1. PARTIES
      1. Blue Sky Expeditions (Pty) Ltd Registration Number 2019/049991 /07 Address: 6 Lynden, 97 Lambert Road, Morningside, 4001, KwaZulu-Natal, South Africa Email Address: carla@blueskysociety.co.za
    1. DEFINITIONS AND INTERPRETATION
      1. In this Agreement, unless otherwise indicated by the context
        1. “Agreement” means this expedition agreement together with any annexures;
        2. “Blue Sky” means the company referred to in clause 1.1 above;
        3. “Business Day” means a calendar day other than a Saturday, Sunday or public holiday in the Republic of South Africa;
        4. “Client” means the person referred to in clause 1.2 above;
        5. “Effective Date” means notwithstanding the Signature Date, the date that the Client pays his or her deposit in terms of clause 5.2.1;
        6. “Expedition” means the package tour, expedition, self-drive, and any accommodation or conference conducted, organised and/or booked with Blue Sky by the Client as more fully provided for in the Itinerary;
        7. “Group” means the persons who have been booked together for an Expedition;
        8. “Itinerary” means the literary provided by Blue Sky to the Client setting out the details of the expedition, such as the dates, accommodation, services and activities;
        9. “Law(s)” (including the terms “Lawful” and “Lawfully”) means the common law and any applicable constitution, statute, by-law, proclamation, regulation, rule, notice, treaty, directive, code of practice, charter, judgment or order having force of law in the applicable jurisdiction, and any interpretation of any of them by any court or responsible authority, subject to the interpretation of any higher court or authority;
        10. “Parties” means the Client and Blue Sky, and “Party” means either Client or Blue Sky, as the context indicates;
        11. “Signature Date" means the date of signature of this Agreement by the last Party signing; and
        12. “VAT” means value added tax at the ruling rate applicable from time to time, in terms of the Value Added Tax Act, 1991.
      2. Clause headings in this Agreement are for convenience only and are not relevant to the interpretation hereof.
      3. The annexures form part of this Agreement and shall have effect as if set out in full in the body of this Agreement and any reference to this Agreement includes the annexures.
      4. Reference to any particular gender in this Agreement shall be deemed to include the other genders; and words importing the singular shall be deemed to include the plural, and vice versa.
      5. No provision contained in this Agreement shall be construed against or interpreted to the disadvantage of a party to this Agreement by reason of such party having or being deemed to have structured, drafted or introduced such provision.
      6. Any reference to an enactment is to that enactment as at the Effective Date hereof and as amended or re-enacted from time to time.
      7. Where figures are referred to in numerals and words, if there is any conflict between the two, the words shall prevail.
      8. Prior drafts of this Agreement shall not be admissible in any proceedings as evidence of any matter relating to any negotiations preceding the signature date.
      9. This Agreement shall be binding and enforceable by the estates, heirs, executors, administrators, trustees, business rescue practitioners, assigns or liquidators of the Parties as fully and effectually as if they had signed this Agreement in the first instance and reference to any Party shall be deemed to include such Party’s executors, administrators, trustees, business rescue practitioners, assigns or liquidators, as the case may be.
      10. The termination or expiry of this Agreement shall not affect those provisions of this Agreement which expressly provide that they will operate after such expiry or termination, or those which of necessity must continue to have effect after such expiry or termination, notwithstanding that the clauses themselves do not expressly provide for this.
    2. APPOINTMENT
      1. Client agrees to participate in the Expedition and hereby appoints Blue Sky to arrange and undertake the Expedition, which appointment is accepted by Blue Sky, subject to the terms and conditions of this Agreement.
    3. DURATION
      1. This Agreement shall commence on the Effective Date and shall remain in full force and effect for the duration of the Expedition.
      2. Nothing in this clause shall preclude a Party from terminating this Agreement earlier where otherwise entitled to do so in terms of this Agreement or in law.
    4. BOOKINGS AND PAYMENT
      1. In consideration for Blue Sky organizing and undertaking the Expedition for the Client, the Client shall pay remuneration to Blue Sky in the amounts stated in Blue Sky’s tax invoices.
