Safari365, which for the purposes of this agreements will be deemed to include by means of incorporation, South Africa 365 Travel CC, incorporated in the Republic of South Africa, being a luxury experience travel company which conducts organisational services involved with assembling a bespoke tour package in Africa, at the request of our clients.
Whilst Safari365 has used its best endeavours to standardise Terms & Conditions, there may be instances, with specific reference to third party supplier bookings, it may be necessary from time to time to vary payment and/or other terms, in which the client will be notified at the time the booking is made.
1. ACCEPTANCE OF TERMS & CONDITIONS
1.1. The Client, in signing and submitting the Booking Request, thereby represents and warrants to the Company that, with effect from the Signature Date and every day thereafter until the expiration or earlier cancellation of the Tour Package, he/she is authorised to: (i) sign the Booking Request; and (ii) accept these T’s & C’s both in relation to himself/herself and on behalf of each of the other persons referred to in the Booking Confirmation (if any).
1.2. In signing and submitting a Booking Request, the Client thereby also:
1.2.1. acknowledges that the Client was provided with full information in relation to:
220.127.116.11. the Company (being its full name, licence or registration number (if any), and its VAT registration number (if any)
18.104.22.168. the address/es of the premises at which, or from which, the Company’s services will be supplied;
22.214.171.124. the salient details of the Tour Package and its features including, by way of example:
126.96.36.199.1. whether the Tour Package is in fact eligible for booking;
188.8.131.52.2. modes of transportation; and
184.108.40.206.3. places of accommodation and their nature;
220.127.116.11. the Total Tour Price, excluding any Applicable Taxes;
18.104.22.168. the amount of any Applicable Taxes;
22.214.171.124. the Total Tour Price, including any Applicable Taxes;
126.96.36.199. the Arranging Fee; and
188.8.131.52. the currency in which amounts under these T’s & C’s are payable;
1.2.2. acknowledges that the Client read and understood these T’s & C’s; and
1.2.3. makes an offer to contract with the Company in relation to the Tour Package on the terms detailed in these T’s & C’s.
1.3. Subject to clause 6.1, upon the Company accepting an offer from the Client as contemplated in clause 1.2.3 (by way of the issuance 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 full amount of the Deposit payment (contemplated in clause 4.2.1).
2. PROVISION OF SERVICE
2.1. Safari365 is acting as an agent only and is not liable for any loss, damage, accident, delay or inconvenience caused by the Principal Operator for products and/or services included within the Tour Package.
The Company shall:
2.2. provide the Client with organisational services involved in assembling a tour package, for which the Company will charge the Client an Arranging Fee;
2.3. procure necessary reservations with Third Party Suppliers in accordance with the Clients Booking Request;
2.4. make necessary payments with Third Party Suppliers in accordance with the Clients Booking Request.
3. QUOTED TOUR PRICE
3.1. The Quoted Price of a Tour Package is subject to fluctuating variables, including but not limited to changes in rates of exchange, rates and availability of Third Party Suppliers.
3.2. may quote the Client in four supported currencies (US dollar, British sterling, Euro and Australian dollar).
3.3. does not guarantee a Tour Package may be booked at the Quoted Price. The Client submitting a Booking Request in relation to a Quoted Price does not constitute a binding Sale & Purchase Agreement between the Company and the Client.
3.4. reserves the right to amend and/or withdraw a quote in one/multiple/all supported currencies without notice or prejudice to the Company. The Client acknowledges and agrees that the company may amend and/or withdraw a quote without notice. If and to the extent that the Company elects to amend and/or withdraw a quote, the Client hereby agrees that he/she/it will have no claim of any nature against the Company.
4. BOOKING CONFIRMATION, PAYMENT AND DEPOSIT
4.1. As contemplated in clause 6.1, the Company will as soon as practically possible after receipt of the Booking Request, issue a Booking Confirmation to the Client.
