FIT – TOUR BOOKING TERMS & CONDITIONS

Table Of Contents

GILTEDGE strongly recommends that all Clients purchase travel (and other suitable) insurance in amounts and for coverage relevant to that Client. It remains the Clients’ sole personal decision and responsibility to purchase the most comprehensive travel (and other) insurance policy possible. It is imperative that Clients fully understand the inclusions / exclusions covered by the said travel (or other) insurance policy. GILTEDGE will not be held liable for any shortfalls / exclusions in the said travel (and other) insurance policies.
I /We (i.e. the Client), hereby irrevocably and unconditionally accepts all of the risk (of whatever nature) associated with my / our travel being the subject matter of the Booking Form hereby acknowledging that it is fair and reasonable that I/we hereby waive any and all of my/our claim(s) in fact or law should I/we suffer any harm (of whatever nature) arising from: (i) my/our travel hereunder and/or (ii) my/our Tour Package and/or (iii) inadequate travel (or other) insurance and/or (iv) otherwise. I/We hereby irrevocably and unconditionally waive any claim/s we may have against the Tour Operator and hold each of the Tour Operator, its agents, employees (including the Suppliers) and their respective contractors harmless from any and all loss, damage or liability (of whatever nature) that I/we may suffer from my / our said travel and/or entry and/or our inadequate travel (or other) insurance and/or otherwise any harm that I / we may suffer consequent to my /our Tour Package (collectively, the “Waiver”). I/We understand that by agreeing to the Waiver, it means that I/we have no, or at best, a limited claim in fact and in law against the Tour Operator or my/our insurance provider should I/we suffer any harm (of any nature) arising from or attributable to my / our travel hereunder and/or my / our Tour Package.
Pursuant to the Waiver, by signing our Booking Form, I /we (i.e. the Client) thereby release and hold each of GILTEDGE, its employees and representatives harmless from all claims, damages and injuries (of whatever nature) arising from the Suppliers’ failure to implement, or enforce relevant health & safety protocols and / or my / our exposure to / or infection with any infectious diseases, including (without limitation) currently unknown diseases.

  • 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/s, visas and inoculations for the Tour Package, and wish, in full appreciation of all relevant facts, to proceed with the Tour Package all at the Client’s own risk; 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 the Client’s 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 to the Tour Operator, 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. confirmation on whether the Tour Package is in fact eligible for booking;
          • 1.2.1.4.2. modes of transportation used; 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 including the Waiver; and
      • 1.2.3. makes an offer to contract with the Tour Operator in relation to the Tour Package solely on the terms detailed in these T’s and C’s. These T’s and C’s take precedence and prevail over any other terms and conditions which the Client may propose (directly or indirectly or by way of conduct) to conduct business with the Tour Operator, all of which are hereby expressly rejected by the Tour Operator unless otherwise expressly agreed to in writing by the Tour Operator.
    • 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 automatically by that fact come into existence and bind the Parties on and with effect from the date of delivery by the Tour Operator of the Booking Confirmation (the “Booking Acceptance Date”), all on solely the terms and conditions contained in the Booking Form as read conjunctively with these T’s and C’s (and not any other terms).
    • 1.4. All payments received by the Tour Operator (including payments made by any third party service providers on behalf of the Client) shall constitute further confirmation of the Client’s acceptance of these T’s and C’s. Notwithstanding the aforegoing, the Parties record and agree that the mere non-receipt of any such further payments by the Tour Operator shall not, of itself, give rise to any inference that a contract between the Client and the Tour Operator has not come into existence in accordance with clause 1.3.
