WanderingThru’s Terms and Conditions

If you use this website, you agree to the following terms and conditions:

Copyright

Copyright © 20016/17/18/19. Wandering Thru, 5 Shelley Avenue, Willowild, Sandton, South Africa.Intellectual Property Rights

All the content on this site, including text, graphics, logos, icons, designs, colours, layout and trademarks are the intellectual property of Wandering Thru and its associates and are as such protected by South African and International Intellectual Property Law.

Privacy

Wandering Thru will keep all personal information you give us as strictly confidential and no personal information will be made available to third parties, unless obliged to do so by law or legal process.

Disclaimer

Although Wandering Thru endeavours to provide accurate, up-to-date and truthful information on this site, neither Wandering Thru nor any of its employees, agents and associates make any representations or give any warranties, whether expressly, tacitly or implied, as to the operation of the site, the information, content, materials and products included and available from this site.

Wandering Thru, its employees, agents and associates will not be liable for any damage of whatsoever nature arising or resulting from the use of or inability to use this site or the information contained hereon, including but not limited to direct, indirect, incidental, punitive and consequential damage..

Applicable Law

This site is created, maintained and controlled in the Republic of South Africa and as such, the laws of the Republic of South Africa and the jurisdiction of the South African Court govern this user agreement and the use or inability to use this site.

Change to User Agreement

Wandering Thru reserves the right to make changes to this site and this user agreement at any time without notice.

Customer Relationship Terms

1. Introduction

These terms are the general terms of the relationship between us and you. The terms cover any transactions where we provide services to you, in the form of travel, photographic and privately-guided safari and related services. The commercial terms of any transaction will be contained in an order that will incorporate these terms. The order will prevail if there is a conflict of meaning. Nothing in the terms obligates any party to enter into any orders.

2. Definitions and interpretation

Definitions. In the agreement:

additional fee means a charge you must pay us for the supply of any services outside of an order, which charge must be made at our then current standard prices and rates, unless otherwise agreed in writing between us;

AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead);

agreement means the agreement between us and you, consisting of the terms and any orders the parties enter into;

business day means any day other than a Saturday, a Sunday, or a holiday (including a public or bank holiday) in the jurisdiction where our entity that entered into the relevant order is organised;

business hours means our normal business hours on business days;

contract year means, in respect of an order, each successive 12 calendar month period during the term of the order, calculated from the effective date;

effective date means the date the order is accepted by us;

existing material means any materials developed by or for either party independently and outside of the agreement and provided during the course of the agreement;

fees means the fees, charges, or purchase consideration that you will pay to us in respect of services we provide under orders;

intellectual property means any intellectual property rights that we may have created, acquired, or otherwise have rights in and may, in connection with the performance of our obligations under the agreement, employ, provide, modify, create or otherwise acquire rights in and includes any: copyright; trade marks or service marks; trade names or business names; logos; patents; design rights; rights to domain names and websites or website addresses; confidential information; trade secrets; know-how or techniques; concepts or ideas; methods or methodologies; procedures or processes; or similar rights granted in any jurisdiction, whether registered or unregistered.

order means a services order and invoice agreed to by both the parties describing the specific services that we will provide to you;

personnel means any representative, including any director, employee, agent, affiliate, consultant, or contractor;

related and related persons means natural and juristic persons who are connected to one another in the manner contemplated in sections 2 and 3 of the Companies Act 71 of 2008;

services means any services we or related persons provide to you, under orders;

sign means the handwritten signature, an advanced electronic signature, or an electronic signature that the parties agree to use, of each of our duly authorised representatives;

signature date means the date of signature by the party signing last;

tax means any:

  • tax (including value added tax, income taxes, pay-as-you-earn tax or other taxes levied in any jurisdiction);
  • duty (including stamp duty);
  • tariff, rate, levy; or
  • any other governmental charge or expense payable;

terms means the terms, consisting of:

