Terms & Conditions
AFRICAN AERIAL SAFARIS PROPRIETARY LIMITED
CLIENT TERMS AND CONDITIONS
CONTENTS
- Definitions and interpretation
- Appointment
- Duration
- Third Party Service Providers
- Reservations and Deposits
- Cancellations and Refunds
- Itinerary and Reservation Variations
- Travel Documentation
- Insurance
- Travelling Minor
- Medical and Travel Restrictions
- Special Requirements
- Photographs and use of images
- Indemnity
- Limitation of Liability
- Risks for additional accommodation and/or damages due to unplanned events
- Warranties and Representations
- Force Majeure
- Personal Information
- Dispute Resolution
- Marketing Material and Information
- General Provisions
1. Definitions and interpretation
1.1 Definitions
For the purposes of these Terms and Conditions, unless the context requires otherwise:
1.1.1 “AAS” means African Aerial Safaris Proprietary Limited (registration number 2019/229478/07), a company registered and incorporated under the laws of the Republic of South Africa;
1.1.2 “Applicable Law” means any of the following, from time to time, to the extent it applies to a Party: (i) any statute, regulation, policy, by-law, ordinance or subordinate legislation (including treaties, multinational conventions and the like having the force of law); (ii) the common law;
(iii) any binding court order, judgment or decree; (iv) any applicable industry code, policy or standard enforceable by law; or (v) any applicable direction, policy or order that is given by a regulator;
1.1.3 “Amendment Fees” bears the meaning ascribed thereto in clause 1.1;
1.1.4 “Business Day” means a day, other than a Saturday, Sunday, or public holiday in the Republic of South Africa;
1.1.5 “Carrier” means a Third Party Service Provider who may render air, road, rail and/or sea transportation services to the Client and who would issue applicable tickets required for such transportation services directly to the client on behalf of the Carrier and AAS;
1.1.6 “Client” means any natural person or company, close corporation or any other juristic person or other corporate entity, to whom the Services will be rendered including his/her estate, dependants, heirs, executors, administrators, liquidators, trustees or assigns and the term “Client” specifically includes:
(a) the Traveller Representative; and
(b) every Traveller;
1.1.7 “Deposit” bears the meaning ascribed thereto in clause 3.3;
1.1.8 “Force Majeure Event” shall have the meaning ascribed thereto in clause 1;
1.1.9 “Itinerary” bears the meaning ascribed thereto in clause 6;
1.1.10 “Losses” means all direct, indirect and consequential losses (including loss of profit), and where recoverable at law, punitive damages, damages, liabilities, costs, expenses, fines, penalties, claims and all related costs and expenses (including legal fees, tracing and collection charges, costs of investigation, interest and penalties);
1.1.11 “Parties” means a reference collectively to the Client and AAS and a reference to “Party” shall mean any one of them as determined by the context;
1.1.12 “Personal Information” bears the meaning ascribed thereto in POPI, in respect of the Client and any person for whose benefit the Client has solicited the Services;
1.1.13 “POPI” means the Protection of Personal Information Act, 4 of 2013;
1.1.14 “Processing” bears the meaning ascribed thereto in POPI;
1.1.15 “Quotation” means a document or verbal communication that contains the details set out in clause 3;
1.1.16 “Reservation” means securing of a provisional or a final booking arrangement by AAS with the Third Party Services Providers for and on behalf of the Client;
1.1.17 “Reservation Confirmation” bears the meaning ascribed thereto in clause 5.6;
1.1.18 “Services” means the travel consultancy services rendered by AAS to the Client in accordance with these Terms and Conditions in terms of which AAS procures the Third Party Services for and on behalf of the Client. For the avoidance of doubt, such services shall include –
(a) providing information to the Client regarding the Third Party Services;
(b) making proposals to the Client regarding available Third Party Services and drawing up Itineraries for the Client;
(c) providing Quotations and securing Reservations for and on behalf of the Client with Third Party Service Providers;
(d) arranging transport (including but not limited to air, road, boat or any other transport) and accommodation with Third Party Service Providers for the Client as approved by the Client, as may be required; and
(e) facilitating payment by the Client to the Third Party Service Provider as consideration for the Third Party Services rendered;
1.1.19 “Service Fee” bears the meaning ascribed thereto in clause 3.4;
1.1.20 “Terms and Conditions” means these terms and conditions under which the Services shall be rendered to the Client, as recorded in this document;
1.1.21 “Third Party Services” means any transportation (including but not limited to air, road, boat or any other form of transport), accommodation, leisure or hospitality services of any kind provided by the Third Party Service Providers, including but not limited to sky diving, quad biking or 4×4 dune driving;
1.1.22 “Third Party Service Providers” means any third party contractor, sub- contractor or service provider who renders the Third Party Services, which includes Carriers;
1.1.23 “Total Price” means the price stipulated clause 5.3.2, subject to any increases contemplated in clause 5.7 and/or clause 5.8; and
1.1.24 “Traveller” means any natural person that makes use of, or receives the benefit of the Third Party Services or a part thereof whether or not such person is named in the Itinerary and includes his/her estate, dependants, heirs, executors, administrators, liquidators, trustees or assigns and includes a “Client”;
1.1.25 “Traveller Representative” means any such person that procures the Services in a representative capacity for and on behalf of a Traveller;
1.1.26 “Travel Policies” means:
(a) the terms and conditions or any other rules and/or regulations of the applicable Third Party Service Providers as issued from time to time;
(b) any Applicable Law applying to a particular travel method or Third Party Services; and/or
(c) any policies, rules, terms and conditions, regulations or orders issued, from time to time, by any person that have oversight and/or control over a particular travel method and/or over an aircraft, train or vehicle, including, without limitation, any rules issued in relation to the use of aircrafts and the transportation of passengers by air or by road or otherwise; and
1.1.27 “VAT” means value-added tax at the applicable rate in terms of the Value- Added Tax Act, 89 of 1991.
