—African Flying Adventures
TERMS AND CONDITIONS
TOUR INFORMATION INCORPORATING THE TOUR TERMS AND CONDITIONS
When you use this website, you must observe these terms and conditions. We reserve the right in our sole discretion, to make any changes or modifications we deem appropriate to the website. As a user of our website, you waive any right to receive notice of any change or modification to the website. Your responsibility remains to stay informed of any changes or modifications to the website. You agree that you are deemed to have accepted such changes or modifications by continuing to use or access the website or any revision thereof. If at any time you find any of the terms and conditions of the website unacceptable, you are required to cease all use of the website immediately.
ABOUT THE TOUR
We are African Flying Adventures (PTY) Ltd, based on 50 Long Street in Cape Town, South Africa. We offer touristic activities, including self-piloting flying adventures involving lodging, (commercial air) transportation or other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of our offer. All general aviation (GA) and self-fly-related activities and associated services, such as (making arrangements for) flight training or other GA-related services offered to you, are part of our offer unless explicitly stated in our Tour Offer.
The following booking information and conditions, together with the information set out on the relevant Tours page on the African Flying Adventures website, as well as the tour terms and conditions submitted with our quotation, will result in our Tour Offer to you and will form the collective agreement between you and us for your holiday with us.
WHAT IS IN THE HOLIDAY
· The following items are included:
o accommodation and all meals in lodges (unless otherwise stated in the itinerary);
o accommodation and breakfast in hotels (unless otherwise stated in the itinerary);
o safaris as offered by the capacity as part of their standard accommodation price;
o drinking water.
· The following items are not included (unless specifically mentioned in our Tour Offer to be included):
o any travel to or from the Meeting Point at the start of your Tour to your return home at the end of the Tour from the Meeting Point (which is likely to be the same place), unless specified explicitly in our Tour Offer;
o all other costs incurred before you arrive at the Meeting Point and after you return home from your final destination Meeting Point;
o travel insurance or any additional insurance personal to you;
o passport, visa costs;
o vaccinations and medication before, during and after the Tour;
o COVID-19-related charges such as evacuation, quarantine or hospitalisation costs;
o food and drinks over and above what we include in the Tour, unique wines, exclusive spirits and champagnes;
o gratuities you choose to give, in addition to any we offer on your behalf where we consider appropriate;
o aircraft rental, aircraft fuel, landing fees, flight training or piloting of your own or rented aircraft;
o flight permits, overland clearances, landing permits;
o taxis and local transportation;
o commercial flights, unless otherwise specified;
o car rental arrangements, unless otherwise specified;
o Rescue or support services in case you need assistance.
BOOKING YOUR HOLIDAY
· You can book at any time after you show us your interest by e-mail or through our website form; after that, we will send you our Tour Offer by e-mail, and with that, the time that our Tour Offer is valid.
· Such Tour Offer will consist of our Tour Terms and Conditions, as well as a quotation estimate setting out the tour itinerary and costs.
· We will hold a provisional booking for at most seven days after you receive our Tour Offer to allow you time to accept our Tour Offer and our Tour Terms and Conditions, and after that another seven days for you to send us the required deposit. The provision of our services by African Flying Adventures (PTY) Ltd is subject to availability. In cases of unavailability, African Flying Adventures (PTY) Ltd will refund you your deposit in full within 30 days.
· Once your deposit and signed Terms and Conditions have been received, we will send you a confirmation pro-forma invoice for the remaining amount to be paid for the Tour, which by receiving that pro-forma invoice confirms your booking.
· You are not allowed to combine our offered tour elements, lodge or hotel reservations or aircraft rentals with those from other suppliers without our written consent when you join one of our Tours.
TRAVEL ASSOCIATION
We are a full member of the South African Travel Organisation called SATSA.
TRAVEL INSURANCE
· We strongly recommend that you take out appropriate travel insurance when booking an African Flying Adventures Tour. We cannot approve the cover you have bought and are not responsible if it is inadequate.
· A cover should be obtained against normal travel risks and against additional risks appropriate to the destination country or countries of travel. In particular, local road transport insurance may be inadequate, so you should check that your cover includes accidents happening whilst you are a passenger in a vehicle, flying your own or a rented aircraft, and with search and rescue operations.
