General Terms and Conditions and Withdrawal Policy (as of 17th of August 2021)
The MYFLYRIGHT website is operated by MYFLYRIGHT GmbH, Schauenburgerstraße 61, 20095 Hamburg.
Our website provides you with the possibility to determine, within the framework of an automated data processing procedure, on the basis of the information you have provided, whether you are entitled to claims in connection with impairments (hereinafter “impairments”) of flight or package tours (hereinafter “travel services”) which can be asserted against the provider who provided the travel service or with whom you booked the travel service (hereinafter “provider”) (hereinafter “claims”). Impairments may include compensation claims for long delays, cancellations or overbooking of flights, refund of ticket costs and reimbursement of care costs for accommodation, meals or transfers. Impairments further include claims for package tours and in relation to baggage delay and loss and claims for partial refund of taxes and charges in the event of cancellation by the customer (hereinafter collectively “Products”). Claims for compensation may be based on Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and on the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention). In addition, claims under civil law in particular are conceivable (e.g., in the case of a package tour contract according to §§ 651a ff. BGB).
In order to determine your claims, we collect, manage and process data, including scheduled flight progress, actual flight progress, flight weather and other data relating to air traffic.
The following general terms and conditions (“GTC”) apply to the use of our services:
I. Use of the claims calculator
- You can use a calculator on our website to first calculate, free of charge and without obligation, whether you might be entitled to claims. For this purpose, we only request data on the travel services and the impairments that have occurred, in particular flight data, the information provided by the provider (e.g. reasons for the impairments or time of notification of the flight cancellation, etc.), the amount of the ticket price, whether the claims are being asserted only on your own behalf or at the same time also on behalf of fellow travellers, as well as information on any substitute transport or services provided by the provider.
- The calculator displays a compensation amount if we come to the conclusion in an automated process that a claim against the provider is conceivable.
- The calculation and the description of the products do not constitute a binding offer to conclude a contract. The claims calculated and the reasons given are provisional and non-binding information for which we accept no liability.
- You can enter the requested amounts in different currencies. Our system converts foreign currencies into euros. This is only non-binding information, in particular due to possible currency fluctuations.
II. Subject matter of the contract, ordering process, conclusion of the contract
- After we have determined a non-binding amount of a possible claim, you can decide whether you would like us to examine the further pursuit of the claim in an automated procedure.
- After you have entered an e-mail address, we ask whether you have already received a compensation and whether there is already an ongoing complaint procedure, as well as other data about this, if applicable. We then ask you to provide us with your further contact details, namely your address and telephone number, as well as the contact details of any fellow travellers, if you also wish to have the enforcement of claims checked on their behalf. In this case, you warrant that you are authorised by the fellow travellers to carry out the non-binding claim check and to pass on to us the necessary data of the fellow travellers. Furthermore, you can upload the travel documents and indicate what costs you have incurred due to the impairment. In addition, you can enter details of a bank account or PayPal account to which we will make the payment. You can also provide this data later, according to your choice.
- After requesting this data, you can decide whether to submit a binding offer to us (hereinafter “customer offer”) to enforce the claims against the provider for you and, if applicable, your fellow travellers.
- The enforcement is only possible for claims that are not yet pending before the court. With the customer offer you assure that the claims are not pending in court. Furthermore, you must sign a declaration of assignment before submitting the customer offer.
- If you specify fellow travellers in the contact form, you warrant in accordance with the provision under VIII.9 that you are authorised by the fellow travellers to assign the claims.
- In principle, there are two options available to you for enforcing your claim, namely
(a) the purchase of your claim by us, combined with an immediate payment of the agreed amount to you (hereinafter “immediate payment”, see III.), or
(b) the conduct of extrajudicial and, if necessary, judicial dunning proceeding for you, including all compulsory enforcement/ seizure measures for titled claims in Germany and abroad (hereinafter “debt collection”, see IV.).
- In some cases where we offer claim enforcement in principle, we can only take over the debt collection activity and do not offer immediate payment. You therefore make us an offer that we will either enforce your claim through debt collection or make an immediate payment to you. Before submitting the offer, you can select if you do not want an immediate payment by ticking the appropriate box. In the event of ticket cancellation by you, there is only the option of immediate payment, so in this case you are only making an offer to this extent. The submission of your binding offer takes place by clicking the button “Place order now”.
