general terms and conditions for the provision of services by

GENERAL TERMS AND CONDITIONS
FOR THE PROVISION OF SERVICES BY ATP BUSINESS TRAVEL B.V.
ATP Business Travel B.V. is member of the Dutch Association of Travel Agents and Tour
Operators (the ‘Algemene Nederlandse Vereniging van Reisondernemingen’) (“ANVR”).
These terms and conditions are based on the ANVR-B2B-Terms and Conditions 2009 in
which – in line with ANVR’s Code of Conduct – additions and derogations have been
incorporated.
Definitions
1.1
“ATPI”: ATP Business Travel B.V., also trading as ATPI Corporate
Travel and ATPI Griffinstone, registered with the Chamber of
Commerce under no. 27166945, having its registered office in
The Hague and its corporate headquarters at Beechavenue 101
(1119 RB) in Schiphol-Rijk.
“Offer”: the proposal of ATPI to Customer to carry out
or perform services for Customer under the conditions
described in this proposal.
For purposes of these terms and conditions, “written/in
writing” will also mean electronically.
“Workings Days” and “Office Hours”: Mondays to Fridays
inclusive from 9:00 AM to 5:30 PM, excluding recognized
public holidays.
“Customer”: the legal entity or natural person acting while
practising a profession or business who instructs ATPI to
provide services in the field of travel.
“Travel Service Provider”: the transporter, provider of
accommodation or other provider of travel services, in the
broadest sense of the word, with which Customer enters
into a contract to provide accommodation, transport or
other services and which, subject to its applicable terms
and conditions, is responsible for performing these services.
“Traveller”: the natural person (or persons) to whom
one or more services are provided based on the contract
concluded with Customer.
“Travel Agreement”: the agreement between Customer and
Travel Service Provider concerning one or more corporate
travel services, for the conclusion of which ATPI has provided
services.
“Services Agreement”: the agreement in which ATPI
undertakes to provide travel management services to
Customer.
“Fee Table”: ATPI’s fee table, which contains the fees for
ATPI’s services and has been made available to Customer.
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Applicability
2.1
These Terms and conditions apply to each Offer of ATPI and
to all Services Agreements between ATPI and Customer.
2.2
Agreements in addition to or deviating from these terms
and conditions or the Services Agreement, apply only on a
case-by-case basis and if agreed explicitly and in writing.
2.3
These terms and conditions and the exclusions and/
or limitations of ATPI’s liability included in them are also
for the benefit of the employees, servants, agents and
intermediaries of ATPI.
2.4
The applicability of general terms and conditions applied
by Customer is hereby expressly excluded.
2.5
If a provision of the Services Agreement and/or these
terms and conditions is held to be illegal, invalid or
unenforceable, the validity of the remainder of the Services
Agreement and/or these terms and conditions shall not
be affected. The invalid or unenforceable provision shall be
replaced by a provision that is legal, valid and enforceable
and which is as close as possible to what the parties would
have agreed, if they had been aware that the original
provision was invalid or unenforceable.
GENERAL TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES BY ATP BUSINESS TRAVEL B.V. version April 2017
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2.6
Subject to a notice period of 14 days, ATPI is entitled
to amend these terms and conditions by making the
amended terms and conditions available to Customer on
its website (www.atpi.com/home-nl) or by other means.
The amended terms and conditions will then also apply to
the current Services Agreements.
4.2
The fees due can be either a fixed amount per service
provided by ATPI or a percentage of the benefit that ATPI
was able to procure for Customer by making use of special
ATP-fares agreed with travel services providers and/or by
performing additional searches to find cheaper tickets at or
after booking.
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Services Agreement
4.3
3.1
The Services Agreement is created upon Customer’s
acceptance of the ATPI’s Offer. Acceptance may be either
written or oral. After acceptance, Customer will be bound
by the Services Agreement. If a confirmation is furnished by
ATPI, this will constitute proof of the content of the Services
Agreement.
With certain Travel Service Providers and/or intermediaries,
ATPI has agreements based on which ATPI is entitled
to a compensation and/or other benefit for services
provided to this Travel Service Provider/intermediary.
