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TERMS AND CONDITIONS OF NICKO CRUISES SCHIFFSREISEN GMBH FOR SEA AND EXPEDITION CRUISES

Dear customers and travellers

the following provisions, insofar as effectively agreed, shall become the content of the package travel contract concluded between the customer and nicko cruises Schiffsreisen GmbH, hereinafter abbreviated to “nc”, upon conclusion of the contract. They supplement and complete the statutory provisions of §§ 651a – y BGB (German Civil Code) and Articles 250 and 252 of the EGBGB (Introductory Act to the German Civil Code). Therefore, please read these travel conditions carefully before booking!

 

1. Conclusion of the package travel contract, obligations of the customer

1.1 The following applies to all booking channels:

a) The basis of the offer by nc and the booking by the client are the travel description and the supplementary information by nc for the respective trip, insofar as these are available to the client at the time of booking.

b) Travel agents and booking offices are not authorised by nc to make agreements, provide information or make assurances that change the agreed content of the package travel contract, go beyond the travel description or the services contractually promised by nc or contradict them.

c) Information in hotel guides and similar directories that are not published by nc are not binding for nc and the service obligation of nc, insofar as they have not been made the content of the service obligation of nc by express agreement with the customer.

d) If the content of the travel confirmation from nc differs from the content of the booking, a new offer from nc exists, to which nc is bound for a period of 3 working days. The contract is concluded on the basis of this new offer insofar as nc has pointed out the change with regard to the new offer and has fulfilled its pre-contractual information obligations and the customer declares acceptance to nc by express declaration or down payment within the binding period.

e) The pre-contractual information provided by nc on essential characteristics of the travel services, the travel price and all additional costs, the payment modalities, the minimum number of participants and the cancellation fees (pursuant to Article 250 § 3 number 1, 3 to 5 and 7 of the Introductory Law to the German Civil Code) only do not become part of the package travel contract if this is expressly agreed between the parties.

f) The customer is liable for all contractual obligations of fellow travellers for whom he makes the booking as for his own, insofar as he has assumed a corresponding obligation by express and separate declaration.

1.2 For bookings made orally, by telephone, in writing, by e-mail or by fax, the following shall apply:

a) With the booking, the client offers nc the binding conclusion of the package travel contract. The client is bound to the booking for 3 working days.

b) The contract is concluded upon receipt of the travel confirmation (declaration of acceptance) by nc. Upon or immediately after conclusion of the contract, nc will send the client a travel confirmation in accordance with the legal requirements on a durable data medium (which enables the client to keep or store the declaration unchanged in such a way that it is accessible to him within a reasonable period of time, e.g. on paper or by email), unless the traveller is entitled to a travel confirmation in paper form in accordance with Art. 250 § 6 Para. (1) Sentence 2 EGBGB (Introductory Act to the German Civil Code) because the conclusion of the contract took place in the simultaneous physical presence of both parties or outside business premises.

1.3 In the case of bookings in electronic business transactions (e.g. internet, app, telemedia), the following applies to the conclusion of the contract:

a) The process of electronic booking is explained to the client in the corresponding application of nc.

b) The client has a corresponding correction option available for correcting his entries, deleting or resetting the entire booking form, the use of which is explained.

c) The contractual languages offered for carrying out the online booking are indicated. Only the German language is legally authoritative.

d) Insofar as the text of the contract is stored by nc in the online booking system, the client is informed of this and of the possibility of retrieving the text of the contract at a later date.

e) By pressing the button (the button) “book with obligation to pay”, the client offers nc the binding conclusion of the package travel contract. The client is bound by this contractual offer for three working days after sending the electronic declaration.

f) The client will receive electronic confirmation of the receipt of his booking without delay.

g) The transmission of the booking by pressing the button “book with obligation to pay” does not constitute a claim of the client to the conclusion of a package travel contract according to his booking details. nc is rather free to decide whether to accept the client’s contract offer or not.

h) The contract comes into effect upon receipt of the travel confirmation from nc by the client.

i) If the travel confirmation is made immediately after the client has made the booking by pressing the button “book with obligation to pay” through the corresponding direct display of the travel confirmation on the screen (booking in real time), the package travel contract comes into effect with the receipt and display of this travel confirmation by the client on the screen, without the need for an intermediate notification of the receipt of his booking in accordance with f), insofar as the client is offered the option of saving the travel confirmation on a permanent data carrier and printing it out. However, the binding nature of the package travel contract is not dependent on the client actually using these options for saving or printing. nc will also send the client a copy of the travel confirmation in text form.

