At the northern tip of Madagascar lies a five-island archipelago, one of which is the privately-owned island of Nosy Ankao. On this idyllic haven, surrounded by aquamarine waters rich with sea life and offering panoramic views of the undisturbed majesty, is Miavana, a luxury lodge currently still under construction. The 14-villa development is scheduled for completion at the end of 2016, when lucky visitors will be able to while away their time fly-fishing, snorkelling, whale watching, kite surfing, and trekking through the lush tropical forests.
Miavana is an ultra-luxurious retreat on the private island of Nosy Ankao. The island has 14 contemporary villas each with plenty of private space and Indian…
Table Of Contents
1. Bookings and Application of These T’s And C’s
2. Application of the CPA and Processing of Personal Information
3. Tour Operator’s Rights and Responsibilities Specifically
4. Quoted Tour Price, Payment of Tour Fees and Incidental Matters
5. Client’s Rights and Responsibilities Specifically
6. Implications of Pandemics Such As The COVID-19 Pandemic
7. Breach, Cancellation Due to Breach and Incidental Matters
8. Force Majeure
9. Dispute Resolution
10. Addresses for Legal Processes and Notices
11. Severability
12. Cession, Delegation, Assignment
13. Whole Agreement
14. No Waiver
15. No Variation
16. Governing Law
17. Costs
18. Definitions and Interpretation
When travelling with GILTEDGE, your safety is of paramount importance to us. We have implemented various stringent COVID-19 related safety and hygienic measures, and we endeavour to only book services with preferred suppliers who have implemented strict safety protocols. Our compliance in this regard has been recognised by the Word Travel & Tourism Council by awarding us their SAFE TRAVELS STAMP.
GILTEDGE cannot, however, control the manner in which said suppliers enforce these protocols. By signing our booking form, you hereby release GILTEDGE, its employees and representatives from all claims, damages and injuries arising from our suppliers’ failure to implement, enforce health & safety protocols and/or your exposure to /or infection with COVID-19 or any other infectious diseases, including currently unknown diseases.
GILTEDGE strongly recommends that all clients purchase travel insurance. It remains the clients’ personal decision and responsibility to purchase the most comprehensive policy possible. It is imperative that clients fully understand the inclusions / exclusions covered by the said policy. GILTEDGE will not be held liable for any shortfalls / exclusions in the said policies.
1. BOOKINGS AND APPLICATION OF THESE T’S AND C’S
1.1. The Client, in signing and/or submitting the Booking Form to the Tour Operator, thereby represents and warrants to the Tour Operator that, with effect from the Signature Date and every day thereafter until the expiration or earlier cancellation of the Tour Package: (i) s/he is authorised to sign the Booking Form; (ii) s/he is authorised to accept these T’s and C’s both in relation to himself/herself and on behalf of each of the other persons referred to in the Booking Form (if any); (iii) s/he and each of the other persons referred to in the Booking Form (if any) have secured and obtained all of the necessary passports, insurance, visas and inoculations for the Tour Package, and wish, in full appreciation of all relevant facts, to proceed with the Tour Package; and (iv) either s/he and each of the other persons referred to in the Booking Form (if any) are not residents of South Africa and the Tour Package and related services is or will be arranged prior to their arrival in South Africa, or if so resident in South Africa, the Tour Package is or will be arranged in South Africa.
1.2. In signing and/or submitting a Booking Form, the Client thereby also:
1.2.1. acknowledges that the Client was provided with full information in relation to:
1.2.1.1. the Tour Operator (being its full name, licence or registration number (if any), and its VAT registration number (if any));
1.2.1.2. the address of the Tour Operator and/or the address of its supplier/s (if any) physical business premises, and related contact details;
1.2.1.3. the address/es of the premises at which, or from which, the Tour Operator’s services will be supplied;
1.2.1.4. the salient details of the Tour Package and its features including, by way of example:
1.2.1.4.1. whether the Tour Package is in fact eligible for booking;
1.2.1.4.2. modes of transportation; and
1.2.1.4.3. places of accommodation and their nature;
1.2.1.5. the Total Tour Price including any Applicable Taxes, and the Arranging Fee; and
1.2.1.6. the currency in which amounts under these T’s and C’s are payable;
1.2.2. acknowledges that the Client read and understood these T’s And C’s; and
1.2.3. makes an offer to contract with the Tour Operator in relation to the Tour Package on the terms detailed in these T’s And C’s.
1.3. Subject to clause 3.1, upon the Tour Operator accepting an offer from the Client as contemplated in clause 1.2.3 (by way of the issue of a Booking Confirmation to the Client), a contract shall come into existence and bind the Parties on and with effect from the date of receipt (or deemed receipt) of the Booking Confirmation by the Client (the “Booking Acceptance Date”), all on the terms and conditions contained in the Booking Form as read conjunctively with these T’s and C’s.
1.4. All payments received (including those by third party service providers), will further confirm your acceptance of our terms and conditions herein.
2. APPLICATION OF THE CPA AND PROCESSING OF PERSONAL INFORMATION
2.1. APPLICATION OF THE CPA
2.1.1 To the extent that these T’s and C’s are regulated by the CPA, the Parties hereby agree and acknowledge that it is not intended that any of these T’s and C’s should contravene any provision of the CPA. All the provisions hereof must be treated as being qualified only to the extent necessary to ensure that the provisions of the CPA are complied with at all times.
2.1.2 In compliance with the provisions of section 49 (4) of the CPA, the Client’s attention is specifically drawn to clauses 1.1, 2.2, 3.6, 4.1.1.1, 4.2, 4.4, 5.1, 5.4.2, 5.6, 5.8, 6.2, 6.3 and 7.3 which impose certain obligations and/or assumptions of risk, and which provisions are expressed in bold font for emphasis and for ease of reference.