1.2 Interpretation
1.2.1 Unless expressly provided to the contrary or inconsistent with the context, a reference in these Terms and Conditions to:
(a) these Terms and Conditions or any other agreement, document or instrument shall be construed as a reference to these Terms and Conditions or such other agreement, document or instrument as amended, varied, novated or substituted from time to time;
(b) a clause, sub-clause, Schedule, Annexure or Appendix is to a clause, sub-clause, schedule, annexure or appendix to these Terms and Conditions;
(c) a person includes any natural person, firm, company, corporation, body corporate, juristic person, unincorporated association, government, state or agency of a state or any association, trust, partnership, syndicate, consortium, joint venture, charity or other entity (whether or not having separate legal personality);
(d) any one gender, whether masculine, feminine or neuter, includes the other two;
(e) the singular includes the plural and vice versa;
(f) a word or expression given a particular meaning includes cognate words or expressions;
(g) any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day is a day that is not a Business Day, the next Business Day;
(h) a statute or statutory provision includes any subordinate legislation, and/or regulation or order made from time to time under that statute or provision and a reference to a statute or statutory provision includes that statute or provision as from time to time modified or re-enacted as far as suchmodification or re-enactment applies, or is capable of applying, to these Terms and Conditions or any transaction entered into in accordance with these Terms and Conditions;
(i) the rule of construction that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms shall be restricted to that same class (i.e. the eiusdem generis rule) shall not apply, and whenever the word “including” is used followed by specific examples, such examples shall not be interpreted so as to limit the meaning of any word or term to the same genus or class as the examples given.
1.3 All the headings and sub-headings in these Terms and Conditions are for convenience and reference only and shall be ignored for the purposes of interpreting it.
1.4 Any definition, wherever it appears in these Terms and Conditions, shall bear the same meaning and apply throughout the Terms and Conditions unless otherwise stated or inconsistent with the context in which it appears. If there is any conflict between any definitions in these Terms and Conditions then, for purposes of interpreting any clause of the Terms and Conditions or paragraph of any annexure of or schedule to these Terms and Conditions, the definition appearing in that clause or paragraph shall prevail over any other conflicting definition appearing elsewhere in these Terms and Conditions.
1.5 If a definition confers substantive rights or imposes substantive obligations on a Party, such rights and obligations shall be given effect to and are enforceable as substantive and material provisions of these Terms and Conditions, notwithstanding that they are contained in that definition.
1.6 The expiration or termination of these Terms and Conditions shall not affect such of the provisions as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
2. Appointment
2.1 The Client hereby appoints AAS, on an independent contractor basis, to provide the Services to the Client on the terms and subject to the conditions set out in these Terms and Conditions and AAS accepts such appointment.
2.2 The Client acknowledges and agrees that upon the request and instructions of the Client, AAS, in its capacity as service provider to the Client, will procure the Third Party Services with the Third Party Services Providers for the Client.
2.3 For the avoidance of doubt, it is specifically recorded and agreed that, irrespective of AAS rendering the Services to the Client, the Client contracts directly with the Third Party Services Provider, with the result that:
2.3.1 the Client is responsible for complying with the Travel Policies;
2.3.2 the Third Party Services Provider would be entitled to hold the Client directly liable for any breaches by the Client of the Travel Policies; and
2.3.3 in instances where the Client suffered Loss or injury as a result of any actions and/or omissions of a Third Party Service Provider and/or as a result of a Third Party Service Provider being in breach of any of the terms and conditions of the Travel Policies, the Client’s legal recourse would be limited to the Third Party Service Provider and the Client waives any claim of any nature, whether in contract or based on fault against AAS, for such actions and/or omissions and/or breaches on the part of the Third Party Service Provider.
2.4 The Client warrants and confirms that–
2.4.1 it has read, understands and agrees to be bound by these Terms and Conditions; and
2.4.2 it has sought independent advice on the meaning of these Terms and Conditions where necessary and/or waives the right to seek such advice; and
2.4.3 it accepts these Terms and Conditions; and
2.4.4 The Traveller Representative warrants and confirms that it has the required authority to act on behalf of the Traveller, it has disclosed these Terms and Conditions to the Traveller and is duly authorised and mandated to accept these Terms and Conditions on behalf of the Traveller.
3. Duration
These Terms and Conditions shall take effect on the day on which the Client requests any information from, or makes any enquiries with, AAS regarding the Services and/or the Third Party Services and these Terms and Conditions shall terminate on the day on which AAS performed the last of the Services, provided that, irrespective of the termination of these Terms and Conditions, these Terms and Conditions shall survive any termination and shall still apply to, and regulate, any claim for Loss, injury or any other liability arising directly or indirectly out of the Services and any such claim shall be resolved and determined in accordance with the terms hereof.
4. Third Party Service Providers
4.1 Without derogating from the generality of the provisions of clause 2.3 above, the Client agrees that, in respect of any Third Party Services to be rendered to the Client, the Reservation Confirmation referred to in clause 5.6 below and the relevant Travel Policies will constitute the sole agreement between the Third Party Service Provider and the Client. In this regard, the Client warrants and undertakes that it will read and ensure that it fully understands, and be satisfied with, the Travel Policies prior to instructing AAS to process any Reservation with the relevant Third Party Service Provider. A copy of the terms and conditions of the relevant Third Party Service Provider will be made available to the Client when providing a Quotation for Third Party Services.