1.4. nc points out that according to the statutory provisions (§§ 312 para. 7, 312g para. 2 sentence 1 no. 9 BGB), there is no right of cancellation for package travel contracts in accordance with § 651a and § 651c BGB concluded by means of distance selling (letters, catalogues, telephone calls, faxes, e-mails, messages sent via mobile phone service (SMS) as well as broadcasting, telemedia and online services), but only the statutory rights of withdrawal and termination, in particular the right of withdrawal in accordance with § 651h BGB (see also section 5). However, there is a right of withdrawal if the contract for travel services has been concluded outside business premises in accordance with Section 651a of the German Civil Code, unless the oral negotiations on which the conclusion of the contract is based have been conducted at the prior order of the consumer; in the latter case, there is also no right of withdrawal.

1.5 When booking an expedition trip to the Antarctic or Arctic, which we organise in cooperation with Quark Expeditions®, each tour participant expressly agrees to the travel conditions of nc and the “Supplementary Special Terms and Conditions for Expedition Trips with Quark Expeditions®. These special conditions will be brought to the attention of the tour participants in written form before the booking is concluded.

2. Payment

2.1. nc and travel agents may only demand or accept payment of the tour price prior to the end of the package tour if an effective customer money protection contract exists and the customer has been given the protection certificate with the name and contact details of the customer money protector in a clear, comprehensible and prominent manner. After conclusion of the contract, a deposit of 20% of the tour price is due for payment against handover of the security certificate. The balance is due 30 days before the start of the tour, provided that the security certificate has been handed over and the tour can no longer be cancelled for the reason stated in clause 8. For bookings made less than 30 days before the start of the tour, the entire tour price is due for payment immediately.

2.2 If the client does not make the down payment and/or the final payment in accordance with the agreed payment due dates, although nc is willing and able to properly provide the contractual services, has fulfilled its legal information obligations and there is no legal or contractual right of set-off or retention on the part of the client, and if the client is responsible for the delay in payment, nc is entitled, after issuing a reminder with a deadline, to withdraw from the package tour contract after the deadline has expired and to charge the client with withdrawal costs in accordance with section 5.

3. Changes to the contents of the contract before the start of the tour that do not affect the tour price

3.1 Deviations of essential features of travel services from the agreed content of the package travel contract that become necessary after conclusion of the contract and were not brought about by nc in bad faith are permitted to nc before the start of the trip insofar as the deviations are insignificant and do not affect the overall nature of the trip.

3.2. nc is obliged to inform the client about changes to services immediately after becoming aware of the reason for the change on a permanent data medium (e.g. also by email, SMS or voice message) in a clear, comprehensible and prominent manner.

3.3 In the event of a significant change to an essential characteristic of a travel service or a deviation from special requirements of the customer that have become part of the package travel contract, the customer is entitled to either accept the change or withdraw from the package travel contract free of charge within a reasonable period of time set by nc at the same time as notification of the change. If the client does not expressly declare his withdrawal from the package travel contract to nc within the period set by nc, the change is deemed to have been accepted.

3.4 Any warranty claims remain unaffected insofar as the changed services are defective. If nc had lower costs for the implementation of the changed trip or a possibly offered substitute trip with equivalent quality at the same price, the difference must be reimbursed to the client in accordance with § 651m para. 2 BGB.

4. Price increase; price reduction

4.1. nc reserves the right, in accordance with § 651f, 651g BGB (German Civil Code) and the following regulations, to increase the travel price agreed in the package tour contract, insofar as a

a) increase in the price of passenger transport due to higher costs for fuel or other energy sources,

b) an increase in taxes and other charges for agreed travel services, such as tourist taxes, port or airport charges, or

c) a change in the exchange rates applicable to the package concerned directly affects the price of the package.

4.2 An increase in the tour price is only permissible if nc informs the traveller clearly and comprehensibly in text form about the price increase and the reasons for it, and at the same time informs the traveller of the calculation of the price increase.

4.3 The price increase is calculated as follows:
a) In the event of an increase in the price for the carriage of persons pursuant to 4.1a), nc may increase the tour price in accordance with the following calculation:

In the event of an increase related to the seat, nc may demand the amount of the increase from the client.

Otherwise, the increased costs for fuel or other energy sources demanded by the transport company per means of transport will be divided by the number of persons transported. The resulting increase amount for each person transported can be demanded by nc from the client.

b) In the event of an increase in taxes and other levies in accordance with 4.1b), the tour price may be increased by the corresponding pro rata amount.

c) In the event of an increase in exchange rates in accordance with 4.1c), the tour price may be increased to the extent that the tour has become more expensive for nc as a result.