  • 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(1), 49(3), 49(4) and 49(5) of the CPA, the Client’s attention is specifically drawn to the Waiver and clauses 1.1, 1.2, 1.3, 2.2, 3.5, 3.8, 4.1.1.1, 4.2, 4.4, 4.5, 4.6, 4.7, 4.8, 5.1, 5.4.2, 5.6, 5.8, 5.10, 5.11, 5.12, 5.13, 5.14, 5.15, 5.16, 6, 7.2.1, 7.2.2, 7.3, 8.1 and 8.3 which impose certain obligations and/or assumptions of risk and/or acknowledgements by the Client/s of certain facts, 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 thereby 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 member of 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 detailed in clause 2.2.5.1, the Client will be entitled to lodge a complaint with the Information Regulator at inforeg@justice.gov.za or in person at JD House, 27 Stiemens Street, Braamfontein, Johannesburg, 2001 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 which terms 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 Final Invoice to the Client as soon as practicably possible, but in any event by no later than the date which is 68 (sixty-eight) days prior to the Tour Start Date;
    • 3.4. 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:
      • 3.4.1. 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;
      • 3.4.2. any such Tour Package Amendment or cancellation must be due to unforeseen circumstances, and not attributable to the wilful misconduct of the Tour Operator;
      • 3.4.3. if 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. After such election and written notice, the Tour Operator will issue the Client with an updated Booking Confirmation and an updated version of the invoice issued last in time to the Client (to the extent applicable) as soon as practicably possible thereafter; and/or
      • 3.4.4. if the Tour Operator elects to cancel the Tour Package, it shall advise the Client thereof on written notice 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 later of the date on which the said written notice of cancellation is received by the Client or 1 (one) day after it was sent by the Tour Operator). The Tour Operator will then refund to the Client, either by way of electronic funds transfer into the Client’s nominated bank account or otherwise via the same method by which the Tour Operator initially received funds from the Client, such portion of the Final 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;
    • 3.5. will use its commercially reasonable endeavours to, as applicable, 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 hereby 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; provided that no additional third party charges will be levied if the relevant special requests were not accommodated or accepted (as indicated in the Booking Confirmation);
    • 3.6. will on request, provide to the Client written proof of any insurance policies taken out in the Tour Operator’s name; and
    • 3.7. 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 hereby reserves the right to update such documentation from time to time, without notice, to bring same in line with the latest information available to the Tour Operator. The Client hereby 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.
    • 3.8. Role of the Tour Operator as Intermediary
      • 3.8.1. The Client hereby acknowledges and agrees that, in planning, arranging and facilitating the Tour Package, the Tour Operator acts solely as an intermediary regarding the various third-party suppliers (including, without limitation, hotels, lodges, camps, game reserves, scheduled and charter airlines, transfer companies, vehicle hire companies, guides, restaurants, activity operators, concession holders, conservation entities, boat operators and marine activity providers) (collectively, “Supplier/s”), and is not the principal supplier of any such services. The Tour Operator does not own, operate, manage or control any of the facilities, vehicles, equipment or personnel of any Supplier.
      • 3.8.2. All bookings made by the Tour Operator with Suppliers pursuant to a Tour Package are, in addition to these T’s and C’s also subject to the relevant terms, conditions and limitation of liability, if any, imposed by those Suppliers as if the Client had contracted directly with those Suppliers. The Client hereby agrees to be bound by each of such terms and conditions of the said Suppliers, copies or summaries of which Supplier terms and conditions are available from the Tour Operator on request.
      • 3.8.3. The Tour Operator shall not be liable for any act, omission, default, negligence, breach of contract, breach of statutory duty, delay, cancellation, schedule change, alteration, injury, illness, death, loss, damage, theft, non-performance or failure to meet any standard or quality by any Supplier or any person acting for or on behalf of any Supplier, howsoever arising.
