STANDARD TERMS

& CONDITIONS

STANDARD TERMS AND CONDITIONS OF SALE

 

FOR:

DYNAMO SPORTS TRAVEL (PTY) LTD

 

 

  1. PREAMBLE
  2. WHEREAS the COMPANY has provided the offering to the CUSTOMER which offering has been accepted;
  3. AND WHEREAS The COMPANY is a respected, organised and authorised travel operator in the market and is able to sell and distribute official travel packages for the tour within the territory.
  4. AND WHEREAS The CUSTOMER has read and understand, and accepts these terms and conditions read with the additional and complimentary terms referenced herein.

 

  1. DEFINITIONS

 

  • “The Company” means Dynamo Sports Travel (Pty) Ltd.

 

  • “The Conditions”             means these standard conditions of contract.

 

  • “Customer”             means any person or persons or entity or trust at

                                                            whose request or on whose behalf or in respect of                                         whom the COMPANY undertakes to transact with.          

The CUSTOMER is the recipient of the offering.

2.4      “Booking Form”                    the template form set out in Schedule 2 (Booking    

                                                            Form )

 

2.5     “Brand”             the sole operating brand of the COMPANY which is                   itself a respected, organised and authorised travel

            Operator in the market and is able to sell and distribute official travel packages for the Tour within the territory

                                               

 

2.6     “British & Irish Lions”   any team which is selected to represent The British

& Irish Representative Team i.e the Lions in a Match.

2.7      “Business Day”                    any day other than a Saturday, a Sunday, or a

                                                            public holiday in South Africa.

 

2.8      “Change”                               any change to a Booking requested by the

                                                     CUSTOMER or as required by the COMPANY.

 

2.9      “Confidential Information”  all information (including, without limitation,

            details of CUSTOMER) which is imparted or obtained in confidence under or in connection with this Agreement on, before or after the Commencement Date (whether in writing, verbally or by other means and whether directly or indirectly) or is of a confidential nature.

 

2.10    “Force Majeure Event”        any event or circumstances affecting the

                                                            performance of any provision of this Agreement

                                                            which is beyond the reasonable control of a party,

                                                            including, without limitation, strikes, industrial or civil

            disputes (other than disputes between the COMPANY and Employees), war, governmental or legislative action, cyber‐attack, riot, fire, flood, drought, adverse weather conditions, ash cloud, act of God, terrorism (including the threat of terrorism), any natural disaster, earthquake, endemic, epidemic, pandemic, COVID 19/ SARS CoV2 any relocation, cancellation or playing without spectators of a Match or the Tour by SARU or B&IL, and any legislation, regulation, ruling or omissions (including failure to grant any necessary permissions) of any    relevant government, court or any competent national or international authority or World Rugby.

 

2.11    “Services”                              means the offering as per 2.20 below and vice versa

 

2.12    “Insolvency Event”               the appointment of a receiver, administrator or

                                                            provisional liquidator in respect of a party; or the

                                                            passing of a resolution for a party’s winding‐up

                                                            (save for the purpose of a solvent restructuring) or

                                                            a winding up order made by a court in respect of a

                                                            party or the entry by a party into any composition or

                                                            arrangement with creditors (other than relating to a

                                                            solvent restructuring) or the cessation of a party to

                                                            carry on business or the taking by a party of any

                                                            steps or actions in connection with any of these

                                                            procedures.

 

2.13    “Intellectual Property

            Rights”                                   patents, trademarks, trade names, design

                                                            rights, copyright (including rights in computer

                                                            software, databases and domain names), Domains,

                                                            know‐how and moral rights and other intellectual

                                                            property rights which currently exist or are

                                                            recognized in the future, in each case whether

                                                            registered or unregistered, and including

                                                            applications for, and the right to apply for, the

                                                            foregoing, and all rights or forms of protection

                                                            having equivalent or similar effect to any of the

                                                            foregoing which may subsist anywhere in the world.

 

2.14    “Major Incident”                    an unexpected event that overturns, disorganises

                                                            and endangers the stability and reputation of the

            COMPANY, SART, B&IL, SARES, SARU, World Rugby or the Tour and may attract media exposure,

                                                            examples of which shall include (without limitation):

                                                            death or serious injury to anyone involved in the

                                                            Tour (including CUSTOMERs, Employees and

                                                            suppliers); inability for CUSTOMERs to access

                                                            Accommodation or other contracted services;

                                                            inability of CUSTOMERs to attend a Match on time

                                                            (e.g. major travel disruption) and/or

                                                            inclement/severe weather.

 

2.15    “Matches”                              Test Matches and Tour Matches.

 

2.16    “SART”                                   Tourvest Destination Management, A Division Of

                                                            Tourvest Holdings (Pty) Ltd Trading As SA Rugby

                                                            Travel;

 

2.17    “SARES”                                SA Rugby Events Services RF (Pty) Ltd;

 

2.18    “SARU”                                  South African Rugby Union an association of

                                                            persons with perpetual succession and juristic

                                                            personality and the governing body of rugby in

                                                            South Africa;

 

2.19    “Stadium”                              the stadium for each of the Matches as per the

                                                            offering as delineated in this agreement.