      2. The remuneration payable by the Client to Blue Sky in clause 5.1 above, must be paid as follows:
        1. a deposit equal to 30% (thirty percent) of the invoice amount in order to confirm a reservation for a place on the Expedition, which payment must be made within 48 (forty eight) hours of placing the booking;
        2. the balance of 70% (seventy percent) of the invoice amount must be paid at least 3 (three) months prior to the start of the Expedition.
      3. If Client cancels the booking:
        1. less than 30 days (one) months before the start of the Expedition he or she shall not be entitled to a refund of any amounts already paid to Blue Sky;
        2. more than 1 (one) months but less than 3 (three) months before the start of the Expedition, he or she shall be entitled to a refund equal to 30% (thirty percent) of the invoice amount already paid;
        3. more than 3 (three) months but less than 5 (five) months before the start of the Expedition, he or she shall be entitled to a refund equal to 70% (seventy percent) of the invoice amount already paid;
        4. more than 5 (five) months but less than 7 (seven) months before the start of the Expedition he or she shall be entitled to a refund equal to 100% (hundred percent) of the invoice amount already paid. The only amount that will be charged is a R2000 administration fee from the amount.
      4. Payments of all amounts due to Blue Sky shall be made free of exchange in South African currency or such currency acceptable to Blue Sky’s bankers and without demand and free of any deduction of set-off on the due date for payment.
      5. If Blue Sky is obliged to levy VAT on the consideration payable, VAT shall be added to the invoice amount and be payable by the Client.
      6. Any amounts overdue in terms of this Agreement shall attract interest on the amount owing at a rate equivalent to the prime overdraft rate charged by Blue Sky’s bankers from the date that the payment fell due for payment until the date of payment thereof.
      7. Receipt by Blue Sky of the deposit (see clause 5.2.1 above) shall only ensure a reservation of booking. Blue Sky shall provide the Client with an invoice indicating the amounts due and/or owing by Client to Blue Sky. If Client fails to make payment of the invoice amounts within the time periods stated in clause 5.2, Blue Sky shall be entitled to cancel the Client’s booking and to allocate the place to another person.
      8. The Expedition includes transportation by vehicles or aeroplane, accommodation, food and drink, tour guides and other services that are specified in the Itinerary issued by Blue Sky but do not include the cost of visas, vaccinations, insurance or such other costs which are not specified.
      9. Payments can be made by way of direct transfer, or secure credit card payment facility through Paypal, or such other method stated on Blue Sky’s invoice.
      10. The onus is upon the Client to check all booking details and to make sure that the dates allocated are correct and acceptable to the Client. Payment of the deposit will be deemed to be acceptance by the Client that the dates of the Expedition are acceptable to the Client.
    5. EXPEDITION ORGANISER’S INSTRUCTIONS
      1. The Client shall always follow and adhere to all reasonable instructions given by Blue Sky (whether such instructions are given verbally, displayed on notices in vehicles/camp sites, published in leaflets or other documentation) during the Expedition, which instructions may include, but are not limited to:
        1. remaining seated in vehicles whilst in motion;
        2. not exiting vehicles in dangerous areas such as in game reserves;
        3. not leaving designated camp sites and picnic areas, and to remain within the confines of other areas specified or pointed out by Blue Sky;
        4. not walking around after dark in the camping area;
        5. taking all safety measures to avoid fire hazards;
        6. taking precautions against sun and heat;
        7. taking all reasonable steps, safety measures or precautions to prevent or avoid any situation which may place the Client or the Group in danger, including but not limited to any contact or interaction with dangerous wildlife, water hazards, or adverse weather conditions or natural disasters;
      2. Failure by the Client to comply with clause 6.1 above shall constitute a material breach of this Agreement that will entitle Blue Sky to immediately terminate the Agreement without written or verbal notice.
    6. PROTECTION OF THE ENVIRONMENT
      1. Whilst on Expedition the Client shall not damage the environment by picking wild flowers and other vegetation, littering, bathing with soaps and detergents in the river or use insecticides other than those specified by Blue Sky.
      2. Should Blue Sky issue an instruction that there will be no smoking, the Client undertakes to faithfully abide by such instruction.
      3. The Client undertakes to behave in a quiet and peaceful manner, and not to cause a nuisance, showing consideration to the Group and the wildlife at all times.