4.4. nc is obligated to grant the client/traveller a reduction in the tour price at his/her request if and insofar as the prices, duties or exchange rates mentioned in 4.1 a) – c) have changed after conclusion of the contract and before the start of the tour and this leads to lower costs for nc. If the client/traveller has paid more than the amount owed hereunder, the additional amount must be reimbursed by nc. However, nc may deduct the administrative expenses actually incurred by nc from the additional amount to be reimbursed. nc must provide the client/traveller with evidence of the amount of administrative expenses incurred upon request.

4.5 Price increases are only permissible up to the 20th day before the start of the trip and received by the client.

4.6 In the event of price increases of more than 8%, the client is entitled, within a reasonable period set by nc at the same time as notification of the price increase, either to accept the change or to withdraw from the package tour contract free of charge. If the client does not expressly declare his withdrawal from the package tour contract to nc within the period set by nc, the change is deemed to have been accepted.

5. Cancellation by the client before the start of the tour/cancellation costs

5.1 The client can withdraw from the package tour contract at any time before the start of the tour. The withdrawal must be declared to nc at the address given below; if the trip was booked through a travel agent, the withdrawal can also be declared to the agent. The client is recommended to declare the withdrawal in text form.

5.2 If the client withdraws before the start of the trip or if the client does not start the trip, nc loses the claim to the price of the trip. Instead, nc can demand reasonable compensation insofar as nc is not responsible for the withdrawal. nc cannot demand compensation insofar as unavoidable, extraordinary circumstances occur at the destination or in its immediate vicinity which significantly impair the performance of the package tour or the transport of persons to the destination; circumstances are unavoidable and extraordinary if they are beyond the control of the party invoking them and their consequences could not have been avoided even if all reasonable precautions had been taken.

5.3. nc has set the following flat rates for compensation, taking into account the period between the declaration of withdrawal and the start of the trip, as well as the expected saving of expenses and the expected acquisition through other uses of the travel services. The compensation is calculated according to the date of receipt of the cancellation declaration as follows with the respective cancellation scale:

 

a) Promotional trips at special prices (special marking: “promotional trip”)

up to 90 days before departure: 30%
up to 45 days before departure: 40%
up to 30 days before departure: 60%
up to 10 days before departure: 85
up to one day before departure: 90%
and on the day of arrival or in the event of no-show 95% of the
of the agreed travel price

b) Cancellation of single beds (single travellers) in double or multi-bed cabins (trips from the main catalogue)

up to 90 days: 50%
from 89 to 45 days: 75%
from 44 days to 10 days: 90%
from 9 days until the day of arrival or in the event of a no-show: 95% of the of the agreed tour price.

c) Cancellation of single beds (single travellers) in double or multi-bed cabins (promotional tours)

up to 90 days: 60%
from 89 to 45 days: 90%
from 44 days until the day of arrival or in case of no-show: 95%
of the agreed tour price.

5.4 In any case, the client is at liberty to prove to nc that nc has suffered no loss at all or a significantly lower loss than the compensation lump sum demanded by nc.

5.5 A compensation lump sum pursuant to clause 5.3. shall be deemed not to have been fixed and agreed insofar as nc proves that nc has incurred significantly higher expenses than the calculated amount of the lump sum that would have been applied in the event of an agreement. In this case, nc is obligated to specifically quantify and prove the demanded compensation, taking into account the saved expenses and the acquisition of any other use of the travel services.

5.6 If nc is obliged to refund the travel price as a result of a withdrawal, § 651 h para. 5 BGB remains unaffected.

5.7 The legal right of the client to demand from nc, in accordance with § 651 e BGB (German Civil Code), by means of notification on a durable data medium, that a third party take over the rights and obligations arising from the package travel contract instead of the client remains unaffected by the above conditions. Such a declaration is in any case timely if it is received by nc 7 days before the start of the trip.

5.8 We strongly recommend that you take out travel cancellation insurance and insurance to cover repatriation costs in the event of accident or illness.

6. Rebookings

6.1 After conclusion of the contract, the client has no right to rebook (changes regarding the travel date, the travel destination, the place of departure, the accommodation, the type of catering, the type of transport or other services). This does not apply if the rebooking is necessary because nc has provided no, insufficient or incorrect pre-contractual information to the traveller pursuant to Art. 250 § 3 EGBGB; in this case, the rebooking is possible free of charge.

6.2 At the request of the client, nc can examine rebooking options. If nc makes a rebooking, nc can charge the client a rebooking fee per traveller affected by the rebooking if the following deadline is met. Unless otherwise agreed in individual cases prior to the confirmation of the rebooking, the rebooking fee amounts to € 200 per person up to 150 days before departure.