 

2.20    “Offering”                               The specific service offering provided to the

                                                            CUSTOMER by the COMPANY as set out in

Schedule 1 herein and may include inter alia tour packages and tour match ticket offerings, time lines, travel mechanisms and services, accommodation options, insurance solutions and relevant price points.

 

2.21    “Tax”                                       goods and services tax due under any Applicable

                                                            Law.

 

2.22    “Territory”                               Any country worldwide excluding countries which

                                                            are members of the European Union and/ or the

                                                            European Economic Area including Northern

                                                            Ireland and the United Kingdom as of the date of

                                                            this Agreement. For the purposes of this

                                                            Agreement.

 

2.23    “Ticket Terms and

            Conditions”                           means the terms and conditions applicable

                                                            to each Ticket, which terms and conditions are set

and referenced and available on the COMPANY’S  

official website (Ticket Terms and Conditions)

and which may be amended by the COMPANY

SARES, SARU, LTSA or B&IL (as applicable) from time to time in the COMPANY’s,

SARES’, SARU’s, LTSA’s or B&IL’s absolute

discretion (such amended terms and conditions to

be notified to the CUSTOMER by SART as soon as

practicable following such amendment and the

CUSTOMERs together shall be required to provide acceptance of such terms).

The CUSTOMER is herein directed to peruse and the ticket terms and conditions. To this end, the CUSTOMER confirms that it shall abide by each and every term as contemplated with those terms and conditions in addition to these terms and conditions as if same were evenly traversed herein.

2.24    Tour:                                       the British & Irish Lions’ tour to South Africa

                                                            which is scheduled to be held in July and

                                                            August 2021.

  1. APPLICABILITY OF CONDITIONS

 

The parties agree that these terms and conditions are binding and acceptable to both parties.

 

  1. QUOTATIONS AND BOOKINGS

 

  • No contract shall arise between the COMPANY and a CUSTOMER in respect of any booking placed by a CUSTOMER unless such booking is correctly placed by the CUSTOMER and acknowledged in writing by the COMPANY.
  • Acceptance of the booking by the COMPANY shall be evidenced by written confirmation and receipt of payment by the COMPANY to the CUSTOMER.

 

  1. OFFERING

 

5.1     The CUSTOMER herein accepts the offering and shall adhere to the terms and

                        conditions contemplated herein.

5.2     The offering is delineated in Schedule 1 hereto and is the foundation of the

engagement between the parties.

  1. OBLIGATIONS

 

6.1      The COMPANY shall comply with any and all applicable laws and contractual obligations applicable and in relation to the marketing, sale, and distribution of the offering and otherwise in performance of its obligations of these terms and conditions;

6.2      The CUSTOMER will comply with all reasonable and lawful directions and/or instructions of the COMPANY but in addition also those issued by SART, SARU and/or SARES from time to time, and in the absence of such directions and/or instructions generally act in such manner as it reasonably considers to be most beneficial to the COMPANY, and additionally SART’s and/or SARU/SARES’s interests;

6.3      The CUSTOMER will comply with all reasonable and lawful policies, procedures, standards, or guidelines as may be notified by the COMPANY as well as SART and/or SARU or SARES (in connection with this Agreement and/or the Tour) from time to time.

 

6.4   The CUSTOMER will at all material times, comply with the terms and conditions

contained herein and most especially shall conduct themselves in a manner which shall not bring the COMPANY into disrepute or cause a major event. The CUSTOMER shall comply with each and every applicable condition contained herein, as well as any and all obligations imposed by virtue of the ticketing terms as referenced in these terms and conditions (as amended from time to time) and any other obligations tacitly or implicitly imposed by the COMPANY from time to time.

 

 

 

 

  1. PAYMENT

 

7.1     Unless otherwise agreed in writing, all sums shall be paid to the COMPANY on      presentation of an invoice by the COMPANY to the CUSTOMER.

7.2   All payments due by the CUSTOMER to the COMPANY shall be paid without   deduction or demand. No set off shall be applied to any amount due to the  COMPANY and payment shall not be withheld or deferred on account of any    counterclaim.

7.3     If the COMPANY agreed to accept post-dated cheques in payment of any         amount due to it by the CUSTOMER, such acceptance will not constitute a

Novation of the CUSTOMERS original obligation. Accordingly, if payment

of any post- dated cheque is not met for any reason, the COMPANY will be

entitled to proceed against the CUSTOMERs original obligation or the unpaid

cheque or both.

7.4  The COMPANY does not accept any risk in respect of any cheques sent to it by post and payment of any amount due to the COMPANY which has been forwarded to it by cheque. Payment shall be deemed to have been made only when such cheque has been deposited into the COMPANY ’s bank account and duly cleared.

7.5  Prior to commencing work or delivery of any goods the COMPANY may require a deposit to be paid by the CUSTOMER or to be satisfied as to the financial standing of the CUSTOMER and the arrangements made by the CUSTOMER to pay the contract price. Until the deposit has been paid or it is so satisfied, the COMPANY shall not be obliged to retain and or deliver any tickets purchased.