    7. BAGGAGE AND EQUIPMENT
      1. The Client warrants that his or her baggage, equipment or other goods which Blue Sky will transport during the Expedition shall not contain any flammable, hazardous dangerous, or illegal articles/substances.
      2. Blue Sky may in its sole discretion and without giving any reason therefor refuse to carry a Client's baggage and/or photographic equipment and/or any other goods at any time.
      3. For any Fly-in Expedition the Client shall be entitled to no more than 1 (one) soft bag weighing no more than 15 (fifteen) kilograms, and carry-on luggage of 7 (seven) kilograms. Blue Sky does have the right, depending on the Expedition, to make changes to the baggage and equipment restrictions or limitations.
      4. The carriage, handling or keeping of any baggage, equipment or other goods of the Client will be at the sole risk of the Client or its owner and Blue Sky shall not be liable for any loss or damage of whatsoever nature and howsoever caused to such baggage, equipment or goods.
    8. TRAVEL DOCUMENTS
      1. Client acknowledges that it is his or her responsibility and undertakes to ensure that he or she is possessed of the necessary travel documents, such as visas and passport, for the countries of entry and has further complied with all health (e.g. vaccinations) and other Laws that are requirements for the countries of entry in respect of the proposed Expedition.
    9. RISKS, HAZARDS AND DANGERS
      1. Client accept and fully appreciate, without reservation, that there may be risks, hazards and dangers in undertaking and participating in the expedition with Blue Sky, which include, but are not limited to, that:
        1. there may not always be protection in the form of fences, buildings and vehicles in which to take cover in potentially dangerous circumstances and that hazards such as having contact with potentially dangerous animals, reptiles, spiders, insects and plants, which may be encountered whilst on Expedition;
        2. Rivers, dams, lakes, seas and other sources of water may contain water borne diseases, bacteria, viruses and sickness (e.g. bilharzia, dysentery, cholera, typhoid fever etc.) which may result from drinking or entry into such waters or swimming, bathing and washing in certain waters;
        3. entering into malaria areas. Malaria prophylactics must be taken in accordance with the Clients medical practitioner's advice, before entering a malaria area;
        4. exposure to the sun and heat (directly or indirectly) and that serious sunburn and heat exhaustion may result from unprotected exposure. Care must be taken at all times for adequate sun protection and sufficient fluids to be drunk to avoid dehydration;
        5. adverse weather conditions, natural disasters, acts of God, such as floods, fire, cyclones, tsunamis, volcanic eruptions, and other geologic processes;
        6. viruses, bacteria, diseases or sickness;
        7. crime, public unrest, strikes, war or accidents of any kind (including transport accidents by land, sea or air), and, Client shall always be alert to these potential risks, hazards and dangers and take all the necessary steps and precautions that would be expected of a reasonable person to mitigate against such risks, hazards and dangers
      2. Notwithstanding that the Client may have taken all necessary steps to mitigate against the above risks, Client undertakes to sign a separate indemnity prior to departing on the Expedition in terms of which Client will indemnify and hold Blue Sky harmless against all loss or damage, from any cause arising, which Client may sustain during the Expedition, including, but not limited to any claim for damages or loss to property, death or injury to Client.
      3. In addition to the indemnity provided by the Client in clause 10.2 above, Client shall sign any reasonable further indemnities provided for at game parks, museums and historical sites and shall conform with game park, museum and historical site rules and regulations.
      4. Client shall at all times comply strictly with the customs, immigration and health Laws of the territories or countries visited or traversed during the Expedition. If Client is restrained or detained and is unable to continue the Expedition for any reason whatsoever by the authorities in any country, he or she shall have no claim for further carriage, refund or rebate against Blue Sky.
    10. LIMITATION OF LIABILITY
      1. Blue Sky’s liability to the Client and his or her dependents in respect of or in connection with the Expedition is limited by the indemnities (see clause 10.2 and 10.3 above), and to the extent that such indemnities do not apply, to the amount paid by the Client in terms of clause 5.1 above, and Client shall have no claim against Blue Sky for compensation for injury, damage or loss, whether sustained as a consequence of the risks, hazards and dangers (see clause 10) on a vehicle, embarking or disembarking from a vehicle or in a game reserve, hotel or lodge or elsewhere or as a result of delays or otherwise, caused directly or indirectly to his or her person or his or her property, members of his or her group and his or her dependents or to persons who, except for these conditions, might have been entitled to make a claim howsoever arising and whether caused or occasioned by any negligent act or omission or default by Blue Sky.