· We advise you to check that your travel insurance or home contents policy covers any valuable optical equipment.
PASSPORT, VISA AND HEALTH REQUIREMENTS
Please note carefully:
· To be safe, it is a good idea to make sure your passport is valid for at least 6 (six) months after the date of return of your Tour;
· Remember to apply for any necessary visa in good time;
· Check with your general practitioner (GP) what vaccinations and medication you may require and allow time to obtain them. Any GP that prescribes malaria medication to you should take into account the fact that you might be piloting an aircraft, that is, if you are joining a self‑piloting adventures safari tour with us to fly your own (rented) aircraft during the time;
· If the Tour takes place (partly) in third-world countries, you should take the (yellow) vaccination passport or booklet with you. It is your responsibility to ensure that you obtain all necessary inoculations, handle all the necessary medication and follow all medical advice about your holiday. Remember to bring certificates, COVID-19 passports or vaccination cards and confirmations with you in your hand luggage.
· We must be fully vaccinated and jabbed against the coronavirus SARS-CoV-2 to participate in our Tours. By not vaccinating, the whole group might be at risk if you travel with us on a group adventure tour. Please advise us if you plan to travel with us without being fully vaccinated yet against the SARS-CoV-2 virus. We might be unable to accommodate you if you are not fully immunised against the coronavirus, as we cannot bear the risks and associated costs if something goes wrong. It is your responsibility to get vaccinated and get the proper insurance for an emergency evacuation, hospitalisation and or quarantine requirement in case you are confronted with a coronavirus-related situation, whatever the source of the infection might be.
· If you need professional medical care whilst on tour, we will try to obtain it and inform your travel insurers as quickly as possible. Please ensure that you provide us with your next of kin details so we can arrange for them to be contacted in an emergency.
· You agree to repay us all costs we incur in providing this assistance, including payment for any transport and telephone calls, which must be reimbursed to the company.
TOUR INFORMATION
At least 2 (two) weeks before the Start Date, we shall send you detailed information about your Tour. The data can be provided to you by e-mail or our Tour App, which can be installed on smartphones and tablets running either a current version of the iOS or Android operating system. This information will include:
· Location of Meeting Point;
· Climate and clothing recommendations;
· Any essential details relevant to a particular site that we may visit;
· A checklist of items you should bring with you on your Tour;
· A detailed itinerary.
ACCOMMODATION
Accommodation will be in good quality hotels or lodges. We also use tented safari camps to reach a unique location for a price that fits the Tour objectives or adds to your safari experience. En-suite facilities will be provided wherever possible. We will discuss your exact accommodation requirements when you have made a booking, but please note:
· We reserve the right to change accommodation to that stated on our website itineraries – (see below “changes of itinerary”).
· Single rooms are generally available at an extra cost.
· Accommodation in some African countries will be lower than comparable accommodation in the EU or the US. In some cases, we believe that, for example, a tented camp in a wildlife reserve will give you an experience that extends staying in another accommodation up to higher standards, however missing the adventure and nature experience. We do our utmost best to provide you with the best total experience and expect from you some flexibility, especially where it involves a Tour covering several countries in the third world.
· If we offer walking safari tours, the accommodation will be in small tents or even in the open air.
CHANGES OF ITINERARY
· Despite careful planning, a site may become inaccessible due to matters outside our control, for example, a natural disaster, political turmoil or not getting the needed permits to enter a country or fly over it.
· It is also possible that new information on the movement of wildlife will, in our opinion, benefit the Tour participants generally by providing better flying and watching opportunities elsewhere.
· Therefore, we may decide to make changes to the itinerary to accommodate the above possibilities. We will tell you of any such change as soon as we choose to make it.
BAGGAGE RESTRICTIONS
We must work within the restrictions laid down by any carrier we use. Policies vary from one page to another and from time to time. We will tell you the exact allowances and terms after you have made a booking with us. If the tour includes a stay in the Okavango Delta, a soft travel bag is mandatory for travel to Chief’s Island in the Okavango Delta. On walking safari tours, you might have to bring your backpack.