7.6  An amount not paid on due date shall, in the discretion of the COMPANY , bear interest from due date until it is paid, at a rate not exceeding 2 (two) percentage points above the published prime overdraft lending rate from time to time of the COMPANY ’s principal bankers, or, if it is lower, at the maximum rate prescribed by law in respect of the amount in question.

7.7  A certificate purporting to be signed by a Manager of a bank which describes itself as the COMPANY ’s principal bankers in Durban, setting out the prime bank overdraft lending rate and the date and extent of any changes thereto shall be prima facie proof of its contents.

7.8  If at any time, the CUSTOMER fails to make payment, a certificate purporting to be signed by a Manager of the COMPANY describing such outstanding amounts, shall be prima facie proof of its contents.

 

  1. TERRITORY

 

      8.1      A CUSTOMER must have a billing address which is their permanent and

                  primary residential address in the Territory to constitute

                  a CUSTOMER located in the Territory for the purposes of this Agreement. The

CUSTOMER will provide the COMPANY upon reasonable notice, a list of all CUSTOMER’s billing addresses for inspection.

 

  1. TOUR PACKAGES

 

9.1   The CUSTOMER accepts the offering as per schedule 1 hereto.

9.2   The CUSTOMER further acknowledges that The COMPANY only markets, sells, or distributes Tickets as part of a Tour Package. And the CUSTOMER agrees that they will utilise the Travel Mechanism provided as part of the Tour Package. Any failure of the CUSTOMER to comply with the foregoing requirement shall constitute a material breach of this Agreement which shall entitle the COMPANY to terminate the Agreement with immediate effect, without prejudice to any other rights that the COMPANY may have.

9.3   The CUSTOMER shall not be entitled to re‐sell the whole or part of their Tour Packages to third parties.

 

  1. TICKETS

 

            10.1    The terms and conditions pertaining to the tickets as referenced herein but also

                        which are accepted by the CUSTOMER by signature to these terms and

conditions, and further, to its acceptance thereof on the COMPANY website are material and concomitant to these terms and conditions.

10.3  The CUSTOMER shall be informed by the COMPANY (prior to purchase) that any breach of the Ticket Terms and Conditions (including, for the avoidance of doubt and without limitation, the prohibitions on resale, transfer and commercial use) shall result in the cancellation of the relevant Tickets.

 

  1. PROHIBITED ACTIONS BY A CUSTOMER

 

11.1    The CUSTOMER shall not in any way engage or conduct itself in any manner which may be prejudicial, to the COMPANY or to bring the COMPANY and/or SART, The British & Irish Lions, SARU, SARES and/or World Rugby, the Game of Rugby Football Union or the Tour or its broadcasters or sponsors into disrepute.

 

 

  1. SERVICES OUTSIDE OF OFFERING

 

12.1  The CUSTOMER shall be solely responsible for its choice of travel services outside of the offering.

12.2  The CUSTOMER accepts full risk for all travel services and / or packages which are not included in the offering.

 

  1. BOOKINGS

 

13.1  The CUSTOMER may at any time during the Term place or make further Bookings for additional offerings, Tour Packages and/or COMPANY Products, but the CUSTOMER acknowledges that these will be subject to availability and price and the terms and conditions of those additional offerings, Tour Packages and/or COMPANY Products at the time of booking.

14.2  The CUSTOMER shall be responsible to the COMPANY for ensuring the accuracy of the terms of any Booking and for giving the COMPANY any necessary information relating to such Booking within a sufficient time to enable the COMPANY to perform its obligations under this Agreement.

14.3  The CUSTOMER acknowledges and agrees that its Bookings are based on its own independent commercial reasoning and it has exercised its own judgement in making the Bookings. Bookings are subject to the cancellation terms provided for in these terms and conditions.

 

  1. CHANGES TO BOOKINGS

 

14.1  The CUSTOMER acknowledges that if it has signed a Change Request, such request is an irrevocable offer to the COMPANY and the COMPANY is under no obligation to accept, progress or provide any Change Request (including where a Change Request is possible) and may choose to decline a Change Request at its sole discretion.

14.2  All Change Requests are subject to availability and a Change Request shall not become binding unless and until the COMPANY acknowledges and accepts same.

14.3  The CUSTOMER acknowledges that administration fees for change requests shall be charged in addition to ordinary charges raised and shall be payable as per invoice presented by the COMPANY.

 

 

 

 

           

  1. FRUSTRATION OF THE COMPANY’S PERFORMANCE BY MATTERS BEYOND ITS CONTROL

 

            15.1    If any performance by the COMPANY is prevented or delayed by strikes, lock       outs, shortened working hours, delays in          transport, accidents of any kind, any

                        default or delay by any subcontractor or suppliers of the COMPANY, war, political or civil disturbances, the elements or   any other cause whatsoever beyond the COMPANY ’s control, then the COMPANY shall have the election to either :

15.1.1 to either cancel the contract in question; or

15.1.2 postpone and extend the time for performance until the                  clause preventing or delaying performance ceases to apply;

                        15.1.3             if the COMPANY elects to extend the time for the performance in                             terms of this clause the CUSTOMER shall be entitled to cancel                                the contract, but accepts that it shall not automatically be entitled

                                                to refund. Such refunds are to be dealt in terms of the applicable

                                                provisions set out below.