4.2. Subject to: (i) at all times the provisions of clause 4.3; and to (ii) any additional third party charges to the Client in relation to special request/s as contemplated in clause 6.5, 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 Payment and Balancing Payment to the Company as follows:
4.2.1. as regards the Deposit, the Client shall pay the full amount thereof, as stated in the Booking Confirmation, within 3 (three) days of receipt (or deemed receipt) of the Booking Confirmation. It is agreed that:
184.108.40.206. the Deposit is not refundable to the Client; and
220.127.116.11. in the event that the Company does not receive the full amount of Deposit within 3 (three) days of receipt (or deemed receipt) of the Booking Confirmation, the Client acknowledges and agrees that the Company may amend and/or withdraw the booking without notice. If and to the extent that the Company elects to amend and/or withdraw the booking, the Client hereby agrees that he/she/it will have no claim of any nature against the Company;
4.2.2. as regards the Balancing Payment, the Client shall pay the full amount thereof to the Company no later than 60 (sixty) days prior to Arrival Date;
provided that, in the event that the Booking Acceptance Date is within 60 (sixty) days of the Arrival Date, then the Client will pay the Total Tour Price to the Company within 3 (three) days of receipt (or deemed receipt) of the Booking Confirmation. All such payments shall be made by way of cleared electronic funds transfer into the bank account of the Company as indicated in the relevant invoice, or by way of such other method of payment as may be stated in the relevant invoice.
4.3. The Client agrees that the due dates for payment contemplated in clause 4.2 are subject to a Third Party Supplier (of the Company) requiring earlier/later payment, and/or payments of seasonal deposits. In any such event, the Company will notify the Client of such fluctuation in writing 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 Company in such circumstances.
4.4. Unless otherwise agreed in writing by the Parties, all amounts payable under these T’s & C’s shall be payable in the currency of payment as indicated in the relevant Booking Confirmation issued to the Client.
4.5. Unless otherwise agreed in writing by the Parties, all amounts payable under these T’s & C’s shall be payable to the nominated account of the Company or that of a nominated Third Party Collection Agency.
4.6. Notwithstanding anything to the contrary contained in these T’s & C’s, unless the Company consents in writing to other payment arrangements:
4.6.1. the Client will at all times remain liable for payment of all amounts due and payable by the Client to the Company under these T’s & C’s; and
4.6.2. the Client is and will remain liable to the Company for all amounts due and payable up to the date of expiration or earlier cancellation of the Tour Package.
5. AMENDMENTS, CANCELLATIONS AND REFUNDS
5.1. will be entitled to request Tour Package Amendments and/or Cancellation the Tour Package, at any time, provided that:
5.1.1. the Client communicates, without delay, any such Tour Package Amendments and/or Cancellation to the Company in writing;
5.1.2. in the event that the Client elects to amend the Tour Package:
18.104.22.168. subject at all times to the provisions of clause 3, the Company will quote the Client the Amended Total Tour Price for the Tour Package Amendments;
22.214.171.124. subject at all times to the provisions of clause 4, the Company will request written acceptance from the Client of the Amendments and Amended Total Tour Price; and
126.96.36.199. subject at all times to the provisions of clauses 4 and 5.1.2, the Company will reissue to the Client an Amended Booking Confirmation, Tour Package Itinerary and Balancing Statement.