      2. During the course of the Expedition, weather and road conditions, mechanical breakdown other other unforeseen incidents beyond the control of Blue Sky (see clauses 10 and 21) can affect the progress of Expedition. Although delays are infrequent, the policy (without limiting the foregoing exclusions and exemptions) in such event is to provide free of charge the vehicle, all camping equipment and personal services. But personal expenses, meals, alternative accommodation and all resulting costs, including the costs of travel home are to be borne by the Client. The obligation is upon the Client to take out travel insurance for this contingency (see clause 13).
      3. Whilst Blue Sky will endeavour to ensure that all anticipated transport, accommodation, food, drinks and other such services are available as planned, there shall be no claim of any nature whatsoever against Blue Sky for a refund, either in whole or in part or of any other claim of any nature whatsoever including consequential damages as a consequence of any transport, accommodation or other facility attached to the Expedition not being available.
      4. All exclusions or limitations of liability claimable by Blue Sky shall apply equally to and may be claimed by its agents, employees, directors, servants, subcontractors and representatives of Blue Sky as fully and as effectually as if they were Blue Sky.
      5. Blue Sky will not be liable for any indirect, special or consequential damages, including but not limited to lost income or profits, however arising, even if it has been advised of the possibility of such damages.
    11. NUISANCE
      1. If the Client constitutes a nuisance to Blue Sky, the Group or any other client, Blue Sky shall be entitled in its sole discretion, to terminate this Agreement and refuse to permit the Client or any member of his group to continue with the Expedition. In such circumstances the Client or any member of his or her group, at his or her cost and responsibility, shall make his or her own travelling arrangements from the place where the Expedition is situated on the date of termination. Blue Sky shall not be liable to make any refund to the Client and the latter will have no claim for transport or any other costs of any nature whatsoever against Blue Sky as a result of the early termination.
    12. INSURANCE
      1. The Client shall procure his or her own travel insurance prior to the start of the Expedition. There is no obligation upon Blue Sky to arrange insurance on behalf of the Client except where express instructions were given in writing by the Client (and accepted by Blue Sky) and any insurances procured by Blue Sky shall be subject to the usual exceptions and conditions of the policies of the insurance company or underwriters undertaking the risk. Blue Sky shall be entitled to arrange insurance on an open or general policy. Should the insurers dispute liability for any reason, the Client shall have recourse against the insurers only and Blue Sky shall not be responsible or liable in relation thereto, notwithstanding that the premium upon the policy may not be at the same rate as that charged by Blue Sky or paid to Blue Sky by the Client. The exemptions, limitations of liability and claims procedures referred to in this Agreement shall not restrict the Client's right to have recourse against the insurers for the legal liability of Blue Sky to the Client.
    13. PHOTOGRAPHS
      1. Blue Sky reserves the right, without giving further notice, to make use of any photographs or film taken of the Client during the Expedition for general publicity purposes without payment of any royalties or further permission from the Client
    14. WARRANTIES AND UNDERTAKINGS
      1. Client warrants in favour of Blue Sky that:
        1. his or her general health is good and that to the best of his or her knowledge there is nothing which renders him or her unfit to undertake the Expedition;
        2. he or she will comply at all times with the Laws of the country/ies where the Expedition takes place and will be personally responsible for any fines, penalties or other sanctions imposed upon the Client as a consequence of the Client’s breach of any Laws. In the event that any fine or penalty is levied upon Blue Sky as a consequence of the Client breaching any Laws, the Client undertakes to refund Blue Sky upon demand;
        3. receive and comply with all reasonable directions and requests (see clause 6) from Blue Sky’s representatives for the duration of the Expedition;
        4. this Agreement constitutes an agreement valid and binding on him or her and enforceable against him or her in accordance with its terms;
        5. he or she is not relying upon any statement or representation by Blue Sky, except those expressly set forth in this Agreement;
        6. to the best of his or her knowledge and belief, her or she is not aware of the existence of any fact or circumstance that may impair his or her ability to comply with all of his or her obligations in terms of this Agreement;
      2. Each of the representations and warranties given by the Client in terms of this clause 15.1, shall:
        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 this Agreement;
        2. continue and remain in force notwithstanding the completion of the Expedition contemplated in this Agreement; and
        3. prime facie be deemed to be material and to be a material representation inducing the other Parties to enter into this Agreement.