  • these customer relationship terms; and
  • any other relevant specific terms, policies, disclaimers, rules and notices that the parties agree on, (including any that may be applicable to any specific goods or services);

third party contractor means any contractor, supplier, service provider or licensor of a part of the services, which is not a party to the agreement;

travel date means the date specified in the order, on which the services are set to be performed;

we, us, or our means the vendor or service provider that enters into an order and, if specified in the order, those related to it;

writing means the reproduction of information or data in physical form (includes handwritten documents, hard copy printouts and fax transmissions) or any mode of reproducing information or data in electronic form that the parties agree to use (like pdf), but excludes information or data in the form of email;

you or your means the customer that enters into an order and those related to it, including any travel companions that will be making use of the services;

your data means your data (including information about an identifiable person) that:

  • you provide (or any third party on your behalf provides) to us; or
  • we generate, process, or supply to you in providing the goods or services; but excludes any derived data that we create for our own internal purposes or which is proprietary or confidential to us or our third party contractors, or which belongs to third parties;

2.1      Definitions in the order. Words defined (or assigned a meaning) in an order will have that meaning in the terms, unless the context clearly indicates otherwise.

2.2      Interpretation. All headings are inserted for reference purposes only and must not affect the interpretation of the agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended. A reference to a person includes a natural and juristic person and a reference to a party includes the party’s successors or permitted assigns. Unless otherwise stated in the agreement, when any number of days is prescribed in the agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.

3.        Duration

The terms commence when you accept an order by paying the deposit or full fee described in the associated invoice, and continue until terminated. Where the duration of this agreement is specified in an order, if you are a “consumer” for purposes of the Consumer Protection Act, you may terminate the relevant service prior to the expiry of the term on 20 business day’s written notice to us. However, we may charge you an early termination fee.

4.        Orders

4.1      Capacity. You represent and warrant that you (and any person who places an order):

  • are old enough under applicable law to enter into the agreement;
  • are legally capable of concluding any transaction;
  • possess the legal right, full power, and authority to enter into the agreement; and
  • will submit true, accurate and correct information to us.

If you are younger than 18 years of age, you warrant that you have the consent of your legal guardian to enter into the agreement or that you have obtained legal status in another manner.

4.2      Invitation to do business. The marketing of the services by us is merely an invitation to do business or for you to make an offer to procure services. The parties only conclude a valid and binding order when we accept the offer made by you. We may accept or reject any offer. If we do not accept any offer, then we will refund any monies already paid by you.

4.3      Fees. Despite our best efforts, the stated fees may be incorrect. We will confirm the fees for any goods or services when we accept your offer.

4.4      Time and place. The parties conclude any agreement between each other at the time when our duly authorised representative accepts the relevant offer and at the place where you have your head office. We do not need to communicate the acceptance of the offer to you.

4.5      Orders. The terms in effect at the time you make an offer will govern the order. Each order will create a separate agreement. Despite that, we may consider the breach of any one order to constitute a breach of any or all orders.

5.        Services

5.1      Each party’s general obligations. You will provide us with any assistance and input as we may reasonably require to enable us to provide the services. We will be responsible for the management and supervision of the performance of the services by our personnel.

5.2      Exclusivity. During the currency of this agreement, you will only use us for the provision of the services.

5.3      Insurance and travel arrangements. While we are a registered tour operator, we are not in the business of making travel arrangements. As such, you agree that you are responsible for organising your own insurance (including travel, health and medical insurance) and travel documentation and arrangements (including transport, passports and Visas). Furthermore, you agree that we are not liable for (and you indemnify us against) any damages, loss or claims that may arise out of your or anyone else’s failure to provide such insurance or travel documentation or arrangements.

5.4      Intellectual property. We will retain all rights, title and interest in and to any works created by our personnel under an order, including copyright in any photographs taken. Similarly, you will retain all rights, title and interest in and to any works created by you during the services described in an order.