2.2. PROCESSING OF PERSONAL INFORMATION
2.2.1 In signing and submitting a Booking Form, the Client agrees that it provides the Tour Operator with information which may constitute personal information (as contemplated in POPIA), and in doing so the Client voluntarily, specifically and unconditionally consents to the Tour Operator:
2.2.1.1 processing:
2.2.1.1.1 within the Tour Operator and/or any of its subsidiaries or any other legal entity, joint venture and/or partnership, wherever situated or operating (and irrespective of structure and/or legal nature/regime) that renders services or otherwise conducts business under a name which includes the name of the Tour Operator or any variation thereof (including their subsidiaries, parties that are related or inter-related to them and/or their affiliated companies, to the extent applicable) and/or any trust/s founded by the Tour Operator for its own operations and/or any entities that are related and/or inter-related to such trust/s, as the case may be, and all such entities’ successors-in- title and/or practice (collectively the “Tour Operator Group”), wherever any such members may be located, including in countries which may not have data-protection laws similar to South Africa; and
2.2.1.1.2 on infrastructure belonging to the Tour Operator Group or any third party with whom the Tour Operator and/or any member of the Tour Operator Group enters into an operator agreement, the personal information which the Client provides to the Tour Operator and/or any members of the Tour Operator Group, for any purpose in order for the Tour Operator to, execute its mandate in relation to the Tour Package and any particular matters thereunder and/or incidental thereto;
2.2.1.2 sending to the Client marketing material, advertising material, newsletters or other informative material relating to the Tour Operator and/or any member of the Tour Operator Group;
2.2.1.3 storing the Client’s personal information for an indefinite period, provided that the Tour Operator shall, to the extent permitted in terms of POPIA (read with any other applicable laws), destroy or delete any such personal information that is no longer needed by the Tour Operator for the purpose it was initially collected, or subsequently processed;
2.2.1.4 transmitting the Client’s personal information to other members of the Tour Operator Group (wherever they may be located, including in countries which may not have data-protection laws similar to South Africa) as the Tour Operator may deem necessary for the proper execution of its mandate in relation to the Tour Package and any particular matters thereunder and/or incidental thereto; and
2.2.1.5 keeping any work product or other data or documentation in relation to the Tour Package as part of the Tour Operator’s and the Tour Operator Group’s internal know-how.
2.2.2 The submission by the Client of any personal information (including in relation to any other person detailed in the Booking Form (if any)) to the Tour Operator and/or any members of the Tour Operator Group in any form constitutes a warranty and acknowledgement by the Client that such conduct is authorised and constitutes an
unconditional, specific and voluntary consent to the processing of such information as
contemplated in clause 2.2.1.
2.2.3 The Client hereby undertakes to notify the Information Officer of the Tour Operator (“IO”) in writing of any changes or errors to the personal information which the Client provided to the Tour Operator. The Tour Operator will update the Client’s personal information within a reasonable time after the Client has notified the IO of any such changes or errors.
2.2.4 Unless legislation in South Africa and/or in any territory in which any member of the Tour Operator Group operates or in respect of which the Tour Operator and/or any member of the Tour Operator Group is bound requires or permits the processing of such information, the Client will be entitled to withdraw its consent given under this clause 2.2 at any time and undertakes to supply at least 10 (ten) days written notice sent to the IO to that effect.
2.2.5 Should the Client:
2.2.5.1 believe that the Tour Operator has utilised the Client’s personal information contrary to legislation in South Africa as read with this clause 2.2, the Client undertakes to first attempt to resolve any concerns with the Tour Operator by addressing a complaint in writing to the IO; and
2.2.5.2 not be satisfied with the outcome of such process, the Client will be entitled to lodge a complaint with the Information Regulator in terms of the POPIA.
2.2.6 The Parties agree that various terms have been used in this clause 2.2 which are defined in POPIA and will bear the meanings in these T’s and C’s as is assigned to them in POPIA.
3. TOUR OPERATOR’S RIGHTS AND RESPONSIBILITIES SPECIFICALLY
The Tour Operator:
3.1. will as soon as practicably possible after receipt by it of the Booking Form (as signed and submitted by the Client) and receipt of the Deposit:
3.1.1. proceed to plan and/or arrange and/or facilitate the Tour Package, including (without limiting the generality thereof) making the necessary reservations and compiling the Tour Itinerary for the Client; and, thereafter
3.1.2. issue the Booking Confirmation to the Client, together with the Deposit Invoice and Tour Itinerary and all relevant details incidental thereto,
it being recorded that the Tour Operator shall inform the Client in writing (including, by way of example, via email) should the Tour Operator be unable to comply with the provisions of this clause 3.1 for any reason whatsoever;
3.2. will stipulate in the Tour Itinerary (to the extent applicable) all the salient details in relation to international and/or domestic airfare/s, accommodation, room/s and specification, hotel and/or airport transfers, meals and/or beverages included, and other incidental specifications of the Tour Package;
3.3. will issue the Secondary Invoice to the Client as soon as practicably possible after the date of receipt (or deemed receipt) by the Client of the Deposit Invoice, but in any event by no later than the date which is 68 (sixty eight) days prior to the Tour Start Date;
3.4. will issue the Final Invoice to the Client as soon as practicably possible after the date of receipt (or deemed receipt) by the Client of the Secondary Invoice, but in any event by no later than the date which is 68 (sixty eight) days prior to the Tour Start Date;
3.5. subject to clause 5.4.2, is entitled to make Tour Package Amendments and/or cancel the Tour Package (in part or the whole), at any time, to which the Client hereby agrees, provided that:
3.5.1. the Tour Operator will at all times use its commercially reasonable endeavours to avoid having to make such Tour Package Amendments and/or cancel the Tour Package;
3.5.2. any such Tour Package Amendment or cancellation must be due to unforeseen circumstances, and not attributable to the wilful misconduct of the Tour Operator;
3.5.3. in the event that the Tour Operator elects to amend the Tour Package only, then the Tour Operator will inform the Client thereof by written notice on or within 48 (forty eight) hours of having made such election, and will issue the Client with an updated Booking Confirmation and updated version of the invoice issued last in time to the Client (to the extent applicable) as soon as practicably possible thereafter; and/or
3.5.4. in the event that the Tour Operator elects to cancel the Tour Package, it shall advise the Client thereof on written notice on or within 48 (forty eight) hours of having made such election (it being recorded that the date of cancellation in this regard shall be deemed to be the date on which the said written notice of cancellation is received by the Client). The Tour Operator will then refund to the Client, by way of electronic funds transfer into the Client’s nominated bank account, such aggregate portion of the Aggregate Tour Fee as was paid by the Client to the Tour Operator, and not otherwise forfeited to the Tour Operator (whether as a cancellation fee or otherwise), as soon as practicably possible after the relevant date of cancellation. No Party shall have any other claim of whatsoever nature against the other in such circumstances;
3.6. will use its commercially reasonable endeavours to secure/procure/enable the Client’s special requests as stipulated in the Booking Form (if any), or advise the Client that such special requests cannot be accommodated. The Tour Operator will only undertake to procure those special requests as are expressly accepted by the Tour Operator in the Booking Confirmation. All special requests accepted by the Tour Operator will be subject to additional third party charges to the Client as stipulated in the Final Invoice. The Client acknowledges and agrees that all special requests indicated in a Booking Form cannot be guaranteed by the Tour Operator. If and to the extent that the Tour Operator is unable to arrange/procure the relevant special requests, the Client hereby agrees that s/he/it will have no claim of any nature against the Tour Operator;
3.7. will on request, provide to the Client written proof of any insurance policies taken out in the Tour Operator’s name; and
3.8. will, as regards the Quoted Tour Price, all brochures, advertising material and other similar documentation in relation to a Tour Package, use its commercially reasonable efforts to ensure that all such documentation as is made available by the Tour Operator in good faith, complies with all applicable laws, regulations, rules and codes of practice, the CPA, and is accurate and correct at the time of its publication/delivery to the Client. The Tour Operator reserves the right to update such documentation from time to time, without notice, to bring same in line with the latest information available to Tour Operator. The Client acknowledges that he/she/it will request such documents directly from the Tour Operator to ensure that the Client receives the latest then currently applicable documentation.
4. QUOTED TOUR PRICE, PAYMENT OF TOUR FEES AND INCIDENTAL MATTERS
4.1. Subject to: (i) at all times the provisions of clause 4.2; and to (ii) any additional third party charges to the Client in relation to special request/s as contemplated in clause 3.6, in consideration for planning and/or arranging and/or facilitating the Tour Package, the Client will pay the Total Tour Price (which includes the Arranging Fee), and having regard to each of the Deposit Invoice, Secondary Invoice and Final Invoice) to the Tour Operator as follows:
4.1.1. as regards the Deposit, the Client must pay the full amount thereof to the Tour Operator on or within 3 (three) days after the Booking Acceptance Date. It is agreed that:
4.1.1.1. the Deposit is not refundable to the Client; and
4.1.1.2. simultaneously with (and in addition to) payment of the Deposit, the Client must pay the full amount of any international and/or domestic airfare (as stipulated in the Deposit Invoice, if any) to the Tour Operator;
4.1.2. as regards the Secondary Tour Fee, the Client must pay the full amount thereof to the Tour Operator on or within 3 (three) days after the date of receipt (or deemed receipt) by the Client of the Secondary Invoice; and
4.1.3. as regards the Final Tour Fee, the Client shall pay the full amount thereof to the Tour Operator on or within 3 (three) days after the date of receipt (or deemed receipt) by the Client of the Final Invoice,
provided that, in the event that the Booking Acceptance Date is within 30 (thirty) days of the Tour Start Date, then the Client will pay the Total Tour Price to the Tour Operator immediately upon the said Booking Acceptance Date. All such payments shall be made by way of cleared electronic funds transfer into the bank account of the Tour Operator as indicated in the relevant invoice, or by way of such other method of payment as may be stated in the relevant invoice.
4.2. The Client agrees that the due dates for payment contemplated in clause 4.1 are subject to a supplier (of the Tour Operator) requiring earlier/later payment, and/or payments of seasonal deposits. In any such event, the Tour Operator will notify the Client of such fluctuation in writing, on or within 3 (three) days after the Tour Operator has been notified thereof by the said supplier, and the applicable due date/s for payment shall be deemed to have been amended accordingly. The Client will have no claim of whatsoever nature against the Tour Operator in such circumstances.
4.3. Unless otherwise agreed in writing by the Parties, all amounts payable under these T’s and C’s shall be payable in the currency of payment as indicated in the relevant invoice issued to the Client.
4.4. Notwithstanding anything to the contrary contained in these T’s and C’s, unless the Tour Operator consents in writing to other payment arrangements:
4.4.1. the Client will at all times remain liable for payment of all amounts due and payable by the Client to the Tour Operator under these T’s and C’s; and
4.4.2. the Client is and will remain liable to the Tour Operator for all amounts due and payable up to the date of expiration or earlier cancellation of the Tour Package.