These compensations/benefits are for the benefit of ATPI in
addition to the fee(s) payable by Customer.
4.4
Subject to a notice period of 14 days, ATPI is entitled
to amend the Fee Table by giving written notice of the
amended Fee Table to Customer. The amended Fee Table
will then also apply to the current Services Agreements.
ATPI is also entitled to index the fees in the Fee Table
annually.
3.2
The Services Agreement covers the services specified
therein. If Customer wishes additional services and
expresses that wish, ATPI will make a new Offer. ATPI is
not obliged to perform any service unless agreed with
Customer.
3.3
The Offer of ATPI is made without obligation and can be
withdrawn by ATPI, even after acceptance. Withdrawal
must take place as soon as possible, and specifically within
two working days after the Services Agreement is created.
This provision will apply by analogy in the case of proposals
to amend Services Agreements already entered into.
4.5
3.4
Even after the period referred to in Article 3.3 has lapsed,
ATPI need not fulfil a Services Agreement if and insofar as
the offer or written confirmation is based on an evident
error or mistake.
4.6
3.5
ATPI is entitled to engage third parties for (part of ) the
performance of the Services Agreement.
ATPI will arrange for payment to the Travel Service
Provider on behalf of Customer of the price of the
Travel Agreement that was concluded through its travel
management services, unless parties have explicitly
agreed otherwise in writing. ATPI will then charge
Customer for the amount paid or due to the Travel Service
Provider and any and all third party charges associated
with this transaction.
3.6
The Offer and/or the Services Agreement do not constitute
a travel package as defined in Article 7:500 and further
of the Dutch Civil Code. Traveller does not have a claim
against ATPI based on any of the rights exclusive to travel
packages; every Travel Service Provider is solely liable
for the proper contractual execution of its own services.
If in a specific case ATPI is (also) deemed to be a travel
organizer within the meaning of Article 7:500 and further
of the Dutch Civil Code, then also the relevant terms and
conditions of the ANVR’s-B2B-Terms and Conditions of
June 2009 apply (www.anvr.nl/DownloadItem/ANVR%20
B2B_TermsConditions.pdf ), including those excluding
or restricting the travel organizer’s liability. In the event
of any conflict between these terms and conditions and
the ANVR-B2B-Terms and Conditions, these terms and
conditions shall prevail, unless deviation from the ANVRB2B-Terms and Conditions is prohibited by law.
4.7
If, after the contract is created, the prices for the factors
determining the price (including, but not limited to:
transport and accommodation costs; taxes; levies;
surcharges and/or exchange rate fluctuations) increase,
and these increases are passed on by the Travel Service
Providers, ATPI will also be entitled to charge Customer for
the price changes.
4.1
4.9
c) general
The fees and prices are exclusive of VAT, unless stated
otherwise.
If Customer pays by credit or lodge card, ATPI shall pass on
all costs charged by third parties and associated with this
transaction to Customer.
4.10 ATPI shall fully pass on to Customer all costs charged
by third parties to ATPI, which are associated with the
performance of the Services and/or Travel Agreement.
Price
a) the Services Agreement
For the services provided by ATPI, the fees as specified
in ATPI’s Fee Table and/or as otherwise agreed are
payable by Customer to ATPI.
4.11 ATPI may charge the fee(s) for its services separately or add
these fee(s) to the price(s) of the Travel Agreement and
charge the fee(s) and price(s) as an aggregate amount.
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4.8
b) the Travel Agreement(s)
The price(s) of the Travel Agreement(s) as mentioned
by ATPI or stated in the Offer and/or confirmations of
instructions will be based on the factors used by Travel
Service Providers concerned to determine the price
which are known at the time the Offer is made and/or the
Services Agreement is created.
Payment
5.1
A Customer which enters into a Travel Agreement on
behalf of or for another party will be jointly and severally
liable for all obligations ensuing from the Travel Agreement.
All transactions (including payments) between Traveller(s)
on the one hand and ATPI on the other hand will in
principle go solely through Customer. In addition, the other
Travellers will be liable for their own portion.
5.2
Payment must be made in Euro and within the period
stated in the invoice, in the manner indicated by ATPI. If no
payment period is stated in the invoice, payment must be
made within 14 days of the invoice date.
