General terms and conditions
Version 12/01/2023
These General Terms and Conditions (“MIX TRIP GTC”), together with the Privacy Policy govern the use of the MIX TRIP online mediation platform (“MIX TRIP Platform”), which can be accessed through (i) https://mix-trip.de/, and certain other websites powered by MIX TRIP (collectively the ” MIX TRIP Website”), and (ii) certain mobile apps published by MIX TRIP (“MIX TRIP Apps”).
The MIX TRIP Platform is available to users worldwide. Certain portions of these MIX TRIP will apply to you only if you reside in a specific country or region.
All Countries (Except the US): If you reside anywhere in the world except for the United State of America, Appendix A applies to you.
United States of America: If you reside in the United States of America (including its territories and possessions), Appendix B applies to you. Appendix B includes a mandatory, binding individual arbitration clause, which means that you agree to submit most disputes related to the MIX TRIP Platform, our services, or these MIX TRIP GTC, to binding arbitration rather than proceeding in court. You may opt-out of arbitration only by following the procedure in Appendix B. Appendix B also includes a mutual waiver of class actions or jury trials.
1. About us
We, MPU24-7 GmbH, registered address Glacisstr. 11 01099 Dresden Deutschland, registered under the tax number 202/114/10133, DE 290377536, HRB 39384, Bank account DE43 1001 0123 9932 2791 71 BIC/SWIFT QNTODEB2XXX (“MIX TRIP ” or “we” or “us”) is the operator of the MIX TRIP Platform and are responsible for it accordingly. Our platform is available worldwide in multiple languages and is quick and easy to use.
We operate the MIX TRIP Platform as an intermediary platform on which tours and Activities (“Activity”) are offered online by a variety of local activity providers such as amusement parks, museums, tour guides, boat tours, as well as the MIX TRIP itself around the world (“Suppliers”). The Activities include, for example, guided tours, cooking classes, sightseeing tours by bus, boat trips, tickets for sightseeing, and other services. We act as a commercial agent for the Suppliers. The descriptions, photographs, and other content for its own Activities originate from the respective Suppliers. We therefore have no direct influence on such content.
2. Scope
2.1 These MIX TRIP GTC apply to all visitors to and users of the MIX TRIP Platform and to all content within the offered operating systems (currently iOS, Android) (“Users”). As soon as you use the MIX TRIP Platform, you are obliged to comply with these MIX TRIP GTC. Therefore, please read them carefully during your first use.
2.2 They are available online and apply to all of our services, unless more specific terms and conditions for a specific service prevail. Should this be the case, we will make this clear at the appropriate time. Any of your terms and conditions that conflict with or deviate from the MIX TRIP GTC shall not apply unless we have expressly agreed to them in writing.
2.3 The use of the MIX TRIP Platform is only for you personally, i.e. you may not use it under any circumstances for business purposes. Keyword: Reselling tickets is absolutely forbidden! This means that any use that goes beyond your personal use in your private environment and/or serves commercial or business purposes, those personally connected to you and/or other third parties, in particular the commercial resale of tickets, is strictly prohibited.
3. What we do
3.1 You can view Activities on the MIX TRIP Platform. The contract for the provision of the Activity is concluded exclusively and directly between you and the Supplier (“Service Agreement”). When you buy an Activity on the MIX TRIP Platform, you are not buying anything from us, but directly from the Supplier. Service Agreements are concluded by us on behalf and for the account of the Suppliers. We act as a commercial agent for the Suppliers and are commissioned and authorized by the Suppliers to conclude transactions directly between Suppliers and Users, e.g. you, and for the account of the Suppliers and to collect payments from the Users. We do not offer any activities ourselves and therefore do not become your contractual party to any Service Agreement. We do not act as the organizer, the landlord, reseller or other contractual partner in relation to the Service Agreement with you. We receive a commission from the Supplier for brokering the Service Agreement.
3.2 You can filter the list of Activities by different parameters. The discovery wizard will show you Activities that match your criteria and are offered by a specific Supplier. If more than one Supplier is able to offer an Activity that matches the criteria entered in the discovery wizard, the applicable Activities will be displayed in an order based on the factors including popularity, diversity, availability, cancellation rate, rating, performance over time, and amount of revenue generated.
3.3 In the interest of a fast and smooth process, you may direct questions about your booking to the MIX TRIP customer service. For this purpose, you can send the letter on e-mail support@mix-trip.com, as well as through our hotline. As commercial agents, we support the Suppliers in this process. We usually answer within 24 hours, or at the latest usually within 48 hours. The communication between you and the Supplier can be done directly. In case of emergency, the contact details of the respective Supplier can be found on your voucher/ticket.
