GENERAL TERMS AND CONDITIONS OF BUSINESS FOR THE

HOTEL INDUSTRY 2006 (TOSH 2006)

 

Version from 14.04.2017

 

General terms and conditions with customer information


table of contents:

  1. scope of application
  2. conclusion of contract
  3. Right of withdrawal (revocation)
  4. Prices and terms of payment
  5. Start and end of accommodation - Withdrawal from the Accommodation Agreement by the
  6. Proprietor
  7. Provision of substitute accommodation warranty
  8. Rights and duties
  9. Liability of the Proprietor
  10. animal husbandry
  11. Termination of the Accommodation Agreement - Early Termination
  12. Applicable law/place of jurisdiction
  13. Information on online dispute resolution


1) Scope of application
1.1 These General Terms and Conditions (hereinafter referred to as "TOS") of the
HeyMi Apartments GesmbH
Kolingasse 1/6
1090 Vienna, Austria
T: +43-1-310 23 29
E: office@heymi-apartments.com

(hereinafter referred to as "Accommodator"), shall apply to all contracts for the rental of
apartments for accommodation as well as all further services and deliveries (hereinafter
referred to as "Apartment Accommodation Contract") provided to the Customer in this
connection, which a consumer or entrepreneur (hereinafter referred to as "Guest")
concludes with the Accommodator with regard to the services presented by the
Accommodator in its online shop. Herewith the inclusion of own conditions of the customer
is contradicted, unless it is agreed otherwise.


1.2 Definitions of Terms:
"Accommodator": is a natural or legal person who accommodates guests for a fee.

"Guest": is a natural person who makes use of the accommodation. The guest is usually also a
contracting party. Guests are also those persons who travel with the contractual partner
(e.g. family members, friends, etc.).
"Contractual partner": Is a natural or legal person
of Germany or abroad who have signed an accommodation agreement as a guest or for a
guest.
"Consumer" within the meaning of these GTC is any natural person who concludes a legal
transaction for purposes which can predominantly neither be attributed to his commercial
nor his self-employed professional activity. Entrepreneur in the sense of these General
Terms and Conditions is a natural or legal person or a partnership with legal capacity that
acts in the exercise of its commercial or independent professional activity when concluding
a legal transaction.

2) Conclusion of contract

2.1 The product and service descriptions contained in the online shop of the Proprietor shall
not constitute binding offers on the part of the Proprietor but shall serve for the submission
of a binding offer by the Parties.

2.2 The Party may submit the offer via the online booking form integrated into the
Proprietor's online shop. After having gone through the electronic booking process, the
Party shall submit a legally binding contractual offer with regard to the goods or services
contained in the shopping basket by clicking the button concluding the booking process. The
Party may also submit the offer to the Proprietor by telephone or e-mail.

2.3 The Accommodation Agreement shall come into existence upon acceptance of the
Party's order by the Proprietor. The Proprietor may accept the offer of the Party within one
day,
by sending the contractual partner a written order confirmation or an order confirmation in
text form (fax or e-mail), whereby the receipt of the order confirmation by the contractual
partner is decisive in this respect.
If the Proprietor does not accept the offer of the Party within the aforementioned period,
this shall be deemed a rejection of the offer with the consequence that the Party is no
longer bound by its declaration of intent.
2.4 The Proprietor shall be entitled to conclude the Accommodation Agreement on the
condition that the Party makes a down payment. In this case, the Proprietor shall be obliged
to inform the Party of the required down payment before accepting the Party's order. If the
Party agrees to the down payment, the Proprietor hereby declares acceptance of the offer
of the Party in the case of prepayment to the point in time at which the Customer triggers
the payment process by clicking the button completing the ordering process. This does not
apply to down payments by credit card, in which case the hotelier must also accept the
booking in order for the contract to be concluded.
The Party shall be obliged to pay the down payment no later than 30 days (arriving) prior to
the accommodation, or on the following working day if the accommodation takes place less
than 30 days prior to the accommodation. The costs for the money transaction (e.g. transfer
charges) shall be borne by the contracting party. The down payment is a partial payment on
the agreed fee.

2.5 When submitting an offer via the Proprietor's online order form, the text of the contract
shall be stored by the Proprietor and sent to the Party in text form (e.g. e-mail, fax or letter)
together with the present General Terms and Conditions after dispatch of the order. In
addition, the text of the contract shall be archived on the website of the Proprietor and may
be requested by the Party.
2.6 Prior to the binding submission of the order via the Proprietor's online order form, the Party
may detect possible input errors by carefully reading the information displayed on the
screen. The Party may correct its entries within the framework of the electronic ordering
process using the usual keyboard and mouse functions until it clicks the button completing
the ordering process.
2.7 Only the German language is available for the conclusion of the contract.
2.8 The order processing and establishment of contact usually take place via e-mail and
automated order processing. The Party shall ensure that the e-mail address provided by it
for the order processing is correct so that e-mails sent by the Proprietor can be received at this
address. In particular, when using SPAM filters, the Party shall ensure that all e-mails sent by
the Proprietor or by third parties commissioned by the Proprietor to process the order can
be delivered.