      • 3.8.4. Without limiting the generality of clause 3.8.3, the Tour Operator shall not be liable for:
        • 3.8.4.1. any delay, cancellation, schedule change, re-routing, denied boarding or non-performance by any scheduled or charter airline;
        • 3.8.4.2. any failure by a Supplier to honour any reservation, voucher or commitment;
        • 3.8.4.3. the conduct of the Client or any other guests, travellers or third parties present at any property, vehicle or activity forming part of the Tour Package;
        • 3.8.4.4. the insolvency, business rescue, judicial management, administration, liquidation or cessation of operations, or any other similar impairment of any Supplier;
        • 3.8.4.5. any loss, theft or damage to the Client’s baggage, personal effects or property whilst in the custody or control of any Supplier;
        • 3.8.4.6. any failure by a Supplier to implement, maintain or enforce any health, safety or hygiene protocols, or any exposure to any disease, illness or medical condition (including any Pandemic or any other disease outbreak); or
        • 3.8.4.7. the quality, standard or condition of any accommodation, transport, activity, equipment or other service provided by any Supplier.
      • 3.8.5. The Client’s sole recourse in fact or in law in respect of any matter contemplated in this clause 3.8, if any, shall lie against the relevant Supplier directly. The Tour Operator will, on request, provide reasonable assistance to the Client (at the Client’s own cost) in pursuing such recourse, provided that any costs incurred by the Tour Operator in providing such assistance (including legal fees and administrative costs) shall be borne solely by the Client.
      • 3.8.6. The Tour Operator shall be exempt from any and all liability in respect of any claim whatsoever as aforesaid, the Client hereby specifically acknowledges that the Tour Operator is unable to exercise control over any Supplier and it is unreasonable to expect the Tour Operator to exercise such control or to be held responsible for the services provided by any Supplier. The Client hereby irrevocably and unconditionally accepts (pursuant to and in addition to the Waiver) for itself/himself/herself or themselves all of the risk (of whatever nature) associated with the Suppliers and hereby irrevocably and unconditionally holds each of the Tour Operator, its agents, employees (including the Suppliers) and their respective contractors harmless from all loss, damage or liability (of whatever nature) that I/we may suffer from any Supplier.
  • 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 3.5, 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 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 (in any circumstance whatsoever); 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; and
      • 4.1.2. 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 hereby 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. The Client hereby irrevocably and unconditionally accepts for itself/himself/herself or themselves all of the risk (of whatever nature) associated herewith and hereby irrevocably and unconditionally holds the Tour Operator harmless from any loss, damage or liability (of whatever nature) that it/ or s/he may suffer.
    • 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/s issued to the Client.
    • 4.4. Notwithstanding anything to the contrary contained in these T’s and C’s, unless the Tour Operator expressly 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.
    • 4.5. The Client hereby acknowledges and agrees that the Quoted Tour Price is calculated based on:
      • 4.5.1. the costs known to the Tour Operator and quoted to it by its Suppliers at the date of quotation;
      • 4.5.2. the prevailing rates of currency exchange at the date of quotation between the currency/ies of the Quoted Tour Price and the currency/ies which the Tour Operator’s Suppliers’ invoice the Tour Operator; and
      • 4.5.3. applicable taxes, levies, park fees, concession fees and other statutory charges as at the date of quotation.
    • 4.6. Notwithstanding clauses 4.1, 4.3 and 4.5, the Tour Operator hereby reserves the right to adjust the Quoted Tour Price and/or the Total Tour Price at any time prior to the Tour Start Date to reflect any variation to the costs quoted by it to the Client which variation is attributable to any one or more of the following:
      • 4.6.1. any increase in costs imposed or levied by any third party or any Supplier subsequent to the date of quotation, including (without limitation) fuel surcharges, aviation surcharges, airline surcharges, hotel and lodge tariff increases, transfer surcharges, seasonal surcharges and any other cost increases howsoever arising;
      • 4.6.2. any fluctuation or variance of more than 3% (three percent) in the relevant rate of currency exchange between the currency of the Quoted Tour Price and the currency/ies in which the Tour Operator settles its Supplier obligations, calculated between the date of quotation and the date of the Final Invoice (or such earlier date as the Tour Operator may in its sole discretion determine);
      • 4.6.3. any change, increase or introduction of Applicable Taxes (including VAT and any other taxes, duties or imposts) by any relevant taxation authority.