3.4 We reserve the right to make the use of the MIX TRIP Platform, individual functions of the MIX TRIP Platform or the extent to which individual functions can be used, subject to certain conditions, such as the payment behavior of the User (e.g. in the case of prior bookings) or the presentation of certain proof (e.g. proof of identity, purchase, payment, or ownership). We reserve the right to restrict your booking of Activities, or cancel Activities you have booked, in the case of suspected fraud, violation of these MIX TRIP GTC, or violation of obligations under the Service Agreement, which become known to MIX TRIP.
3.5 We are not obligated to improve, extend (update/upgrade) or make available the content, functions and services provided via the MIX TRIP Platform. We may discontinue our services and performances at any time; there is no right to continuation. However, if you have already concluded a Service Agreement with a Supplier, Section 15 applies to you, i.e. the Service Agreement.
4. Registration and MIX TRIP account
4.1 Although registration is not required to access the MIX TRIP Platform, you must register with us in order to use all features, for example, the “Wish List”.
4.2 In order to create an account (“MIX TRIP Account”), you must enter your full legal name and email address in the registration form on the MIX TRIP Platform and may set a password. If available, you can create an account without a password by using the option to create a passwordless account with an email verification link. You must keep this data secret so that no third party has access to your account. After clicking the button “Confirm email” you will receive a confirmation ‘welcome’ email from MIX TRIP. Your MIX TRIP account has now been created.
4.3 You may only create one MIX TRIP Account for yourself. You may not transfer the account to anyone else.
5. MIX TRIP Apps
5.1 Subject to the terms and conditions of this Agreement, we hereby grant you a non-exclusive, revocable, non-transferable, non-sublicensable, limited license to download, install and use the MIX TRIP Apps on your mobile device; provided that your installation and use of the MIX TRIP Apps is solely (i) for your personal use and for non-commercial purposes, and (ii) in accordance with the restrictions and limitations set forth in this Agreement. You may not copy, transfer, lease, loan, modify, adapt, create derivative works of, redistribute, or sublicense the MIX TRIP Apps and, if you sell your mobile device to a third party, you must remove the MIX TRIP Apps from the mobile device before doing so. You may not reverse-engineer, disassemble, attempt to derive the source code of the MIX TRIP Apps, or any part thereof, except where such restriction is expressly prohibited by applicable law. All rights not expressly granted to you hereunder are reserved to us and our licensors.
5.2 MIX TRIP may from time to time in its sole discretion develop and provide MIX TRIP Apps updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that MIX TRIP has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
• the MIX TRIP apps will automatically download and install all available Updates; or
• you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the MIX TRIP Apps or portions thereof may not properly operate should you fail to do so.
You further agree that all Updates will be deemed part of the MIX TRIP Apps and be subject to all terms and conditions of these MIX TRIP GTC.
5.3 You acknowledge that when you download, install, or use the MIX TRIP Apps, MIX TRIP may use automatic means (including, for example, cookies, SDKs and web beacons) to collect information about your mobile device and about your use of the MIX TRIP Apps. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the MIX TRIP Apps or certain of its features or functionality. All information we collect through or in connection with the MIX TRIP Apps is subject to our Privacy Policy. You can control certain data processing activities by choosing not to give your consent when prompted by the MIX TRIP App.
6. Conclusion of contract with MIX TRIP – User Agreement
6.1 The subject matter of the contract with us as the contracting party, is the use of the MIX TRIP platform free of charge (“User Agreement”).
6.2 The contractual relationship between you and us comes into effect as soon as you use the MIX TRIP Platform (which includes the installation of the MIX TRIP App). A blocking, termination or deletion of your MIX TRIP Account is possible at any time via the MIX TRIP customer service by phone or via the contact form under “Delete account”. The contact details can be found at the Site https://mix-trip.de/.
6.3 MIX TRIP may unilaterally terminate your User Agreement, MIX TRIP Account or your access to the MIX TRIP Platform at any time with a notice period of one week. However, the termination will become effective only after any already established Service Agreements have been executed or canceled. The right to termination for good cause remains unaffected.
7. Customer Service / Best Price Matching by MIX TRIP
7.1 You can reach our customer services team at support@mix-trip.com, we are available by phone, chat or email.
7.2 If you find the activity booked via the MIX TRIP Platform (i) with the same conditions (date, city, number of persons), (ii) with the same services, (iii) at a lower price on the Internet, (iv) bookable with the same Supplier and prove this to us, we will pay you the difference between the lower price booked via MIX TRIP and the lower price found and available by you on the Internet. Offers that are part of trust or loyalty programs are excluded from best price matching.