4.2 For purposes of clause 4.1, the Traveller Representative hereby represents and warrants that it has the required authority and mandate to represent the Traveller in whose name, or on whose behalf, any Reservation Confirmation is made, and indemnifies AAS against any Losses that AAS may suffer or incur and any and all claims, actions or legal proceedings of whatsoever nature, which may be brought against AAS by the Traveller and/or any third party as a consequence of, or which may directly or indirectly arise from or be attributable to any action and/or omission and/or breach of a warranty or representation by the Client in such representative capacity.
5. Reservations and Deposits
5.1 All enquiries and requests for Quotations by the Client shall be made in writing either by: (i) submitting a query on AAS’ website portal; or (ii) sending an email to AAS’ email address as may be displayed on our website from time to time. AAS will endeavour to revert to the Client in writing as soon as practicable upon receipt of any enquiries or requests for Quotations.
5.2 Subject to these Terms and Conditions and pursuant to clause 5 hereof, AAS will use its reasonable endeavours to ensure that it reserves the accommodation and transport of the Client’s choice, subject to availability. Where such accommodation or transport is not available, AAS will endeavour to offer the Client accommodation or transport which is of similar value and standing to the Clients initial choice, at its discretion.
5.3 All Quotations will include –
5.3.1 details regarding the Third Party Services requested by the Client, including specified dates for arrival and departure;
5.3.2 the total price payable to the Third Party Service Providers for the requested Third Party Services;
5.3.3 the non-refundable or refundable deposit (as the case may be) payable by the Client to the Third Party Service Provider in respect of the Third Party Services (“Deposit”);
5.3.4 details of the Services and the non-refundable service fee (“Service Fee“) payable by the Client to AAS as consideration for the rendering of the Services; and
5.3.5 the due dates for payment of the Deposit, the balance of the Total Price and the Service Fee.
5.4 Quotations provided to the Client must be accepted by the Client electronically, which acceptance shall constitute a Reservation request by the Client and acceptance by the Client of the terms and conditions and Travel Policies of the relevant Third Party Service Providers.
5.5 The Client shall make payment of the Deposit and the balance of the Total Price as indicated on the Quotation within the due dates therefor and into the bank account specified by AAS on such invoice. It is agreed that AAS will only proceed to make a Reservation with a Third Party Service Provider on behalf of the Client upon the timeous receipt by AAS of the payment of the Deposit. For the avoidance of doubt, payment of the Deposit and the balance of the Total Price as indicated on the Quotation must reflect on the bank statement of AAS by the due date therefor.
5.6 Upon receipt by AAS of confirmation of a Reservation by a Third Party Services Provider (“Reservation Confirmation”), AAS shall provide the Client with such Reservation Confirmation and an itinerary specifying the details of the Client’s Reservation (“Itinerary”). A Reservation shall only be regarded by a Client, AAS and Third Party Providers as a final Reservation upon AAS providing the Reservation Confirmation and Itinerary to the Client via email, subject to payment of the Total Price.
5.7 It is recorded and agreed that the Total Price contained in the Quotation is calculated with reference to the prevailing prices as at the date of the generation of the relevant Quotation. As such, AAS shall be entitled to adjust the Total Price to account for price fluctuations or increases (which may be necessitated as a result of, amongst other things, exchange rate fluctuations, statutory price increases, or any other changes levied by the Third Party Service Provider, including prices initially incorrectly quoted to AAS) and shall advise the Client of such adjustment at any time prior to or after AAS’s receipt of payment of the Total Price from the Client. In the event of an increase of the Total Price, the Client shall pay any outstanding portion of the Total Price upon receipt of an invoice from AAS or within such time stipulated therein failing which, notwithstanding the aforegoing, the onus will be on the Client to ensure that there have been no changes to the Total Price prior to making payment of same to AAS.
5.8 Third Party Service Providers may, even though full payment has been effected by the Client, increase the price as stipulated in the Quotation. Such circumstances include, but are not limited to, fuel increases, tax increases or increased surcharges in the event of group bookings by the Client, where the group number deviates from the initial number of people quoted for. In such event, the Total Price shall be increased with the increase stipulated by the Third Party Service Provider and the Client shall be liable for any increase in the Total Price and undertakes to make payment of such amount upon receipt of an invoice by AAS and, in all events, within such time as stipulated by AAS, failing which the Reservation may be cancelled by AAS or the Third Party Service Provider.
5.9 It is acknowledged by the Client that certain portions of the Services rendered pursuant to these Terms and Conditions, may be exempt from VAT, whilst other portions may be subject to VAT at the standard or zero rate. To this end the Client agrees that prices and/or the fees charged by AAS in respect of the services are inclusive of VAT at the relevant rate, if applicable.
5.10 Unless expressly included, without limitation all and any cost of obtaining passports, visas, items of a personal nature such as drinks, laundry, telephone calls, communication, excess baggage charges and costs of any miscellaneous items shall be excluded from the Total Price. The Client is solely responsible for payment of any and all costs and expenses of any nature not expressly included in the Quotation.
5.11 For purposes of clarity, the Client is solely responsible for procuring airline tickets into and out of the applicable countries. It is the Client’s responsibility to familiarise him/herself with the applicable Carrier’s cancellation policy.
