Subject Matter of Agreement
The subject matter of this agreement is the handling of services (described in greater detail below) by THE AGENT in the destination territories:
- South Africa,
- Malawi and
Destinations not contained in above list may be added at any given time if agreed between the two parties.
In performing this agreement THE AGENT shall act as an independent merchant at its own risk. THE AGENT may act on behalf of THE CLIENT only on the basis of THE CLIENT’s prior written authorization.
Rights and Duties of THE AGENT
1. THE AGENT shall perform services necessary for properly planning and preparing of travel related services with the due diligence of a prudent businessman and in compliance with the instructions given by THE CLIENT. In particular THE AGENT shall be obliged to handle the following services:
1.1 Providing thorough and regular information on the development of the present market situation in the field of tourism, on changes in the ownership structure of properties in respect of tourism, on changes in the management and prices of local service providers and competing suppliers and on all other changes which could be of importance to the business of THE CLIENT.
1.2 Assistance in information and press tours, tour and catalogue preparations, online publications and supporting THE CLIENT in marketing and presenting their products.
1.3 Providing regular and immediate information on faults, disruptions, building works and other circumstances which are likely to adversely affect THE CLIENT’s product.
1.4 If changes in reservations are unavoidable, THE AGENT shall arrange for suitable alternatives after having consulted THE CLIENT.
1.5 Selecting and checking on behalf of THE CLIENT that transfers, circular tours, excursions and other transportation services are conducted in clean and adequately insured vehicles that meet the highest safety standards specific to the country in every respect.
1.6 Constantly checking the quality of the local service providers on behalf of THE CLIENT.
1.7 Completely handling and checking ahead of travel hotel reservations, circular tours, car & camper rentals and other services.
1.8 Guaranteeing THE CLIENT ’s constant readiness for reservations by increasing quotas on agreed terms ( where possible ), reducing release times etc., so as to keep the scope of on-request enquiries as small as possible. If on-request reservations are nevertheless necessary, THE AGENT shall endeavour to reconfirm within 48 hours.
1.9 Handling the pre-booked program of excursions and general tours with freelance tour guides as per quotation in conformity with the agreement.
1.10 Supporting THE CLIENT and providing assistance in the case of customer complaints, to avoid further complaints against THE CLIENT.
1.11 Immediately reporting excess reservations by local service providers and actively assisting in finding suitable substitute accommodation and services of equal quality.
1.12 Assisting in asserting claims against service providers.
1.13 Timeously handling all enquiries from THE CLIENT’s service department upon consultation with the service providers.
2. THE AGENT may transfer its own obligation of performance to a third party where necessary. Under no circumstances may this adversely affect the standard of quality of services.
3. THE AGENT is liable for paying all services reserved by THE CLIENT only once payments have been made by THE CLIENT to THE AGENT, unless agreed otherwise in writing.
3.1 For the duration of this contractual agreement THE AGENT will raise invoices 45 to 35 days prior to travel. THE CLIENT will be required to pay all services reserved through THE AGENT latest by 30 days prior to the first day of service for all bookings and in any event prior to the AGENT paying for such services.
3.2 Where applicable, THE CLIENT shall not withhold payment for several bookings due to incorrect invoicing of one booking that might be brought to light against the statement and invoices issued by THE AGENT. Should the CLIENT withhold payment contrary to the aforementioned, the CLIENT acknowledges that the bookings may be lost as a result of non-payment by the CLIENT.
3.3 THE AGENT shall if applicable pass on to THE CLIENT any supplier prepayment requirements that are outside of the standard 30 day payment policy and will settle said deposits on THE CLIENT’s behalf upon receipt of payment.
3.4 Without prejudice to any of the terms agreed to herein, in the case of a holding deposit, THE AGENT shall be entitled to offset against a deposit, any amount due to THE AGENT by THE CLIENT for any reason whatsoever, at any time while the service is provided, or at the termination of the service.
3.5 The granting and/or withdrawal of credit facilities remain at THE AGENT’s sole discretion. Any granting or withdrawal of credit facilities will occur in writing. Where no credit facilities have been granted, payment needs to be received in THE AGENTs bank account in advance and according to payment terms, to guarantee travel.
3.6 THE CLIENT shall be liable for all costs, including legal costs on an attorney and own client scale, as well as all related cost and collection commission incurred by THE AGENT in or about the enforcement of any obligations of THE CLIENT in terms of these conditions.
3.7 THE AGENT releases THE CLIENT against all rights of third parties as a result of delayed payment to suppliers if the CLIENT has in fact attended to payment.
Rights and Duties of THE CLIENT
1. THE CLIENT undertakes to pay the agreed fees and charges as per the relevant invoice in the agreed currency to THE AGENT free of charges.
2. Payments to be made by THE CLIENT via electronic bank transfer into THE AGENTs bank account free of set-off or any other deductions whatsoever. All bank charges and fees are to be paid by THE CLIENT.
3. THE AGENT shall be entitled to claim for and receive payment of any expenses incurred in claiming any shortfall in payments.
4. THE CLIENT undertakes to co-operate with THE AGENT on a trusting basis and shall provide THE AGENT in advance and in good time with all information and documents which it requires to perform its services.