5. CLIENT’S RIGHTS AND RESPONSIBILITIES SPECIFICALLY
The Client:
5.1. hereby irrevocably and unconditionally agrees that he/she/it is taking the Tour Package at his/her/its own risk. Specifically, the Client irrevocably and unconditionally agrees that the Tour Operator will not be liable for any damage, injury or liability of whatever nature and howsoever arising (including negligence) which I/we, or my/our dependents or my/our property may suffer as a result of the use of the Tour Package;
5.2. will adhere strictly and at all times to these T’s and C’s and the provisions of the Booking Form;
5.3. will not engage in any activity, conduct, distribution or trade practice or advertising method which will be harmful, directly or indirectly, to the Tour Operator;
5.4. will be entitled to request Tour Package Amendments and/or cancel the Tour Package, at any time, provided that:
5.4.1. the Client communicates, without delay, any such Tour Package Amendments and/or cancellations to the Tour Operator in writing;
5.4.2. in the event that the Client elects to cancel the Tour Package (it being recorded that the date of cancellation in this regard shall be deemed to be the date on which the relevant written notice of cancellation is received by the Tour Operator), subject at all times to the provisions of clause 6.2.2:
5.4.2.1. the Client will be liable to pay a cancellation fee to the Tour Operator, calculated in accordance with the following dates/periods of cancellation and percentages (which is agreed as being reasonable):
5.4.2.1.1. Cancellation of the Tour Package at any time from the Booking Acceptance Date until a date that is 65 (sixty five) days prior to the Tour Start Date: 30% (thirty percent) of the Total Tour Price
5.4.2.1.2. Cancellation of the Tour Package by no later than 46 (forty six) days but not prior to 64 (sixty four) days prior to the Tour Start Date: 50% (fifty percent) of the Total Tour Price
5.4.2.1.3. Cancellation of the Tour Package at any time within 46 (forty six) or less days prior to the Tour Start Date: 100% (one hundred percent) of the Total Tour Price;
5.4.2.1.4. Cancellation and/or postponement of the Tour Package as a result of the Covid-19 Pandemic or any other similar Pandemic, shall be dealt with in accordance with clause 6 below;
5.4.2.2. any such said cancellation fee will be paid by the Client to the Tour Operator within 14 (fourteen) days of the relevant date of cancellation, by way of cleared electronic funds transfer into the bank account of the Tour Operator as indicated in the invoice issued last in time to the Client, or by way of such other method of payment as may be stated in such invoice, failing which the Client will remain bound by the Tour Package and payment therefor in full; and
5.4.2.3. the Tour Operator will refund to the Client (care of its nominated bank account) such aggregate portion of the Aggregate Tour Fee paid by the Client to the Tour Operator, and not otherwise forfeited to the Tour Operator (whether as a cancellation fee or otherwise), as soon as practicably possible after receipt by the Tour Operator of the cancellation fee contemplated in clauses 5.4.2.1 and 5.4.2.2, and no Party shall have any other claim of whatsoever nature against the other in such circumstances;
5.4.3. In the event of the Client requesting a postponement of the Tour Package, then:
5.4.3.1. if it is the first request for a postponement of the Tour Package, then, the Tour Operator will not apply an administrative fee (“First Postponement”); and
5.4.3.2. any further postponements in addition to or after the First Postponement shall incur a non-refundable cancellation fee of US$250 per person;
5.5. will promptly comply with any reasonable instruction given by the Tour Operator in relation to the Tour Package and matters/aspects incidental thereto;
5.6. is strongly urged at the Client’s own expense, to take out comprehensive travel (and other) insurance in respect of the Tour Package and his/her/its participation thereat by at least the time of the confirmation of the booking and before the [commencement of the Tour Package], which insurance will be valid for the duration of the Tour Package. It is recommended that the Client’s comprehensive insurance should cover the Client for any loss arising from, amongst other things, (i) cancellations due to any reasons (including but not limited to COVID 19 or other Pandemic- related factors) and (ii) cover the loss of Client’s personal effects, or (iii) loss or harm to the Client personally, (iv) the Client’s medical, hospital, emergency travel and evacuation expenses, repatriation, and (v) loss of luggage and expenses associated with the cancellation or curtailment of the Tour Package. It is agreed that:
5.6.1. the Client will procure insurance in respect of all such risks as elected by it from an insurer and in such amounts of its election;
5.6.2. the Client will be solely responsible for his/her/its general safety and for the general safety of all the other persons detailed in the Booking Form (if any), including in relation to the safekeeping of baggage and personal effects, at all times;
5.6.3. the Client will timeously seek and obtain the necessary medical advice regarding prophylaxis, vaccination and general health requirements covering each country which forms part of the Tour Package, and shall ensure the same in respect of the Client and all the other persons detailed in the Booking Form (if any); and
5.6.4. the Tour Operator does not accept any liability (of any nature) for any loss or damage in relation to loss or harm (of whatever nature) to the baggage, personal effects or other property of the Client, or injury or illness to the Client, or loss of life or consequential (or indirect) damages in respect of the Client, which might occur from any cause whatsoever. The Client hereby assumes all risk (of whatever nature) attached to and/or in relation to and/or incurred in the Tour Package;
5.7. will at the Client’s sole cost and expense, to the extent applicable:
5.7.1. comply with and otherwise fulfil the applicable passport, visa and vaccination requirements covering each country which forms part of the Tour Package, it being recorded that the Tour Operator will not be responsible for any persons participating in the Tour Package without the required documents; and
5.7.2. make the necessary arrangements to arrive at the assembly point/s indicated on the Tour Itinerary at the stated times, it being recorded that the Tour Operator will not be responsible for any persons participating in the Tour Package who fail to make such arrangements;