5.3
Customer is not entitled to suspend or set-off payment.
5.4
If full payment is not made on time, Customer will be
in default by operation of law. Customer will owe the
statutory commercial interest pursuant to Article 6:119a,
Dutch Civil Code, on the outstanding amount owed, from
the time it is in default to the date of full payment.
5.5
5.6
If Customer is in default, ATPI may – in part, to limit further
damage – terminate (cancel) (a part of ) the Services
and/or Travel Agreement. Besides the costs which third
parties have already charged or will charge as a result of
the termination (cancellation), Customer will owe the
remuneration agreed on with ATPI for its efforts. Any prepaid portions of the amount owed will be set off against
these costs.
Any in-court or out-of-court costs incurred by ATPI to
collect the amount owed by Customer will be paid by
Customer. The out-of-court costs will be set at at least 15%
of the amount owed by Customer, with a minimum of two
hundred fifty euros.
5.7
Payments of amounts to which ATPI is entitled will be
subtracted first from the costs, then the interest which
has become due and, finally, the principal amount (with
older claims being subtracted before new claims) and the
current interest.
5.8
ATPI is at all times entitled to require from Customer
an advance payment, full payment in advance and/or
security for performance of the payment obligations. If
Customer cannot provide the required payment and/or
security or if Customer cannot reasonably be expected
to meet its payment obligation(s) under the Services
and/or Travel Agreement (anymore), then ATPI is entitled
to unilaterally terminate and/or cancel, in part or in
whole, the Services and/or Travel Agreement without
being obliged to pay any compensation (for damages or
otherwise) to Customer and/or Traveller. Customer shall
then automatically owe ATPI a compensation for internal
costs and lost profits of 25% of the agreed fee with a
minimum of two hundred and fifty euros. In addition,
Customer shall compensate ATPI for all other costs it
incurred in the preparation and/or performance of the
agreed services as well as any other damages.
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5.9
In case of an application for a (provisional) suspension of
payments, bankruptcy or a (similar) insolvency proceeding,
all payment obligations of Customer to ATPI under the
Services and/or Travel Agreement become immediately
due and payable.
6.
Changes and/or cancellations by Customer
6.1
If Customer wishes to make changes in the Travel
Agreement after its creation, this will only be possible if
agreement has been reached on this by the parties and
Customer agrees to pay the costs related to these changes,
including payment to ATPI for implementing these
change(s) in accordance with the Fee Table. If all or part
of the instruction will be carried out by third parties, these
third parties must agree to the change(s) as well.
6.2
If Customer terminates (cancels) the Travel Agreement with
a Travel Service Provider in part or in whole, it must pay all
related costs and will still owe ATPI its agreed remuneration
in accordance with the Fee Table, including the fee for
executing the termination/cancellation. It must then also
compensate ATPI for any third-party costs which ATPI may
have already paid or is still required to pay.
6.3
Customer must terminate (cancel) the Travel Agreement
with Travel Service Provider by giving notice to ATPI orally
or in writing. Notice of termination outside Office Hours
will be deemed to have been received on the following
Working Day.
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Changes and/or cancellation by Travel Service Provider
7.1
Insofar as Travel Service Provider used makes changes
to portions of the services agreed on for Customer or
wishes to cancel these portions, ATPI will not be liable
vis-à-vis Customer for the ensuing loss or damage for
Customer. Customer shall pay for the costs associated
with this change/cancellation, including payment to
ATPI for implementing these change(s) in accordance
with the Fee Table.
7.2
To the extent which may reasonably be expected of it,
ATPI will undertake efforts to search for alternatives to
the portions of the Travel Agreement which have been
eliminated in this manner, without being able to guarantee
this. Customer shall pay for the costs associated with these
change(s), including payment to ATPI for implementing
these change(s) in accordance with the Fee Table. The
other portions of the Travel Agreement will remain intact,
unless Customer and the Travel Service Provider have
agreed otherwise.
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Force majeure
8.1
‘Force majeure’ refers to a failure to fulfil any obligation as a
result of unforeseen circumstances which could not have
been avoided despite all reasonable precautions.