188.8.131.52. the Client will be liable to pay a Tour Package Amendment Fee;
184.108.40.206. the Amendment Fee is agreed as USD 100.00/ GBP 75.00/ EUR 85.00/ AUS 135.00 for each Tour Package Amendment requested;
220.127.116.11. the Amendment Fee payable is due in the currency of payment as indicated in the relevant Booking Confirmation issued to the Client;
5.1.3. 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 Company), subject at all times to the provisions of clause 8.2.2:
18.104.22.168. the Client will be liable to pay a Cancellation Fee to the Company, calculated in accordance with the following dates/periods of cancellation and percentages (which is agreed as being reasonable):
Cancellation greater than 60 (sixty) days from Arrival Date: Total amount of non-refundable Deposit
Cancellation between 60 (sixty) – 31 (thirty one) days from Arrival Date: 50% (fifty percent) of the Total Tour Price
Cancellation less than 30 (thirty) days from Arrival Date: 100% (one hundred percent) of the Total Tour Price
22.214.171.124. any such aforesaid Cancellation Fee will be paid by the Client to the Company within 14 (fourteen) days of the relevant date of cancellation, by way failing which the Client will remain bound by the Tour Package and payment therefor in full; and
5.1.4. the Company 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 Company, less any additional costs (whether bank charges, exchange rate gains/losses or otherwise) and/or fees due to the Company (whether as an Amendment Fee, Cancellation Fee or otherwise), as soon as practicably possible after receipt by the Company of the Amendment and/or Cancellation contemplated in clauses 5.1.2 and 5.1.3, and no Party shall have any other claim of whatsoever nature against the other in such circumstances;
6. COMPANY’S RIGHTS AND RESPONSIBILITIES SPECIFICALLY
6.1. will as soon as practicably possible after receipt by it of the Booking Request (as signed and submitted by the Client):
6.1.1. 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
6.1.2. issue the Booking Confirmation to the Client, together with the Tour Itinerary and all relevant details incidental thereto,
it being recorded that the Company shall inform the Client in writing (including, by way of example, via email) should the Company be unable to comply with the provisions of this clause 6.1 for any reason whatsoever;
6.2. 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;
6.3. will issue a Balancing Statement to the Client as soon as practicably possible after the date of receipt (or deemed receipt) by the Client of the Deposit payment, but in any event by no later than the date which is 60 (sixty) days prior to the Arrival Date;
6.4. 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:
6.4.1. the Company will at all times use its commercially reasonable endeavours to avoid having to make such Tour Package Amendments and/or Cancellation of the Tour Package;
6.4.2. any such Tour Package Amendment or Cancellation must be due to unforeseen circumstances, and not attributable to the wilful misconduct of the Company;
6.4.3. in the event that the Company elects to amend the Tour Package only, then the Company will inform the Client thereof on 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 Tour Itinerary as soon as practicably possible thereafter; and/or
6.4.4. in the event that the Company 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 Company 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 Company, and not otherwise forfeited to the Company (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;
6.5. will use its commercially reasonable endeavours to secure/procure/enable the Client’s special requests as stipulated in the Booking Request (if any), or advise the Client that such special requests cannot be accommodated. The Company will only undertake to procure those special requests as are expressly accepted by the Company in the Booking Confirmation. All special requests accepted by the Company will be subject to additional third party charges to the Client. The Client acknowledges and agrees that all special requests indicated in a Booking Request cannot be guaranteed by the Company. If and to the extent that the Company is unable to arrange/procure the relevant special requests, the Client hereby agrees that he/she/it will have no claim of any nature against the Company;
6.6. will on request, provide to the Client written proof of any insurance policies taken out in the Company’s name;
6.7. is entitled to take photographs and video record the Client (digitally or otherwise) and any and all of the other persons detailed in the Booking Confirmation (if any) on and during the course of any Tour Package, provided that the Company may only do so to the extent that same does not cause unreasonable inconvenience or annoyance to the persons concerned. Unless otherwise expressly indicated by the Client in writing by no later than the Tour Start Date
6.7.1. the Client hereby grants freely and on a fully informed basis, his/her/its consents to any and/or all such photographs and/or video recordings; and
6.7.2. the Client hereby cedes, assigns and transfers to the Company, all right, title, ownership and interest in and/or to all intellectual property rights arising and/or created pursuant to the operation of this clause 6.7 presently known or hereafter ascertained, and specifically agrees that the Company may use all and/or any of such material for advertising or other business related purposes on and/or in any media whatsoever without any payment to the Client therefor or any further agreement thereto.