3) Right of withdrawal (revocation) of the contracting party - cancellation fee

3.1 In principle, consumers have the right to withdraw from the contract.
3.2 According to § 18 FAGG a right of withdrawal does not exist, unless otherwise agreed,
for contracts for the provision of services in the areas of accommodation for other than
residential purposes, as well as the delivery of food and drinks and services in connection
with leisure activities, provided that a specific point in time or period is contractually
stipulated for the performance of the contract by the entrepreneur, and thereafter a right
of withdrawal is also excluded for contracts which - as here - have time-bound room
bookings as the subject.
3.3 Insofar as the accommodation contract has been concluded with a substantiated rate, it
may be terminated by the contracting party by unilateral declaration at the latest 1 month
before the agreed date of arrival of the guest without payment of a cancellation fee.

Thereafter, rescission by the unilateral declaration of the contractual partner is only possible
upon payment of the following cancellation fees:

less than 1 month before the day of arrival 100 % of the total gross price;

When booking the "Standard Rate
up to 1 month no cancellation fees
1 month to arrival day 100 % of the gross price
When booking the "non-refundable rate", the total gross price is due for any cancellation or
rebooking. Therefore no free cancellation or rebooking is possible from the time of booking.
All cancellations, changes or non-arrivals will be charged with the total amount.

4) Prices and terms of payment
4.1 Unless otherwise stated in the description of the Proprietor, the prices quoted are total
prices which include the statutory value-added tax. Any additional local taxes will be indicated
separately.
4.2 The payment option(s) shall be communicated to the customer in the online shop of the
accommodation provider.

5) Beginning and end of the accommodation - withdrawal from the accommodation
contract by the accommodation provider
5.1 The Party shall have the right, if the Proprietor does not offer any other occupation time,
to move into the rented rooms from 3 p.m. of the agreed day ("day of arrival"). If a room is
occupied for the first time before 3 p.m., the previous night shall count as the first overnight
stay.
5.2 The rented rooms shall be vacated by the contractual partner by 11.00 a.m. on the day
of departure. The Proprietor shall be entitled to charge a further day if the rented rooms
have not been vacated in due time.
5.3 If the Accommodation Agreement provides for a down payment and the Party fails to
make the down payment in due time, the Proprietor may withdraw from the
Accommodation Agreement without notice.
5.4 If the guest does not arrive by midnight on the agreed day of arrival, there shall be no
obligation to accommodate unless a later time of arrival has been agreed. If the Party has
made a down payment, the premises shall remain reserved until midnight of the day
following the agreed day of arrival at the latest, whereby the stay shall be charged from the
agreed day of arrival.

5.5 Up to 1 month before the agreed date of arrival of the Party at the latest, the
Accommodation Agreement may be terminated by the Proprietor for objectively justified
reasons, unless otherwise agreed, by unilateral declaration.

6) Provision of the substitute accommodation
6.1 The Proprietor may provide the Party or the Guests with adequate substitute
accommodation (of the same quality) if this is reasonable for the Party, in particular, if the
deviation is minor and objectively justified.
6.2 An objective justification is given, for example, if the room(s) has (have) become
unusable, guests already accommodated extend their stay, there is an overbooking or other
important operational measures require this step.
6.3 Any additional expenses for the substitute accommodation shall be borne by the
Proprietor.

7) Warranty
The Proprietor shall perform the agreed services to an extent consistent with its standard. If
the service is defective, the provisions of the statutory warranty shall apply. This does not
apply:
7.1 For entrepreneurs, the Proprietor shall have the choice of the type of subsequent
performance in the case of rectifiable defects;

8) Rights and obligations
8.1 The contractual partner is obliged to pay the agreed fee at the latest at the time of
departure, plus any additional amounts that have arisen due to the separate use of services
by him and/or the guests accompanying him, plus statutory value-added tax.
8.2 The Proprietor shall not be obliged to accept foreign currencies.
8.3 The Party shall be liable to the Proprietor for any damage caused by him or the Guest or
other persons who accept the services of the Proprietor with the knowledge or will of the Party.
8.4 If the Party refuses to pay the agreed remuneration or is in arrears with it, the Proprietor
shall be entitled to the statutory right of retention in accordance with § 970c ABGB and the
statutory lien in accordance with § 1101 ABGB on the items brought in by the Party or the
Guest. The Proprietor shall also be entitled to this right of retention or lien as security for his
claim under the Accommodation Agreement, in particular for meals, other expenses
incurred for the Party and for any claims for damages of any kind.
8.4 The Proprietor shall have the right to invoice or interim account for its services at any
time.