- In no case shall the mere notification of a possible claim or our products constitute a binding offer by us to conclude a contract. Furthermore, the confirmation of the receipt of the order after completion of the ordering process does not constitute an acceptance of your customer offer. Rather, the contract comes into effect through our corresponding confirmation by e-mail, with which we inform you that we are asserting the claim against the provider (hereinafter “order acceptance”). Insofar as a notification to us is to be regarded as an offer, we can only accept this within two weeks. After the deadline, it is considered rejected.
- If you do not commission the offer via the ordering process, but send us documents by post or e-mail, we will treat this as a non-binding enquiry and will subsequently send you a declaration of assignment with a request to sign it by you and, if applicable, your fellow travellers. Therein lies our binding offer to enforce the claims for you. You can accept this by signing and returning the declaration of assignment, with which you also accept these GTC.
- If you have not selected that you do not wish to receive an immediate payment (see III) or (in the case of ticket cancellation by you) only an immediate payment is offered, we can decide by way of a right to determine performance to which we are entitled (§ 315 BGB) whether we will make an immediate payment or enforce the claim for you by way of debt collection (see IV). We will inform you of this when we accept your order.
- If we reject or do not accept the offer made by you, we neither acquire your claims nor do we take over the extrajudicial and judicial dunning proceeding for you. A contractual relationship between you and us is then not established.
- If we come to the conclusion that there could be exceptional circumstances that could prevent the claim, we will inform you of this.
- You can correct information in the order process by clicking the “Back” button.
III. Immediate payment
- In the case of immediate payment, you will receive the amount displayed during the ordering process, which corresponds to the compensation amount minus our commission, which is also shown there. You assign your claims, including ancillary claims, to us. The details are regulated in a declaration of assignment that you submit during the ordering process.
- If we offer changed conditions compared to your offer, e.g. an immediate payment only with regard to a part of a travel service, we will submit a changed offer to you. If you do not accept this, no contract is concluded.
IV. Debt collection
- If we enforce your claims through our debt collection activity, you assign the claims to which you are entitled to us in trust. The details are regulated in the declaration of assignment that you submit during the ordering process.
- We bear all debt collection costs, regardless of whether the enforcement of your claims was successful or not. The same shall apply to any necessary legal proceedings, the conduct of which we shall decide at our own discretion and for which we shall bear all costs, in particular lawyers’ fees and court costs, expert costs and/or travel costs (hereinafter “costs of proceedings”). Item VIII.8 shall remain unaffected.
- In cases where contentious proceeding becomes necessary, we may, at our discretion, engage contract lawyers for extrajudicial and/or judicial enforcement. The contract lawyers appointed by us are entitled to appoint sub-agents.
- If the factual and/or legal situation changes subsequently and this has a negative effect on the prospects of success of a proceeding that has already started, we will inform you immediately. We can then end the proceeding at any time.
- Irrespective of a change in the factual and legal situation, we may terminate the proceeding at any time at our own discretion. The termination requires our declaration in text form. In this case, we will assign the claims back to you and, if applicable, to the fellow travellers and terminate the proceeding. In this case, you can choose whether you want to pursue your claim at your own expense, if necessary in a new proceeding. We shall bear the procedural costs incurred up to that point.
- Insofar as the provider has to bear the costs of the proceedings, we shall be exclusively entitled to the reimbursement of costs. There is no claim in your favour for reimbursement of the agreed commission in the event of reimbursement of costs. Any interest on arrears paid by the provider shall also be due to us.
- We are obliged to prepare a final statement of account after the end of the proceeding and to send it to you. We are permitted to offset the commission against incoming payments from the provider and pay the difference to you.
- If the enforcement of the claim results in an amount of compensation that differs from that stated during the ordering process, the customer shall only be entitled to the compensation actually paid. You are not entitled to a higher compensation payment in this case. Discrepancies may arise in the event of incorrect information provided by you, discrepancies in the actual or planned flight times or if you make claims for several flights and these flights were not booked in a single booking process.
- The amount of commission we deduct from the immediate payment or a claim enforced by way of debt collection will be shown in the order process, as will the payment amount remaining to you. We charge the applicable VAT tax on this, which is also stated in the order process.
- The basis of assessment for the commission in the case of immediate payment is the compensation amount shown in the order process. In the case of debt collection, the basis of assessment shall be all actual services rendered by the provider, whether in cash and/or in kind. Insofar as contributions in kind are made by the provider, the respective market value at the time of the service shall be decisive.
VI. Payment conditions
- We will inform the provider that the claim has been assigned to us and that payments on it can only be made to us with discharging effect.