      3. Blue Sky considers that the contents of its brochures, pamphlets and other advertising material is correct at the time of printing and services described therein are subject to change or withdrawal without notice.
    15. SUBCONTRACTS
      1. Blue Sky shall be entitled to engage the services of sub-contractor(s) when organising and providing the Expedition for the Client without the prior written approval of the Client and any such approved sub-contracting shall not relieve Blue Sky of any of his obligations under the Agreement.
    16. BREACH
      1. Should any Party:
        1. breach any provision of this Agreement capable of being remedied, and further fail to commence rectifying such breach within 5 (five) Business Days after receiving written notice from the other requiring it to do so, or to diligently continue with such rectification; or
        2. breach any material terms of the Agreement that are not capable of being remedied; or
        3. persistently breach or fail to perform any one or more of its obligations in terms of this Agreement to such an extent so as to demonstrate the intention of the defaulting party not to continue performance of its obligations under this Agreement or its inability to perform such obligations,
        4. then, the other Party shall be entitled to terminate this Agreement (either as an alternative to a claim for specific performance or upon the abandonment of such claim) on written notice given to the defaulting Party without prejudice its rights to claim damages.
    17. EARLY TERMINATION AND DEVIATION
      1. If for any reason, including illness or injury, the Client is no longer able, or no longer wishes to continue with the Expedition, then the Client at his or her cost shall make his or her own travel arrangements. If Blue Sky is obliged to deviate from the proposed route as a consequence of injury or illness of the Client or member of his or her group or for such other reason as a Client may require, that Client shall be responsible for all additional costs arising out of the deviation.
      2. If Blue Sky terminates this Agreement early due to a breach by the Client in terms of clause 17.1 above, Client shall not be entitled to any refund of its costs, and will be responsible at his or her own cost to make his or her travel arrangements from the place where this Agreement is terminated.
    18. NOTICES AND DOMICILIA
      1. The Parties choose as their respective domicilia citandi et executandi for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the addresses nominated in clause 1 above.
      2. Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing. Notwithstanding this clause 19.2, if notice has to be given by Blue Sky during an Expedition, verbal notice may be given and later confirmed in writing.
      3. Any Party shall be entitled to change its domiciliary address and/or telephone/fax number and/or e-mail address, from time to time, by way of written notice to the other specifying its new domiciliary address and/or telephone/fax number and/or e-mail address (as the case may be) provided always, however, that if the new physical address is not within the Republic of South Africa, the Client consents to Blue Sky providing notice by e-mail.
      4. Any notice to a Party:
        1. delivered by hand to a responsible person during ordinary business hours at its domiciliary address shall be deemed to have been received on the day of delivery;
        2. sent by telefax to the telefax number chosen by the addressee for the purposes of this Agreement, shall be deemed (unless the contrary is proved) to have been received by the addressee on the date of transmission of the telefax;
        3. sent by electronic mail to the e-mail address chosen by the addressee for the purposes of this Agreement, shall be deemed (unless the contrary is proved) to have been received by the addressee on the date of transmission of the electronic mail.
      5. Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domiciliary address or telefax number or e-mail address (as the case may be).
    19. RESOLUTION OF DISPUTES
      1. Save in respect of those provisions of this Agreement which provide for their own remedies or methods of dispute resolution, In the event of any dispute or difference arising between the Parties relating to, or arising out of, this Agreement or the interpretation or implementation thereof, the Parties shall forthwith meet to attempt to settle such dispute or difference by negotiation and, failing such settlement within a period of 20 (twenty) Business Days, the said dispute or difference shall be submitted to arbitration in accordance with clauses 20.2 to 20.7 below.