    • 4.7. If the Tour Operator exercises its right to adjust the Quoted Tour Price in accordance with clause 4.6, then:
      • 4.7.1. the Tour Operator shall notify the Client in writing of any such adjustment as soon as practicably possible after becoming aware of the relevant price increase, variation, change or fluctuation;
      • 4.7.2. the Tour Operator shall, on request from the Client, provide reasonable evidence of the basis for the relevant variation or adjustment; and
      • 4.7.3. the Client will have no claim against the Tour Operator in such circumstances, provided that the Tour Operator has complied with the notification and evidence requirements set out in this clause 4.7.
    • 4.8. Any adjustment to the Quoted Tour Price made in accordance with clause 4.6 shall be payable by the Client as part of, or in addition to, the Final Tour Fee, and the Client hereby irrevocably and unconditionally agrees to pay any such adjustment on or within 3 (three) days after the date of receipt (or deemed receipt) by the Client of a revised Final Invoice or supplementary invoice issued by the Tour Operator in this regard.
  • 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. Without limiting the generality of the Waiver, the Client hereby irrevocably and unconditionally agrees that the Tour Package involves travel to various destinations and participation in activities that may carry inherent risks. The Tour Operator will not be liable for any loss, damage, harm, injury, death or liability of whatever nature and howsoever arising (including as a result of the negligence of the Tour Operator, its agents, employees and/or contractors, except to the extent that such loss or damage arises directly from the gross negligence of the Tour Operator) which the Client, or its /their / his / her / our dependents or the Client’s property may suffer as a result of the Tour Package. The Client hereby acknowledges that s/he / it has been made aware of and understands the nature and potential effect of the risks associated with the Tour Package and, having considered those risks, elects to participate in the Tour Package voluntarily. The Client hereby expressly acknowledges it is fair and reasonable for the Client to waive any claim it/she/he may have against the Tour Operator and consequent hereto the Client hereby holds the Tour Operator harmless from any damage or loss (of whatever nature) that may be suffered by the Client consequent to the Tour Package; save as aforesaid to the extent that such loss, damage or liability is directly attributable to the gross negligence of the Tour Operator;
    • 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, communication (via whatever media), conduct, distribution or trade practice or advertising which is untruthful, or is or 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 clauses 5.1 and 5.2:
        • 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 hereby 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 64 (sixty-four) 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 at any time during the period commencing 64 (sixty-four) days prior to the Tour Start Date and ending 46 (forty-six) 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; and
          • 5.4.2.1.4. Cancellation and/or postponement of the Tour Package as a result of any Pandemic, epidemic and other public health or other similar health emergency or other event or circumstance beyond the reasonable control of the Tour Operator, 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 (unless the relevant third party Supplier has more stringent / stricter terms, in which event, the stricter/more stringent terms will apply), 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 portion of the Final 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 Pandemic-related factors and/or any events or circumstance/s which will prevent a party from fulfilling its obligations in terms hereof) 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 (including repatriation of mortal remains), death or incapacity and (v) loss of luggage and expenses associated with the cancellation or curtailment of the Tour Package. It is hereby 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;
  • 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), the Client thereby acknowledges and agrees that if 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 (i.e. the Client) OR THE CLIENT’S DEPENDENTS MAY HAVE A CLAIM (OF ANY NATURE IN LAW OR IN FACT) AGAINST THE TOUR OPERATOR, I/WE (i.e. the Client) WILL NOT PURSUE THAT CLAIM AND HEREBY HOLDS THE TOUR OPERATOR GROUP HARMLESS IN THAT REGARD. The Client hereby 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 person/s 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.