7. CLIENT’S RIGHTS AND RESPONSIBILITIES SPECIFICALLY
7.1. hereby irrevocably and unconditionally agrees that he/she/it is taking the Tour Package at his/her/its own risk;
7.2. will adhere strictly and at all times to these T’s & C’s and the provisions of the Booking Confirmation;
7.3. will not engage in any activity, conduct, distribution or trade practice or advertising method which will be harmful, directly or indirectly, to the Company;
7.4. will promptly comply with any reasonable instruction given by the Company in relation to the Tour Package and matters/aspects incidental thereto;
7.5. will at the Client’s expense, take out comprehensive travel insurance from the time of Booking Request, for the duration of the Tour Package, which insurance shall at least cover the loss of Client’s personal effects, loss or harm to the Client personally, the Client’s medical, hospital, emergency travel and evacuation expenses, repatriation, loss of luggage and expenses associated with the cancellation or curtailment of the Tour Package. It is agreed that:
7.5.1. the Client will procure insurance from an insurer and in such amounts of its election;
7.5.2. 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 Request (if any), including in relation to the safekeeping of baggage and personal effects, at all times;
7.5.3. the Client will timeously seek 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 Request (if any);
7.5.4. the Company 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 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; and
7.5.5. the client acknowledges that any Emergency Evacuation Cover provided to the Client by the Company is not a substitute for comprehensive travel insurance set out in clause 7.5.
7.6. will at the Client’s sole cost and expense, to the extent applicable:
7.6.1. 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 Company will not be responsible for any persons participating in the Tour Package without the required documents; and
7.6.2. 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 Company will not be responsible for any persons participating in the Tour Package who fail to make such arrangements;
7.7. by accepting these T’s & 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 Confirmation (if any) assume/s such risks. 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 Company 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;
7.8. will, if applicable, stipulate special requests (if any) in the Booking Request, failing which the Client will be deemed to have no special requests;
7.9. will ensure that all payments due to the Company are paid to the Company on the due date thereof and otherwise strictly in accordance with these T’s & C’s;
7.10. will not engage in any activities which causes inconvenience or annoyance to any other persons participating in the Tour Package; and
7.11. will in the unlikely event that the Client has a complaint against the Company, 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 Company to investigate and address the complaint. If the Client has any further complaint same must be lodged with the Company 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 7.11, then the Company will not investigate or continue to investigate any such complaint, and the Client will have no claim of whatsoever nature against the Company in such circumstances.
8. BREACH, CANCELLATION DUE TO BREACH AND INCIDENTAL MATTERS
Save as otherwise provided for in these T’s & C’s:
8.1.1. if the Client fails to timeously pay to the Company any amount due to the Company hereunder, and fails to remedy such breach within a period of 3 (three) days after receipt by the Client of written notice from the Company calling for such default to be remedied, the Company will be entitled to (without prejudice and in addition to any other rights or remedies which the Company may have in law), on written notice to the Client, immediately resile from these T’s & C’s and cancel the Tour Package; and
8.1.2. if any of the Parties commits a breach of these T’s & C’s (other than the breach contemplated in clause 8.1.1) 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 & C’s and cancel the Tour Package accordingly.
8.2. Cancellation due to breach
8.2.1. In the event that the Company cancels the Tour Package in accordance with the provisions of clause 8.1 (and unless the Parties agree otherwise in writing), the Client will be deemed to have forfeited to the Company, 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 Company as at the Breach Cancellation Date. The Client will have no claim of whatsoever nature against the Company in such circumstances.
8.2.2. In the event that the Client cancels the Tour Package in accordance with the provisions of clause 8.1.2, the Company 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 Company, and not otherwise forfeited to the Company (whether as a cancellation fee or otherwise), as soon as practicably possible after the Breach Cancellation Date.
8.3. Indemnity for breach by the Client
Without prejudice to any rights or remedies available to the Company arising from these T’s & 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 Company (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 Company, should the Client and/or any of the other persons detailed in the Booking Confirmation (if any) breach these T’s & C’s in anyway.
9. FORCE MAJEURE
9.1. If any Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under these T’s & 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 and acts of God (each a “Force Majeure Event”), the Affected Party shall be relieved of its obligations hereunder for the period of the Force Majeure Event. 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.
9.2. The Affected Party shall 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.
9.3. 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 be automatically cancelled, and the Company shall be required to refund to the Client such aggregate portion of the Aggregate Tour Fee paid by the Client to the Company, and not otherwise forfeited to the Company (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.
10. DISPUTE RESOLUTION
10.1. 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 & C’s, including (but not limited to) any question as to the existence, validity or termination of these T’s & C’s, the Parties will attempt in good faith, by negotiation, to resolve the dispute between themselves.