 

 

  1. WARRANTIES

 

It is the sole responsibility of the CUSTOMER to determine the suitability of the offering purchased. The COMPANY gives no warranty, express or implied, concerning the suitability of the offering in relation to the CUSTOMERS personal circumstances. The COMPANY shall not be liable for any direct, indirect, consequential, or other loss, including loss to third parties, arising out of any unsuitability of the offering to the CUSTOMER.

  1. GENERAL INDEMNITY

 

The CUSTOMER indemnifies the COMPANY , its members and agents and employees against any claim made against the COMPANY , its members, its agents or employees, by any third party for any loss or damage suffered in consequence of any act or omission of the COMPANY , its member agents or employees, which act or omission was in any way related to the agreement between the CUSTOMER and the COMPANY .

  1. INTELLECTUAL PROPERTY, PATENTS AND COPYRIGHT

18.1  The COMPANY ’s goodwill, know how, business model and brands are

protectable interests (“the intellectual property”) either owned by the COMPANY or utilised under license / permission to it. The COMPANY at all times remains the owner or legal possessor of the intellectual property. The CUSTOMER may not in any way infringe the intellectual property and in particular the CUSTOMER may not engage directly with the COMPANY’s disclosed suppliers, industry partners and service providers and / or copy any of the COMPANYs brands;

18.2  The CUSTOMER undertakes and agrees to respect the COMPANY ’s       intellectual property.

18.3 The COMPANY accepts that any intellectual property rights associated with    the business of the COMPANY, including but not limited to trade names,         brands patents and copyrights, and any other intellectual property rights of

                        any kind shall to the extent that such rights do not vest in any third parties, vest

                        in the COMPANY .

18.4  In amplification of the CUSTOMERs nonpermitted use of the COMPANY ’s    intellectual property, the CUSTOMER shall too not be entitled to use any       intellectual property     belonging to the COMPANY for any other associated        entities or any other company or subsidiary of it without the written consent of the COMPANY which may be withheld by the COMPANY at its sole        discretion.

18.5 The intellectual property generated, developed, improved, or created pursuant     of the engagement between the CUSTOMER and the COMPANY shall too be    the property of the COMPANY.

18.6  Nothing in any agreement shall amount an assignment of the COMPANY ’s   intellectual property rights to the CUSTOMER.

 

 

 

 

 

 

 

 

  1. PROTECTION OF PERSONAL INFORMATION ACT, ACT 4 OF 2013

19.1  The PARTIES acknowledge their respective obligations to comply with the      substantive provisions of the Protection of Personal Information Act, Act 4 of

                        2013   (hereinafter referred to it as POPI). Where either party receives any personal information as defined in POPI it shall ensure that it is fully compliant with the provisions of the Act and shall only deal with the personal information to fulfil         its obligations under these terms and any other agreement entered into between the PARTIES. The personal information received shall not be further processed or disclosed without the consent of the disclosing         PARTY.

 

19.2 Each PARTY therefore understands and agrees, notwithstanding any contrary    provision in any other agreement between the parties, that each party retains    its full rights to pursue legal or equitable remedies in the event of any breach or threatened breach of the provisions dealing with POPI, and may prevent the   other party, any of its agents, employees or subcontractor, or any third party who has received records from that PARTY from violating this agreement by    any legal means available. Each PARTY further understands that a violation of the provisions dealing with POPI may subject that PARTY to applicable legal penalties, including those provided under POPI.

 

         19.3      Within 30 (thirty) days after the termination of the agreement between the

                  PARTIES for whatsoever reason, the receiving party shall return same or shall be obliged to destroy such personal information and shall not retain copies, samples, or excerpts. In the case where     the disclosing PARTY has elected for the personal information to be destroyed, the receiving PARTY shall within 10 (ten) days of receiving such instruction to destroy, send an Affidavit confirming the destruction of personal information.

 

  1. CONDUCT

 

20.1  The CUSTOMER acknowledges, that the COMPANY is contracting as principle and does not represent itself as an agent of SART.

20.2  The CUSTOMER acknowledges the good reputation of the COMPANY as well as the standing of SARU/ SARES and will not engage in any conduct which may be prejudicial or bring into disrepute the COMPANY, the British & Irish Lions, SART, SARES, SARU, the Tour, the sponsors and/ or any official

broadcasters of the tour or any match or World Rugby.

  1. ASSIGNMENT AND SUBCONTRACTING

 

The COMPANY may assign, transfer and/or sub‐contract any of its rights or obligations under this Agreement and/or charge or deal in any other manner with this Agreement or any of its rights or obligations.

 

 

 

  1. FORCE MAJEURE

 

In addition to the contractual terms as set out in clause 15 above, the following common law doctrine applies:

22.1  Neither party shall be liable to the other for its inability to perform any obligations

                  under this Agreement caused by a Force Majeure Event affecting that party,

                  save that the CUSTOMER shall not be relieved of its obligation to pay the Fees

                  to the COMPANY as a consequence of a Force Majeure Event.