5.8. by signing and submitting the Booking Form to the Tour Operator and/or otherwise indicating his/her/its acceptance of the Booking Form (and thereby the T’s and C’s), acknowledges and agrees that in the event that the Tour Package includes travel to isolated regions and/or activities in close proximity with wildlife, the Client and all of the other persons detailed in the Booking Form (if any) and voluntarily assume/s such risks and hereby waives any and/or all such claims against the Tour Operator. IF AND TO THE EXTENT THAT I/WE OR MY/OUR DEPENDENTS MAY HAVE A CLAIM (OF ANY NATURE IN LAW OR IN FACT) AGAINST THE TOUR OPERATOR, I/WE WILL NOT PURSUE THAT CLAIM AND HEREBY HOLD THE TOUR OPERATOR GROUP HARMLESS IN THAT REGARD. The Client acknowledges and agrees that he/she/it will on demand sign an extended standard form specific conditions and waiver document on or before the Tour Start Date, which form will be in a form satisfactory to the Tour Operator at all times, and which form will stipulate, amongst other things, that the person signing that form appreciates the risks inherent in travel and adventure, and that such person undertakes to participate in the Tour Package at his/her own risk and that such risk could include injury, disease or death;
5.9. will, if applicable, stipulate special requests (if any) in the Booking Form, failing which the Client will be deemed to have no special requests;
5.10. will ensure that all payments due to the Tour Operator are paid to the Tour Operator on the due date thereof and otherwise strictly in accordance with these T’s and C’s;
5.11. will not engage in any activities which causes inconvenience or annoyance to any other persons participating in the Tour Package; and
5.12. will in the unlikely event that the Client has a complaint against the Tour Operator, first address the complaint with the tour leader responsible for the relevant portion of the Tour Package as stipulated in the Tour Itinerary, so that an opportunity may be afforded to the Tour Operator to investigate and address the complaint. If the Client has any further complaint same must be lodged with the Tour Operator in writing within 30 (thirty) days of the expiration of the Tour Package. Should the Client not follow the procedures set out in this clause 5.12, then the Tour Operator will not investigate or continue to investigate any such complaint, and the Client will have no claim of whatsoever nature against the Tour Operator in such circumstances.
6. IMPLICATIONS OF PANDEMICS SUCH AS THE COVID-19 PANDEMIC
6.1. By signing and submitting the Booking Form and/or otherwise indicating his/her/its acceptance of the Booking Form (and thereby the T’s and C’s), the Client thereby confirms that:
6.1.1. it is their personal decision to travel and that they are doing so with full knowledge of current travel recommendations and travel restrictions with regards to the risk of any Pandemic including but not limited to the Covid-19 pandemic, and has taken full personal responsibility to inform themselves in relation thereto;
6.1.2. they are aware of the risks and dangers associated with travel during any Pandemic including but not limited to the Covid-19 pandemic and they expressly assume all of the risks and dangers in relation thereto; and hereby release, discharge and hold the Tour Operator, it’s employees, officers, directors, associated, affiliated companies and sub-contractors harmless against any and all liability, actions, causes of action, suits, damages, claims and demands of whatsoever nature which the Client may now have or which may hereafter arise out of or in connection with such risks and dangers;
6.1.3. s/he/ it will acquaint themselves with all laws and regulations related to the relevant Pandemic (including the Covid-19 pandemic) applicable from time to time in the country that they are travelling to and from, including but not limited to, mandatory inoculation, isolation and/or entry and exit requirements.
6.2. The Tour Operator does not assume any responsibility for and shall not be liable for any potentially unsafe conditions or health hazards, including pandemics or other illnesses to which the Client may be exposed.
6.3. The Tour Operator, its employees and agents, will, accordingly, not be liable for any loss (financial or otherwise), damage, illness, harm, trauma, death, delay, denial of onward travel or costs (including but not limited to quarantine costs), which the Client may incur or suffer, whether during or post travel, arising directly or indirectly out of the risks and/or dangers associated with traveling during the relevant Pandemic (including the Covid-19 pandemic), whether or not they been informed by the Tour Operator of such risks and/or dangers at the time of booking.
6.4. The Tour Operator is not responsible for the acts or omissions of travel suppliers, including the failure by the travel suppliers to adhere to their own schedules, provide services or refunds or their failure to honour any future trip credits.
6.5. The Tour Operator cannot and does not take any responsibility in instances where a Tour Package is booked, and subsequently cancelled and/or postponed and/or where the regulations in a specific country are changed as a result of the relevant Pandemic (including the Covid-19 pandemic).
6.6. Cancellation fees may apply in instances where a Tour Package is cancelled, due to travel bans or government travel restrictions. These cancellation fees may vary, depending on the cancellation policy of the supplier as well as the amount of work involved for the Tour Operator in making the changes and the loss in revenue due to the cancellation.
6.7. Professional fees earned by the Tour Operator are non-refundable.
7. BREACH, CANCELLATION DUE TO BREACH AND INCIDENTAL MATTERS
7.1. Breach
Save as otherwise provided for in these T’s and C’s:
7.1.1. if the Client fails to timeously pay to the Tour Operator any amount due to the Tour Operator hereunder, and fails to remedy such breach within a period of 3 (three) days after receipt by the Client of written notice from the Tour Operator calling for such default to be remedied, the Tour Operator will be entitled to (without prejudice and in addition to any other rights or remedies which the Tour Operator may have in law), on written notice to the Client, immediately resile from these T’s and C’s and cancel the Tour Package; and
7.1.2. if any of the Parties commits a breach of these T’s and C’s (other than the breach contemplated in clause 7.1.1) and/or otherwise fails to comply with any of the provisions hereof (the “Defaulting Party”), then the other Party (the “Innocent Party”) is entitled to give the Defaulting Party 7 (seven) days (or such longer period as may be reasonably necessary in the circumstances) notice in writing to remedy such breach and/or failure. If the Defaulting Party fails to comply with such notice, then the Innocent Party will be entitled to (without prejudice and in addition to any other rights or remedies which the Innocent Party may have in law, including the right to claim damages), on written notice to the Defaulting Party, immediately resile from these T’s and C’s and cancel the Tour Package accordingly.