5.12 AAS reserves the right to –
5.12.1 in the event of the Deposit or the balance of the Total Price not being paid on the due dates therefor in accordance with this clause 5, terminate the Reservation;
5.12.2 refuse to commence or proceed with a Reservation if AAS or the Third Party Service Provider is of the view that the Reservation would be unsuitable for any Client forming part of that Reservation as disclosed by the Client pursuant to clause 11. Examples of when the Reservation would be viewed as unsuitable include (without limiting) the following:
(a) if any of the Clients would be unable to comply with any of the terms and conditions of the applicable Travel Policies;
(b) the planned trip may adversely affect the health, safety and/or security of any of the Clients, and/or third parties or may not be suitable to any of the Clients; and/or
(c) in the case of a Reservation whereby the Client requests transport by a light aircraft, a light aircraft would not be a suitable aircraft to transport the Client, and/or the Client’s essential baggage, accessories and/or equipment.
5.12.3 AAS gives no warranties or undertakings whatsoever expressly or tacitly that the Itinerary and/or Reservation will not adversely affect the health and/or safety of the Client.
6. Cancellations and Refunds
6.1 Client cancellations
6.1.1 Subject to the remainder of this clause 6.1, the Client may cancel a Reservation Confirmation or any portion thereof on written notice to AAS prior to departure, unless the relevant Travel Policies of the Third Party Service Provider provides otherwise. The Client agrees that in respect of a Reservation Confirmation being cancelled by the Client, the Travel Policies of the relevant Third Party Service Provider will apply to any such cancellation, including any refunds of any Deposits and/or the Total Price. It is the Client’s responsibility to familiarise itself with the applicable Third Party Service Provider’s cancellation policy. In this regard, AAS shall have no liability to the Client whatsoever by reason of the Third Party Service Provider’s delayed or non-payment of any refund to the Client and the Client acknowledges that its action for such refund will lie solely and directly against the Third Party Service Provider.
6.1.2 For purposes of this clause, any notice of cancellation shall be made in writing to AAS, via email prior to departure. Within 5 business days of receiving the notice of cancellation from the Client, AAS shall notify the relevant Third Party Service Provider of the cancellation.
6.2 Third Party Service Provider Cancellations
6.2.1 There is a possibility that the applicable Travel Policies may enable the Third Party Service Provider to cancel any Third Party Services prior to the provision of same to the Client. If such cancellation occurs or if a Reservation for which a Client paid a Deposit or the Total Price is no longer available, AAS will notify the Client in writing via email as soon as practicable after it received a notification of cancellation from the Third Party Service Provider, and shall –
(a) endeavour to procure substitute Third Party Services for the Client for equal value as far as reasonably possibly. In such case, the provisions of clause 5 shall apply mutatis mutandis as regards the Quotation to be issued to the Client, however, AAS shall deduct from the Total Price any amounts duly received from the Client and still not paid to the Third Party Service Provider in respect of the cancelled Third Party Services as well as any expenses incurred by AAS (such as bank fees). In the event that any amounts duly received from the Client have been paid to the Third Party Service Provider when such cancellation occurs, the applicable Travel Policies will apply to any such cancellation, including any refunds of any Deposits and/or the Total Price; or
(b) if AAS is unable to procure substitute Third Party Services for the Client or the Client reasonably rejects such substitute Third Party Service, AAS shall, subject to the applicable Travel Policies, endeavour to obtain a refund for the Client from the Third Party Service Provider in respect of any amounts paid for the cancelled Third Party Services. AAS does not guarantee that the application for a refund will be successful. In this regard and without derogating from the generality of the provisions of clause 2.3 above, AAS shall have no liability to the Client for any cancellation by the Third Party Service Provider or for whatsoever by reason of the Third Party Service Provider’s delayed or non-payment of the applicable refund to the Client and the Client acknowledges that its action for such refund will lie solely against the Third Party Service Provider.
6.3 Any refund due to the Client in terms of this clause 6 (less the Service Fee and any other costs or expenses (including bank fees) incurred by AAS in procuring the refund for the Client) will be paid to the Client as soon as possible after AAS has received the relevant amount from the Third Party Service Provider.
7. Itinerary and Reservation Variations
7.1 Variations by the Client
7.1.1 AAS will assist the Client with any requested variations to a Reservation (or portion thereof) and/or the Itinerary. The Client will be liable for all costs and expenses incurred by AAS as a result of the requested variation and undertakes to reimburse AAS for such amount on receipt of an invoice by AAS (“Amendment Fees“). The Client agrees that the applicable Travel Policies will apply to any variation. It is the Client’s responsibility to attend to any changes to their flight bookings, and the Client indemnifies AAS against any liability and costs in this regard.
7.1.2 For purposes of this clause, any notice of variation shall be made in writing to AAS, via email.
7.1.3 If such variation is requested, AAS shall endeavour to vary a Reservation (or portion thereof) and/or the Itinerary. In such case, the provisions of clauses 5 and 6 shall apply mutatis mutandis as regards the Quotation to be issued to the Client; however, AAS shall reflect any amounts still to be received from the Client pursuant to such variation, including the Amendment Fees.
7.1.4 All costs and expenses associated with any optional or extra Third Party Services as instructed by the Client which do not form part of the Client’s Quotation or Reservation Confirmation will be solely for the Client’s account.