  • 5.13. WILDLIFE AND NATURE-BASED ACTIVITIES
      • 5.13.1. Without limiting the generality of the Waiver, or clauses 3.8 and 5.8, the Client hereby acknowledges and agrees that game viewing, wildlife encounters, walking safaris, gorilla and primate trekking, canoe and mokoro excursions, horseback riding and safaris, marine-based activities, hot air balloon activities and other nature-based activities forming part of the Tour Package involve interaction with wild animals and natural environments, and that:
        • 5.13.1.1. wildlife sightings are inherently unpredictable and cannot be guaranteed by the Tour Operator or any Supplier;
        • 5.13.1.2. the nature, frequency and quality of sightings depends on factors outside the control of the Tour Operator and its Suppliers, including (without limitation) seasonal animal movement, weather, vegetation cover, time of day and group dynamics;
        • 5.13.1.3. wild animals are dangerous and may cause serious injury, illness or death, and animal behaviour is unpredictable;
        • 5.13.1.4. the Client participates in all such activities at his/her/its sole and absolute risk; and
        • 5.13.1.5. the Client shall at all times comply with the reasonable instructions of guides, rangers, trackers, pilots, boat captains and camp or lodge management, and with all rules, regulations and restrictions (including those relating to photography, filming, drones, noise levels and approach distances) imposed by relevant applicable park authorities, conservation entities, Suppliers or the Tour Operator, and the Tour Operator shall not be liable for any consequences of the Client’s failure to do so.
      • 5.13.2. In respect of gorilla and primate trekking activities specifically, the Client hereby warrants and represents that s/he/it is medically and physically fit to participate, is free of any communicable illness or infection at the time of the trek, meets any minimum age requirements imposed by the relevant park authority or Supplier and hereby acknowledges that:
        • 5.13.2.1. trekking permits are non-refundable and non-transferable, irrespective of the Client’s ability to complete the trek, the duration of the trek or the outcome of the trek;
        • 5.13.2.2. the Client may be refused participation by park authorities or Suppliers on health, fitness, age or other grounds, in which event no refund shall be due from the Tour Operator or the relevant Supplier; and
        • 5.13.2.3. the Client shall comply with all pre-trek briefings, health screenings and behavioural protocols, and acknowledges that failure to do so may result in refusal of participation without refund.
      • 5.13.3. In respect of walking safaris, canoe safaris, mokoro excursions, horseback safaris, marine-based activities and similar activities, the Client hereby acknowledges the heightened risks inherent in proximity to wildlife on foot, in unmotorised craft or in/around water, including exposure to extreme weather conditions, difficult terrain, remote locations with limited access to medical facilities and assumes such risks unconditionally.
      • 5.13.4. The Client hereby irrevocably and unconditionally accepts for itself /herself /himself or themselves all of the risk (of whatever nature) associated with the activities contemplated in this clause 5.13 hereby acknowledging that it is fair and reasonable that the Client waive any of its / their / my/our claim(s) in law should the Client suffer any harm arising hereunder. The Client hereby irrevocably and unconditionally waives any claim/s that s/he / it / we may have against the Tour Operator and hold each of the Tour Operator, its agents, employees (including the Suppliers) and their respective contractors harmless from all loss, damage or liability (of whatever nature) that the Client may suffer consequent hereto.

 

  • 5.14. MINOR TRAVELLERS
      • 5.14.1. Without limiting the generality of clauses 1.1, 5.6 and 5.7, where any person detailed in the Booking Form is a minor (under South African law, a minor is a person under the age of 18), the Client hereby warrants and represents that the Client has at its/her/his own cost and expense, obtained and will at all relevant times carry, produce and make available all documents, consents, permissions and authorisations required for such minor to travel to, from and through each country forming part of the Tour Package.
      • 5.14.2. It shall be the sole responsibility of the Client and of any person travelling as or with a minor to familiarise itself/himself/herself with all laws, regulations and requirements applicable to minors in each country forming part of the Tour Package.