7.2. Cancellation due to breach
7.2.1. In the event that the Tour Operator cancels the Tour Package in accordance with the provisions of clause 7.1 (and unless the Parties agree otherwise in writing), the Client will be deemed to have forfeited to the Tour Operator, with effect from the date on which the relevant written notice of cancellation is received (or deemed to have been received) by the Client (“Breach Cancellation Date”), all such amounts already paid by the Client to the Tour Operator as at the Breach Cancellation Date. The Client will have no claim of whatsoever nature against the Tour Operator in such circumstances.
7.2.2. In the event that the Client cancels the Tour Package in accordance with the provisions of clause 7.1.2, the Tour Operator will refund to the Client, by way of electronic funds transfer into the Client’s nominated bank account, such aggregate portion of the Aggregate Tour Fee as was paid by the Client to the Tour Operator, and not otherwise forfeited to the Tour Operator (whether as a cancellation fee or otherwise), as soon as practicably possible after the Breach Cancellation Date.
7.3. Indemnity for breach by the Client
Without prejudice to any rights or remedies available to the Tour Operator arising from these T’s and C’s and notwithstanding anything to the contrary contained herein, with effect from the Booking Acceptance Date, the Client hereby irrevocably and unconditionally indemnifies and agrees, on demand, to hold the Tour Operator (and its directors, officers, employees, agents, successors and assigns) harmless against any and all loss, liability, costs or expenses of whatsoever nature (including any and all legal costs), whether directly or indirectly suffered or incurred by the Tour Operator, should the Client and/or any of the other persons detailed in the Booking Form (if any) breach or fail to comply with these T’s and C’s in anyway.
8. FORCE MAJEURE
8.1. If any Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under these T’s and C’s for any cause beyond the reasonable control of that Party (“Affected Party”), including (without limiting the generality of the foregoing) war, civil commotion, riot, insurrection, strikes, lock-outs, fire, explosion, floods, a relevant Pandemic (including without limitation the Covid-19 pandemic) and acts of God (each a “Force Majeure Event”), the Affected Party shall be relieved of its obligations hereunder for the period that the Force Majeure Event endures. In such instance the Affected Party shall not be liable for any delay or failure in the performance of any of its obligations hereunder or for any loss or damages which the other Party may suffer due to or resulting from any such delay or failure, provided that written notice of the inability to perform is given by the Affected Party within 48 (forty eight) hours of the commencement of the Force Majeure Event.
8.2. The Affected Party shall, as far as practically possible, use its commercially reasonable endeavours to terminate the circumstances giving rise to the Force Majeure Event and upon termination thereof, the Affected Party shall forthwith give written notice thereof to the other Party.
8.3. In the event that the circumstances giving rise to the Force Majeure Event are not terminated by no later than the date which is 10 (ten) days from the commencement of the Force Majeure Event, then the Tour Package shall, without notice, be automatically cancelled, and the Tour Operator shall be required to refund to the Client such aggregate portion of the Aggregate Tour Fee paid by the Client to the Tour Operator, and not otherwise forfeited to the Tour Operator (whether as a cancellation fee or otherwise), as soon as practicably possible after the date of such cancellation, by way of electronic funds transfer into the Client’s nominated bank account. No Party shall have any other claim of whatsoever nature against the other in such circumstances.
9. DISPUTE RESOLUTION
9.1. Save as expressly detailed to the contrary, in the event of any dispute, controversy or claim (of whatever nature) (“dispute”) as to the rights and obligations of the Parties or as to any other matter arising from or out of or that in any way is related to these T’s and C’s, including (but not limited to) any question as to the existence, validity or termination of these T’s and C’s, the Parties will attempt in good faith, by negotiation, to resolve the dispute between themselves.
9.2. If the Parties are unable to resolve a dispute by mutual agreement within 14 (fourteen) days after the dispute is first communicated in writing by any Party to the other Party, then the dispute shall be submitted by either Party to and decided by arbitration in accordance with the then applicable commercial rules of the Arbitration Foundation of Southern Africa NPC (“AFSA”), by a single arbitrator agreed upon between the Parties or, failing agreement within 7 (seven) days of the dispute being submitted to arbitration, the arbitrator shall be appointed by AFSA.
9.3. As regards any such arbitration:
9.3.1. the decision of the arbitrator shall be final and binding on the Parties and may be made an order of any competent court having jurisdiction at the instance of any of the Parties;
9.3.2. unless otherwise agreed by the Parties in writing, the arbitration (i.e. its seat and geographic location) shall be held in Cape Town, South Africa; and
9.3.3. the arbitrator shall be obliged to give in writing the reasons for any decision made by the arbitrator in the course of the arbitration.
9.4. Notwithstanding anything to the contrary contained in this clause 8, either of the Parties shall be entitled to apply for, and if successful, be granted, an interdict or other interim and/or urgent relief from any competent court having jurisdiction. For all purposes, this clause 8, any arbitration hereunder (and the T&Cs) are all regulated by and subject to the laws of the Republic of South Africa.
10. ADDRESSES FOR LEGAL PROCESSES AND NOTICES
10.1. Any notice or process to be served on either of the Parties in terms of these T’s and C’s may be served on such Party at the following addresses:
10.1.1. as regards the Client, the address specified in the Booking Form; and
10.1.2. as regards the Tour Operator, the address specified in the Booking Confirmation.
10.2. Any Party may at any time, by notice in writing to the other Parties, change its elected address to any other address which is not a post office box or post restante.
10.3. Any notice or other communication to be given to either of the Parties in terms of these T’s and C’s shall be valid and effective only if it is given in writing, provided that any notice given by email shall be regarded for this purpose as having been given in writing.