5. THE CLIENT undertakes to submit reservations in a clearly understandable format including comprehensive information as to passengers’ full names, arrival and departure details and services requested. THE CLIENT undertakes to minimize the number of amendments to already confirmed bookings.
6. THE CLIENT agrees to inform THE AGENT about any activities regarding the request for special rates from suppliers, e.g. travel discounts prior to contacting the supplier and undertakes to preferably ask THE AGENT to negotiate these special rates on behalf of THE CLIENT
Duration / Termination
1. This agreement shall commence on the date of signature of the CLIENT and is valid for 1 year. The agreement shall be extended automatically each time by one year unless it is cancelled with a notice period of 6 calendar months.
2. In the event that contractual duties are performed defectively or not at all despite having received a written warning, the respective party shall be entitled to prematurely terminate the contractual relationship for an important reason without notice. In particular an important reason shall exist in the following cases:
2.1 repeated default in payment despite having received a written warning,
2.2 damage to the interests and reputation of THE AGENT or of THE CLIENT,
2.3 the filing of a petition for bankruptcy or composition proceedings over the assets of THE AGENT or of THE CLIENT and/or insolvency,
2.4 loss of licenses essential for running THE AGENT’s business,
2.5 change in the structure of partners or leasing of the company or any change in legal form; of THE AGENT or of THE CLIENT,
2.6 other gross or ongoing breaches of contractual duties.
3. Every notice of termination must be in writing. Notice shall be sent to the address quoted in this agreement.
4. In the event of termination or expiration of this agreement THE AGENT shall be obliged to properly complete transactions still in progress. THE CLIENT shall be obliged to properly pay for the services handled. All notices, signs, logos etc. which indicate that THE AGENT is a representative of THE CLIENT shall be removed immediately by both parties.
1. THE AGENT guarantees the proper performance of all services handled as agreed in this contract. THE AGENT shall be liable towards THE CLIENT for all damages arising due to misconduct on the part of THE AGENT or persons permanently employed by it to perform an obligation. THE AGENT undertakes that commercially reasonable appropriate customary insurance policies shall be taken out to cover these risks. The insurance policies shall be presented upon request of THE CLIENT.
2. Compensation for any damage caused by a passenger is to be made by the passenger himself on the spot.
3. The parties are not responsible for any damages arising from passengers' misconduct, changes of schedules and delays of air transport providers, loss of luggage, jewellery, money, etc. The parties, however, will take whatever action needed to eliminate any possible conflict.
4. If a passenger, while travelling refuses some or all of the services or the services are interrupted because of the passenger’s violation of local legislation or any other causes, no compensation will be made for the services not handled.
5. Passengers` claims for services not handled save for those contemplated in clause 5.3 above, or for unsatisfactory quality are to be received by THE AGENT not later than 30 days after the provision of the last service and will be considered within 20 days. If these claims are recognized as reasonable, the compensation is to be paid.
6. THE AGENT shall not be liable for amending services or additional services handled due to force majeure such as war, civil war or public disorder brought about by civil war or industrial disputes, epidemic diseases, natural disasters, arrests, levies of execution and restraints by state institutions or other persons, quarantine or other events of equal consequence which make it considerably more difficult to carry out the services and no longer allow the business to be properly run. THE CLIENT and passenger bear responsibility to have pre-arranged adequate travel insurance that would cover such incidents.
Alterations / Cancellations
1. Any alteration or cancellation to confirmed services is subject to receiving written confirmation of both parties.
2. Services ordered and confirmed but not used will not be refunded.
3. In case no exceptional alteration or cancellation policy has been communicated by THE AGENT for an individual quotation/confirmation, the following policy applies:
Non-refundable and charged at 100%
All other services
60 -31 days prior to arrival 20%
30 -15 days prior to arrival 45%
14 - 1 days prior to arrival 80%
No Show 100%
of the full cost of all the services according to the accepted quotation.
1. In cases of force majeure such as war, civil war or public disorder brought about by civil war or industrial disputes, epidemic diseases, natural disasters, arrests, levies of execution and restraints by state institutions or other persons, quarantine or other events of equal consequence which make it considerably more difficult to carry out the services and no longer allow the business to be properly run each party shall be entitled to terminate - even if only temporarily – this agreement for an important reason.
2. Nevertheless THE AGENT shall remain obliged to take care (in conformity with the agreement) of THE CLIENT’s passengers affected by force majeure and still located in the destination territory or who have already started their journeys.
THE AGENT guarantees that it holds all licenses and permits necessary for handling the contractually promised services. THE CLIENT shall be immediately informed of any change in existing operating licenses.
The parties undertake to treat internal information not intended for the public domain which comes to their knowledge in the course of the co-operation with confidentiality in relation to third parties. This particularly applies to the subject matter of hotel contracts and other contracts entered into with service providers. This obligation shall continue to apply after the termination or expiration of this agreement.
Choice of Law / Place of Jurisdiction
1. This agreement is subject solely to the laws of South Africa.
2. The Western Cape High Court (Cape Town) is the sole place of jurisdiction for all and any disputes.