10.2. 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.
10.3. As regards any such arbitration:
10.3.1. 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;
10.3.2. unless otherwise agreed by the Parties in writing, the arbitration shall be held in Cape Town, South Africa; and
10.3.3. the arbitrator shall be obliged to give in writing the reasons for any decision made by the arbitrator in the course of the arbitration.
10.4. 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.
11. ADDRESSES FOR LEGAL PROCESSES AND NOTICES
11.1. Any notice or process to be served on either of the Parties in terms of these T’s & C’s may be served on such Party at the following addresses:
11.1.1. as regards the Client, the address specified in the Booking Request; and
11.1.2. as regards the Company, the address specified in the Booking Confirmation.
11.2. 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.
11.3. Any notice or other communication to be given to either of the Parties in terms of these T’s & 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.
11.4. A notice given as set out above shall be deemed to have been duly given and received (unless the contrary is proved):
11.4.1. if delivered by hand, on the date of delivery;
11.4.2. if sent by courier, on the date of delivery by the courier service concerned; or
11.4.3. 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.
11.5. 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 11.
Any of these T’s & 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 & C’s, without invalidating the remaining T’s & C’s or affecting the validity or enforceability of any of these T’s & C’s in any other jurisdiction.
13. CESSION, DELEGATION, ASSIGNMENT
13.1. The Company 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 Company’s rights and/or obligations under these T’s & C’s to any third party (“the Cessionary”).
13.2. On any cession, assignment and/or delegation taking place in terms of clause 13.1, the Client shall, if so required by any Cessionary, make all payments directly to the Cessionary in question.
13.3. The Client will not, without the prior written consent of the Company, be entitled to cede, assign, delegate or otherwise transfer any of the Client’s rights or obligations under these T’s & C’s to any third party.
14. WHOLE AGREEMENT
These T’s & C’s, as read conjunctively with the Booking Confirmation, constitutes the whole agreement between the Parties in relation to the subject-matter of the Booking Confirmation, and the Company shall not be bound by any representation/s, warranty/ies, undertaking/s, promise/s or the like (whether or not made by the Company, its companies or servants) which are not recorded herein or in the Booking Confirmation.
15. 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 & C’s or estop the Grantor from enforcing strict and punctual compliance with these T’s & C’s.
16. NO VARIATION
No variation of, addition to, consensual cancellation of or waiver of any right arising in terms of these T’s & C’s (including this clause 16) and/or the Booking Confirmation shall be of any force or effect unless expressly agreed by the Parties in writing (including, by way of example, via email communication).
17. GOVERNING LAW
To the maximum extent permissible, these T’s & C’s shall be governed by and construed in accordance with the laws of South Africa.
All and any costs incurred by either Party arising out of or in connection with a breach of any of these T’s & 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.
19. DEFINITIONS AND INTERPRETATION
In these T’s & 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:
19.1.1. “Aggregate Tour Fee” means the aggregate amount of the outstanding Total Tour Fee;
19.1.2. “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;
19.1.3. “Arranging Fee” means that portion of the Total Tour Price which comprises the Company’s fee for planning and/or arranging the Tour Package;
19.1.4. “Balancing Payment” means the Aggregate Tour Fee outstanding from the Client to the Company;
19.1.5. “Balancing Statement” means the written confirmation submitted by the Company to the Client, in such form as the Company may determine suitable in its sole and absolute discretion (including, by way of example, in the form of email communication), wherein the Company will record (without limitation);
126.96.36.199. the Total Tour Price;
188.8.131.52. the aggregate value of Deposit/s received by the Company from the Client in relation to the Tour Package;
184.108.40.206. the Balancing Payment;
220.127.116.11. the applicable due date/s of which Payments are due by the Client, to be received to the Company’s nominated bank accounts;
19.1.6. “Booking Acceptance Date” has the meaning ascribed thereto in clause 1.3;
19.1.7. “Booking Confirmation” means the written confirmation submitted by the Company to the Client, in such form as the Company may determine suitable in its sole and absolute discretion (including, by way of example, in the form of email communication), wherein the Company confirms the booking of the Tour Package, and which document will record (without limitation):