10.4. A notice given as set out above shall be deemed to have been duly given and received (unless the contrary is proved):
10.4.1. if delivered by hand, on the date of delivery;
10.4.2. if sent by courier, on the date of delivery by the courier service concerned; or
10.4.3. if sent by email (provided that the address concerned includes an email address), on the expiration of 24 (twenty four) hours after the time of transmission.
10.5. Any written notice actually received by a Party shall be valid, notwithstanding that it may not have been given in accordance with the preceding provisions of this clause 9.
11. SEVERABILITY
Any of these T’s and C’s which is or may become illegal, invalid or unenforceable in any jurisdiction shall, with respect to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto (as if not written) and severed from the balance of these T’s and C’s, without invalidating the remaining T’s and C’s or affecting the validity or enforceability of any of these T’s and C’s in any other jurisdiction.
12. CESSION, DELEGATION, ASSIGNMENT
12.1. The Tour Operator will be entitled, without the consent of the Client but on prior written notice to the Client to cede, delegate or assign all or any of the Tour Operator’s rights and/or obligations under these T’s and C’s to any third party (“the Cessionary”).
12.2. On any cession, assignment and/or delegation taking place in terms of clause 12.1, the Client shall, if so required by any Cessionary, make all payments directly to the Cessionary in question.
12.3. The Client will not, without the prior written consent of the Tour Operator, be entitled to cede, assign, delegate or otherwise transfer any of the Client’s rights or obligations under these T’s and C’s to any third party.
13. WHOLE AGREEMENT
These T’s and C’s, as read conjunctively with the Booking Form, constitutes the whole agreement between the Parties in relation to the subject-matter of the Booking Form, and the Tour Operator shall not be bound by any representation/s, warranty/ies, undertaking/s, promise/s or the like (whether or not made by the Tour Operator, its companies or servants) which are not recorded herein or in the Booking Form.
14. NO WAIVER
No relaxation, indulgence or extension of time granted by any Party (the “Grantor”) to the other Party shall be construed as a waiver of any of the Grantor’s rights in terms hereof, or a novation of any of these T’s and C’s or estop the Grantor from enforcing strict and punctual compliance with these T’s and C’s.
15. NO VARIATION
No variation of, addition to, consensual cancellation of or waiver of any right arising in terms of these T’s and C’s (including this clause 14) and/or the Booking Form shall be of any force or effect unless expressly agreed by the Parties in writing (including, by way of example, via email communication).
16. GOVERNING LAW AND JURISDICTION
To the maximum extent permissible, these T’s and C’s shall be governed by and construed in accordance with the laws of South Africa. The Parties irrevocably agrees that the courts of the Republic of South Africa shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these T’s and C’s or its subject matter or formation.
17. COSTS
All and any costs incurred by either Party arising out of or in connection with a breach of any of these T’s and C’s by the other Party, including but not limited to legal costs on the attorney and own client scale, shall be borne by the Party in breach.
18. DEFINITIONS AND INTERPRETATION
18.1. DEFINITIONS
In these T’s and C’s, unless a contrary intention clearly appears, the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:
18.1.1. “Aggregate Tour Fee” means the aggregate amount of the Secondary Tour Fee plus the Final Tour Fee;
18.1.2. “Applicable Taxes” means, without limitation, any VAT, sales taxes, charges, imposts, duties, levies, deductions, withholdings or fees of any kind whatsoever, or any amount payable on account of or as security for any of the foregoing, imposed, levied, collected, withheld or assessed by any relevant taxation authority or similar Governmental Authority from time to time together with any penalties, fines or interest;
18.1.3. “Arranging Fee” means that portion of the Total Tour Price which comprises the Tour Operator’s fee for planning and/or arranging the Tour Package;
18.1.4. “Booking Acceptance Date” has the meaning ascribed thereto in clause 1.3;
18.1.5. “Booking Confirmation” means the written confirmation submitted by the Tour Operator to the Client, in such form as the Tour Operator may determine suitable in its sole and absolute discretion (including, by way of example, in the form of email communication), wherein the Tour Operator confirms the booking of the Tour Package, and which document will record (without limitation):
18.1.5.1. the Tour Operator’s full name, and VAT registration number, if any;
18.1.5.2. the Tour Operator’s address; and
18.1.5.3. a full description of the Tour Package;
18.1.6. “Booking Form” means the Tour Operator’s standard written booking form (as determined by it) which can be completed, signed and submitted to the Tour Operator for the purposes of engaging the services of the Tour Operator as contemplated herein, which standard booking form may be updated by the Tour Operator from time to time, without notice;
18.1.7. “Covid-19 pandemic” means the global Pandemic, also known as the “coronavirus pandemic”, caused by the spread of the novel coronavirus, first identified in December 2019 in Wuhan, Peoples’ Republic of China;
18.1.8 “Client” means the person/s who signed and submitted the Booking Form to the Tour Operator and/or otherwise who has indicated his/her/its acceptance of the Booking Form (and thereby the T’s and C’s);
18.1.9. “CPA” means the South African Consumer Protection Act, 2008 (Act No. 68 of 2008);
18.1.10. “Deposit” means a non-refundable deposit of 30% (thirty percent) of the Quoted Tour Price;
18.1.11. “Deposit Invoice” means the tax invoice issued by the Tour Operator to the Client with the Booking Confirmation, marked as the “Deposit Invoice”, and which shall record (without limitation), as separate line items, the quantum of:
18.1.11.1. the Deposit, exclusive of any Applicable Taxes (e.g. VAT) if any, and the Arranging Fee; and
18.1.11.2. the total international and/or domestic airfare/s payable (if any);
18.1.12. “ECTA” means the South African Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002);