If you have an unusual requirement, perhaps for medical reasons, contact us, and we will try to help you immediately.
LIMITATIONS ON OUR LIABILITY
We want you to enjoy a perfect holiday with us. We shall do our best to make your holiday memorable for you. Nonetheless, we must make clear the limitations of the law. We are not liable to you for:
· Any event which happens before you arrive at the Meeting Point or after you leave at the end of the Tour at the last Meeting Point;
· Any problem arising from your failure to reach the Meeting Point on time, for whatever reason (though we would do our best to help you in any way we reasonably could);
· The numbers or quality of wildlife you see on your African Flying Adventures Tour;
· Any aspect of goods or services you buy or accept other than those arranged by us;
· Medical problems or physical difficulties, even if you have told us about them in advance;
· Any infection with the coronavirus SARS -CoV-2 and its consequences;
· Covid-19 related emergencies, cancellations and costs;
· Other medical emergencies;
· Aircraft defects and emergencies;
· Your carelessness or negligence in any aspect of your behaviour whilst with us;
· Changes we reasonably make to an itinerary or accommodation or any other part of the management of a Tour;
· Problems or issues we could have resolved whilst on a Tour but which you raise only after your return.
· Injury, illness, death, loss (including loss of enjoyment or possessions), damage, expense, cost or other sum or claim of any description whatsoever which results from either:
o the act or omission of you or anyone in your party;
o The act or omission of a third party or African wildlife is not connected with the provision of your holiday.
· Services we have not provided. The services and features in your Tour are those specified in our Tour Offer. If you choose to buy other goods or services, such as general aviation (GA) related services during your holiday, those are not part of the package we provide, even if we assist you in your arrangement at your request. Accordingly, we are not liable to you for any happening in connection with that service or those goods.
LOCAL STANDARDS
· Laws, standards, culture and attitudes differ in many countries from what you reasonably expect at home. We are not responsible for standards of service, safety, hygiene and behaviour that may be lower than you are used to or expected.
· We do not represent or commit that all services will comply with applicable local laws and regulations. Failure to comply does not automatically mean the service supplier, or we have not exercised reasonable skill and care.
· Please also note that we will only be responsible for what our employees, agents and suppliers do or do not do if they were at the time acting within the course of their employment (for employees) or carrying out work we had asked them to do (for agents and suppliers).
FLIGHT AND OTHER TRANSPORT DELAYS: LIMIT OF OUR LIABILITY
· There is no guarantee that flights, trains or ferries will depart at the time specified. If they do not, we are not liable to you for any delay or cancellation or failure to take what you think are the best actions to take in particular circumstances.
· In the case of air travel, the airline is responsible for assisting with the Denied Boarding Regulations. We will try to keep you informed throughout the period of any delay.
· Our policy if a delay occurs is to continue with our plans until the flight (or another form of transport, if relevant) is cancelled with no suitable alternative flight being offered by the airline. However, if we considered it impossible to find a good alternative form of transport, we would cancel the holiday and refund you all holiday payments.
· Where any delay in returning home lasts longer than 24 hours, the airline should continue to meet your accommodation and reasonable meal expenses. This will be the case where the airline is an EU carrier or was due to depart from an EU airport. They may, however, require you to stay at the accommodation and take the meal arrangements they provide. We regret we cannot meet such expenses where the airline does not do so or where you choose not to accept the deals offered.
· Suppose you wish to find at any time to return home early or independently, for example, by booking an upgrade with the airline or organising overland travel. In that case, we will provide whatever assistance we can. All expenses involved in doing so will be your responsibility.
· EC Regulation No 261/2004 (The Denied Boarding Regulations) apply where the airline is an EU carrier, or the affected flight was due to depart from an airport within the EU. Where applicable, you must pursue the airline for the compensation or other payment due to you. The compensation set by the regulations is your full entitlement. It covers, for example, distress, disappointment, inconvenience or effects on other arrangements. We have no liability to make any payment to you in relation to the Denied Boarding Regulations or in respect of any flight cancellation or delay, downgrading of any flight ticket or denial of any boarding.
· Suppose, for any reason, we make a payment to you or a third party which the airline is responsible for following the Denied Boarding Regulations. In that case, you agree, when requested, to assign to us the rights you have or had to claim the payment in question from the airline.