Rebooking requests made by the customer after the deadline as well as rebooking requests concerning specially marked promotional tours at special prices can, if they can be carried out at all, only be carried out after withdrawal from the travel contract under the conditions in accordance with section 5 and simultaneous re-registration. This does not apply to rebooking requests that only incur minor costs.

Previously confirmed cabin numbers cannot be taken into account in the event of rebooking.

7. Services not used

If the traveller does not make use of individual travel services which nc was willing and able to provide in accordance with the contract for reasons attributable to the traveller, the traveller is not entitled to a proportional refund of the travel price, insofar as such reasons would not have entitled the traveller to withdraw free of charge or to terminate the travel contract in accordance with the statutory provisions. nc will endeavour to obtain reimbursement of the saved expenses from the service providers. This obligation does not apply if the services are completely insignificant.

8. Withdrawal due to non-achievement of the minimum number of participants

8.1. nc can withdraw if a minimum number of participants is not reached in accordance with the following regulations:

a) The minimum number of participants and the latest time of receipt of the withdrawal declaration by nc by the client must be stated in the respective pre-contractual information.

b) nc must state the minimum number of participants and the latest cancellation deadline in the travel confirmation.

c) nc is obliged to immediately declare the cancellation of the tour to the client if it is clear that the tour will not be carried out due to the minimum number of participants not being reached.

d) Cancellation by nc later than 30 days before the start of the trip is not permitted.

8.2 If the tour is not carried out for this reason, the client will be reimbursed immediately for any payments made on the tour price; section 5.6 applies accordingly.

9. Obligations of the customer/traveller

9.1 Travel documents

The client must inform nc or his travel agent through whom the client booked the package tour if the client does not receive the necessary travel documents (e.g. flight ticket, hotel voucher) within the period notified by nc.

9.2 Notification of defects / request for remedy

a) If the trip is not provided free of travel defects, the traveller can demand a remedy.

b) Insofar as nc was unable to provide a remedy as a result of a culpable omission of the notice of defects, the traveller can neither assert claims for a reduction in price in accordance with § 651m BGB nor claims for damages in accordance with § 651n BGB.

c) The traveller is obligated to immediately notify the nc representative on site of the defect. If a representative of nc is not available on site and is not contractually owed, any travel defects must be brought to the attention of nc at the notified contact point of nc; the availability of the representative of nc or his contact point on site will be informed in the travel confirmation. However, the traveller can also bring the notice of defects to the attention of his travel agent through whom he booked the package tour.

d) The representative of nc is instructed to provide remedy, insofar as this is possible. However, he is not authorised to acknowledge claims.

9.3 Setting a deadline before cancellation

If the client/traveller wishes to terminate the package tour contract due to a travel defect of the type described in § 651i paragraph (2) BGB, insofar as it is significant, in accordance with § 651l BGB, the client must first set a reasonable deadline for nc to provide a remedy. This does not apply only if the remedy is refused by nc or if the immediate remedy is necessary.

9.4 Damage to luggage and luggage delays during air travel; special rules & deadlines for requesting remedy

a) The traveller is advised that loss, damage and delay of luggage in connection with air travel must be reported by the traveller to the responsible airline immediately on site by means of a damage report (“P.I.R.”) in accordance with the provisions of aviation law. Airlines and nc may refuse reimbursement on the basis of international agreements if the damage report has not been completed. The damage report must be submitted within 7 days in the case of damaged baggage and within 21 days in the case of delayed baggage.

b) In addition, the loss, damage or misrouting of luggage must be reported immediately to nc, its representative or contact point or the travel agent. This does not release the passenger from the obligation to report the damage to the airline in accordance with letter a) within the above deadlines.

10. Limitation of liability

10.1 The contractual liability of nc for damages that do not result from injury to life, limb or health and were not culpably caused is limited to three times the tour price. Possible claims in excess of this according to the Montreal Convention or the Air Transport Act remain unaffected by this limitation of liability.

10.2. nc is not liable for service disruptions, personal injury and property damage in connection with services that are merely arranged as third-party services (e.g. arranged excursions, sporting events, theatre visits, exhibitions) if these services are expressly identified as third-party services in the travel brochure and the travel confirmation, stating the identity and address of the arranged contractual partner, in such a clear manner that the traveller can recognise that they are not part of the package tour by nc and have been selected separately. Sections 651b, 651c, 651w and 651y BGB remain unaffected by this.

10.3 However, nc is liable if and insofar as the breach of information, clarification or organisational obligations on the part of nc has been the cause of damage to the traveller.