5.5      Cancellation. If you cancel an order, we may charge you a cancellation fee as described in the table below:

Cancellation period Cancellation fee
More than 8 weeks before travel date 30% of total fees
Less than 8 weeks before travel date 50% of total fees
Less than 6 weeks before travel date 100% of total fees

You may cancel this order without penalty no later than two months before the date of the service, in which case we will refund you any fees you have already paid to us for the service. If you cancel the order later than two months before the date of the service, we may charge you a reasonable cancellation fee. If you are a consumer as defined under the Consumer Protection Act 68 of 2008, we will not charge a cancellation fee if you cancel an order due to the death or hospitalisation of the person for whom the order was made.

5.6      Your failure. If you fail to comply with your obligations for a period in excess of five calendar days after receiving a written request from us for you to do so, the failure will constitute a material breach of this order. In addition to any remedies we may have arising out of the breach, if you fail to comply with our obligations within the notice period of five calendar days, we will be excused from meeting the service levels for as long as you fail to comply with your obligations

6. Your data

6.1      Your data. We are not responsible for any of your data stored on our system.

6.2      Privacy and protection of personal information.

  • Legal obligations. We are responsible for complying with our obligations and you are responsible for complying with your obligations under applicable laws governing your data. We both acknowledge that we are not investigating the steps the other is taking to comply with any applicable privacy and protection of personal information laws.
  • Responsible party. You remain the responsible party for determining the purpose and means of our processing of your data, including that processing will not place us in breach of any laws.
  • Trans-border flows of your data. You consent to us transferring your data across a country border to enable us to comply with our obligations under the agreement. You are solely responsible for determining that any transfer of your data across a country border complies with the applicable laws.
  • Indemnity. You agree to indemnify, defend, and hold us harmless (and those related to us and our personnel, co-branders or other partners) from and against any claim, demand, loss, damage, cost, or liability (including legal costs) arising out of or relating to you failing to comply with your obligations under this clause. If permissible under applicable law, legal costs will be on an attorney and own client basis.

6.3      Access. On a party’s reasonable written request, the other party will provide the requesting party with the information that it has regarding your data and its processing that is necessary to enable the requesting party to comply with its obligations under this clause and the applicable laws. The requesting party will reimburse the other party for its reasonable charges for its assistance.

6.4      Preservation of integrity of your data. Both of us will take reasonable precautions (having regard to the nature of each of our obligations under the agreement), to preserve the integrity of your data and prevent any unauthorised access, corruption or loss of your data.

6.5      Records. You agree that our records are prima facie evidence of the services provided to you.

6.6      Return of data. On termination of any order, each party will return to the other party in the form in which it was received all of the other party’s data or information provided to the party for the purpose of the performance of the relevant order.

7.        Intellectual property

7.1      Retention of rights. We have created, acquired or otherwise obtained rights in our intellectual property and despite anything contained in the agreement, we will own all right, title, and interest in our intellectual property.

7.2      Use of our intellectual property. If we utilise any of our intellectual property in connection with our performance under an order, our intellectual property will remain our property and you will not acquire any right or interest in it.

7.3      Trade Marks. Our logo and sub-logos, marks, and trade names are our trade marks and no person may use them without permission. Any other trademark or trade name that may appear on our marketing material is the property of its respective owner.

7.4      Restrictions. Except as expressly permitted under the agreement, the services may not be:

  • modified or used to make derivative works;
  • rented, leased, loaned, sold or assigned.

7.5      Prosecution. All violations of proprietary rights or the agreement will be prosecuted to the fullest extent permissible under applicable law.

8.        Confidential information

8.1      Responsibility to keep information confidential. Each party must keep confidential any information it receives from the other party or under this agreement.