      • 5.14.3. The Client hereby acknowledges and agrees that any assistance, guidance or information provided by the Tour Operator in relation to travel documentation for minors is provided for general assistance only, and shall not constitute legal, immigration, consular or other professional advice. The Client shall at all times remain solely responsible for verifying, satisfying and complying with all applicable requirements directly with the relevant authorities, airlines, Suppliers and/or professional advisers.
      • 5.14.4. The Tour Operator shall not be liable for the Client suffering any denied boarding, refusal of entry or exit, detention, deportation, delay, cancellation, additional cost, loss, harm or damage of whatsoever nature arising from or in connection with the failure by the Client and/or any minor to hold, produce or comply with any required travel document, consent, permission or authorisation. The Client hereby irrevocably and unconditionally accepts for itself /herself /himself or themselves all of the responsibility contemplated in this clause 5.14. The Client hereby irrevocably and unconditionally waives any claims that it/s/he may have arising herefrom and to the extent applicable hereby indemnifies and holds the Tour Operator harmless against any such loss, liability, cost or expense suffered or incurred by the Tour Operator in connection therewith.

 

  • 5.15. INTELLECTUAL PROPERTY
      • 5.15.1. The Client hereby acknowledges and agrees that all right, title and interest in and to the Tour Operator’s itineraries, Tour Itineraries, proposals, quotations, pricing structures, know-how, trade secrets, methodologies, compilations, databases, photographs, images, designs, trade marks, logos, branding, marketing materials, brochures, website content and any other documents, materials or content prepared, generated, compiled, used or made available by or on behalf of the Tour Operator or any member of the Tour Operator Group, whether before or after the Booking Acceptance Date, are and shall vest in and remain the sole property of the Tour Operator (collectively, the “Tour Operator IP”).
      • 5.15.2. The Client is hereby granted a limited non-exclusive right to use the Tour Operator IP solely for the Client’s personal, non-commercial purposes of considering, booking and undertaking the Tour Package and for no other purpose whatsoever.
      • 5.15.3. The Client shall not, without the prior written consent of the Tour Operator, copy, reproduce, modify, adapt, publish, disclose, distribute, transmit, sell, licence, commercially exploit, reverse engineer or create any derivative works from any Tour Operator IP, or use any Tour Operator IP to procure, arrange or facilitate travel services from or through any third party or competing tour operator, save to the extent reasonably necessary to share the Tour Itinerary with the persons detailed in the Booking Form and/or the Client’s professional advisers solely for purposes of the Tour Package.
      • 5.15.4. The Client hereby acknowledges and agrees that any breach of this clause 5.15 may cause the Tour Operator loss and harm for which damages may not be an adequate remedy, and that the Tour Operator shall be entitled to seek any remedy available to it in law. The Client itself/herself/himself hereby waives any claims that it/s/he may have arising herefrom and to the extent applicable hereby indemnifies and holds the Tour Operator harmless against any loss, liability, cost or expense suffered or incurred by the Tour Operator arising from or in connection with any breach by the Client of this clause 5.15.

 

  • 5.16. DEATH OR INCAPACITY DURING THE TOUR
      • 5.16.1. Without limiting the generality of the Waiver or clauses 5.1, 5.6 and 5.8, if the Client or any other person detailed in the Booking Form dies, suffers any injury, illness, medical emergency or incapacity, or is otherwise unable to continue with the Tour Package, the Tour Operator shall have no obligations arising therefrom. The Tour Operator shall using its commercially reasonable endeavours, where reasonably practicable in the circumstances, assist with contacting the nominated emergency contact or next-of-kin, liaising with relevant Suppliers, insurers, medical service providers, emergency service providers and/or authorities, and facilitating such Tour Package Amendments or cancellations as may be reasonably necessary in the circumstances.
      • 5.16.2. The Client hereby warrants and represents that the Client has provided, or will provide before the Tour Start Date, accurate and up-to-date emergency contact and next-of-kin details for the Client and each other person detailed in the Booking Form (if any). The Client hereby authorises the Tour Operator to disclose relevant personal information to each such emergency contact, next-of-kin, Suppliers, insurers, authorities, medical service providers and emergency service providers to the extent reasonably required in connection with any death, injury, illness, medical emergency or incapacity arising during the Tour Package.