· Remember that transport and other service providers have their booking conditions or conditions of carriage or service. You will be bound by these as far as that service is concerned. Such conditions may limit or exclude liability on the part of the relevant provider, and they are often also subject to international conventions.
WE NEED HELP FROM YOU
· Most African Flying Adventures holidays require reasonable physical fitness and appropriate footwear. It would help if you were prepared to walk up to a couple of miles daily, sometimes on uneven or slippery surfaces.
· If we provide medical help to you, whether or not you specifically ask for it, we will provide receipts for all costs (for your insurer), and you now agree to repay us that cost on your return from the Tour.
· Suppose, at any time, it is our opinion (given by any of our staff or Tour leaders) that you are acting in a way which may cause an accident, injury, discomfort or extreme displeasure to any other Tour member. In that case, we may exclude you from the program for the remainder of the Tour. You will understand that this extreme action will not be taken lightly but may be necessary to protect other clients' health, safety or enjoyment.
COMPLAINTS
We shall try our utmost to provide a happy and fulfilling holiday, but if we fail in any way, please do raise any issue with your Tour leader immediately. If your complaint cannot be satisfied and it is not dealt with to your satisfaction at the time of reporting it to the leader(s), then you should give us full details in writing immediately upon your return. We cannot respond to verbal complaints.
TERMS AND CONDITIONS
entered into between
African Flying Adventures (PTY) Ltd
(“the Company”)
and
(“the Client”)
for the Tour to be hosted at African Flying Adventures (PTY) Ltd
(“the Site”)
1.1. This Agreement describes the terms and conditions on which the Tour will be provided by the Company to the Client.
1.2. The definitions used in this Agreement are contained in clause 14.2.
1.3. The Company provides touristic activities including self-piloting flying adventures involving lodging, (commercial air) transportation or other tourist Tour not ancillary to transport or accommodation Tour.
1.4. The Client wishes to appoint the Company to provide the Tour to the Client.
1.5. The Parties have therefore entered into this Agreement to give effect to clause 1 and to related matters.
2. APPOINTMENT OF THE COMPANY TO PROVIDE THE TOUR
2.1. Subject to the terms and conditions of this Agreement, and with effect from the Effective Date, the Client hereby appoints the Company to provide the Tour on a non-exclusive basis.
2.2. The Company accepts the appointment referred to in clause 2.1.
3. TOUR
3.1. The Tour will include those described in the quotation; and
3.2. The Company shall commence rendering the Tour at the Site on the Tour start date and shall continue to host the Tour at the Site for the term of this Agreement.
3.3. At any time during this Agreement, the Client shall be entitled to change its selection of Tour and may choose to add or remove any of its selections set out in the quotation, provided that a request to vary the Tour selected is made in writing by the Client, which may be in the form of an email, and confirmed by the Company, in the form of a confirmatory email. If accepted by the Company all changes to a Tour shall be subject to an administration fee of 500 euro, over and beyond any other additional fees such as flights, accommodation etc.
3.4. Any such changes contemplated in clause 3.3 shall become effective 7 (seven) days after the Company has confirmed the request, in accordance with the terms of clause 3.3.
3.5. The terms of this Agreement shall apply to all Tours, and any additional or conflicting terms contained in any order will be void unless specifically agreed otherwise by the Company.
3.6. The Company's website, www.africanflyingadventures.com (“the Website”) will maintain a full and growing list of the Tours which will be made available to the Client, and the unique terms, conditions and pricing on which the Tour are provided (“the Tour”).
3.7. The Client agrees that the general information of the Tour, as available from time to time through the Website, is explicitly included as part of this Agreement and is binding on both the Company and the Client.
3.8. The Website will also describe tour packages explaining:
3.8.1. the Client's roles and responsibilities, including any administrative responsibilities required; and
3.8.2. Company's obligations.
3.9. Tour packages: the Client will advise the Company in writing which Tour it will subscribe to on the Effective Date. Thereafter, the Client may upgrade or downgrade its tour package on written notice to the Company (whether by email, or through the Website) with effect from the end of the following calendar month. The upgrade or the downgrade will be subject to agreement by the Client of the unique terms that apply to the new service package.