7.2 Variations by AAS and/or Third Party Service Provider
7.2.1 While every reasonable effort is made to keep to the Itinerary, changes thereto may be necessitated by circumstances beyond the control of AAS and/or the Third Party Service Providers (such as but not limited to Force Majeure Events). In such instance, AAS reserves the right to make changes to the Itinerary at any time, with or without prior notice to the Client.
7.2.2 Variations to the itinerary as contemplated in this clause do not constitute grounds for a refund except where the Third Party Services to be rendered to the Client are required to be cancelled (in whole or in part). In such case, the provisions of clause 6.2 shall apply.
8. Travel Documentation
8.1 The Client is solely responsible for ensuring compliance with all passport, visa and other immigration requirements for the entire Itinerary (including all transit and stop-over destinations applicable to the Itinerary). AAS strongly advises the Client to confirm the aforesaid requirements with the relevant High Commissions, embassies and/or consulates. AAS does not accept any liability for any Losses incurred by the Client or any third party as a result of the Client being unable to travel due to non-compliance with any passport, visa or other immigration requirements.
8.2 Subject to any specific requirements in different ports of entry, the Client is required to be in possession of a passport valid for 6 (six) months beyond his/her return date to his/her home country and have sufficient blank pages (excluding the front and back cover) to enable entry visas to be issued. If there is insufficient space in the passport, entry will be denied and the Client may be detained pending return to his/her home country. It is recorded that a visa does not guarantee entry to any given country at point of entry and boarding of an aircraft or other carriage may be denied at any point even if the Client is in possession of a valid visa.
8.3 All Reservation-related travel documents such as Reservation Confirmations and Itineraries will be sent to the Client electronically.
8.4 It is the Client’s responsibility to ensure that all details reflected on the Client’s travel documentation are correct. The Client is also required to ensure that, in addition to passport and visa requirements, the Client has all travel documentation relevant to the Reservation (including the Itinerary, Reservation Confirmation and proof of payment) in the Client’s possession.
9. Insurance
9.1 The Third Party Service Providers require Clients to take out health and travel insurance as a condition of travel and of making use of their Third Party Services. In such instances, AAS will advise the Client of the details to be provided to the Third Party Service Providers prior to travel.
9.2 The Client shall be responsible for taking out and maintaining comprehensive health and travel insurance cover which may include cover for cancellation of a Reservation due to illness; cover for accidents or injuries; personal liability, or loss of or damage to property, baggage and equipment, in amounts sufficient to adequately cover all risks and to compensate for any loss, damage to, or destruction or theft of property, or the death or injury of any person, and the Client waives any rights against AAS and indemnifies AAS against any liability in this regard.
9.3 AAS will not be liable if the Client fails to arrange adequate insurance cover. All premiums and fees payable in respect of any policies issued to the Client in respect of this clause shall be for the Client’s sole account.
10. Travelling Minor
10.1 All minors (Travellers under the age of 18 years) are required to produce, in addition to their passport, an unabridged birth certificate (showing the particulars of both parents) when exiting and entering South African ports of entry or as required by any Applicable Law of a port of entry other than South Africa. An affidavit confirming parental consent to travel is also required in the event that one parent is not travelling with the party. The Client is responsible for confirming and obtaining all documentation required prior to travelling with a minor.
10.2 Third Party Service Providers may specify the minimum age for children permitted to enter and/or reside at the accommodation and/or permitted to partake in activities offered by such Third Party Service Provider. At the time of furnishing the Client with a Quotation, AAS will inform the Client of the child policy applicable to a particular Itinerary as regulated by the Third Party Service Provider.
11. Medical and Travel Restrictions
11.1 Prior to accepting any Quotations, the Client is required to notify AAS in writing of the Client, and each intended Traveller’s, unique personal circumstances. AAS shall use reasonable endeavours to have regard to such circumstances but does not warrant that the proposed Third Party Service Provider or the intended Services or Itinerary is suitable to the Clients’ personal circumstances referenced in this clause 11 or in any other respect. The Client is, therefore, in relation to each envisaged Traveller; required to advise AAS of but not limited to:
11.1.1 any medical and/or impaired health conditions including, without limitation, chronic conditions; asthma; epilepsy, diabetes, any terminal or serious illness, incontinence, hearing or visual impairment, Alzheimer’s, Dementia, recuperating from any recent surgery (such as knee, hip or heart surgery);
11.1.2 any Client being pregnant;
11.1.3 any disabilities and/or mobility challenges including whether any Client is quadriplegic or paraplegic and/or whether any Client make use of a walking stick, crutches, walker or walking frame, wheelchair bound or a prosthesis; and
11.1.4 the age as well as weight of each Client;
11.2 The Client should, and should procure that each intended Traveller, consult with his/her medical practitioner in order to ascertain its fitness to travel and participate in the Third Party Services. AAS does not accept any liability for any Loss directly or indirectly incurred or suffered by the Client as a result of any failure of the Client to notify AAS of any medical condition or other personal need which may affect the Client’s participation in the Third Party Services or may result in the Client being refused travel or accommodation by the Third Party Service Provider and/or may result in the cancellation of a Reservation by the Third Party Service Provider.
11.3 The Client’s Itinerary may include travel to areas where there is a high-risk of malaria and other tropical diseases. Precautionary medication may be required for some or all of the aforesaid areas and it is the Client’s sole responsibility to ensure that it has arranged all necessary vaccinations, inoculations or prophylactics which may be required having regard to the destinations for the Client’s travel.
11.4 Where necessary, the Client must ensure that it and all Travellers have in their possession sufficient chronic medication to last for the duration of travel (and for an additional week thereafter). It is the Client’s responsibility to ensure that (i) the Client’s medication is not considered an illegal or prohibited substance by the country/countries it is visiting; and (ii) it has a letter and/or prescription from their medical doctor when traveling with medication.