      • 5.16.3. The Client hereby acknowledges and agrees that the Tour Operator is not a medical, emergency, evacuation, repatriation, funeral, legal or consular services provider, and the Tour Operator does not warrant or represent that any such services will be available, suitable, timely, adequate or successful in any particular circumstance giving rise to the need thereof.
      • 5.16.4. All costs, charges and expenses arising from or in connection with any death, injury, illness, medical emergency or incapacity, including, without limitation, medical treatment, hospitalisation, evacuation, repatriation, additional transport, accommodation, communications, documentation, cancellation, amendment, funeral, mortuary, legal, administrative and third party charges, shall be for the sole account of the Client itself/herself/himself, the Client’s estate and/or insurer (as applicable) or any person who authorises, requests or accepts responsibility for such costs, charges or expenses on behalf of the Client. If the Tour Operator incurs or advances any such costs, charges or expenses, the Client itself/herself/himself and/or the Client’s estate, any such person and/or insurer shall reimburse the Tour Operator on demand on account of such costs, charges or expenses.
      • 5.16.5. If any Tour Package is cancelled, delayed or amended as a result of any death, injury, illness, medical emergency or incapacity contemplated in this clause 5.16, the Client shall have no claim of whatsoever nature against the Tour Operator, and any refund (if applicable) shall be limited to such amount, if any, as the Tour Operator is able to recover from the relevant Supplier/s after deduction of any costs, charges and expenses incurred by or on behalf of the Tour Operator. The Client hereby irrevocably and unconditionally waives any claims that it/s/he may have arising hereof and to the extent applicable hereby indemnifies and holds the Tour Operator harmless against any loss, liability, cost or expense suffered or incurred by the Tour Operator in connection with this clause 5.16.

 

  • 6. IMPLICATIONS OF PANDEMICS AND OTHER SIMILAR EVENTS
    • 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 (or probable future) recommendations and travel restrictions with regards to the risk of any Pandemic, epidemic and other public health or other similar health emergencies, or other event/s or other circumstance/s beyond the reasonable control of the Tour Operator, 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, epidemic and other public health or other emergencies, and they expressly assume all of the risks and dangers (of any nature) in relation thereto; and hereby waive, release, discharge and hold the Tour Operator, its 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; and
      • 6.1.3. s/he/ it will acquaint themselves with all laws and regulations related to the relevant Pandemic, epidemic and other public health or other emergencies 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, if any), 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, epidemic and other public health or other emergencies, whether or not they have 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 any Suppliers including the failure by the Suppliers to adhere to their own schedules, provide services or refunds or 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, epidemic and other public health or other emergencies.
    • 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.

In the event of any conflict between the provisions of clause 6 and clause 8, clause 8 shall take precedence and prevail.

  • 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 7.1.1 (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 (other than in respect of the Deposit) refund to the Client, either by way of electronic funds transfer into the Client’s nominated bank account or otherwise via the same method by which the Tour Operator initially received funds from the Client, such portion of the Final 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 any way.
  • 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, flood, material supply-chain disruption, government interventions affecting operations, a relevant Pandemic, epidemic and other public health or other emergencies and acts of God or any other matter beyond the reasonable control of the Party concerned (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 portion of the Final 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 or otherwise via the same method by which the Tour Operator initially received funds from the Client. 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 first 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 international commercial rules (or if they cease to be in existence, the then applicable domestic 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 9, 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 9, any arbitration hereunder (and these T’s and C’s) 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.
    • 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 10.