18.1.13. “Final Invoice” means the tax invoice issued by the Tour Operator to the Client chronologically after the Secondary Invoice, marked as the “Final Invoice”, and which shall be issued in respect of the Final Tour Fee mutatis mutandis in accordance with the provisions of clause 17.1.10, and shall in addition record any third party charges payable by the Client in relation to any special request/s of the Client stipulated in the Booking Form (to the extent applicable);
18.1.14. “Final Tour Fee”, unless otherwise indicated by the Tour Operator in writing, means 70% (seventy percent) of the Quoted Tour Price;
18.1.15. “Parties” means, collectively, the Client and the Tour Operator, and “Party” shall mean any one of them as the context may indicate;
18.1.16. “Pandemic” means any illness or disease prevalent throughout an entire country, continent, or the whole world; epidemic over a large area, as declared or determined by any relevant authority as determined by the Tour Operator acting reasonably, including without limitation, the World Health Organisation;
18.1.17. “POPIA” means the South African Protection of Personal Information Act, 2013 (Act No. 4 of 2013);
18.1.18. “Quoted Tour Price” means the applicable quoted price including VAT (where applicable) and including the Arranging Fee for the Tour Package, as set out by the Tour Operator on its website (if any), failing which as set out in its brochures and advertising material, from time to time, which quoted price the Tour Operator may update/replace from time to time, without notice;
18.1.19. “Secondary Invoice” means the tax invoice issued by the Tour Operator to the Client chronologically after the Deposit Invoice, marked as the “Secondary Invoice”, and which shall be issued in respect of the Secondary Tour Fee mutatis mutandis in accordance with the provisions of clause 17.1.10;
18.1.20. “Secondary Tour Fee”, unless otherwise indicated by the Tour Operator in writing, means 0% (nil percent) of the Quoted Tour Price;
18.1.21. “Signature Date” means the date upon which the Client signed the Booking Form and/or the date on which the Client indicates his/her/its acceptance of the Booking Form (and thereby the T’s and C’s), as determined by the Tour Operator, acting reasonably;
18.1.22. “South Africa” means the Republic of South Africa;
18.1.23. “T’s and C’s” means these terms and conditions;
18.1.24. “Total Tour Price” means the Deposit plus the Aggregate Tour Fee;
18.1.25. “Tour Itinerary” means the itinerary relating to the Tour Package;
18.1.26. “Tour Operator” means the tour operator stipulated in the Booking Form;
18.1.27. “Tour Package” means the tour package planned and/or arranged and/or facilitated by the Tour Operator, as stipulated in the Booking Form;
18.1.28. “Tour Package Amendments” means any change of whatsoever nature required by any Party in relation to the Tour Package after the Signature Date, including (without limiting the generality of the foregoing) changes as to flights, dates and times, accommodation, arranged sightseeing and other details of and/or incidental to the Tour Package;
18.1.29. “Tour Start Date” means date of commencement of the Tour Package;
18.1.30. “VAT” means value added tax as contemplated in the VAT Act; and
18.1.31. “VAT Act” means the South African Value-Added Tax Act, 1991 (Act No. 89 of 1991).
18.2. INTERPRETATION
Furthermore, unless a contrary intention clearly appears:
18.2.1. references herein to “clauses” shall be to the clauses of these T’s and C’s;
18.2.2. the headings of the clauses are for the purpose of convenience and reference only and shall not be used in the interpretation of, nor modify, nor amplify these T’s and C’s;
18.2.3. words importing the singular, include the plural, and vice versa, and words importing the masculine gender shall include the feminine and neuter genders, and vice versa, and words importing persons shall include partnerships, trusts and bodies corporate, and vice versa;
18.2.4. if any provision in the definitions set out in clause 17 is a substantive provision conferring rights or imposing obligations on any Party, then notwithstanding that such provision is only contained in clause 18, effect shall be given thereto as if such provision were a substantive provision in the body of these T’s and C’s;
18.2.5. these T’s and C’s shall be binding on and enforceable by the permitted trustees, assigns or liquidators of the Parties as fully and effectually as if they had bound themselves hereto in the first instance and reference to any Party shall be deemed to include such Party’s permitted trustees, assigns or liquidators, as the case may be;
18.2.6. where figures are in these T’s and C’s described both in numerals and in words, words shall prevail in the event of any conflict between the two;
18.2.7. when any number of days is prescribed in these T’s and C’s, same shall be reckoned exclusively of the first and inclusively of the last day;
18.2.8. any reference in these T’s and C’s to legislation or subordinate legislation is to such legislation or subordinate legislation at the Signature Date and as amended and/or re-enacted from time to time;
18.2.9. any reference in these T’s and to any other agreement or document shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented;
18.2.10. where any term is defined within the context of any particular clause, the term so defined shall, unless it appears clearly from the clause in question that such term has limited application to the relevant clause, bear the meaning ascribed to it for all purposes in terms of these T’s and C’s, notwithstanding that such term has not been defined in this clause 17;
18.2.11. none of these T’s and C’s shall be construed against or interpreted to the disadvantage of the Tour Operator by reason of the Tour Operator having drafted such provision;
18.2.12. the words:
18.2.12.1. “sign”, signature”, “signing” and all derivatives thereof, when used in relation to the Booking Form, shall include an electronic signature as contemplated in ECTA; and
18.2.12.2. “completed”, “submit”, “submission”, “submitted” and all derivatives thereof, when used in relation to the Booking Form, shall include electronic completion and submission;
18.2.13. the words “include”, “including” and “in particular” shall be construed as being by way of example or emphasis only and shall not be construed, nor shall they take effect, as limiting the generality of any preceding word/s. Furthermore, the words “other” and “otherwise” shall not be construed ejusdem generis with any preceding words if a wider construction is possible; and
18.2.14. the expiration or termination of the Tour Package shall not affect such of these T’s and C’s as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