- Our payment to you will be made by bank transfer to your designated bank account at a bank within the Single Euro Payments Area (SEPA) or by PayPal. In the event that you do not have a SEPA account, any fees incurred for the transfer or payment will be borne by you. The same applies to any costs incurred in connection with the use of PayPal.
- All payments are made via an escrow account, which is non-interest bearing. There is no entitlement to interest unless we are in default with the payment.
- You accept payments of fellow travellers in trust. You are obliged to pass the payments on to the fellow passengers without delay.
VII. Release from the lawyer’s duty of confidentiality, e-mails
- You expressly agree that we may send documents, data and correspondence by way of unencrypted e-mails to you and mandate-related to third parties. In this respect, you release us from the obligation to maintain confidentiality and to handle mandate-related data securely. You can object to e-mail correspondence at any time for a specific reason or for a specific individual order.
- We would like to point out that the receipt of e-mails may be disrupted for technical or operational reasons, that e-mails may contain viruses, that e-mails may be lost, altered, falsified or forged and that e-mails cannot be securely protected against unauthorised access by third parties. Disadvantages or damages that may arise from the risks of e-mail traffic are not our responsibility unless we are responsible for them in accordance with clause XI.
- You can revoke this declaration of consent in text form at any time for the future.
VIII. Your duties
- You shall provide us with all necessary documents, information and details in good time as part of the ordering process. This applies in particular to the declaration of assignment, flight tickets, boarding cards, reservations, correspondence with the provider in the original, insofar as these are still available.
- If we or our contract lawyers need any further documents or information, please provide them to us immediately upon request. In particular, at our request, you are obliged to send us a written declaration of assignment from you and any fellow travellers, even if you have already submitted an electronically signed declaration of assignment in the ordering process. Furthermore, you are obliged to perform any further acts of cooperation required for the enforcement of the claims at our request, e.g. to submit written declarations or to testify as a witness.
- Your information on our website must be complete and correct. This applies in particular to your flight details, ticket, flight number, your personal details and, if applicable, those of your fellow passengers, such as address and e-mail address, as well as other details relating to the underlying facts.
- You must notify us immediately in text form of any changes in circumstances.
- After assigning your claims to us, you may neither dispose of them nor instruct third parties to enforce them. You are prohibited from making any declarations of your own in the proceedings against the provider without our written consent, in particular to contest an irrevocable settlement, to revoke a concluded settlement, to waive your claim, to declare a withdrawal of action or to otherwise dispose of the claim.
- If you receive direct benefits from the provider on the assigned claims after assignment, you must inform us of this immediately in text form. The same applies if the provider contacts you. You must immediately notify the provider of the assignment in text form, even if you have not yet been requested to do so by us.
- Incoming payments made to you despite our notification of the assignment to the provider will be received by you, in the internal relationship, as trustee for us and forwarded to us without delay.
- Should you have made false statements and should the airline therefore reject the asserted claim, we will invoice you for the costs incurred (e.g. lawyer’s fees and/or court costs and/or other costs, in particular expert costs, travel costs, our lost commission, etc.) plus the respective legally valid value added tax. This does not apply if you are not responsible for the false information.
- If you are co-asserting claims of fellow travellers, you warrant that you are duly authorised to do so and that you will pass on all relevant contractual documents, including these GTC and our data protection statement, to the fellow travellers.
- If you are in default with an act of cooperation and we suffer damage as a result (for example, a court deadline expires), you must compensate us for the resulting damage.
IX. Termination of contract
- The contractual relationship between us ends with the performance of the immediate payment or, in the case of debt collection, with the payment after enforcement of your claims.
- Insofar as proceedings between us and the provider have not yet been concluded at the time of termination of the contract (e.g. as a rule in the case of immediate payment or in the case of a dispute about the costs of proceedings after payment in the case of debt collection), your obligations to cooperate with regard to the enforcement of claims under VIII.2 are not affected by the termination of the contract.
- In the case of debt collection, the contractual relationship shall also end if we notify you of this in accordance with IV.4 in text form.
- Irrespective of this, both parties have the right to terminate this contract extraordinarily for good cause. In particular, we reserve the right of extraordinary termination if you have culpably breached your duties and obligations, especially in the event of culpably false statements of facts.
Insofar as we provide services that are subject to warranty, the applicable statutory warranty provisions shall apply.
- Our liability for payment of damages and reimbursement of expenses is excluded unless otherwise provided for in the following provisions.