11. Assertion of claims, addressee

The client/traveller must assert claims against nc in accordance with § 651i (3) no. 2, 4-7 BGB. Claims can also be asserted via the travel agent if the package tour was booked via this travel agent. The contractual claims listed in § 651 i paragraph (3) BGB are subject to a limitation period of two years. The limitation period begins on the day on which the trip should end according to the contract. It is recommended that claims be asserted in text form.

12. Information obligations regarding the identity of the operating air carrier

12.1. nc informs the client at the time of booking in accordance with the EU regulation on informing air passengers about the identity of the operating air carrier before or at the latest at the time of booking about the identity of the operating air carrier(s) with regard to all air transport services to be provided as part of the booked trip.

12.2 If the operating airline(s) has/have not yet been determined at the time of booking, nc is obliged to inform the client of the airline or airlines that will probably operate the flight. As soon as nc knows which airline will operate the flight, nc will inform the client.

12.3 If the airline named to the client as the operating airline changes, nc will inform the client of the change immediately and as quickly as is reasonably possible.

12.4 The “Black List” (airlines banned from using the airspace above the member states) drawn up in accordance with the EC regulation can be called up on the Internet pages of nc or directly via https:// ec.europa.eu/transport/modes/air/safety/ air-ban/index_en.htm and can be viewed at the business premises of nc.

13. Passport, visa and health requirements

13.1. nc will inform the client/traveller about general passport and visa requirements as well as health formalities of the country of destination including the approximate deadlines for obtaining any necessary visas before conclusion of the contract as well as about any changes to these before the start of the journey.

13.2 The customer is responsible for obtaining and carrying the travel documents required by the authorities, any vaccinations required and for complying with customs and foreign exchange regulations. Disadvantages arising from non-compliance with these regulations, e.g. the payment of cancellation costs, shall be borne by the client/traveller. This does not apply if nc has provided no, insufficient or incorrect information.

13.3. nc is not liable for the timely issue and receipt of necessary visas by the respective diplomatic representation if the client has commissioned nc with the procurement, unless nc has culpably breached its own obligations.

14. Special regulations in connection with pandemics (esp. coronavirus)

14.1 The parties agree that nc will always provide the agreed travel services in cooperation with the service providers in compliance with and in accordance with the official regulations and requirements applicable at the time of travel.

14.2 The traveller agrees to observe reasonable usage regulations or restrictions of the service providers when using travel services and to inform the tour guide and the service provider immediately in the event of typical symptoms of illness occurring.

15. Data processing; alternative dispute resolution; choice of law and place of jurisdiction

15.1 nc uses the data provided by the client in the travel application to book and process the trip and to send information and offers to the client. For trips abroad, the processing includes in particular the transmission of customer data to the service partners abroad. Clients can find out more about the processing and storage as well as their rights as data subjects (in particular the right to information and the right to object) in nc’s data protection declaration, which can be viewed at any time at www.nicko-cruises.de/datenschutz or at nc’s offices or which nc will be happy to send to clients.

15.2. With regard to the Consumer Dispute Resolution Act, nc points out that nc does not participate in a voluntary consumer dispute resolution. If consumer dispute resolution becomes mandatory for nc after these terms and conditions of travel have gone to print, nc will inform consumers of this in an appropriate manner. nc refers to the European online dispute resolution platform https://ec. europa.eu/consumers/odr/ for all travel contracts concluded in electronic legal transactions.15.3 For clients/travellers who are not nationals of a member state of the European Union or Swiss citizens, the exclusive validity of German law is agreed for the entire legal and contractual relationship between the client/traveller and nc. Such clients/travellers can sue nc exclusively at the registered office of nc.

15.4 For legal action by nc against customers, or contractual partners of the package tour contract, who are merchants, legal entities under public or private law or persons who have their domicile or habitual residence abroad, or whose domicile or habitual residence is unknown at the time the action is brought, the place of jurisdiction is agreed to be the registered office of nc.

© Copyright protected: Noll | Hütten | Dukic Attorneys at Law, Munich | Stuttgart, 2021-2022.

Tour operator is:
nicko cruises Schiffsreisen GmbH
Mittlerer Pfad 2 – D-70499 Stuttgart, Germany
Phone +497112489800, Fax +4971124898077
info@nicko-cruises.de – www.nicko-cruises.de

Local Court Stuttgart
HRB 744018
Managing Directors: Guido Laukamp, Carsten Keil

These terms and conditions of travel apply to sea and expedition cruises with nicko cruises Schiffsreisen GmbH and supersede all previous terms and conditions. Status September 2020