11.5 AAS will endeavour to advise the Client of any additional travel restrictions which may be imposed by the Third Party Service Providers and/or the destination countries. Such restrictions may include maximum height, weight and/or baggage restrictions.
11.6 The Client is required to refer to the applicable Travel Policies as regards, among other things –
11.6.1 rules for declaring high value baggage and for paying any supplementary fee that may apply in respect thereof;
11.6.2 rules regarding the carriage of hazardous substances or dangerous goods;
11.6.3 rules regarding excess baggage and charges for excess weight;
11.6.4 rules regarding the Carrier’s right to refuse carriage to passengers who fail to comply with Applicable Laws and/or who fail to present all necessary travel documents; and
11.6.5 rules regarding schedule changes, substitution of alternative Carriers or aircraft and re-routing.
11.7 AAS accepts no responsibility or liability in the event that the Client fails to adhere to the applicable Travel Policies, including as it relates to excess baggage.
11.8 At no time does AAS accept any obligation to assess whether the Third Party Services or any part of the recommendations is suitable for the Client (whether or not the Client’s health conditions were disclosed as set out in this Clause 11) nor does AAS make any representations or give any warranties to the Client that the Third Party Services are suitable to the Client having regard to information provided.
12. Special Requirements
12.1 Should the Client have any special requests regarding the Third Party Services (which may include requests pertaining to dietary requirements and facilities), the Client shall notify AAS in writing at the time prior to accepting any Quotations. AAS will use its reasonable endeavours to accommodate any such request, but gives no guarantee that such request will be accommodated by the Third Party Service Provider.
13. Photographs and use of images
13.1 The Client acknowledges and agrees that whilst using the Third Party Services, AAS or its representatives may take photographs of all Clients.
13.2 The Client consents and agrees to AAS taking, using and publishing photographs and/or images of the Client (including the Clients children (if applicable)) for self-promotional purposes including to advertising, display, brochures and web content. The Client hereby warrants that he/she is duly authorised and legally entitled to give the consent contemplated herein.
13.3 The Client may revoke the aforesaid consent in writing at any time by emailing AAS.
14. Indemnity
14.1 As more fully set out in clauses 2.1, 2.2 and 2.3, AAS is not a provider of the Third Party Services with the result that AAS does not warrant the performance of the Third Party Service Providers or guarantee the Third Party Services. Accordingly, the Client acknowledges that AAS shall have no responsibility and/or liability towards the Client whatsoever for the actions and/or omissions of the Third Party Service Providers and/or for any breaches, by such Third Party Service Providers of any of the terms and conditions of the applicable Travel Policies and the Client waives any such claims or right against AAS.
14.2 The Client agrees to indemnify and hold AAS, including any of its officers, shareholders, directors, employees, sub-contractors and agents (“the AAS Parties”), harmless from and against any Losses the Client or the AAS Parties may suffer or incur as a consequence of, or which may arise from, or be directly or indirectly attributable to:
14.2.1 the actions or omissions of the Client or any person represented by the Client including a failure by the Client or such person to fully comply with any Applicable Law, these Terms and Conditions and/or any of the Travel Policies;
14.2.2 the actions and/or omissions of a Third Party Service Provider including failures by any Third Party Service Provider to fully comply with the terms and conditions of the applicable Travel Policies;
14.2.3 any act, omission, transaction or arrangement carried out at the instructions of, or with the approval of, the Client.
14.3 The Parties acknowledge and agree that the indemnity contemplated in clause 14.2 extends to any and all claims, actions or legal proceedings, which may be brought against the Client or against any of the AAS Parties by any third party including but not limited to the estate of the Client, dependents and heirs of the Client in respect of any Losses incurred or suffered by any of them as a consequence of, or which may arise from, or be directly or indirectly attributable to those matters set out in clause 14 hereof.
14.4 The provisions of this clause 14 shall survive the termination of these Terms and Conditions for any reason.
15. Limitation of Liability
15.1 Subject to clause 15.4 and save as otherwise expressly provided in these Terms and Conditions, AAS shall not be liable to the Client including but without limitation, his or her dependents and/or heirs, whether in contract, delict (in fault), under statute or otherwise (including in each case negligence) for any direct damages, general damages, special damages, indirect damages or consequential damages or Losses, punitive damages or any other damages or losses howsoever arising under or in relation to these Terms and Conditions or any part of it or at law.
15.2 Notwithstanding anything to the contrary in these Terms and Conditions, AAS’ total liability in the aggregate to the Client and any third party howsoever arising under or in connection with these Terms and Conditions, whether in contract, delict (in fault), under statute or otherwise (including in each case negligence) or otherwise at law is limited to an amount equal to one time the amount of the Service Fee payable by the Client to AAS under these Terms and Conditions. The Client waives all claims as set out herein or Losses against AAS insofar as the aggregate of compensation which might otherwise be payable exceeds the aforesaid maximum amount payable.
15.3 Any proven Losses or damages by the Client and/or his or her dependents which notwithstanding the provisions of clauses 15.1 or 15.2 be recoverable shall be reduced by or limited to the aggregate of any amount recovered by AAS, the Client, from a third party (including an insurer) in respect of that Loss or injury or damage. If and to the extent that the Client is entitled in law to recover any amount from any third party as contemplated herein, the Client shall be obliged to take all steps available to it to recover such amounts before proceeding against AAS. In the event that payment has been made by AAS to the Client in respect of a Loss and the Client subsequently recovers the full amount or a portion of the amount paid by AAS from a third party, the Client shall be obliged to forthwith refund to AAS an amount equal to such amount received from such third party less all reasonable costs incurred by the Client in doing so.