3.10. Changes to Tour: the Company will be entitled to add to, change, suspend and/or discontinue any Tour or any term on which the Tour are provided to the Client, at the Company’s' sole discretion. Such change in the Tour will be effective on written notice to the Client with effect from the end of the following calendar month (who will have the right to cancel the Tour if the change is not agreed to).
4. COMMENCEMENT, DURATION AND TERMINATION
4.1. This Agreement shall commence on the Effective Date and will continue in force and effect for the duration of the Tour.
4.2. The Company shall be entitled to terminate this Agreement immediately, if the Client:
4.2.1. is in breach of its obligations in terms of this Agreement;
4.2.2. has failed to pay the Tour Fees due in terms of clause 5 and such payments are outstanding for more than 30 (thirty) days from the due date referred to in clause 5.4;
4.3. Effect of termination: upon the termination of this Agreement for any reason all amounts outstanding by the Client shall become immediately due and payable, without demand or further notice of any kind, all of which are expressly waived by the Parties.
4.4. The termination or expiration of this Agreement shall not affect any liabilities or obligations, including, without limitation, payment and indemnification obligations, which arose pursuant to the terms of this Agreement prior to the date of termination of this Agreement.
5. TOUR FEES AND REFUNDS
5.1. In consideration for rendering the Tour, the Client shall pay to the Company the Tour Fees.
5.2. Invoicing of our Fees: the Company shall issue an invoice to the Client on acceptance of the Tour Package quotation.
5.3. Deposit: a deposit of 3,500 euro per person is required upon acceptance of the quotation.
5.4. Payment: the balance of the quoted and accepted Tour Fees shall be made by the Client to the Company no later than eight (8) weeks before the start of the planned tour. Exchange rates and Service Provider such as credit card fee increases shall apply. Card transactions will be acquired for African Flying Adventures via PayGate (Pty) Ltd who are the approved payment gateway for all South African Acquiring Banks. PayGate uses the strictest form of encryption, namely Secure Socket Layer 3 (SSL3) and no Card details are stored on the website. Users may go to www.paygate.co.za to view their security certificate and security policy.
Customer details will be stored by African Flying Adventures separately from card details which are entered by the client on PayGate’s secure site.
For more detail on PayGate refer to www.paygate.co.za.
The merchant outlet country at the time of presenting payment options to the cardholder is South Africa. Transaction currency is
South African Rand (ZAR).
African Flying Adventures takes responsibility for all aspects relating to the transaction including the sale of our services sold on this website,
customer service and support, dispute resolution and delivery of our services.
5.5. Taxes: in addition to the Service Fees, the Client shall pay any applicable Taxes, VAT, levies and customs duties with regard to the Tour.
5.6. Expenses: all expenses incurred by the Company in the course of providing the Tour shall be agreed in advance by the Client and will be included in the Company’s invoices.
5.7. General: all payments to be made by the Client to the Company in terms of this Agreement shall be made by the Client:
5.7.1. without set-off or deduction of any kind; and
5.7.2. into the Company's bank account, the details of which are set out on each invoice, or by Visa or Mastercard credit card, where we book the receipt of your payment minus any bank- or credit card charges/fees.
5.8. Non-payment: failure in due payment of the Tour Fees as contemplated in clause 5.4 shall result in cancellation of the Tour without any further notice. Any deposits shall be refunded at a 35% handling fee, that is where it is possible for us to cancel the lodge, hotel or other facility or activity we booked for you and to get the lodge, hotel or other facility or activity that was booked to cancel and refund to us.
5.9. Refunds: all amounts paid to the Company shall be refunded to the Client in the case where the Tour has been cancelled by the Company for any reason whatsoever within 30 days after the Tour has been cancelled.
6. CLIENT OBLIGATIONS
6.1. The success of the venture will depend essentially on the Client meeting the following requirements:
6.1.1. Obtaining comprehensive travel insurance
6.1.2. Owning a valid passport and VISA
6.1.3. Medical clearance received by a general practitioner
6.1.4. The Client has the physical fitness required to conduct a tour safari on the date of commencement of the Tour.
6.2. If the Client at any time ceases to comply with their obligations in terms of clause 6.1, then the Company shall have the option to terminate this Agreement by way of written notice to the Client, in accordance with the provisions of clause 4.
