bspoke Tours

STANDARD TERMS AND CONDITIONS

1 INTERPRETATION

1.1 In this Agreement, unless inconsistent with or otherwise indicated by the context, when written in capital letters and used in this Agreement –

1.1.1 “the/this Agreement” means the agreement as set out herein, together with the Reservation Form completed by the Client or on behalf of the Client;

1.1.2 “the Client” means the individual to which the Services are to be rendered as indicated in the Reservation Form, it being recorded in the event of the Services being rendered to a minor, such minor shall be represented by his/her legal guardian;

1.1.3 “Bspoke” means Bspoke Tours (Pty) Ltd, registration number 2016/6275568/07, a private company with limited liability duly incorporated in terms of the laws of the Republic of South Africa;

1.1.4 “Tour” means the cycle tour, including all activities relating thereto, which the Client has selected in the Reservation Form, and in the event that the Client has selected to participate in more than one consecutive cycle tours, all cycle tours shall constitute the Tour for the purpose of this Agreement;

1.1.5 “Services” means all the services rendered by Bspoke to the Client in respect of the Client’s participation in the Tour, more fully described in the Reservation;

1.1.6 “Reservation” means the reservation made by the Client in respect of the provision of Services by Bspoke, upon completion and submission of a Reservation Form;

1.1.7 “the Reservation Form” means the reservation form submitted by the Client upon request for the rendering of the Services;

1.2 The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply.

1.3 This Agreement shall be governed by and construed and interpreted in accordance with the law of the Republic of South Africa.

1.4 The expiration, cancellation or other termination of this Agreement shall not affect those provisions of this Agreement as expressly provide that they will operate after such expiration, cancellation or other termination or which of necessity must continue to endure after such expiration, cancellation or other termination, notwithstanding that the relevant clause may not expressly provide for such continuation.

1.5 Each and every provision of this Agreement (excluding only those provisions which are essential at law for a valid and binding agreement to be constituted) shall be deemed to be separate and severable from the remaining provisions of the agreement. If any of the provisions of this Agreement (excluding only those provisions which are essential at law for a valid and binding agreement to be constituted) is found by any court of competent jurisdiction to be invalid and/or unenforceable then, notwithstanding such invalidity and/or unenforceability, the remaining provisions of this Agreement shall be and remain of full force and effect.

2 RESERVATION AND AGREEMENT

2.1 The Client shall make the Reservation by completing and submitting the Reservation Form, electronically and making payment of the amount referred to in clause 4.1.1.

2.2 This Agreement shall be concluded between the Parties upon the submission of the Reservation Form by the Client. Notwithstanding the aforementioned, the Client shall be required to sign the Reservation Form and these standard terms and conditions before being allowed to participate in the Tour.

2.3 In the event that the Client fails or refuses to sign these standard terms and conditions and the Reservation Form, it shall be deemed to be a cancellation of this Agreement by the Client in term of clause 5.3.

3 OBLIGATIONS OF BSPOKE

3.1 Bspoke shall provided the Services to the Client on the terms and conditions of this Agreement.

3.2 Bspoke shall provide the Client with its standard safety regulations before the commencement of the Tour.

4 PAYMENT

4.1 As consideration for the Services, the Client shall, subject to clause 4.4 pay the Fee to Bspoke as follows –

4.1.1 50% (fifty percent) of the Fee to be paid on the date on which the Reservation is made; and

4.1.2 50% (fifty percent) of the Fee to be paid no later than 30 (thirty) days before the commencement of the Tour.

4.2 It is recorded that the Reservation shall only be valid upon payment of the amount referred to in clause 4.1.1.

4.3 The Client shall pay the Fee into the account nominated by Bspoke from time to time.

4.4 In the event that the Client makes a Reservation less than 30 (thirty) days prior to the commencement of the Tour, the Fee shall be payable in full on the date on which the Client makes such booking.

4.5 In the event that the Client fails to make payment of the Fee in terms of this clause 4.1.2, Bspoke shall be entitled to cancel the Reservation, whereupon the Client shall be liable for a cancellation fee calculated in accordance with clause 5.2. Bspoke shall be entitled to set off any money paid to it by the Client, in terms of this Agreement, against the cancellation fee.

5 CANCELLATION

5.1 The Client shall be entitled to cancel the Reservation, on written notice to Bspoke no later than 30 days prior to the provision of the Services by Bspoke, provided that such cancellation notice shall only be valid if Bspoke acknowledges receipt thereof.

5.2 In the event that the Reservation is cancelled on written notice after the period referred to in paragraph 5.1 or in terms of clause 4.5, the Client shall be liable for a cancellation fee equal to 80% (eighty percent) of the Fee.