18.104.22.168. the Company’s full name;
22.214.171.124. the Company’s address; and
126.96.36.199. the description of the Tour Package booked;
19.1.8. “Booking Request” means the Company’s standard form (as determined by it) which can be completed, signed and submitted to the Company for the purposes of engaging the services of the Company as contemplated herein, which standard booking request may be updated by the Company from time to time, without notice;
19.1.9. “Client” means the person who signed and submitted the Booking Request to the Company;
19.1.10. “Deposit” means a non-refundable proportion of the Quoted Tour Price;
19.1.11. “Deposit Invoice” means the tax invoice issued by the Company 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:
188.8.131.52. the Deposit, exclusive of any Applicable Taxes (e.g. VAT) if any, and detailing:
184.108.40.206.1. the portion thereof which compromises the Arranging Fee; and
220.127.116.11.2. the portion thereof which comprises the Company’s fee for the facilitation of the Tour Package;
18.104.22.168. any applicable taxes (e.g. VAT);
22.214.171.124. the Deposit, inclusive of any Applicable Taxes (e.g. VAT) if any; and
126.96.36.199. the total international and/or domestic airfare/s payable (if any);
19.1.12. “ECTA” means the South African Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002);
19.1.13. “Parties” means, collectively, the Client and the Company, and “Party” shall mean any one of them as the context may indicate;
19.1.14. “Quoted Tour Price” means the applicable quoted price including VAT (where applicable) and including the Arranging Fee for the Tour Package;
19.1.15. “Signature Date” means the date upon which the Client signed the Booking Request;
19.1.16. “South Africa” means the Republic of South Africa;
19.1.17. “T’s & C’s” means these terms and conditions;
19.1.18. “Total Tour Price” means the total value of Tour Package including the Arrangement Fee;
19.1.19. “Tour Itinerary” means the itinerary relating to the Tour Package;
19.1.20. “Company” means the Company stipulated in the Booking Confirmation;
19.1.21. “Tour Package” means the tour package planned and/or arranged and/or facilitated by the Company, as stipulated in the Booking Confirmation;
19.1.22. “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;
19.1.23. “Tour Start Date” means date of commencement of the Tour Package;
19.1.24. “VAT” means value added tax as contemplated in the VAT Act; and
19.1.25. “VAT Act” means the South African Value-Added Tax Act, 1991 (Act No. 89 of 1991).
Furthermore, unless a contrary intention clearly appears:
19.2.1. references herein to “clauses” shall be to the clauses of these T’s & C’s;
19.2.2. 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 & C’s;
19.2.3. 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;
19.2.4. if any provision in the definitions set out in clause 19 is a substantive provision conferring rights or imposing obligations on any Party, then notwithstanding that such provision is only contained in clause 19, effect shall be given thereto as if such provision were a substantive provision in the body of these T’s & C’s;
19.2.5. these T’s & 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;
19.2.6. where figures are in these T’s & C’s described both in numerals and in words, words shall prevail in the event of any conflict between the two;
19.2.7. when any number of days is prescribed in these T’s & C’s, same shall be reckoned exclusively of the first and inclusively of the last day;
19.2.8. any reference in these T’s & 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;
19.2.9. any reference in these T’s & 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;
19.2.10. 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 & C’s, notwithstanding that such term has not been defined in this clause 19;
19.2.11. none of these T’s & C’s shall be construed against or interpreted to the disadvantage of the Company by reason of the Company having drafted such provision;
19.2.12. the words:
188.8.131.52. “sign”, signature”, “signing” and all derivatives thereof, when used in relation to the Booking Request, Booking Confirmation and these T’s & C’s, shall include an electronic signature as contemplated in ECTA; and
184.108.40.206. “completed”, “submit”, “submission”, “submitted” and all derivatives thereof, when used in relation to the Booking Request, Booking Confirmation and these T’s & C’s, shall include electronic completion and submission;
19.2.13. 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 eiusdem generis with any preceding words if a wider construction is possible; and
19.2.14. the expiration or termination of the Tour Package shall not affect such of these T’s & 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.