9) Liability of the Proprietor
9.1 The Proprietor shall be liable to the Client for all contractual, statutory and tortious
claims for damages and reimbursement of expenses as follows.
9.2 The Proprietor's liability for slight negligence - with the exception of personal injury - is
excluded. If the Party is an entrepreneur, liability - with the exception of personal injury -
shall also be excluded for gross negligence, unless it is blatant gross negligence.
9.3 In addition, the following shall apply to items brought in: The Proprietor shall be liable in
accordance with §§ 970 ff ABGB for items brought in by the Party. The Proprietor shall only
be liable if the goods have been handed over to the Proprietor or to persons authorized by
the Proprietor or have been taken to a place designated or designated by the Proprietor.
The Proprietor shall not be liable if he can prove that the damage was neither caused by him
or one of his staff members nor by other persons entering or leaving the premises (reversal
of the burden of proof). If the aggrieved party is partly to blame for the damage, the
obligation to pay compensation may be reduced or canceled.
The accommodation provider is liable for valuables, money, and securities only up to the
amount of 250.00 euros. For the rest, liability is limited to 550.00 Euro. The innkeeper shall
be liable in excess of these amounts if he has taken over the items for safekeeping with
knowledge of their condition or if the damage was caused intentionally or grossly by him or
one of his employees. The Proprietor may refuse to keep valuables, money and securities in
safe custody if they are much more valuable items than guests of the accommodation in
question usually hold in safe custody.
If the Party or the Guest does not immediately comply with the request of the Proprietor to
deposit its items at a special place of storage, the Proprietor shall be released from any
liability.

10) Animal husbandry
10.1 Animals are generally not permitted in the accommodating establishment and may
only be brought into the accommodating establishment in exceptional situations and with
the prior consent of the accommodating establishment and, if necessary, against special
remuneration.
10.2 The contractual partner who takes an animal with him is obliged to properly keep or
supervise this animal during his stay or to have it kept or supervised at his expense by
suitable third parties.
10.3 The contractual partner or guest who takes an animal with him must have appropriate
animal liability insurance or private liability insurance which also covers possible damage
caused by animals. The proof of the corresponding insurance must be provided upon
request of the accommodation provider.

10.4 The Party or its insurer shall be liable to the Proprietor for the damage caused by the
animals brought along. In particular, the damage shall also include any indemnification to be
paid by the Proprietor to third parties by the Proprietor.

11) Termination of the Accommodation Agreement - Early Termination
11.1 If the Accommodation Agreement has been concluded for a certain period of time, it
shall end upon the expiry of this period.
11.2 If the Party leaves prematurely, the Proprietor shall be entitled to demand the full
agreed remuneration. The Proprietor shall deduct what it has saved as a result of not
making use of its range of services or what it has obtained by renting the rooms ordered
elsewhere. Savings shall only be deemed to have occurred if the accommodation facility is
fully utilized at the time of non-use of the rooms ordered by the guest and the room can be
rented to other guests due to the cancellation by the contracting party. The contractual
partner bears the burden of proof of the savings.
11.3 The death of a guest shall terminate the contract with the Proprietor.
11.4 If the Accommodation Agreement has been concluded for an indefinite period, the
Parties may dissolve the Agreement by 10.00 a.m. of the third day before the intended end
of the Agreement.
11.5 The Proprietor shall be entitled to dissolve the Accommodation Agreement with
immediate effect for good cause, in particular, if the Party or the Guest
a) makes considerably detrimental use of the premises, or through his reckless, offensive or
otherwise grossly unseemly conduct, he makes the other guests, the owner, his people or
the third parties living in the accommodation inappropriate to live together, or is guilty of a
punishable act against property, morality or physical safety against these persons;
b) is afflicted by an infectious disease or an illness that extends beyond the duration of the
accommodation or otherwise requires care;
c) the presented invoices are not paid within a reasonable period of time (3 days) when due.
11.6 If the performance of the contract becomes impossible due to an event to be regarded as
force majeure (e.g. natural disasters, strike, lockout, official orders, etc.), the Proprietor may
terminate the Accommodation Agreement at any time without notice.
The accommodation provider shall be entitled to dissolve the contract by observing a period
of the notice unless the contract is already deemed to have been dissolved by law or the
accommodation provider is released from its obligation to provide accommodation. Any
claims for damages etc. of the contracting party are excluded.

12) Applicable law/place of jurisdiction
12.1 All legal relations between the parties shall be governed by the law of the Republic of
Austria to the exclusion of the UN Convention on Contracts for the International Sale of
Goods. In the case of consumers, this choice of law shall only apply to the extent that the
protection granted is not withdrawn by mandatory provisions of the law of the country in
which the consumer has his habitual residence.

12.2 If the Party is an Entrepreneur within the meaning of clause 1.2, the exclusive place of
jurisdiction shall be the place of business of the Proprietor. For contracting parties who are
consumers, the following shall apply: the place of jurisdiction shall be the domicile of the
consumer if the consumer is domiciled in the EU, but not in Austria, for actions brought by
the trader against the consumer as well as for actions brought by the consumer against the
trader. If the consumer has his domicile or habitual residence in Austria, he can only be sued
at the court in whose district the domicile or habitual residence is located; in this case, the
entrepreneur can only be sued by the contractual partner at his place of business, unless
another place of jurisdiction is given by law.

13) Information on online dispute resolution
The EU Commission provides a platform for online dispute resolution on the Internet at the
following link: http://ec.europa.eu/consumers/odr
This platform serves as a contact point for out-of-court settlement of disputes arising from
online sales or service contracts in which a consumer is involved.

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