22.2  If a Force Majeure Event occurs, then the affected party shall immediately notify

the other party of the nature and likely duration of the Force Majeure Event and

take all reasonable steps to reduce or mitigate its effect. As soon as reasonably

practicable after the cessation of the Force Majeure Event the affected party

shall notify the other party in writing of the cessation of the Force Majeure Event

and shall resume performance of its obligations under this Agreement.

22.3 If the Force Majeure Event (but in this clause “Force Majeure Event” shall not

                  include the rescheduling of the Tour) continues for a period of 30 (thirty) days

                  or more either party may terminate this Agreement provided such Force

                  Majeure Event is continuing at the date of termination.

 

22.4  Without prejudice to clause 23.1 and except as provided in clause 23.5:

 

(a) Where a Stadium is to be changed, or has been changed, or the Affected

Services are not capable of performance as a result of a Force Majeure Event (except due to an Excluded Event), the COMPANY will use reasonable endeavours to:

(i)    provide alternate Affected Services of an equal standard; and

(ii)   keep the CUSTOMER promptly informed, but shall not be liable

to pay the CUSTOMER costs (including any additional travel costs), expenses, damages, or compensation as a result of the change or inability to change the Affected Services. To the extent the COMPANY is able to recover amounts from the Service Providers for the Affected Services, those recovered amounts shall be used by the COMPANY to pay for Substituted Services. Should there be a shortfall between the amounts recovered and the Fees for the Substituted Services, such shortfall and any reasonable additional costs incurred by the COMPANY in accordance with this clause shall be borne by the CUSTOMER and the COMPANY shall invoice the additional cost to the CUSTOMER, such invoice to be paid within 14 (fourteen) days of receipt upon presentation of the said invoice;

(b) Where a Match has been cancelled or is played behind closed doors as

a result of a Force Majeure Event (except due to an Excluded Event), the COMPANY will provide a refund of the applicable proportion of the

Fees the CUSTOMER has paid in relation to that Match only, less any

monies that the COMPANY cannot recover from the relevant Service Providers or other third-party suppliers. Subject to the foregoing, the COMPANY shall not be liable to the CUSTOMER for any other losses whatsoever it suffers as a result of a Match cancellation or if a Match is played behind closed doors.

(c) Where a Match is postponed as a result of a Force Majeure Event,

subject to sub‐paragraph (e) below, the COMPANY will use reasonable endeavours to liaise with the Service Providers of the Affected Services and request that such Affected Services be changed to the dates of the rearranged Match date, but shall not be liable to the CUSTOMER if the Service Providers refuse to move the Affected Services to the new dates (save to the extent that the COMPANY receives a refund from such Service Provider) or for any other losses whatsoever. To the extent the COMPANY is able to recover amounts from the Service Providers for the Affected Services, those recovered amounts shall be used by the COMPANY to pay for the Substituted Services. Should there be a shortfall between the amounts recovered and the Fees for the Substituted Services, such shortfall and any reasonable additional costs incurred by the COMPANY in accordance with this clause shall be borne by the CUSTOMER and the COMPANY shall invoice the additional cost to the CUSTOMER, such invoice to be paid upon presentation. If such a Service Provider agrees to the change of dates of the Affected Services requested by the COMPANY but charges the COMPANY for making such a change or increases the rates then the COMPANY shall invoice the CUSTOMER for all such costs and charges and the CUSTOMER shall pay the COMPANY upon presentation of such invoice.

(d) Where the entire Tour has been cancelled (including where the Tour is

played without spectators) as a result of a Force Majeure Event (except due to an Excluded Event), the COMPANY will refund to the CUSTOMER the Fees paid less any monies that the COMPANY cannot recover from the relevant Ticket issuer(s), Service Providers, other third party suppliers, or its insurer.

(e) Where the entire Tour has been postponed as a result of a Force

Majeure Event, the COMPANY will use reasonable endeavours to liaise with the Service Providers making up the CUSTOMER’s Bookings and will request that the Affected Services be changed to the dates making up the rearranged Tour dates, but shall not be liable to the CUSTOMER if the Service Provider refuses to move the Affected Services to the new dates (save to the extent that the COMPANY receives a refund from such Service Provider) or for any other losses whatsoever. To the extent the COMPANY is able to recover amounts from the Service Providers for the Affected Services, those recovered amounts shall be used by the COMPANY to pay for the Substituted Services. Should there be a shortfall between the amounts recovered and the Fees for the Substituted Services, such shortfall and any reasonable additional costs incurred by the COMPANY in accordance with this clause shall be borne by the CUSTOMER and the COMPANY shall invoice the additional cost to the COMPANY, such invoice to be paid upon presentation. If such an Affected Services Service Provider agrees to the change of dates requested by the COMPANY but charges the COMPANY for making such a change or increases the charges then the COMPANY shall invoice the CUSTOMER for all such costs and charges and the CUSTOMER shall pay the COMPANY the invoice amount upon presentation.

 

(f) Where the COMPANY Product is not available or an event is cancelled

as a result of a Force Majeure Event (except due to an Excluded Event), the COMPANY will refund the applicable proportion of the Fee paid by the CUSTOMER in relation to the COMPANY Product affected less any monies that it cannot recover from its service providers which relate to the COMPANY Product.