8.2
‘Force majeure’ for ATPI includes, but is not limited to, fires,
sabotage, government measures, computer, software and/
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Data Protection
9.1
In the performance of the services, ATPI may gain access
to and/or acquire the ability to transfer, store or process
personal data of employees of Customer. Parties agree
that where such processing of personal data takes place
Customer shall be “data controller” and ATPI shall be “data
processor” as defined in the Dutch Personal Data Protection
Act – as may be amended, extended and/or re-enacted
from time to time (‘Wet bescherming persoonsgegevens’,
“WBP”). For the avoidance of doubt “personal data”
(‘persoonsgegevens’), “processing” (‘verwerking’), “data
subject” (‘betrokkene’) and “security incident” (‘inbreuk op
de beveiliging’) shall, in this article 9, have the meaning as
given thereto in the WBP.
9.2
ATPI shall only process personal data to the extent
reasonably required to enable it to perform its services as
mentioned in these terms and conditions or as requested
by and agreed with Customer, shall not retain any personal
data longer than necessary for the processing and refrain
from processing any personal data for its own or for any
third party’s purposes.
9.3
ATPI shall not disclose personal data to any third parties
other than employees, directors, agents, subcontractors or
advisors on a strict “need-to-know” basis and only under
the same (or more extensive) conditions as set out in
these terms and conditions or to the extent required by
applicable legislation and/or regulations.
9.4
ATPI shall not transfer any personal data to any country
outside the European Economic Area unless:
1. the transfer takes place for the purposes of the Services Agreement;
2. international or national legislation or regulations
obligate the data processor to such a transfer;
3. the transfer is necessary for important reasons of public
interest; and/or
4. the transfer is necessary for the establishment, exercise
or defence of legal claims.
9.5
ATPI shall implement and maintain such technical and
organisational security measures as are required to protect
personal data processed by ATPI on behalf of Customer
against loss or other unlawful forms of processing. These
technical and organisational security measures are
specified in the ATPI Group Data Security Policy (which will
be provided upon request).
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9.6
In case of a security incident involving personal data ATPI
will notify Customer as soon as reasonably possible, but
no later than 48 hours after ATPI has become aware of
such security incident and in such a way that Customer
can comply with any relevant legal obligations and
requirements concerning security incidents, in particular
relevant notification requirements related to security
incidents and personal data breaches. In addition, as
soon as ATPI becomes aware of a security incident, it shall
promptly take all necessary and appropriate corrective
actions to remedy any deficiencies in its technical and
organisational security measures and take any action
pertaining to such security incident required by applicable
laws and regulations.
9.7
ATPI shall, taking into account the nature of the processing,
by means of appropriate technical and organisational
measures, insofar possible, provide assistance in fulfilling
the obligation of Customer to answer requests of data
subjects with regard to the rights they are given under
relevant data protection legislation. These rights include
the right to access to their personal data and the right
to correct, update, delete or block personal data and the
processing thereof.
9.8
Customer hereby authorises ATPI to sub-contract any
or all if the obligations ATPI has towards the Customer
resulting from these terms and conditions, the Services
Agreement or any other written agreement between the
Customer and ATPI by way of a written agreement with a
carefully selected sub-contractor which imposes the same
obligations regarding the processing of personal data on
this sub-contractor as are imposed on ATPI under these
terms and conditions.
9.9
If Customer can prove that he has reason to suspect
that the measures taken by ATPI are not in accordance
with the measures as laid down in the ATPI Group Data
Security Policy (which will be provided upon request)
and the ATPI Data Protection Policy (www.atpi.com/atpidata-protection-policy), ATPI shall, after written request
thereof by Customer, permit an independent, Customerauthorised and registered accountant (“Accountant”), on
reasonable notice during normal business hours, to (a)
gain access to the administration in which ATPI records
personal data (“the Documentation”); (b) make copies of
the Documentation, with prior written approval of ATPI,
under the conditions that such copies are not retained
longer than strictly necessary for execution of the audit
by either Customer or the Accountant; and (c) inspect all
Documentation, documents and electronic data and ATPI’s
systems, facilities and equipment, for the sole purpose of
auditing ATPI’s compliance with its obligations under this
article. Such audit rights may be exercised only once in any
calendar year. The costs involved with the audit will be at
the full expense of Customer, unless it becomes apparent
that ATPI has committed a substantial and material breach
of the provisions of this article 9.