7.3 To make use of this best price matching offer, you must send us the link (and/or a screenshot of the alternative offer) upon request. We will then check this and should the price actually be lower, pay the difference, whereby this payment can also be made by means of a voucher.
7.4 All special offers and discount promotions are marked as such.
8. Payment at MIX TRIP
8.1 The price offered on the MIX TRIP Platform (“Posted Price”) shall apply to the Activity. The amount you pay for an Activity (“Booking Price”) is the Posted Price less any applicable discount. Unless otherwise agreed, the Booking Price for the Activity is payable immediately upon booking.
8.2 For selected Activities, you may be able to choose the “Reserve now, pay later” feature. This is only possible with a credit card that is valid at least until the date of the selected Activity; to confirm this, we will charge 0 EUR to your credit card when you complete your booking. 72 hours before the start of the Activity we will debit the Booking Price. If the credit card charge fails, you have 47 hours to make the payment manually. If this fails and the payment is not made, we will automatically cancel the Activity you booked.
8.3 MIX TRIP is entitled to receive the invoiced amounts in the name of and on behalf of the Supplier (as a commercial agent), unless otherwise expressly stated in the Supplier’s invoice. With the successful payment to MIX TRIP, you have fulfilled your payment obligations towards the Supplier with a discharging effect. If claims are to be paid in a currency other than your local currency (foreign currency claim), MIX TRIP may (in its role as a commercial agent) collect payment in the your local currency and convert the foreign currency claim at the current exchange rate at the time of the conclusion of the contract. For highly volatile currencies, we may charge a reasonable exchange fee.
8.4 We are your contact in connection with a Service Agreement and payment therefore as the commercial agent of the Supplier. If you wish to request a refund of the Booking Price outside of our cancellation policy, you may contact us. We will then contact the Supplier, and the Supplier will determine in its discretion whether to honor the refund request. A refund granted by the Supplier can be processed by the Supplier through us.
8.5 You must provide payment information truthfully and update it immediately in the event of changes. The means of payment permitted for the Activity will be displayed to you in the order process. The terms and conditions of the payment service provider will apply. Your payment service provider may charge additional fees. You are required to confirm to us that you are authorized to use or have the right to use a payment method you select.
8.6 In some cases you will not pay the Booking Price to MIX TRIP, or directly to the Supplier, but to another company that we have appointed to process the payment as a sub-agent. These payments are subject to the same terms and conditions as payments made directly to us, so nothing changes for you. You will have also fulfilled your payment obligations with the successful payment to the sub-agent with a discharging effect towards the Supplier. If you have questions relating to payment, you can contact our local customer service team at support@mix-trip.com.
8.7 By authorizing payment, you consent to your payment information being used to collect payment for the Supplier. We reserve the right to make the use of the payment function or individual payment methods on the MIX TRIP Platform dependent on a check of the required creditworthiness.
9. Changes and Cancellations
9.1 You may only cancel the Service Agreements in accordance with the cancellation conditions as stated in the Supplier T&Cs, the description of the Activity on the MIX TRIP Platform, or on the voucher/ticket issued for the Activity.
9.2 To avoid misunderstandings, you must make changes (e.g. rescheduling the Activity date or making changes to the participants) and cancellations via the MIX TRIP Platform, unless otherwise agreed. A cancellation or changes can be made via the form available at support@mix-trip.com. The change or cancellation must be made in good time; what is “in good time” depends on each individual case (e.g. within the applicable cancellation period) and may be subject to the Activity’s availability. Therefore, it is very important that you carefully read all terms and conditions on the Activity page or the Supplier T&Cs. The decisive factor for a timely cancellation is the timely receipt of the notification by MIX TRIP. If these conditions are met, we will issue a cancellation/change confirmation on behalf of the Supplier. This will serve as proof of the cancellation/change and therefore must be kept.
9.3 We can notify you of changes or cancellations on behalf of the Supplier, especially if at short notice, by your provided telephone number and by sending changes to your email address.
9.4 Unless there are different cancellation conditions specified in the description of the Activity on the MIX TRIP Platform, in the Supplier T&Cs, or on the Activity voucher/ticket, the following cancellation conditions shall apply:
a) For cancellations more than 24 hours before the start of the Activity: full refund of the Booking Price; and
b) For cancellations 24 hours or less before the start of the Activity or in case of no-show: no refund.
10. Reviews and Other User Content
10.1 We offer you the opportunity to view reviews and other content posted by other users on the MIX TRIP Platform. The reviews reflect the personal opinion of a respective user from a specific point in time and are therefore shaped by personal ideas and expectations. It must also be noted that the Activity may have changed since the review or other content was posted. The number of reviews and ratings given should also be taken into account, as a single opinion is often less meaningful than the synopsis of a large number of opinions.