5.3 In the event that the Client fails to give notice of cancellation less than 7 days prior to the provision of the Services, or fails to give any notice or leaves the Tour prior to its completion, Bspoke shall be entitled to the total Fee.

5.4 Notwithstanding anything contained in this Agreement, the Client shall not be liable to pay any cancellation fee in the event that the Reservation is cancelled as a result of the hospitalisation or death of the Client.

6 TRANSFER

6.1 In the event that the Client is unable to participate in the Tour, the Client shall be entitled to cede and assign its rights and obligations in terms of this Agreement to a third party, subject to the following –

6.1.1 the Client shall obtain the approval of Bspoke, upon request of the Client in writing no later than 13 (thirteen days) before the provision of the Services, which approval shall not be unreasonably withheld;

6.1.2 the Client shall make payment to Bspoke of a transfer fee in the amount of R500 (Five Hundred Rand); and

6.1.3 the third party shall be the Client for all purposes set out in this Agreement and shall be required to sign the Reservation Form and these terms and conditions prior to the commencement of the Tour.

6.2 In the event that the Client obtains the consent of Bspoke, but fails to make payment of the aforementioned transfer fee, the Client shall be deemed to have cancelled the Agreement in terms of clause 5.3.

7 CANCELLATION BY BSPOKE

7.1 In the event that the Tour is cancelled by Bspoke, it shall arrange alternative dates for the Tour, subject to the availability of the Client. In the event that the Client is unable to participate in the Tour on such alternative dates, Bspoke shall refund all amounts paid to it in terms of this Agreement, provided that Bspoke shall not be liable to refund any amount paid by the Client in the event that the Reservation was not made directly through Bspoke.

8 EXCLUSION FROM TOUR

8.1 Bspoke shall be entitled to exclude the Client from participation in the Tour, without refunding the Client, on the happening of any one of the following events –

8.1.1 a breach by the Client of his obligations in terms of this Agreement on more than 3 (three) occasions;

8.1.2 in the event that Bspoke determines that the Client’s bike is not in a good order and condition, Bspoke shall be entitled to request that the Client depart from the Tour;

8.1.3 the Client being charged with the commission of an unlawful act within the Republic of South Africa, which in the opinion of Bspoke justifies such exclusion from the Tour having regard for the safety of the other participants in the Tour;

8.1.4 it comes to the attention of Bspoke that the Client is not in a suitable physical or mental condition to participate in the Tour; and

8.1.5 having regard for the safety of the other participants and their personal items, Bspoke determines that it will be prejudicial to the other participants in the Tour to allow the Client to participate in the Tour.

8.2 For the avoidance of doubt, the Parties agree that Bspoke shall be entitled to retain the Fee in lieu of damages, in the event of such exclusion from the Tour.

8.3 The Parties agree that the exclusion of the Client from the Tour, on the happening of any event referred to in clause 8.1, is reasonable and fair having regard for the nature of the Tour and is necessary to protect the safety of the Client and the other participants in the Tour. Bspoke, in exercising its discretion in terms of clause 8.1, shall at all times have regard for the nature of the Tour and the requirements of all participants in the Tour.

9 RESPONSIBILITIES AND WARRANTIES OF CLIENT

9.1 The Client shall –

9.1.1 ensure at all times during the Tour that his/her bike is in a good order and condition for participation in the Tour;

9.1.2 be responsible for the maintenance and repair of his/her bike at all times during the Tour;

9.1.3 whenever he/she is on his/her bike, wear a suitable helmet and appropriate riding attire;

9.1.4 be responsible to obtain adequate insurance in respect of his goods and his/her person in the event of any damage or loss suffered by him/her howsoever arising, as a result of theft, loss or damage to his/her property and/or personal injury howsoever arising during his participation in the Tour;

9.1.5 ensure that he/she is in possession of a valid passport, visas and all relevant travel documentation in the event that the Client is not a South African resident;

9.1.6 comply with all rules relating to the use of public roads and comply with all the safety regulations issued by Bspoke;

9.1.7 follow the route provided by Bspoke and obey the directions of Bspoke’s tour guide;

9.1.8 not trespass on land which is not open to the public, unless Bspoke has obtained the express consent of the owner to enter such land;

9.1.9 not litter or damage any property during the Tour; and

9.1.10 ensure that he/she is in possession of sufficient water and nutrition necessary to sustain himself during the Tour.