22.5  The COMPANY shall not be liable to the CUSTOMER on any basis for any direct or indirect losses or damages as a result of any cancellation, curtailment, abandonment, postponement, Matches played without spectators or relocation of the Tour directly or indirectly resulting from:

 

(a)  Coronavirus (2019‐nCoV or SARS‐CoV‐2) or any other communicable disease, or threat or fear thereof (whether actual or perceived) (“Covid 19”); or

(b)  any national, court or religious mourning; together an “Excluded Event”.

 

22.6    The CUSTOMER acknowledges that it:

 

(a)   fully understands the allocation of risks, the risks associated with the Agreement and is prepared fully to undertake those risks and agrees that the allocation of risk between the parties and the limits on the COMPANY’s liability are fair and reasonable as the CUSTOMER is accepting the risks in return for the opportunity to participate in the official travel programme; and

(b)   understands that the COMPANY shall not be liable for any direct or indirect losses as a result of the CUSTOMERs being unable to travel for the Tour due to travel, quarantine or other restrictions imposed by a government or authority within the Territory excluding South Africa.

 

22.7 the COMPANY shall provide the CUSTOMER a refund where the Tour is cancelled as a result of Covid 19 or if the Matches proceed without spectators less those costs already incurred and not refundable. The CUSTOMER shall not receive a refund of any amounts should the Tour be postponed.

 

  1. NATIONAL CREDIT ACT

 

23.1   The PARTIES agree, that the National Credit Act does not apply to the   engagement between the PARTIES and their contracting to one another for the provision of goods and/ or services.

23.2   Notwithstanding the preceding provisions of these terms and conditions, in the    event that the National Credit Act 2005 is applicable to this agreement, then: –

24.2.1 should payment which is due in terms of these terms and                 conditions not be paid on the due date, then an incidental credit               agreement shall be deemed to be concluded in respect of the

offering and shall be deemed so 20 (twenty)             

                                                business days after the COMPANY first charges interest on their                            overdue account.

23.2.2 the provisions of the Act, insofar as they apply to an incidental            credit agreement shall apply to the offering by the COMPANY to

                                                the CUSTOMER;

23.2.3 the COMPANY shall be obliged to comply with the provisions of                the Act before being entitled to commence any legal proceedings              against the CUSTOMER to enforce any agreement;

23.2.4 the COMPANY shall be entitled to recover from the                       CUSTOMER all costs and charges permitted in terms of the Act;               and

23.2.5 if any provision of these terms and conditions are in conflict with               the Act, the relevant provisions shall not apply or shall be read           subject to the Act.

 

  1. NOTICES AND DOMICILIA

24.1   All notices to be given in terms of this agreement shall be in writing and shall  be delivered by hand or sent by prepaid registered post to the COMPANY at  Suite Ground Floor, Marwick Office Park, 30 Old Main Road, Hillcrest and to

                        The CUSTOMER at the Physical address set out in the CUSTOMER application form submitted to the COMPANY which selects as their domicilium citandi et executandi.

24.2   Each PARTY shall be entitled at any time to change its domicilium to any other    physical address within the Republic of South Africa provided that such change   shall take effect only upon delivery or deemed delivery of notice thereof to the     other PARTIES.

24.3   Any notice shall, if delivered by hand during normal business hours to the        person apparently in charge of the premises selected by the addressee for the  delivery of notices, be deemed to have been received on the date of delivery     and if sent by prepaid registered post be deemed to have been received 6 (six)  days after posting.

24.4   Notwithstanding the above any notice actually received by the PARTY to whom  it is addressed shall be adequate notice to it.

 

 

  1. CANCELLATION

 

25.1    Without prejudice to any other clause in this Agreement the COMPANY may terminate this Agreement immediately by notice in writing if:

 

(a)    the CUSTOMER is in breach of any material term of this Agreement and such breach is not capable of remedy;

(b)    the CUSTOMER is in breach of any material term of this Agreement and (where capable of remedy) such breach is not remedied within 7 (seven) days (24 (twenty‐four) hours within the Critical Time) after notice from the COMPANY to do so;

(c)       the CUSTOMER becomes subject to an Insolvency Event;

(d)       the Tour is postponed or cancelled;

(e)       the CUSTOMER commits repeated breaches (not being individually material) of this Agreement, the cumulative effect of which constitutes a material breach;

(f)        the CUSTOMER purports to assign or otherwise sub‐contract any of its rights or obligations under this Agreement; or

 

25.2   If notice of termination is given to the CUSTOMER pursuant to clause 26.1.(d) (except where such termination is due to an Excluded Event), if appropriate, will refund to the CUSTOMER the Fees the CUSTOMER has paid less any monies that the COMPANY cannot recover from the relevant Ticket issuer(s) or Service Providers.

 

  1. TRANSFER OF OBLIGATIONS BY COMPANY

 

26.1    In the event that the COMPANY is unable to perform the offering for reasons arising from the termination of the COMPANY’s appointment as an official reseller, the CUSTOMER accepts and consents to the COMPANY transferring its future obligations and liabilities under the contract to SA Rugby Travel (“SART”) at no extra cost to the CUSTOMER so that SART can continue to deliver the offering or part thereof and the CUSTOMER will be entitled to use same. The CUSTSOMER agrees to pay any money outstanding to be paid by it under the contract to SART. In the event that SART perform the offering under this clause the offering will be provided subject to SART Package Terms and Conditions provided by SART. The CUSTOMER will have the right to enforce the contract and pursue any claims or demands under it with respect to matters arising before the transfer with the COMPANY (but not SART) and nothing in the transfer of the offering to SART shall affect or prejudice any claim or demand that either of the parties have against the other relating to matters occurring before the date of transfer.”