10.2 You can personally influence the content of the MIX TRIP Platform by writing reviews of Activities which you have purchased or posting pictures (together, “User Content”). You are fully responsible for the User Content you post. It is strictly forbidden to post User Content on the MIX TRIP Platform that: (i) is untrue or misleading; (ii) openly or covertly advertises products, services or companies; (iii) is created in return for remuneration from a third party; (iv) is created by or at the direction of the Supplier who provides the Activity; (v) violates the intellectual property, privacy, or other rights of a third party; or (vi) contains links or similar information/references that are likely to impair the functioning of third-party data processing systems.
10.3 You are obligated to ensure that you are entitled to the necessary rights of use for images before uploading the User Content. In particular, images or photos where we can see other people may only be uploaded to the MIX TRIP Platform if these persons gave their consent. If you want to use pictures that have been taken by a person other than you, you also need the consent of this person.
10.4 The public accessibility of the User Content may not violate legal provisions, morality and/or the rights of third parties; in particular, you may not upload and/or make publicly accessible any User Content with depictions of violence, pornography, discrimination, insults, racism, defamation or other illegal content or depictions.
10.5 You retain ownership of any User Content you create. You grant to MIX TRIP a non-exclusive, sublicensable (through one or more tiers), worldwide, fully-paid and royalty-free license, in any and all media now known or hereafter discovered or developed, to use, reproduce, adapt, translate, make derivative works of, modify, perform, publicly display, publicly perform, transmit, and distribute the User Content including (i) on or through the MIX TRIP Platform, (ii) on or through MIX TRIP’s partners, and (iii) in online and offline marketing materials.
10.6 We may remove User Content as necessary and at our sole discretion. For example, MIX TRIP may remove User Content if, in our opinion, it violates our obligations under Sections 9.2-9.4. We are not obligated to keep copies of User Content or to provide such copies.
10.7 MIX TRIP, its affiliates, sub-agents and their (distribution) partners, may display advertisements and other information next to or together with the User Content on the MIX TRIP Platform as well as on other media. You are not entitled to any compensation for such advertisements. We reserve the right to make changes to the type and scope of such advertising measures; we will not notify you of such changes.
11. Data protection
11.1 All your personal data collected through the MIX TRIP Platform is processed by MIX TRIP as a data controller, in accordance with relevant data protection laws and for the purposes described in the Privacy Policy. MIX TRIP shares your personal data with Suppliers to the extent it is necessary for the performance of the Service Agreement between you and Supplier or when necessary to comply with a legal obligation and for other purposes legally allowed. Suppliers are independent data controllers and bear the sole responsibility of processing your personal data.
11.2 You will find detailed information on how to exercise your data protection rights in the Privacy Policy.
12. Indemnification
12.1 You shall fully indemnify us for all damages, costs and expenses (including reasonable legal defense costs) incurred by us, our agents, or partners as a result of:
12.1.1 your intentional or negligent misrepresentation, act, or omission in connection with your use of the MIX TRIP Platform;
12.1.2 your intentional or negligent non-compliance with the MIX TRIP; or
12.1.3 claims asserted by third parties arising out of or in connection with your access to or use of the MIX TRIP Platform that intentionally or negligently violates these MIX TRIP.
13. Assignment
You may not transfer or assign your rights and/or obligations under these MIX TRIP GTC, except for any claim for damages.
14. Severability clause
Should individual provisions of these MIX TRIP GTC be or become void or ineffective in whole or in part, this shall not affect the validity of the remaining provisions. Statutory law shall take the place of any provisions of these MIX TRIP GTC that are not included or are invalid. If such statutory law is not available in the respective case or would lead to an unacceptable result, the parties shall enter into negotiations to replace the non-included or invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision.
15. Supplier – Service Agreement
15.1 Conclusion of contract with the Supplier
15.1.1 If you select and purchase an Activity on the MIX TRIP Platform, you conclude a contract directly with the Supplier. When concluding the contract, we act as the commercial agent of the Supplier.
15.1.2 After checking the availability of the Activity, you add the respective Activity to the shopping cart by clicking the button “Add to cart”. After clicking the button “Checkout”, you will be asked for further mandatory information, in particular the payment method, which must be completed.
15.1.3 By clicking the button “Pay now” at the end of the ordering process, you submit a binding offer to conclude a Service Agreement with the Supplier that will provide the Activity. You are bound to the offer for two working days. After receipt of the offer, we will send you an automatic order confirmation on behalf of the Supplier. This order confirmation does not constitute an acceptance of the offer.