15.4 The limitations set out in this clause 15 shall not qualify or limit AAS’ liability in respect of any claim that arises or is increased as a result of any fraudulent, wilful misconduct and/or gross negligence by AAS.
15.5 It is specifically recorded and agreed that each Client is jointly and severally liable towards AAS in respect of any Losses suffered by AAS concerning any breach of or non-compliance on the part of the Client with any of these Terms and Conditions.
15.6 The provisions of this clause 15 shall survive the termination of these Terms and Conditions for any reason.
15.7 Without limiting AAS’ limitation of liability set out in this clause 15 and in any other applicable terms and conditions in any way, in the event of any provision of these Terms and Conditions not being upheld by a court of competent jurisdiction, AAS’ liability shall not exceed such amounts as it is able to recover from it’s insurer or any other policy which might respond to such liabilities or which the Client may recover from AAS’ insurers or for which AAS’ insurers or any other insurers are liable to pay on behalf of AAS.
16. Risks for additional accommodation and/or damages due to unplanned events
16.1 When making use of the services of a Carrier, there is always a risk that the trip may be delayed and/or that a diversion from the planned route may be required due to unplanned and/or emergency events which may include without limitation:
16.1.1 the applicable vehicle, train or any aircraft being unsuitable for safe travel;
16.1.2 the applicable vehicle, train or any aircraft being unavailable at the scheduled time;
16.1.3 adverse weather conditions; and/or
16.1.4 medical emergencies,
(collectively “Unplanned Events“).
16.2 Unplanned Events may result in the Client suffering losses, damages, costs and/or expenses in that, amongst other things:
16.2.1 the Client may require additional accommodation whilst awaiting the applicable Carrier services; and/or
16.2.2 the Client may be unable to arrive in time at his/her planned destination whilst still being held fully liable for the fees pertaining to the unused accommodation at such destination.
16.3 The Client acknowledges that AAS shall have no responsibility whatsoever for Unplanned Events. If, as a result of an Unplanned Event, a Client directly or indirectly suffers any Losses of any nature whatsoever, AAS shall not be liable towards the Client, in any manner whatsoever, for such Losses and the Client acknowledges and agrees that, depending on the terms of the applicable agreement with the Carrier, the Client would need to enforce any available rights in the circumstances against the applicable Carrier involved.
17. Warranties and Representations
17.1 The Client warrants that –
17.1.1 it has the legal capacity to agree to be bound by these Terms and Conditions and the relevant Third Party Service Provider’s Travel Policies, which shall be fully enforceable against the Client, and its dependants;
17.1.2 it is requesting the Services in their personal capacity or, when acting as the Traveller’s Representative, as a duly authorised agent, it being entitled to act on behalf of the Traveller.
17.1.3 the performance of the Client’s obligations hereunder does not and shall not conflict with or constitute a breach of any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on the Client, including any pursuant to any Applicable Law;
17.1.4 the Traveller Representative shall for itself, and shall procure that each intended Traveller shall, for the duration of these Terms and Conditions, comply with all Applicable Laws;
17.1.5 the Client is specifically aware of the fact that the use of drones is prohibited in all the travel locations in relation to which Reservations can be made hereunder and, when visiting these aforementioned locations, the Client shall, and shall procure that each intended traveller shall, at all times, refrain from using drones; and
17.1.6 to the best of its knowledge and belief, it is not aware of the existence of any fact or circumstance that may impair its ability to comply with all of its obligations in terms of these Terms and Conditions.
17.2 Each of the representations and warranties given by the Client in terms of clause 17.1 shall:
17.2.1 be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in these Terms and Conditions;
17.2.2 continue and remain in force notwithstanding the completion of any or all the transactions contemplated in these Terms and Conditions; and
17.2.3 prima facie be deemed to be material and to be a material representation inducing AAS to enter render the Services to the Client.
18. Force Majeure
18.1 AAS shall not be liable for any breach, default or delay in the performance of its obligations in terms of these Terms and Conditions if and to the extent: (i) the default or delay is caused, directly or indirectly, by fire, flood, elements of nature, earthquake, rebellion, civil disorder, revolution, disease, insurrection, industrial action, a Disaster, or any act of government, provisional or local authority, pursuant to or in contemplation of or in dealing with the aforesaid or any other cause beyond the reasonable control of AAS; and (ii) AAS is without fault and the default or delay could not have been prevented by reasonable precautions (a “Force Majeure Event“). Subject to clause 18.2, in such event, the AAS will be excused from further performance for as long as such circumstances prevail and AAS continues to use its commercially reasonable efforts to recommence performance. AAS shall notify the Client of the existence of a Force Majeure Event and describe the circumstances causing the delay as soon as practically possible after the occurrence of same.
18.2 If a Force Majeure Event substantially prevents or delays provision of the Services to an extent that either Party reasonably believes to be critical at reasonable levels of service for more than 5 (five) consecutive Business Days, then such Party may terminate their engagement with the other. In such case, the provisions of clause 6 shall apply.
18.3 For purposes of this clause, a “Disaster” shall mean a disaster as contemplated in the Disaster Management Act, 57 of 2002 or similar Applicable Law in any country in which any part of the Services or Third Party Service is rendered or will be rendered.