GENERAL TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES BY ATP BUSINESS TRAVEL B.V. version April 2017
or power failures at ATPI, unusual price increases, problems at
ATPI’s suppliers, excessive sickness absence of ATPI’s personnel,
storm damage and/or other natural disasters, (attributable)
breach of contract by ATPI’s auxiliary personnel, delays caused
by technical defects in the means of transport, weather
conditions, heavy traffic, strikes, acts of war, riots, terrorism
threats, blockades, missed connections, overbookings, trip
changes made by Travel Service Provider or cancellation by
Travel Service Provider, that prevent ATPI from performing its
obligations to Customer (in a timely manner).
Obligations of Customer and/or Traveller
timely reporting complaints in accordance with the
provisions in Article 14.
10.1 Customer will provide to ATPI all (further) information
concerning itself and/or Travellers which is necessary
to perform the agreed services properly and/or to
conclude the Travel Agreement in a timely manner.
If Customer fails to provide the information needed
by ATPI to perform the Services Agreement, ATPI
is entitled to unilaterally terminate the Services
Agreement in whole or in part without being obliged
to pay any compensation (including damages) to
Customer and/or Traveller. Customer shall then
automatically owe ATPI a compensation for the internal
costs and lost profits of 25% of the agreed fee with a
minimum of two hundred and fifty euros. In addition,
Customer shall compensate ATPI for all other costs it
incurred in the preparation and/or performance of the
agreed services as well as any other damages.
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Liability of ATPI
11.1 ATPI will take into account the interests of Customer
and Traveller(s) with such due care as may reasonably
be expected of it under the given circumstances.
11.2 ATPI is not liable for acts and/or omissions by the Travel
Service Providers concerned in performing the services.
11.3 ATPI is not liable for the accuracy of the information
furnished by or on behalf of Travel Service Providers,
including, but not limited to, photographs, brochures and
other informational material.
11.4 ATPI is not liable for the Travel Service Provider’s insolvency.
10.2 Customer agrees that ATPI will pass on to Travel Service
Providers (airline companies, for example) information,
including mobile phone numbers and/or e-mail addresses,
itself and any other Traveller(s) which is relevant to perform
the agreed services properly. Customer warrants to ATPI
that any other Travellers have consented to this, and
will indemnify ATPI against any claims in this respect. If
Customer does not want this information to be passed on
or fails to provide it, ATPI will not be liable for delays and/or
other damage resulting from information not timely being
provided to the Traveller.
11.5 ATPI is not liable for any failure to carry out the instruction
due to force majeure (as defined in Article 8).
11.6 ATPI is not liable for damage covered by a health, accident,
travel and/or cancellation insurance policy or any other
insurance of Customer and/or Traveller.
11.7 ATPI’s liability is limited to direct damages that arise in
connection with a breach of the Services Agreement that
is imputable to ATPI. ATPI is not liable for indirect damage
(including, but not limited to, consequential damage,
lost profits, lost savings and damage due to business
interruptions) or damage which Customer and/or Traveller
suffer in connection with practising their profession or
operating their business.
10.3 Customer itself and/or Traveller himself/herself will
obtain the necessary supplemental information from
the authorities concerned and also timely check before
departure whether the information obtained earlier is
still correct.
11.8 ATPI’s liability is furthermore limited to the fee paid by
Customer for that part of the services that ATPI imputably
failed to perform.
10.4 Customer shall ensure that Traveller(s) is/are in the
possession of the required travel documents, such as a valid
passport, any visa required, proof of vaccinations etc., upon
departure and during the period of travel. Not being able
to travel because of a lack of aforementioned documents is
for risk and expense of the Traveller and/or Customer.
11.9 ATPI’s liability is in any event limited to the insurance
proceeds it receives from its liability insurance in that case.