  • 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 or otherwise transfer 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 and/or other transfer 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 representatives or their employees) 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 15) 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 agree 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. “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;
      • 18.1.2. “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;
      • 18.1.3. “Booking Acceptance Date” has the meaning ascribed thereto in clause 1.3;
      • 18.1.4. “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):
        • 18.1.4.1. the Tour Operator’s full name, and VAT registration number, if any;
        • 18.1.4.2. the Tour Operator’s address; and
        • 18.1.4.3. a full description of the Tour Package;
      • 18.1.5. “Booking Form” means the Tour Operator’s standard written booking form (as determined by it) which must 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;
      • 18.1.6. “Client/s” 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);
      • 18.1.7. “CPA” means the South African Consumer Protection Act, 2008 (Act No. 68 of 2008, as amended);
      • 18.1.8. “Deposit” means a non-refundable deposit of 30% (thirty percent) of the Quoted Tour Price;
      • 18.1.9. “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:
        • 18.1.9.1. the Deposit, exclusive of any Applicable Taxes (e.g. VAT) if any, and the Arranging Fee; and
        • 18.1.9.2. the total international and/or domestic airfare/s payable (if any);
      • 18.1.10. “ECTA” means the South African Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002, as amended);
      • 18.1.11. “Final Invoice” means the tax invoice issued by the Tour Operator to the Client after the Deposit Invoice, marked as the “Final Invoice”, and which shall be issued in respect of the Final Tour Fee, 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);
      • 18.1.12. “Final Tour Fee”, unless otherwise indicated by the Tour Operator in writing, means 70% (seventy percent) of the Quoted Tour Price;
      • 18.1.13. “IO” bears the meaning herein as is ascribed thereto in clause 2.2.3.;
      • 18.1.14. “Parties” means, collectively, the Client and the Tour Operator, and “Party” shall mean any one of them as the context may indicate;
      • 18.1.15. “Pandemic” means any illness or disease prevalent throughout an entire region, country, territory, continent, or the whole world; or an 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;
      • 18.1.16. “POPIA” means the South African Protection of Personal Information Act, 2013 (Act No. 4 of 2013, as amended);
      • 18.1.17. “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;
      • 18.1.18. “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;
      • 18.1.19. “South Africa” means the Republic of South Africa;
      • 18.1.20. “Supplier/s” bears the meaning herein as is ascribed thereto in clause 3.8.1.;
      • 18.1.21. “T’s and C’s” means these terms and conditions;
      • 18.1.22. “Total Tour Price” means the Deposit plus the Final Tour Fee;
      • 18.1.23. “Tour Itinerary” means the itinerary relating to the Tour Package;
      • 18.1.24. “Tour Operator” means the tour operator stipulated in the Booking Form;
      • 18.1.25. “Tour Operator Group” means collectively, the Tour Operator and any of its subsidiaries, holding companies, affiliated companies, related or inter-related parties (as contemplated in the Companies Act, 2008), joint ventures, partnerships, and any trusts founded by or structured for the benefit of any of the foregoing, together with all such entities’ successors-in-title, wherever situated;
      • 18.1.26. “Tour Package” means the tour package planned and/or arranged and/or facilitated by the Tour Operator, as stipulated in the Booking Form;
      • 18.1.27. “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;
      • 18.1.28. “Tour Start Date” means the date of commencement of the Tour Package;
      • 18.1.29. “VAT” means value added tax as contemplated in the VAT Act;
      • 18.1.30. “VAT Act” means the South African Value-Added Tax Act, 1991 (Act No. 89 of 1991, as amended); and
      • 18.1.31. “Waiver” bears the meaning as is ascribed thereto in that introductory provision after the table of contents and immediately before clause 1.
    • 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 this clause 18 is a substantive provision conferring rights or imposing obligations on any Party, then notwithstanding that such provision is only contained in this 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. Terms and expressions defined in the main body of these T’s and C’s (and not clause 18.1) shall bear the same meanings in these T’s and C’s which do not themselves contain their own conflicting definitions;
      • 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 C’s 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 18;
      • 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.

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