8.2      The receiving party’s responsibilities. The party that receives confidential information agrees to protect the interests of the party it is from, and will:

  • only use it to comply with its responsibilities under this agreement;
  • only give the information to any of its employees or agents that need it, and only give as much of it as they need;
  • use reasonable security procedures to make sure employees or agents keep the information confidential;
  • get promises of confidentiality from those employees or agents who need access to the information;
  • not reveal the information to anyone else; and
  • not use it for any purpose other than this agreement.

8.3      End of this agreement. At the end of an agreement, the parties will give back to the other all originals and copies of confidential information of the other that they have. If the other agrees, they may destroy the confidential information they have.

8.4      Exceptions. These responsibilities will not apply to any information that:

  • is lawfully in the public domain (available to the general public) when a party received it;
  • lawfully becomes part of the public domain afterwards;
  • is given to the receiving party afterwards by a different person who is allowed to reveal the confidential information; or
  • is given to comply with a court order or other legal duty.

8.5      Indemnity. You indemnify us against any loss or damage that we may suffer because of a breach of this clause by you or your employees or agents.

8.6      Survival. This clause about confidential information is separate from the rest of this agreement and remains valid for five years after the end of this agreement.

9.        Non-solicitation

No party will, during the currency of any order or for a period of 12 calendar months following termination, directly or indirectly solicit, offer employment to, employ, or contract in any manner with any personnel of the other party who were involved in the implementation or execution of the order.

10.      Our warranties

10.1    Service warranties. We warrant that in relation to the services:

  • we and our personnel will possess and have the right to use knowledge and expertise sufficient to enable us to provide the services;
  • we will employ a sufficient number of suitably trained personnel to provide the services; and
  • we will provide the services in accordance with all applicable laws, enactments, and regulations.

10.2    General warranties. We warrant that we have the legal right and full power and authority to execute and deliver, and to exercise our rights and perform our obligations under the agreement

11.      Disclaimer of warranties

11.1    Disclaimer. You use our services at your sole responsibility and risk. We provide the services on an “as is” and “as available” basis. Except for the warranties given in this agreement and to the extent allowed by law, we expressly disclaim all representations, warranties, or conditions of any kind, whether express or implied, including:

  • any implied warranties or conditions of satisfactory quality, no latent defects, merchantability, fitness for a particular purpose, accuracy, quiet enjoyment, title, and non-infringement;
  • that the services will meet your requirements or be uninterrupted, legally effective or complete, timely, secure or error-free.

11.2    Exclusion of liability. Despite any warranty we give, we will not be liable regards any defect arising from negligence, failure to follow our instructions (whether oral or in writing) or misuse.

12.      Your warranties

You warrant that:

12.1    you have not been induced to enter into the agreement by any prior representations, warranties or guarantees (whether oral or in writing), except as expressly contained in the agreement;

12.2    by entering into an order you are not acting in breach of any agreement to which you are a party;

and you agree to indemnify, defend, and hold us harmless (and those related to us and our personnel, co-branders or other partners) from and against any claim for damages by any third party as a result of the breach of these warranties, including all legal costs. If permissible under applicable law, legal costs will be on an attorney and own client basis.

13.      Fees and payment

13.1    Due dates. You will be liable for and pay the fees specified in the order and any additional fees promptly on the due date, without any deduction, set off or demand and free of exchange in the currency specified in the order.

13.2    Manner of payment. You must make payment in the manner specified by us from time to time. Currently, we specify that you must make payment by credit card, internet transfer (electronic funds transfer) or telegraphic transfer (SWIFT), and you must not make payment by cash or travellers cheques. You will bear any bank charges or bank transfer fees (including international) associated with payment.

13.3    Payment date. You must pay all invoices in full within seven calendar days of invoice date. Invoices that remain unpaid after seven calendar days will expire, and the fees quoted may change if a new invoice is requested. If you fail to pay the full fees listed in the invoice by the travel date, we will regard this as you cancelling the order, and we may impose the relevant cancellation fee.