7. INTELLECTUAL PROPERTY
7.1. The Company owns and will continue to own all right, title and interest in and to the Intellectual Property, reports, sketches, diagrams, text, know-how, concepts, proofs of concepts, artwork, software, algorithms, methods, processes, or other technology provided or developed by the Company (or a third party acting on the Company’s behalf) pursuant to this Agreement in the course of rendering the Tour to the Client including modifications, enhancements, improvements or derivative works of any of the aforegoing, regardless of who first conceives or reduces to practice, and all Intellectual Property in any of the aforegoing (collectively, “the Company Intellectual Property”) shall belong to and be the absolute property of the Company.
7.2. To the extent necessary, the Client hereby unconditionally and irrevocably assigns all rights to the Intellectual Property, discovery, invention, secret process or improvement in a procedure to the Company.
The Company will not, under any circumstances, be liable to the Client for any costs, claims, damages (including, without limitation, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind), penalties, actions, judgements, suits, expenses, disbursements, fines or other amounts which the Client may sustain or suffer (or with which the Client may be threatened) as the result of, whether directly or indirectly, any act or omission in the course of or in connection with the implementation of this Agreement or in the course of the discharge or exercise by the Parties or their employees, agents, professional advisors or delegates of their obligations or rights in terms of this Agreement or the termination of this Agreement for any reason.
9. NO CONSEQUENTIAL LOSSES
Under no circumstances whatsoever shall either Party be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss or damage was actually foreseen or reasonably foreseeable), including but not limited to any loss of commercial opportunities or loss of profits, and whether as a result of negligent (including grossly negligent) acts or omissions of such Party or its servants, agents or contractors or other persons for whose actions such Party may otherwise be liable in law.
10. INDEMNITY
10.1 The Client hereby indemnifies and holds harmless the Company (including its shareholders, directors and employees, in whose favour this constitutes a stipulation capable of acceptance in writing at any time) against any claim by the Client or any third party for any costs, damages (including, without limitation, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind), penalties, actions, judgements, suits, expenses, disbursements, fines or other amounts arising, whether directly or indirectly, from a breach of this Agreement by the Company.
10.2 The Client further indemnifies the Company against any losses in respect to claims from the Client or other third party arising out of, or due to the execution of the Tour or occupation of the Site, as a result of death or bodily injury or illness of the Client or any other person, physical loss and damage to any property at the Site.
11. BREACH
If either Party breaches any material provision or term of this Agreement (other than those which contain their own remedies or limit the remedies in the event of a breach thereof) and fails to remedy such breach within 14 (fourteen) days of receipt of written notice requiring it to do so then the aggrieved Party shall be entitled without notice, in addition to any other remedy available to it at law or under this Agreement, including obtaining an interdict, to cancel this Agreement or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to the aggrieved Party's right to claim damages.
12. FORCE MAJEURE
12.1. Except for the obligation to pay monies due and owing, neither Party shall be liable for any delay or failure in performance due to events outside the defaulting Party’s reasonable control, including, without limitation, acts of God, earthquakes, labour disputes, actions of governmental entities (including but not limited to delay caused by customs regulations or a change in customs regulations), riots, war, terrorism, fire, epidemics or other circumstances beyond its reasonable control.
12.2. The obligations and rights of the defaulting Party shall be extended for a period equal to the period during which such event prevented such Party’s performance, provided that if such period exceeds 60 (sixty) days, then either Party shall be entitled to terminate this Agreement immediately on written notice while the Party’s performance continues to be prevented.
13. GENERAL
13.1. African Flying Adventures shall take all reasonable steps to protect the personal information of users. For the purpose of this clause, "personal information" shall be defined as detailed in the Promotion of Access to Information Act 2 of 2000 (PAIA). The PAIA may be downloaded from:
http://www.lawsofsouthafrica.up.ac.za/index.php/current-legislation.
13.2. Subcontract: the Company reserves the right to subcontract Tour to a third party organisation to provide Tour to the Client. Any such subcontract shall not relieve the Company of any of its obligations under this Agreement.