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  1. PROVISION OF SERVICES

27.1          The provision of services is limited as per the offering contemplated in schedule 1 hereto;

 

27.2          The CUSTOMER will oblige and follow all applicable health and safety instructions whilst using the offering;

 

27.3          Whilst receiving the offering the CUSTOMERs shall be responsible for their conduct. If the he CUSTOMERs or Employees cause damage, costs or loss to:

 

                  (a)       the Service Provider’s property; or

 

                  (b)       the offering and/or

 

                  ©         any third party or their property;

 

they will be required to pay for any damage, costs, or loss immediately.

27.4          The CUSTOMER shall indemnify the COMPANY immediately on demand for any costs, expenses or charges that the COMPANY incurs as a result of damage, costs or losses to a Service Provider’s property, the offering and/or any third party or their property caused by the CUSTOMER.

 

27.5          The COMPANY and/or the Service Provider may refuse the CUSTOMER use of the offering or remove them if they are deemed to be behaving inappropriately (including drunken or abusive behaviour). The CUSTOMER shall not be liable to the COMPANY for the behaviour of other third parties over which it has no control.

 

27.6          The CUSTOMER shall be responsible for any damage or soiling caused to the Service Provider’s equipment or property by it. The CUSTOMER shall indemnify the COMPANY immediately on demand for any costs, expenses, or charges that the COMPANY incurs as a result of damage to a Service Provider’s property caused by the CUSTOMER.

 

27.7          The CUSTOMER shall be responsible to settle their individual accounts with Service Providers for any additional service charges incurred over and above the offering.

                  The CUSTOMER fully indemnifies the COMPANY immediately on demand for any and all costs and charges that are passed on to the COMPANY by the Service Provider or are charged to the COMPANY in respect of the same.

 

27.8          The CUSTOMER must timeously notify the COMPANY should it require any special requirements or assistance, for example wheelchair access. The COMPANY will liaise with its suppliers and confirm to the CUSTOMER if the arrangements are available. It is not always possible to provide special requirements and such arrangements are subject to availability and may incur additional charges. Service Providers may require the CUSTOMER to complete medical forms/questionnaires.

 

27.9          If special arrangements and/or medical assistance is required, this will need to be notified to the COMPANY not less than six months prior to the date of the offering.

 

27.10        There are strict immigration rules for travelling to South Africa with children. The CUSTOMER shall be responsible to contact the relevant authorities for the necessary travel requirements in its country of residency.

 

27.11        Children under the age of 18 (eighteen) will be refused use of the offering unless each child is accompanied by a parent or guardian. No child or multiple children are permitted to occupy Accommodation on their own. All bedrooms must be occupied by at least one responsible adult.

 

27.12        Specific provisions for children will not be provided by the Service Provider unless confirmed in writing. If this is not confirmed as part of the offering and it is required, CUSTOMERs must make their own arrangements.

 

27.13        If it is possible to hand back the offering or part thereof, the details of any hand backs will be set out in the Booking. Unless hand back provisions are included in the Booking, it will not be possible to hand back any offering and the CUSTOMER will be bound to pay for the Booking in full regardless of whether the offering is used.

 

  1. LIABILITIES AND INDEMNITIES

 

28.1   The COMPANY’s total aggregate liability arising under or in connection with this Agreement, including in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, shall as per the provisions above be limited to a sum equal to the total Fees paid by the CUSTOMER to the COMPANY at the time of the breach or non‐performance by the COMPANY.

28.2   The COMPANY shall not be liable to the CUSTOMER on any basis (including by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or otherwise under the terms of this Agreement), for any indirect or consequential loss or damage, any indirect loss of profit or revenue or business or loss of future business, or for any anticipated savings, costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the COMPANY, its employees or agents or otherwise) which arise out of or in connection with the operation of this Agreement.

28.3   Except as expressly and specifically provided in this Agreement the COMPANY assumes no responsibility for any liability, loss or damage suffered by the its CUSTOMER.

28.4   The CUSTOMER in addition to its general indemnity provided expressly indemnifies and shall keep indemnified on demand and hold the COMPANY SART, SARU, and SARES (and their respective directors, officers, employees, agents and representatives) (the “Indemnified Parties”) harmless from and against all losses, incurred or suffered by the Indemnified Parties arising out of or in connection with any breach by the COMPANY of any provision set out in this Agreement, or any acts or omissions of the COMPANY or any of its Employees or CUSTOMER. Losses for purposes of this paragraph shall include all direct, indirect, special and consequential losses, loss of profit, loss of reputation, all liabilities, actions, proceedings, claims, demands, awards and damages and all interest, penalties and legal and other reasonable professional costs and expenses on a full indemnity basis.