15.1.4 The Suppliers may provide their own terms and conditions in their respective listings on the MIX TRIP Platform (“Supplier T&Cs”). Please read these Supplier T&Cs carefully, because they may contain important information for you, e.g. regarding cancellation options or conditions. Nothing in the Supplier T&Cs shall affect your relationship with us, or our legal rights. In the event of a conflict between a provision of the Supplier T&Cs and a provision in Section 9 of the MIX TRIP GTC, the provision that is more beneficial to you shall govern the relationship between you and the Supplier.
15.1.5 We accept the offer in the name and on behalf of the Supplier once you receive a booking confirmation issued in the name and on behalf of the Supplier and, if applicable, have access to a voucher or ticket (either a mobile voucher or a downloadable PDF voucher/ticket) and a payment confirmation. We reserve the right to accept or reject contract offers at our sole discretion.
15.1.6 The contract between you and the Supplier is not set out in a separate contract text. The content of the contract results from the ordered product (i.e. the description of the Activity selected by you), applicable provisions in Section 15 of these MIX TRIP GTC, and – if applicable – the Supplier T&Cs.
15.1.7 You must immediately check the order confirmation to ensure that all data has been entered correctly.
15.2 Prices
15.2.1 In most cases, Posted Prices quoted are inclusive of all taxes and fees. However, it is possible that additional local taxes or fees are levied locally. If additional taxes or fees will be levied locally, this will be disclosed in the description of the Activity.
15.2.2 The Posted Prices set by the Suppliers may be subject to special provisions, for example, with regard to cancellations and the refund of payments. You must independently check before booking whether the respective Supplier prescribes deviating conditions.
15.3 Provision of the Activity
15.3.1 You must arrive on time at the meeting point indicated by the Supplier. Please also take note of the Supplier T&Cs. If you are traveling to the Activity from abroad, you are responsible for the necessary travel documents (passport, visa, etc.) and compliance with health or other requirements.
15.3.2 The Booking Price does not include insurance of any type. You are responsible for obtaining sufficient insurance coverage. We strongly encourage you to obtain travel insurance, especially if you are booking an Activity that involves outdoor or high-risk activities. We do not operate tours, employ guides, or set safety standards for Activities.
15.3.3 Suppliers are independent contractors and not agents or employees of MIX TRIP. We are not liable for the acts, errors, omissions, representations, warranties, breaches, negligence, or misconduct of any Supplier, or for any personal injury, death, property damage, or other damages or expenses resulting therefrom or otherwise arising from any booking or Activity.
15.3.4 For time and deadline calculations, the time zone of the Supplier shall be decisive.
15.4 Further rights of the Supplier
15.4.1 The Supplier may cancel the Activity on the agreed date without observing a cancellation period if weather conditions, official measures, strikes or other external circumstances that are unforeseeable or can only be averted by disproportionate efforts on the part of the Supplier and are beyond the Supplier’s control (in particular events of force majeure) make it impossible or significantly impede or endanger the performance of the Activity. In this case, the Booking Price paid for the canceled Activity will be refunded. You may direct any additional compensation request directly to the Supplier according to 15.3.3.
15.4.2 The Supplier may exclude you from an Activity if (i) you do not meet the requirements for participation specified on the MIX TRIP Platform, (ii) you would endanger yourself or others through your participation, or (iii) you disrupt the implementation of the Activity in any way. In these cases, the Booking Price paid for the Activity will not be refunded.
15.4.3 The Supplier may make immaterial changes to the program of the Activity at any time if this appears necessary due to circumstances arising at short notice. Insignificant program changes also include a change of the starting/meeting point for the Activity, provided that the new meeting point can be reached by the customer from the originally agreed meeting point on foot or by public transport within 15 minutes. A change of the start/meeting point is possible up to 24 hours before the start of the booked Activity and will be communicated to you by email or displayed via the MIX TRIP Platform.
16. Final provisions
16.1 For the purpose of fulfilling the contract and exercising rights due to us under these MIX TRIP GTC, we may use other MIX TRIP companies and third parties as vicarious agents.
16.2 We may amend or adjust these MIX TRIP GTC in the future, e.g. to take into account changes in the law, market changes ,or regulatory gaps. We will then inform you of this in good time and in an appropriate manner. If you object, we or you can terminate your MIX TRIP Account or your access to the MIX TRIP Platform with immediate effect.
16.3 All notices and other declarations transmitted within the framework of these MIX TRIP GTC must be made in writing (e.g. by email).
16.4 The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these MIX TRIP GTC or any purchase made pursuant thereto.
16.5 The contract between you and us is formed and entered into in Berlin, Germany.
16.6 In these MIX TRIP GTC, (i) “including” means “including but not limited to,” (ii) general words shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things, and (iii) words suggesting the singular include the plural, and vice versa. Captions and section headings used in these MIX TRIP GTC are for convenience only and shall not be used in construing the MIX TRIP GTC.