19. Personal Information
19.1 AAS will be required to Process the Personal Information in order to –
19.1.1 liaise with the Client in respect of any enquiry, request for Quotation or Reservation Confirmation by the Client;
19.1.2 make Reservations with Third Party Service Providers in respect of the Third Party Services, as instructed by the Client;
19.1.3 facilitate payment of the Third Party Service Providers on behalf of the Client; and
19.1.4 generally perform its obligations to the Client under these Terms and Conditions.
19.2 In this regard, the Client understands that AAS –
19.2.1 will require certain Personal Information, which may include the Client’s name, email address, physical address, employer details, telephone number, date of birth, nationality, and passport number, medical and physical details (or such details as they pertain to the person for whose benefit the Reservation is made); and
19.2.2 will be required to transfer the Personal Information to the applicable Third Party Service Providers (some of whom are resident outside South Africa).
19.3 The Client, as a condition to requesting the Services, expressly and voluntarily consents and authorises AAS to Process the Personal Information as contemplated in this clause 19 and in accordance with the requirements of POPI.
19.4 If a Client is not the parent, guardian or person who is legally competent to give consent to the Processing of the Personal Information pertaining to a minor, the Client will furnish the written consent of the parent, guardian or legally competent person in respect of the Processing of such minor’s Personal Information to AAS forthwith on request.
19.5 Subject to statutory requirements, compliance with an order of court, or as required to perform the Services, AAS will Process the Personal Information on a strictly confidential basis.
20. Dispute Resolution
20.1 Any and all disputes arising from or in connection with these Terms and Conditions shall be decided by the High Court of the Republic of South Africa with competent jurisdiction which shall have the exclusive jurisdiction to determine such disputes and all parties agree to submit themselves to such exclusive jurisdiction.
20.2 These Terms and Conditions shall be governed by the laws of the Republic of South Africa and the declaration of any clause or part of a clause herein as invalid shall not affect the validity of the remainder hereof.
21. Marketing Material and Information
21.1 AAS takes every care to ensure that information regarding the Third Party Services (including images used to illustrate tours, accommodation and other products) is accurate, up-to-date and representative of the product(s) or destination(s) featured. However, the Client acknowledges that –
21.1.1 it has selected the Itinerary and destination(s) constituting the Reservation based on information gleaned from brochures and/or the internet. It also acknowledges that such brochures and/or the internet sources have been compiled and are managed and updated by the relevant Third Party Service Provider and as such, AAS has no control over the accuracy thereof; and
21.1.2 images provided by the Third Party Service Providers are reproduced with the knowledge these may be used by AAS against particular product(s) only. The accommodation photos featured are representative of the room types available at each property however this may not be the actual room type the Client receives. If the Client has a preference for a particular room, it must request same from AAS.
21.1.3 Accordingly AAS cannot and does not guarantee that the Itinerary, accommodation and/or any destinations will comply in whole or in part with information (including imagery) available in brochures and/or on the Internet. Any right of recourse in this regard will be against the Third Party Service Provider.
22. General Provisions
22.1 Domicilium et Executandi
22.1.1 The Parties elect their respective domicilium et executandi for all purposes under these Terms and Conditions, whether in respect of court process, notices or other documents or communications of whatsoever nature, the following addresses:
(a) For AAS:
Physical: 11 Naval Escourt Street, Mooikloof, Pretoria, RSA, 0081 Postal: 11 Naval Escourt Street, Mooikloof, Pretoria, RSA, 0081 Email: [email protected]
(b) For the Client: the address as reflected in the Reservation Confirmation and Itinerary
22.2 Communications between the Parties
All notices, demands and other oral or written communications given or made by or on behalf of either of the Parties to the other Party shall be in English.
22.3 Entire Agreement
These Terms and Conditions, together with any document issued by AAS to the Client pursuant to the Quotation for and confirmation of any Reservation, constitute the entire agreement between the Parties in respect of the Services.
22.4 Data Messages
Any reference to “writing” or “written” in these Terms and Conditions shall include email or other data messages and signed shall include electronic signature, as defined in the Electronic Communications and Transactions Act, 2002.
22.5 No Waiver
22.5.1 A waiver of any right or remedy under these Terms and Conditions or by law is only effective if given in writing and is not deemed a waiver of any subsequent breach or default.
22.5.2 A failure to exercise or a delay by a Party in exercising any right or remedy provided under these Terms and Conditions or by law does not constitute a waiver of that or any other right or remedy, nor does it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Terms and Conditions or by law prevents or restricts the further exercise of that or any other right or remedy.
22.6 Variation
AAS reserves the right to update and/or alter these Terms and Conditions at any time. It is the Client’s responsibility to ensure that he/she is familiar with them. The latest terms and conditions may be found on AAS’ website.
22.7 Third Party Rights
Save for any provision of these Terms and Conditions which expressly contemplates otherwise, no one other than a Party to these Terms and Conditions, their successors and permitted assignees, shall have any right to enforce any of its terms.
22.8 Severance
If any provision of these Terms and Conditions that is not material to its efficacy as a whole is rendered void, illegal or unenforceable in any respect under any law of any jurisdiction, the validity, legality and enforceability of the remaining provisions are not in any way affected or impaired thereby and the legality, validity and unenforceability of such provision under the law of any other jurisdiction are not in any way affected or impaired.
22.9 Applicable law
These Terms and Conditions are governed by and shall be construed in accordance with the laws of South Africa and the courts of South Africa shall have sole jurisdiction to determine liability of a Party as may arise hereunder.