9.2 The Client warrants, at the time of making the Reservation and at commencement of the Tour, that –

9.2.1 he/she acknowledges and understands the nature of the Tour and the physical and mental requirements and ability necessary to participate in the Tour;

9.2.2 he/she possesses the necessary experience and knowledge to participate in the Tour;

9.2.3 he/she is in a suitable physical and mental condition to participate in the Tour and is in possession of any medication which he/she requires to maintain his condition; and

9.2.4 no qualified medical practitioner has advised the Client against participating in the Tour or in any way cautioned the Client against participating in any physically demanding or strenuous activity.

10 MEDICAL ASSISTANCE

The Parties record that Bspoke is under no obligation to provide the Client with any medical assistance required by the Client during the Tour. Bspoke shall nonetheless, in the event of a medical emergency, undertake all reasonable efforts to contact medical emergency services, provided that all costs of medical treatment shall be for the account of the Client.

11 EXCLUSION OF LIABILITY

11.1 It is recorded that the risk and dangers posed by the Client’s participation in the Tour are beyond the control of Bspoke. It is further recorded that the Client may suffer loss or damage as a result of the actions of third parties. The Parties accordingly agree that it is fair and reasonable to exclude the liability of Bspoke for any loss, injury or damage suffered by the Client as a result of the provision of the Services, specifically including his/her participation in the Tour.

11.2 The Client understands and assumes all risks and liability relating to the conclusion of this Agreement and in particular his/her participation in the Tour.

11.3 Bspoke shall be under no liability to the Client whatsoever by reason of any loss, injury or damage whatsoever sustained by the Client or any third Party, arising in any way whatsoever, whether directly or indirectly, out of provision of the Services by Bspoke, including but not limited to the Client’s participation in the Tour, accommodation arranged by Bspoke, any meals, snacks or refreshments supplied or arranged by Bspoke, and the transportation of the Client and his goods.

12 INDEMNITY

12.1 The Client hereby indemnifies Bspoke against and holds it harmless from any claims, liability, damage, loss, penalty, expense and cost of any nature whatsoever which Bspoke may sustain as a result of or attributable to a breach of or failure to comply with any of the warranties, representations or obligations contained in this Agreement or the failure of any of the warranties contained in this Agreement to be true or correct.

12.2 The Client hereby indemnifies and holds Bspoke harmless against any and all losses, injury, damage or claim of whatsoever nature and howsoever arising from or in connection with the provision of the Services, whether or not such claims are caused by any act or omission on the part of the Bspoke, its agents, representatives or employees.

13 INTELLECTUAL PROPERTY

The Parties agree that the intellectual property rights in respect of any photographs, video recordings, drawings and written or oral material which are created during the course of the Trip shall vest in Bspoke and Bspoke shall be entitled to use such photographs, video recordings, drawings and written or oral material for the purpose of advertising and publicity of Bspoke.

14 BREACH

In the event of any of the Parties (“the Defaulting Party”) committing a breach of any of the terms of this Agreement and failing to remedy such breach within a period of 7 (seven) days after receipt of a written Notice from another Party (“the Aggrieved Party”) calling upon the Defaulting Party so to remedy, then the Aggrieved Party shall be entitled, at its sole discretion and without prejudice to any of its other rights in law, either to claim specific performance of the terms of this Agreement or to cancel this Agreement forthwith and without further Notice, claim and recover damages from the Defaulting Party.

15 FORCE MAJEURE

Neither Party shall be under any liability to the other in respect of anything which, apart from this provision, may constitute a breach of this Agreement arising by reason of force majeure, namely circumstances beyond the control of either Party which shall include acts of God, fire, flood, civil commotion, acts of local government and parliamentary authority, breakdown of power supplies and of communication lines.

16 NOTICES AND DOMICILIA

The Client chooses as its domicilia citandi et executandi the address, including e-mail address, set out in the Reservation Form for all purposes arising out of or in connection with this Agreement at which addresses all processes and notices arising out of or in connection with this Agreement, its breach or termination may validly be served upon or delivered to the Parties.

17 GENERAL

17.1 Each of the provisions of this Agreement is separate and severable and enforceable accordingly. If any such term or condition is or becomes unenforceable for any reason whatsoever, that term or condition is severable from and shall not affect the validity of any other term or condition contained in this Agreement.

17.2 The Parties undertake at all times to do all such things, perform all such actions and take all such steps as may be reasonably necessary for the fulfilment and implementation of this Agreement in accordance with its spirit and intent.

17.3 No alteration, cancellation, variation of, or addition to this Agreement shall be of any force or effect unless reduced to writing and signed by all Parties to this Agreement or their duly authorised representatives.

17.4 This Agreement cancels and supersedes the terms and conditions of all prior negotiations and agreements between the Parties.

17.5 This document contains the entire Agreement between the Parties and no Party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.