Appendix A
Clauses Applicable to Residents of All Countries (Except Residents of the U.S.)
A1 Scope. These MIX TRIP GTC are directed exclusively at consumers within the meaning of the §13 BGB (German Civil Code).
A2 Liability.
A2.1 Except as set forth in Section A2.2, our maximum liability arising out of or in connection with the performance of our contractual obligations to you shall be limited to the typically foreseeable loss or damage arising from a negligent breach of a fundamental contractual obligation. A “fundamental contractual obligation” under these MIX TRIP GTC is an obligation, the performance of which is essential to the proper performance of these MIX TRIP GTC and the breach of which jeopardizes the purpose of these MIX TRIP GTC and its performance upon which you as a user may regularly rely. Loss or damage is typically foreseeable if it was typically foreseeable at the time these MIX TRIP GTC were accepted. We exclude our liability and the liability of vicarious agents for damages caused by a negligent breach of a non-essential contractual obligation.
A2.2 Nothing in these MIX TRIP GTC shall exclude or limit the liability of us or our agents or servants for gross negligence, intentional injury, death, personal injury, or fraud. Likewise, any further-reaching mandatory statutory rights as a consumer shall remain unaffected.
A2.3 The above limitations of liability do not apply if we fraudulently conceal a circumstance to the standard of the MIX TRIP Platform or should guarantee a certain functionality. The same applies to any claims of the User under the Product Liability Act.
A2.4 No liability shall exist in cases of force majeure, including but not limited to: failure of electronic or mechanical equipment or communications, acts of third parties (including denial of service attacks and excessive or abusive use of the MIX TRIP Platform), telephone or other connectivity problems, computer viruses, unauthorized access, theft, operator error, fire, severe weather including floods, regulatory or other acts of regulatory, governmental or supranational authorities, war, riots or labor disputes.
A2.5 You always have the option to prove to the Supplier that he has not incurred any damage at all or that the damage is significantly lower than the cancellation fees demanded by the Supplier.
A3 Indemnification
A3.1 Damages in the sense of clause 12.1 also include compensation to which we are exposed to our vicarious agents (as defined by German law) or assistants because of the occurrence of one of the events described in Section 12.
A3.2 The above obligations in Section A3.1 shall only apply if you are responsible for the occurrence of any events described in Section 12 or violations of these MIX TRIP GTC, i.e. you have acted intentionally or in a negligent manner, and that misconduct directly resulted in the event(s) or violation(s) described above. .
A4 Online Dispute Resolution. The online dispute resolution platform of the European Commission can be accessed here. We are neither willing nor obliged to participate in dispute resolution proceedings before a consumer arbitration board.
A5 Governing Law.To the extent permitted by mandatory local (consumer) law of the country in which you reside, these MIX TRIP GTC and our services will be governed by German law.
A6.1 Jurisdiction for EEA residents. If your usual place of residence is within the EEA (European Economic Area), then the following applies: To the extent permitted by mandatory local (consumer) law, any dispute will exclusively be submitted to the competent courts in Berlin, Germany.
A6.2 Jurisdiction for non-EEA and non-U.S. residents. If your usual place of residence is outside the EEA (European Economic Area) and outside the United States of America, then the following applies: Any dispute will exclusively be submitted to the competent courts in Berlin, Germany.
A7 Right of withdrawal
If you are a consumer, i.e. if you are a natural person who is acting for purposes which are outside your trade, business, craft or profession, and your habitual residency is in the European Economic Area, you generally have a statutory right of withdrawal in accordance with the following withdrawal information. In some cases, however, a right of withdrawal is excluded by law, so that you may not have a right of withdrawal for your specific contract.
A7.1 Exclusion of the right of withdrawal
The right of withdrawal is excluded by law in the case of distance contracts for the provision of leisure activities if the contract provides for a specific date or period of performance. This includes date or time-bound “Tours” of various kinds, “(Multiple) Day Trips”, “Entrance Tickets”, “Guided Tours”, “Water Activities”, “Adventures”, “Other Experiences” and “Combination Offers” arranged by us.
A7.2 Instructions concerning the exercise of the right of withdrawal
A7.3 Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason.
The withdrawal period will expire after 14 days from the day on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the last good.
To exercise the right of withdrawal, you must inform us (support@mix-trip.com ) of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post or email). You may use the attached model withdrawal form, but it is not obligatory. To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
A7.4 Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
You shall send back the goods or hand them over to us without undue delay and in any event not later than 14 days from the day on which you communicate your withdrawal from this contract to us. The deadline is met if you send back the goods before the period of 14 days has expired. We will bear the costs of returning the goods.