13.4    Booking confirmation. Unless otherwise agreed between the parties, in order to confirm your booking, you must pay us:

  • a deposit of 50% of the fees specified in the order, if the travel date is more than two months from the date of payment. You must pay us the outstanding amount at least two months before the travel date;
  • the full 100% of the fees specified in the order, if the travel date is less than two months from the date of payment.

13.5    Appropriation. We may appropriate any payment received from you towards the satisfaction of any of your indebtedness to us under the agreement.

13.6    Withhold payment. You may not withhold payment of any amount due to us for any reason.

13.7    Certificate. A certificate, signed by an accountant appointed by us, of the amount due by you and the date on which it is payable will be proof of the correctness of the certificate’s contents.

13.8    Tax. All fees exclude any tax, which will be payable where applicable by you in addition to the fees.

13.9    Payment profile. You and any signatory consent and agree that we may provide any registered credit bureau with information about the payment of amounts.

13.10  Time and materials. We may charge you additional fees on a time and materials basis for time that we, in our reasonable opinion, spend in relation to the following:

  • any assistance required by you that does not result from inherent errors in the service;
  • unauthorised use of the service.

13.11  Disputed invoices. If you dispute an invoice, you must notify us and provide us with reasons within seven calendar days of invoice date. You may not withhold payment on any invoice that is not disputed, whether it relates to a disputed invoice or not. You must pay any disputed invoice immediately upon resolution of the dispute. You will bear any costs of the payment at a later date.

14.      Limitation of liability

14.1    Direct damages limited. To the extent permitted by applicable law, regardless of the form (whether in contract, delict or any other legal theory) in which any legal action may be brought, our maximum liability to you for direct damages for anything giving rise to any legal action will be an amount equal to the total fees already paid by you to us for the goods or services related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.

14.2    Indirect damages excluded. To the extent permitted by applicable law, in no event will we (or our personnel) be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits or loss of goodwill) arising from the agreement.

14.3    Exclusions. The limitation contained in this clause will not apply to any breach by a party of the other party’s proprietary or confidential information or intellectual property or damages arising from a party’s gross negligence.

14.4    We are not liable for your default. We will not be liable for any loss or damage suffered by you arising out of or in connection with any breach of the agreement by you or any act, misrepresentation, error or omission made by or on behalf of you or your personnel.

14.5    Other goods or services. We are not liable for any other deliverable, including website, goods, or service provided by any third party.

15.      Breach

15.1    If a party:

  • does not fix any breach of this agreement (failure to comply with it) within seven days of receiving written notice from the other party to do so;
  • breaches this agreement materially twice or more in any six month period;
  • is insolvent (bankrupt), or has some legal disability, for example, if they are placed under administration;
  • takes steps to deregister itself (close down) or is deregistered;
  • makes any settlement or arrangement with its creditors; or
  • fails to pay a court order against it (does not satisfy a writ of execution) for more than one million rand, within 21 days;

then the other party may, without prejudice to any of its rights:

  • claim specific performance of this agreement (make the party comply with this agreement); or
  • immediately cancel this agreement in writing; and
  • claim damages from the other party, including any claim for any fees already due.

16.      Termination

16.1    Termination for good cause. We may immediately terminate this agreement at any time by giving you notice in writing if:

  • we discontinue the services;
  • we believe providing the services could create an economic or technical burden or material security risk for us;
  • termination is necessitated by us having to comply with any applicable law or requests of governmental entities; or
  • we determine that your use of a service or the provision of any services to you has become impractical or unfeasible for any legal or regulatory reason.

16.2    Duties on termination. On termination, cancellation, or expiry of this agreement:

  • we will stop providing the services; and
  • your access rights will cease to exist.

16.3    Survival. The termination, cancellation, or expiry of this agreement will not affect the enforceability of the terms that are intended to operate after expiry or termination.

17.      Effect of termination

17.1    Amounts due to us become due and payable. On termination, cancellation, or expiry this agreement, all amounts due to us for services rendered before termination will become due and payable even if we have not yet invoiced them. You may not withhold the amounts for any reason, unless the arbitrator directs otherwise.

