII. Exclusion of Claims, Statute of Limitations
A. Claims based on defective services shall be made by the client to Curated & Bespoke within one month following the contractually foreseen end of the service. After expiration of this time period, claims can only be made if Curated & Bespoke could not comply with the stated time period with no fault of its own.
B. The client’s claims shall be time-barred after one year, subject to other mandatory statutory regulations. The shortened statute of limitations period shall not apply to claims for damage caused by gross negligence as well as bodily harm.
XIV. Limitation of Liability
A. Curated & Bespoke shall be liable for injuries causing death, damage to body and health, which result from intentional or negligent breach of duty by Curated & Bespoke, its statutory representatives or vicarious agents in accordance with the statutory provisions. For damage which is not covered by sentence 1 hereof and which result from intentional or negligent breach of duties by Curated & Bespoke, its statutory representatives or vicarious agents, Curated & Bespoke shall also be liable according to the pertinent statutory regulations.
B. Curated & Bespoke shall also be liable for damage caused by negligence to the extent that the damage resulting here from is based on a violation of rights to be granted to the client in accordance with the content and purpose of the contract and/or by a breach of obligations which are necessarily required for the proper performance of the contract and the performance of which the client normally can and does rely (cardinal obligations). Liability for material damage and pecuniary losses hereunder is limited to the foreseeable damage typical for such contract.
C. Otherwise, liability for material damage and resulting pecuniary losses is limited to Euro 1.000.000,00 per incident of property damage even in case of a breach of material contractual obligations and Euro 10.000.000,00 per incident of bodily damage.
D. The above limitations of liability shall apply in the same scope accordingly in favour of company organs, statutory representatives, employees, and other vicarious agents of Curated & Bespoke.
E. Otherwise, liability is precluded – insofar as not otherwise mandatory by statute.
XV. Miscellaneous
A. Subject to other individual agreements, the entire contractual relationship between Curated & Bespoke and the client shall be governed by German law.
B. If the client is deemed a merchant, a legal entity of public law, or a special fund under public law, exclusive jurisdiction for all claims resulting from or related to this contract is agreed to be at the registered seat of Curated & Bespoke. The same shall apply vis-à-vis persons having no general place of jurisdiction in Germany, or having moved their domicile or habitual residence abroad, after conclusion of the contract, or persons of unknown domicile or usual abode at the time of suing.
C. The client shall be entitled to set-off only if its counterclaims are established by final judgment, are recognized by Curated & Bespoke or have a close reciprocal (synallagmatic) connection to Curated & Bespoke’s claim.
D. The client is only entitled to exercise a right of retention if its counterclaim is based on the same contractual relationship.
E. The client is not entitled to assign its claims against Curated & Bespoke hereunder without the consent of the latter.
F. Any invalidity of individual regulations hereof shall not result in the invalidity of the contract.
Munich, 05 May 2023