You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.
Apart from the above, the following applies with regard to your right of withdrawal:
You can use the model withdrawal form below to declare your withdrawal, but are not obliged to use it. For example, you can also declare your withdrawal quickly and efficiently via our platform by filling out and submitting our form at support@mix-trip.com.
If you use the model withdrawal form below, we would kindly ask you to provide your booking reference. This makes it easier for us to match your withdrawal to your contract, but is not obligatory for you.
A7.5 Model withdrawal form
(complete and return this form only if you wish to withdraw from the contract).
• To ___________________:
• I/we(*) hereby give notice that I/We(*) withdraw from my/our(*) contract of sale of the following goods(*) /for the provision of the following service(*),
• Ordered on(*) /received on(*),
• Name of consumer(s),
• Address of consumer(s),
• Signature of consumer(s) (only if this form is notified on paper),
• Date
(*) Delete as appropriate.
Appendix B
Clauses Applicable Only to Residents of the U.S.
B1 Warranty Disclaimers. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, WE MAKE NO, AND HEREBY SPECIFICALLY DISCLAIM ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE ACTIVITIES AND SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. The MIX TRIP Platform is provided “as is,” without warranty of any kind, either express or implied. We do not warrant that (i) the MIX TRIP Platform will meet all of your requirements or that performance of the MIX TRIP Platform will be uninterrupted, virus-free, secure, or error-free, or (ii) the content on the MIX TRIP Platform will be complete, accurate, or free from technical defects or changes by unauthorized third parties. We are not responsible for the accuracy or completeness of Supplier-provided data.
B2 Activity-Related Liabilities.
B2.1 Injury Incidents. You (and any other person for whom you made a booking for an Activity (a “Co-Traveller”)) agree and understand that Activities are provided by Suppliers, not by MIX TRIP. Suppliers are independent third parties that are not under the control of MIX TRIP. In the event that you or a Co-Traveller is injured, killed, or suffers a loss during or in connection with an Activity (an “Injury Incident”), you agree to seek compensation directly from the Supplier that provided the Activity, not from MIX TRIP or its affiliates, subsidiaries, distribution partners, or their respective officers, directors, employees and agents (the “MIX TRIP Parties”).
B2.2 Release. YOU, ON BEHALF OF YOURSELF AND ANY CO-TRAVELLERS , HEREBY RELEASE THE MIX TRIP PARTIES TO AND FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, OBLIGATIONS, DAMAGES, AND LIABILITIES, COSTS AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES), WHETHER OR NOT NOW KNOWN, SUSPECTED, OR CLAIMED, RELATING TO ANY INJURY INCIDENT, WHICH YOU EVER HAD, NOW HAVE, OR MAY IN THE FUTURE HAVE.
B2.3 Unknown Claims. California Civil Code section 1542 provides as follows: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” You agree that you have read and understand this language. You specifically and expressly WAIVE any and all rights you may have under California Civil Code section 1542 (or any similar statute) as they relate to the release in this section. You acknowledge and agree that this waiver is an essential and material term of these Terms.
B2.4 Covenant. You covenant and agree never to commence, prosecute, or cause, permit, or advise to be commenced or prosecuted against any MIX TRIP Party, any action at law or equity, or other proceedings (including arbitration), based upon any Injury Incident. If any such prohibited action or proceeding is instituted, these Terms may be pleaded as a full and complete defense thereto.
B2.5. Third-Party Beneficiaries. The MIX TRIP Parties are expressly named as third-party beneficiaries to this Section B2. Each of the MIX TRIP Parties has the right to enforce this Section B2 against you as this Section B2 pertains to its respective rights as a third-party beneficiary.
B3 Liability Limitations.
B3.1 Waivers. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WE WILL BE NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOST DATA, LOST PROFITS, LOST REVENUE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT WE WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY STATED HEREIN.
B3.2 Maximum. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IF MIX TRIP IS HELD LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING YOUR USE OF MIX TRIP’S SERVICES, YOUR PARTICIPATION (OR NON-PARTICIPATION) IN AN ACTIVITY, OR AN INJURY INCIDENT), THEN MIX TRIP’S LIABILITY WILL IN NO EVENT EXCEED, IN THE AGGREGATE, THE GREATER OF (A) THE SUM PAID TO MIX TRIP IN CONNECTION WITH THE ACTIVITY GIVING RISE TO THE CLAIM (IF APPLICABLE), OR (B) TWO HUNDRED DOLLARS (US $200.00).
B3.3 Allocation of Risk. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PROVISIONS IN THIS SECTION B3 REPRESENT A REASONABLE ALLOCATION OF RISK AND THAT THE MIX TRIP WOULD NOT ENTER INTO AN AGREEMENT ABSENT SUCH PROVISIONS. In no event shall we be liable to you for any acts or omissions of any Supplier.