17.2    No expectation. We acknowledge and confirm that no expectation has been created by anyone, by the agreement or any other agreement, entitling us or you to expect the renewal or extension of the term of any agreement

18.      Resolving disputes

18.1    Notifying each other. There will be a dispute about or from this agreement if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:

  • negotiation (direct talks to try and agree how to end the dispute); failing which
  • mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
  • arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).

18.2    Negotiation. Each party must make sure that their chosen representatives meet within 10 business days of notification, to negotiate and try to end the dispute by written agreement within 15 more business days.

18.3    Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.

18.4    Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Johannesburg. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.

18.5    Periods. The parties may agree in writing to change the periods for negotiation or mediation.

18.6    Urgent interim relief. This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).

18.7    Severability. This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.

19.      Notices and domicile

19.1    Notices. The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, prepaid registered post, fax, or email to an address or number given in the relevant order.

19.2    Service (delivery) address for legal documents. Each party chooses its street addresses and numbers as its domicilium citandi et executandi (its address for the service of any document used in legal action) for this agreement.

19.3    Change of addresses or numbers. Each party may change the addresses or numbers in the specific terms to any other addresses or numbers in South Africa by writing to the other party 14 days before the change.

19.4    Deemed delivery. Notice will be considered to be delivered on the date shown on any hand-delivered, prepaid registered post, courier, fax or email confirmation of delivery.

19.5    Notice actually received. If a party actually receives any notice or other communication, this will be good enough.

20.      Force majeure

20.1    Parties not liable. No party will be responsible for any breach of this agreement caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, or acts of God.

20.2    Party affected to notify other party. If there is an event of force majeure, the party affected will tell the other immediately, and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this agreement. The parties will continue to comply with the responsibilities that are not affected by the circumstances.

20.3    Right to cancel. If a party cannot fulfil a material (significant) part of its responsibilities under this agreement for more than 60 days because of force majeure, the other party may cancel this agreement by written notice.

21.      Assignment and subcontracting

21.1    No assignment. No party may delegate its duties under this agreement or assign its rights under this agreement, in whole or in part. We may assign this agreement to any successor or purchaser of our business or some of our assets.

21.2    Exception. Despite this clause, we may cede and assign all rights and obligations under this agreement to a related person without your prior written consent, provided that we notify you within a reasonable time of the event occurring.

21.3    Our third party contractors. We may sub-contract or delegate our obligations under this agreement to third party contractors. We will remain liable for performance of the third party contractors. No one may require us to disclose the terms (including payment terms) of any sub-contract entered into with respect to our obligations under this agreement.

22.      Relationship

22.1    No temporary employment service or partnership. Nothing in this agreement will be construed as constituting a temporary employment service or as creating a partnership between the parties and no party will have any authority to incur any liability on behalf of the other or to pledge the credit of the other party.

22.2    No employment relationship. Each party enters into the agreement as an independent contractor. The agreement does not create any other relationship, including employment for any purpose, partnership, agency, trust or joint venture relationship.

23.      General

23.1    Entire agreement. The agreement is the entire agreement between the parties on the subject.

23.2    Changes to the terms. No change to these this agreement will be valid unless in writing and signed by the parties.

23.3    Waiver (giving up of rights). Any favour we may allow you will not affect or substitute any of our rights against you.

23.4    Severability. If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of this agreement if it does not change its purpose.

23.5    Governing law. South African law governs this agreement.

23.6    Jurisdiction. You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.

23.7    Non-exclusivity. We may provide any goods or services to any other person or entity. We may exploit our intellectual property subject to our confidentiality obligations.

23.8    Costs. Each party is responsible for its own costs of drafting and negotiating this agreement.

23.9    Publicity. A party will not make any announcement or statement to the press about this agreement, without first getting written permission from the other party.