11.10 If a service included in the Services and/or Agreement is
covered by a Treaty (including a European Regulation),
ATPI may invoke an exclusion or limitation of liability which
that Treaty or Regulation grants or allows a (travel) service
provider as such.
10.5 Customer and Traveller(s) are obliged to comply with all
instructions of ATPI to facilitate proper performance of
the services (including, but not limited to, instructions
regarding check-in times and transfer times), and are liable
vis-à-vis ATPI and/or Travel Service Provider for damage
ensuing from or otherwise related to their acts and/or
omissions or must themselves bear their own damage
ensuing from this.
11.11 All claims and other entitlements against ATPI, for whatever
reason, shall expire 6 months after Customer and/or
Traveller became aware or should have become aware of
the facts on which this claim or entitlement is based. These
claims and other entitlements shall in any event expire 12
months after the service in question was invoiced by ATPI.
10.6 The Traveller who causes so much nuisance or trouble that
performance of the services is or may be greatly hindered
can be excluded from continuation of the services by
ATPI and/or Travel Service Provider, if the latter cannot
reasonably be required to fulfil the Travel Agreement. All
ensuing damage will be borne by Customer.
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Indemnification and joint and several liability
12.1 Customer will indemnify ATPI against claims by Traveller(s)
and/or third parties ensuing from or related to the Services
and/or Travel Agreement.
10.7 Customer and Traveller(s) must avoid any further damage
and/or limit this as much as possible, by, for example,
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12.2 Customer will be jointly and severally liable for the
Travellers’ obligations with respect to ATPI and/or Travel
Service Provider insofar as these ensue for the Travellers
from the Travel Agreement created in this regard.
14.8 ATPI may charge Customer a fee in accordance with the Fee
Table for its services for handling complaints regarding travel
services by Travel Service Providers.
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12.3 If Customer enters into the Services and/or Travel
Agreement as intermediary, it will be jointly and severally
liable, alongside the party that instructed him, for all
obligations under the Services and/or Travel Agreement.
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15.1 These terms and conditions, all Offers and all Services
Agreements are exclusively governed by the laws of the
Netherlands.
Confidentiality
15.2 All disputes will be submitted to the competent court in
Amsterdam, notwithstanding ATPI’s right to submit the
dispute to any other competent court.
ATPI and Customer shall treat as confidential all information
obtained from and on the other which is known to be or
can be assumed to be confidential, including information
concerning each other’s organisation and the services
provided/fees charged by ATPI.
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Applicable law and jurisdiction
In all cases where this English translation of ATPI’s general terms
and conditions might divert from the original Dutch version, the
latter shall be decisive. ATPI does not accept any liability for the
correctness and completeness of this translation.
Complaints
a) Complaints regarding services provided by ATPI
14.1 Complaints about advice, information, any of the
contracted services provided by ATPI and/or about the
handling of reservations must be submitted to ATPI
in writing, stating reasons, within one month after
Customer and/or Traveller becomes aware of the facts
to which the complaint relates.
GENERAL TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES BY ATP BUSINESS TRAVEL B.V. version April 2017
14.2 ATPI will try to settle the complaint with due speed.
b) Complaints about the performance of travel service(s)
14.3 Customer must immediately report any complaints
regarding the performance of services to Travel Service
Provider’s representative and must try with Travel Service
Provider’s representative to resolve the complaint in situ first.
14.4 Customer must give Travel Service Provider the
opportunity at all times to achieve an appropriate
resolution of the complaint.
14.5 If the complaint cannot be resolved with Travel Service
Provider’s representative in situ, Customer must contact
ATPI immediately. ATPI will exert its best efforts to resolve
the complaint satisfactorily, insofar as it has the ability to
do this.
14.6
14.7
ATPI only serves as a mediator in disputes between Travel
Service Provider and Customer regarding performance of
the travel service.
If the complaint cannot be resolved satisfactorily in situ, it must
be submitted to Travel Service Provider or ATPI in writing, stating
reasons, as soon as possible, but in any event within one month
after return. Insofar as the complaint relates to performance of
the travel service, ATPI will refer the complaint to Travel Service
Provider for further handling. Both Travel Service Provider and
ATPI will try to settle the complaint with due speed.
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