B4 Arbitration.
Please read this Section B4 carefully, it may affect your rights. This section provides for resolution of most disputes through arbitration instead of court trials. Arbitration is more informal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury, and discovery is more limited. Arbitration is final and binding and subject to only very limited review by a court. This Section B4 shall survive termination of your MIX TRIP Account.
B4.1 Binding Arbitration. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to the MIX TRIP Platform, our services, these MIX TRIP GTC, and your relationship with us (or our subsidiary, parent or affiliate company or companies), whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including the interpretation and scope of this arbitration clause and the arbitrability of a dispute (collectively, “Claims”). All Claims will be resolved by binding arbitration, unless expressly excluded from arbitration as set forth in Section B4.4.
B4.2 Opt Out. Notwithstanding Section B4.1, you may opt out of binding arbitration by following the Opt-Out Procedure at support@mix-trip.com and mailing us a written notice, by the Opt Out Deadline. The opt-out notice must be postmarked no later than 30 calendar days after the earliest of (i) the date you first used the MIX TRIP Platform, (ii) the date you first used our services, or (iii) the date of your first transaction with us (“Opt Out Deadline”).
The written notice must be sent to the following address: support@mix-trip.com. Any opt-out received after the Opt Out Deadline (allowing three (3) additional days for mailing) will not be valid and you must pursue your claim in arbitration or small claims court.
B4.3 Governing Law for this Clause. The parties agree that these MIX TRIP GTC evidence a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law, and not governed by state law.
B4.4 Excluded Claims. The following claims are not subject to binding arbitration and may be litigated in a judicial proceeding in a court of competent jurisdiction (as specified in Section B5): (i) any claim or cause of action alleging actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger of the commission of a crime, hacking, or cyber-attack); or (iii) a request for the remedy of public injunctive relief, where such remedies are permitted and cannot be waived by applicable law. In addition, either of us may take a claim to small claims court, if the claim qualifies for hearing by such a court, subject to the limitations specified in Section B5.
B4.5 Arbitration Process. For all disputes, whether pursued in court or arbitration, you must first send us a written description at support@mix-trip.com. You may request arbitration if your claim or dispute is not resolved within 60 days of our receipt of the claim. The arbitration of any dispute or claim shall be conducted (i) before one neutral arbitrator, (ii) in English, (iii) under the Arbitration Rules of the International Chamber of Commerce (“ICC Rules”) together with the IBA Rules on the Taking of Evidence in International Commercial Arbitration (1999) (the “IBA Rules”) (where there is inconsistency, the IBA Rules shall prevail, but solely as regards the taking of evidence). Neither party is permitted to make any application pursuant to 28 U.S.C. § 1782. The arbitrator shall be empowered to award only those damages which are permitted in these MIX TRIP GTC, subject to any disclaimers or damages and liability limits set forth in these MIX TRIP GTC. The award rendered by the arbitrator shall include costs of the arbitration, reasonable attorneys’ fees and reasonable costs for experts and other witnesses. Any arbitration shall be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. For claims under $25,000, the arbitration will not involve any personal appearance by the parties or witnesses but will instead be conducted based solely on written submissions, unless you request an in-person or telephone hearing, or the arbitrator determines that an in-person or telephone appearance is required. Hearings by telephone shall be preferred, unless the arbitrator determines that a party’s right to a fundamentally fair process would be impaired without an in-person hearing. In the case of an in-person hearing, the
hearing shall be conducted in New York, New York, unless otherwise ordered by the arbitrator.
B4.6 Class Action Waiver. YOU AND WE EACH AGREE THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If a court or arbitrator determines in an action between you and us that this class action waiver is unenforceable, this Section B4 will not apply to you. If you opt out of binding arbitration in accordance with Section B4.2, this class action waiver will not apply to you. Neither you, nor any other consumer, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having opted out of binding arbitration in accordance with Section B4.2.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
B5 Governing Law. Except as specified in Section B4.3, these MIX TRIP GTC are governed by the laws of the State of New York, without regard to its conflict of laws rules.
B5 Venue. Any legal suit, action, or proceeding arising out of or related to these MIX TRIP GTC or our services (including (i) any proceeding initiated by a User who has opted out of binding arbitration in accordance with Section B4.2, and (ii) any small claims proceeding) shall be subject to the exclusive jurisdiction of the State and Federal Courts located in Kings County, New York. Each party irrevocably consents to the personal jurisdiction of such courts and agrees that it is a convenient forum and that it will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise.
B6 Jury Waiver. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