13.3. Warranties: the Company warrants that all Tours provided in terms of this Agreement shall be performed in a workmanlike manner. Save for this warranty, the Company gives no other warranties and makes no representations to the Client. The Client's sole and exclusive remedy for breach of warranty shall be, at the Company’s option, re-performance of the Tour, or termination of this Agreement and return of the portion of the Tour Fees paid to the Company by the Client for such non-conforming Tour.
13.4. Good faith: the Parties shall in their dealings with each other display good faith.
13.5. No assignment: no Party will be entitled to cede its rights or delegate its obligations in terms of this Agreement without the express prior written consent of the other Party.
13.6. No representation: to the extent permissible by law no Party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
13.7. Severability: any provision in this Agreement which is or may become illegal, invalid or unenforceable shall be ineffective to the extent of such prohibition or unenforceability and shall be severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement.
13.8. Counterparts: this Agreement may be executed in several counterparts, each of which shall together constitute one and the same instrument.
13.9. No stipulation: no part of this Agreement shall constitute a stipulation in favour of any person who is not a party to this Agreement unless the provision in question expressly provides that it does constitute such a stipulation.
13.10. Address for service: any notice, approval, request, authorisation, direction, or other communication under this Agreement shall be given in writing, directed to the addresses of the Parties set forth in clause 14.2, and shall be deemed to have been delivered and given for all purposes:
13.10.1. on the delivery date if delivered by email;
13.10.2. on the delivery date if delivered personally to the Party to whom the same is directed;
13.10.3. 1 (one) business day after deposit with a commercial overnight carrier with written verification of receipt; or
13.10.4. 5 (five) business days after the mailing date whether or not actually received, if sent by registered or recorded delivery post or any other means of rapid mail delivery for which a receipt is available to the contact at the address of the Party to whom the same is directed.
13.11. Governing law: this Agreement and any action related thereto shall be governed, controlled, interpreted and defined by and under the laws of the Republic of South Africa and the Parties submit to the exclusive jurisdiction of the High Court of South Africa (Western Cape Division, Cape Town).
OUR website is governed by the laws of South Africa and African Flying Adventures chooses as its domicilium citandi et executandi for all purposes
under this agreement, whether in respect of court process, notice, or other documents or communication of whatsoever nature African Flying Adventures (PTY) Ltd, 50 Long Street, Cape Town 8000, South Africa.
13.12. Whole agreement: this Agreement sets forth the entire agreement and supersedes any and all prior or contemporaneous agreements and representations, written or oral, of the Parties with respect to the transactions set forth herein, all of which are excluded, except for fraudulent misrepresentations. The Parties acknowledge that as of the date hereof, no binding commitments exist between the Parties with respect to the subject matter of this Agreement except as may be provided herein.
13.13. Amendment: no change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both Parties.
13.14 Our website is run by African Flying Adventures Pty Ltd based in South Africa trading as African Flying Adventures, Company Registration No: 2022 / 507088 / 07. Registered Office: 50 Long Street, Cape Town, Western Cape, 8000, South Africa.
14. INTERPRETATION
The headings of the clauses in this Agreement are for convenience and reference only and shall not be used in the interpretation of, nor modify nor amplify the terms of this Agreement, nor any clause of this Agreement. Unless a contrary intention clearly appears:
14.1. words importing:
14.1.1. any gender includes all others;
14.1.2. the singular include the plural and vice versa; and
14.1.3. natural persons include created entities (corporate or unincorporate) and the state and vice versa.
14.2. the following terms have the meanings assigned to them in this clause 14.2 and cognate expressions shall have corresponding meanings, namely:
14.2.1. “Acceptance Date” means the date on which the Client accepts these terms and conditions;
14.2.2. “Affiliate” means (with respect to any company, close corporation, trust or individual) any other company, close corporation, trust or individual which is related or controlled by, or controls the first mentioned company, close corporation, trust or individual, as described by section 2 of the Companies Act 71, of 2008;
14.2.3. “Agreement” means this agreement and all annexures, quotations, invoices and schedules attached to this agreement;
14.2.4. “Applicable Laws” means any law, by-law, ordinance, proclamation and/or statutory regulation which the Parties are required to observe by reason of the provision of the Tour, use of or business with the Tour and matters incidental thereto, including, but not limited to, any present or future legislation, measure, requirement, order, ordinance, rule, guideline, practice, concession, or request issued by any relevant authority, government body, agency or department, which is applicable to this Agreement;
14.2.5. “Business Day” means any day excluding Saturday, Sunday and a public holiday in the Republic of South Africa;
14.2.6. “Client” means the person or its Affiliate accepting these terms and conditions with the intention to embark on the Tour.