- The exclusion of liability does not apply to damage caused by culpable breach of a material contractual obligation in a manner that jeopardises the achievement of the purpose of the contract. Material contractual obligations are obligations the fulfilment of which is a prerequisite for the proper performance of the contract and compliance with which the contractual partner regularly relies on and may rely on. However, liability shall be limited to the damage typical for this type of contract, the occurrence of which each contracting party had to expect on the basis of the circumstances known to it at that time.
- Furthermore, the exclusion of liability does not apply to damages arising from injury to life, body or health which are based on a negligent breach of duty by us or our legal representatives or vicarious agents.
- The exclusion of liability does not apply to damage caused by an intentional or grossly negligent breach of duty by us or our legal representatives or vicarious agents.
- Insofar as liability is excluded or limited, this shall also apply to the liability of our legal representatives, employees and vicarious agents.
- If we have given a guarantee, the content of this guarantee is not affected by the above limitation of liability.
- Liability under the Product Liability Act remains unaffected.
XII. Force majeure
We shall not be liable for damage caused by force majeure or other events beyond our control, i.e. events that could not have been foreseen and prevented by us, in particular strikes, lawful lockouts, special weather conditions, power failures, traffic interruptions, fire damage, epidemics and pandemics (in particular COVID-19), changes in the law and official decrees as well as operational disruptions or supply difficulties, insofar as they are not our fault. In cases of force majeure, we shall be exempt from performance for the period during which we are prevented from performing due to the force majeure. We will inform you of the occurrence as well as the cessation of the force majeure and endeavour to minimise the impact.
XIII. Dispute resolution
- The European Commission provides a platform for online dispute resolution (ODR), which you can access at https://ec.europa.eu/consumers/odr/.
Notice pursuant to § 36 Consumer Dispute Settlement Act (VSBG)
We do not participate in any dispute resolution proceedings before a consumer arbitration board within the meaning of the VSBG. There is no legal obligation to do so.
XIV. Final provisions
- The contractual language is English.
- German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Consumers with their habitual residence abroad can always also invoke mandatory provisions of the law of the state in which they are domiciled, irrespective of the specific choice of law.
- In the event of contradictions between the German and English versions of these GTCs, the version linked and included at the time of conclusion of the contract shall apply.
- If you are a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship between you and us shall be Hamburg.
XI. Instructions for cancellation
If you are a consumer pursuant to section 13 of BGB (the Civil Code), meaning a natural person entering into a legal act for purposes that cannot be predominantly attributed to your entrepreneurial or your self-employment activity, you are entitled to have the legal right for cancellation, whereupon we instruct you below:
Instruction for cancellation
Right for cancellation
You have the right to cancel this contract within fourteen days without reason. The time limit for cancellation shall be fourteen days from the date of entering into the contract. If you want to exercise your right for cancellation, you must inform us,
by making a clear statement (for example, by a letter sent by post, fax or e-mail) of your decision to cancel this contract. For this purpose, you may use the attached sample form, which however, is not prescribed. For the purpose of adhering to the time limit for cancellation it is sufficient if the notification of application of the right for cancellation is sent before the time limit for cancellation has elapsed.
Consequences of cancellation
If you cancel this contract, we are required to return to you without delay, no later than fourteen days from the day on which we receive your notification of cancellation of this contract, all payments we have received from you including the costs associated with delivery (with the exception of additional costs following from the fact that you have used another type of delivery than the standard delivery offered by us). We will use the same means of payment for this repayment that you used for the original transaction unless anything else is explicitly agreed with you; in no way will you be charged any fees due to this repayment. If you have requested that the provision of the services be initiated during the time period for cancellation, you shall pay an adequate amount corresponding to the portion of services provided until the moment you informed us about exercising the right for cancellation with respect to this contract compared to the overall scope of services determined by the contract.
End of the instruction for cancellation
We point out that your right of withdrawal expires prematurely when we have fully provided the contractually agreed service and have only begun with the execution after you have given your express consent and confirmed that you have taken note that the right of withdrawal expires prematurely in the event of complete fulfilment of the contract.
Sample cancellation form
(If you want to cancel the contract, please, complete this form and send it back.)
- — Recipient
- MYFLYRIGHT GmbH
- Schauenburgerstraße 61
- 20095 Hamburg
- Fax: +49 (0) 40 699 19 59 59
- E-mail: firstname.lastname@example.org
- — I/we (*) hereby cancel the contract to purchase the following goods (*)/ to provide the following services (*) entered into by me/us (*)
- — Ordered on (*)/received on (*)
- — Name(s) of the consumer(s)
- — Address of the consumer(s)
- — Signature of the consumer(s) (only if notified in the paper form)
- — Date
(*) strike out as applicable