      2. The arbitration shall be:
        1. held at Durban, Kwazulu-Natal, South Africa; and
        2. conducted under the arbitration laws of South Africa in terms of the Rules of the Arbitration Foundation of Southern Africa (AFSA) or its successor (as may be amended from time to time).
      3. The arbitration shall be:
        1. an independent chartered accountant of not less than 10 (ten) years standing, if the question in issue is primarily an accounting matter; or
        2. a practising attorney or advocate of not less than 10 (ten) years standing, or a retired judge, if the question in issue is not primarily an accounting matter.
      4. The Parties to the arbitration shall jointly appoint the arbitrator and, if they fail to agree on such appointment, he or she shall be appointed at the request of either Party by the Arbitration Foundation of Southern Africa (or its successor) which will also be authorised to determine whether the arbitrator will be a chartered accountant or an attorney, retired judge or advocate in terms of clause 20.3 above.
      5. The arbitrator shall decide the matter according to what he or she considers just and equitable in the circumstances and shall have regard to the desire of the Parties to dispose of such dispute expeditiously, economically and confidentially.
      6. The decision of the arbitrator shall be final and binding.
      7. Nothing in this clause 20 shall preclude any Party from seeking urgent relief by way of an interdict or otherwise in any court having jurisdiction over the matter.
    20. FORCE MAJEURE AND IMPOSSIBILITY OF PERFORMANCE
      1. In this clause the expression “force majeure” means war, earthquake, fire, flood, frost, tempest, drought, cyclone, act of God, decrees or restraints or acts of Government or military authority, impassable public road conditions, strikes and other industrial disputes, sabotage, civil commotion, riots, lock-outs, labour unrest or disputes, plant, vehicle or machinery break-downs, unscheduled stoppages, civil disorder, boycott, or any other similar cause beyond the reasonable control of the party affected thereby (provided that inability to meet any obligation hereunder because of lack of funds, shall in no circumstances be treated as an event of force majeure).
      2. In the event that any Party shall be rendered unable to carry out the whole or any part of its obligations under this Agreement by reason of an event of force majeure, the performance of the obligations hereunder of the Party affected thereby, shall be excused during the continuance of such inability so caused, provided that:
        1. such inability shall insofar as possible be remedied by the Party affected thereby, with all reasonable dispatch;
        2. the performance of the obligations of the Party concerned shall be resumed as soon as may be reasonably practicable after the interruption has ceased.
      3. Should any occurrence as referred to above arise, then during any period in which any Party hereto is prevented from fulfilling any of its obligations hereunder, the other Party shall be entitled to take such steps as may be reasonably necessary in the circumstances, to deal with the situation as it may deem fit, in order to meet the requirements in the normal and ordinary course of its operations.
      4. Notwithstanding the aforegoing, if either Party is precluded by, or as a result of an event of force majeure from fulfilling its obligations for a period of more than 10 (ten) consecutive Business Days, then either Party shall be entitled, but not obliged, to cancel this Agreement, and neither Party shall be entitled to claim damages as a result of such cancellation.
    21. WHOLE AGREEMENT
      1. This Agreement constitutes the entire agreement between the Parties and no representations or warranties not contained herein or subsequently reduced to writing and signed by both Parties shall be of any force or effect whatsoever. No variation of any of the terms and conditions of this Agreement will be of any force or effect unless reduced to writing and signed by both Parties.
    22. INDULGENCES
      1. No relaxation or indulgence which any Party may grant the other Party shall in any way prejudice or debar them from subsequently enforcing its rights under this Agreement.
    23. GOVERNING LAW
      1. This Agreement shall be governed by and construed according to the Laws of the Republic of South Africa.
    24. COSTS
      1. Each Party shall be responsible of their own legal costs in respect of the negotiation and preparation of this Agreement.
    25. SIGNATORIES
      1. This Agreement is signed by the Parties on the dates and at the places indicated below.
      2. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement as at the date of signature of the last Party signing one of the counterparts.
      3. The persons signing this Agreement in a representative capacity warrant their authority to do so.
      4. The Parties record that it is not required for this Agreement to be valid and enforceable that a Party shall initial the pages of this Agreement and/or have signatures contained in this Agreement verified by witnesses.
  • 2020, in the presence of the undersigned witnesses.