14.2.7. “Company” means African Flying Adventures Proprietary Limited (Company registration number 2022/507088/07), a private company registered and incorporated under the Companies Act, with chosen address 50 Long Street, Cape Town, 8000 and email: [email protected]
14.2.8. “Company Intellectual Property” means the Intellectual Property contemplated in clause 7.1.
14.2.9. “Effective Date” means the date on which the Client accepts these terms and conditions.
14.2.10. “Intellectual Property” means copyrights, patents, trademarks, designs or models, trade patterns, trade names and any other type of intellectual property and any rights to them (including applications for and rights to obtain or use same) which are used and/or held, whether or not currently used, by the Company in connection with its business and/or any other rights to such Intellectual Property;
14.2.11. “Parties” means the parties to this Agreement;
14.2.12. “Purpose” means in relation to this Agreement and the delivery of the Tour in terms of this Agreement;
14.2.13. “Quotation” means the quotation submitted to the client, specifying the specific Tour and the Tour Fees;
14.2.14. “Service Provider” means any third party appointed by the Company such as hotels, airlines, bus lines etc. which services are necessary to give effect to the Companies obligations in terms of this agreement;
14.2.15. “Site” means the location at which the Tour will be hosted by the Company, as described on the Quotation;
14.2.16. “Tax” means all taxes, charges, duties, levies, deductions, withholdings or fees of any kind whatsoever, or any amount payable arising out of the aforegoing, imposed, levied, collected, withheld or assessed by a governmental authority, together with any penalties, fines or interest relating thereto;
14.2.17. “Tour” means the Tour described in the Quotation to be delivered by the Company to the Client in terms of this Agreement;
14.2.18. “Tour Fees” means the tour fees described in the Quotation in relation to the Tour and further contemplated in clause 5;
14.2.19. “Tour Offer” means whatever documents, fee offer and associated terms and conditions sent in hard or soft copy to provide information, prices and conditions about a Tour.
14.2.20. “Tour Package” means a pre-arranged combination of at least two of the following components when offered for sale at an inclusive price and when the service covers a period of more than 24 (twenty-four) hours or includes overnight accommodation:
a) transport;
b) accommodation;
c) other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package;
14.3. reference to any legislation is to that legislation as at the Acceptance Date and as amended or re-enacted from time to time and includes any subordinate legislation made from time to time under such legislation. Any reference to a particular section in any legislation is to that section as at the Acceptance Date, and as amended or re‑enacted from time to time and/or an equivalent measure in any legislation, provided that if as a result of such amendment, the specific requirements of a section referred to in this Agreement are changed, the relevant provision of this Agreement shall be read also as if it had been amended as necessary, without the necessity for an actual amendment;
14.4. if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in this clause 14, effect shall be given to it as if it were a substantive provision in the body of this Agreement;
14.5. when any number of days is prescribed in this Agreement, the method for calculation shall be to exclude the first day and include the last day, unless the last day falls on a day that is not a Business Day, in which case the last day shall be the next succeeding Business Day;
14.6. if figures are referred to in numerals and in words and if there is any conflict between the two, the words shall prevail;
14.7. expressions defined in this Agreement shall bear the same meanings in schedules or annexures to this Agreement which do not themselves contain their own conflicting definitions;
14.8. if any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that the term has not been defined in clause 14;
14.9. the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement that expressly provide 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;
14.10. the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply;
14.11. any reference in this Agreement to a Party shall include a reference to that Party’s assigns expressly permitted under this Agreement and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be;
14.12. 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); and
14.13. any reference in this Agreement 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.
Version 2.4