28.5   Nothing in this Agreement shall exclude or limit either party’s liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation or for any matter which cannot be excluded or limited by law.

28.6   The CUSTOMER may request, at its own sole cost and expense and acting reasonably, that the COMPANY take appropriate action (including, at the reasonable request of CUSTOMER, litigation, arbitration or compromise) against a Service Provider in the event that such Service Provider’s negligence has resulted in a claim by a CUSTOMER for compensation for personal injury or death being upheld against the COMPANY (or paid out by the COMPANY ’s insurers) for an amount in excess of R150 000 (one‐hundred and fifty rand) (a “Claim”), it being agreed that the COMPANY shall only be able to take any such action to the extent that the COMPANY itself has a valid claim against the applicable Service Provider. The CUSTOMER shall indemnify the COMPANY and keep SART indemnified, on demand, against any and all losses, costs (including legal costs), damages, liabilities, claims and expenses suffered or incurred by the COMPANY in connection with taking any such action.

28.7   Any action to be taken by the COMPANY pursuant to this clause 28.6 above shall be conditional upon the CUSTOMER:

 

(a)    giving written notice to the COMPANY that:

 

(i)    a Claim has arisen; or

(ii)   that the CUSTOMER intends to take any action that could result in a Claim, as soon as possible on learning of the same, such notice to specify the nature of the Claim (or potential Claim) in reasonable detail;

 

(b)    not having any other right or cause of action against the Service Provider in respect of the Claim (or potential Claim);

(c)    including provisions in the contract which, to the fullest extent permitted by law, exclude liability of Service Providers for the CUSTOMER’s own acts or negligence;

(d)    providing the COMPANY with all such information and assistance as it may reasonably require (at the CUSTOMERs own cost); and

(e)    providing adequate and appropriate security to the COMPANY (to the COMPANYs reasonable satisfaction) against any liability, costs, expenses, damages or losses which may be suffered or incurred by the COMPANY as a result of prosecuting such action.

 

28.8   If any action taken by the COMPANY pursuant to this clause 28 results in a monetary award of damages, and:

 

(a)    no leave to appeal has been sought by the applicable Service Provider and the deadline for seeking the same has expired; or

(b)    any and all grounds for appeal have been exhausted or denied, or

(c)    all possible appeals by the applicable Service Provider have been unsuccessful;

The COMPANY will pay the CUSTOMER the amount awarded against the Service Provider (including any costs award) less any costs or expenses incurred by or on behalf of the COMPANY in taking the relevant action which have not previously been paid to by the CUSTOMER.

28.9   If any action taken by the COMPANY pursuant to this clause 28 is unsuccessful, the CUSTOMER shall on demand pay the COMPANY any damages or costs awarded against the COMPANY and any and all costs or expenses incurred by or on behalf of the COMPANY in taking the relevant action which have not previously been paid by the CUSTOMER.

28.10  The obligations under this clause 28 shall survive the expiry or the termination of this Agreement.

 

 

 

 

  1. GENERAL

 

29.1   Signature.    

The PARTIES hereby acknowledge that no agreement shall come into place unless and until these terms and conditions have been acknowledged and accepted by the CUSTOMER.

29.2   Invalidity.

If any provision of this Agreement is judged to be invalid, the validity of any other provision shall not be affected and the invalid provision shall be deemed to be deleted; provided however that the parties shall use their reasonable endeavours to achieve the purpose of the invalid or unenforceable provision by a new legally valid provision.

29.3   Entire agreement.

These terms and conditions as read with the Ticket Sales Conditions as referenced herein together with the schedules and additional and / or complimentary terms and conditions contemplated therein sets forth the entire understanding of the Parties with regard to the subject matter hereof and supersedes all prior discussions, memoranda of understanding, protocols of intent and similar writings with regard hereto. The CUSTOMER waive the right to rely on any alleged express provision not contained in these terms. Moreover, these terms are to read together with any other agreement entered into between the parties as if specifically traversed therein.

29.4   No representations.

Neither party may rely on any representation, which allegedly induced that Party to enter into this Agreement, unless that representation is recorded in an Agreement.

29.5   Variation, cancellation, and waiver.

No contract varying, adding to, deleting from or cancelling any Agreement, and no waiver of any right under these terms or any Agreement, shall be effective unless specifically contemplated in these terms or otherwise reduced to writing and signed by or on behalf of all the Parties.

29.6   Indulgences.

No indulgence granted by a Party nor the partial exercise by any Party of any power, right or privilege shall constitute a waiver or abandonment of any of that Party’s powers, rights or privileges under these terms or any Agreement and that Party accordingly shall not be precluded, as a consequence of having granted that indulgence or partially exercised any power, right or privilege, from the exercise of that, or any other power, right or privilege, which may have arisen in the past or which may arise in the future.

29.7   Applicable law.

The interpretation, construction and effect of these terms and any agreement executed between the parties and the rights and obligations of the Parties hereto shall be governed by the laws of the Republic of South Africa.

29.8   Survival of terms.

The expiration or termination of any Agreement shall not affect such of the provisions of these terms as expressly provided 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.

29.9   Counterparts.

Any Agreement executed between the parties may be executed by the Parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.