Adventure Venue Terms
Adventure Venue Terms
- This Agreement is entered into between Amper Online t/a Adventure Escapades (“AdvEsc”), a limited liability company incorporated under the laws of the Republic of South Africa and having its principal place of business located at The Junction, Garlington Estate, Hilton.
- AdvEsc owns and operates an internet based Platform in South Africa that allows Adventure Venues to sell their products online to Customers, which Platform is currently provided on the website www.AdventureEscapades.co.za, and may be provided on different websites or applications in the future as AdvEsc may elect (the “Platform”);
- The Adventure Venue intends to sell products on the Platform according to the terms and conditions contained herein.
- This Agreement expressly supersedes prior agreements or arrangements with the Adventure Venue.
- Any update to the Agreement will be communicated to the Adventure Venue, who will have 2 weeks to accept the terms. If the Adventure Venue does not accept the terms, the Adventure Venue Account will be suspended. If the Adventure Venue accepts the Agreement, the new terms and conditions shall apply to all the orders processed after electronic acceptance of amendments and updates.
- In this agreement, unless the context otherwise indicates –
- The singular shall include the plural and vice versa;
- Reference to the masculine gender shall include the feminine gender and vice versa;
- Natural persons shall include created entities (corporate or unincorporated) and vice versa; and
- The headings in this Agreement are used for the sake of convenience and shall not govern the interpretation hereof.
- “Adventure Venue” is the purveyor of activities, accommodation, tours, tickets and entertainment, and whom this document identifies as the party contracting herein with Adventure Escapades
- “Account Manager” means an AdvEsc professional agent specialized in supporting the commercial growth of an Adventure Venue on the Platform. The assignment of an Account Manager to an Adventure Venue is solely at AdvEsc’s discretion;
- “Business Day” means any day on which normal business is conducted and excludes Saturdays, Sundays and public holidays in the Republic of South Africa.
- “Confidential Information” means the content of this Agreement, all the information and data acquired in connection with or for the purposes of this Agreement and any information that is not publicly available to third parties.
- “Confirmation of Sale” means the notice confirming a sale sent by AdvEsc to the Adventure Venue either via the Platform and/or via email. The Confirmation of Sale notice shall be presumed to have been received by the Adventure Venue on the same date it was sent via the Platform and/or via email.
- The “Customer” means the AdvEsc customers who make online purchase orders on the Platform.
- The “Order” means the purchase order completed by the Customer, stating his contact information and detailed description of the Product/s he wishes to purchase.
- “Payment Method” means electronic payment, which includes but is not limited to payment by credit card, debit card and Electronic Funds Transfer (EFT).
- The “Product” means the Activity/ies, product/s offered on the Platform by the Adventure Venue.
- The “Invoice” means the invoice issued to the Customer.
3. Scope of Services
- The Adventure Venue shall offer its Products to Customers on the Platform.
- AdvEsc shall accept online purchase orders from the Customers in respect of the Adventure Venue’s Products offered on the Platform, by way of an online order on the Platform and completed by the Customer and a voucher returned to the customer for redemption at the Adventure Venue. The contract of sale is concluded between the Adventure Venue and the Customer, subject to the Terms and Conditions published on the Platform.
- The Adventure Venue shall accept the voucher and provide the prescribed service to the Customer.
- Ownership of the Voucher shall vest in AdvEsc until such time as the voucher is redeemed at the Adventure Venue by the Customer.
- AdvEsc shall pay the Adventure Venue for their services rendered, once redemption of the Customer’s voucher has taken place, as per Section 6 of this agreement.
4. AdvEsc’s Rights and Obligations
- AdvEsc shall display the Products specified by the Adventure Venue on the Platform.
- AdvEsc shall offer the Product/s for sale for the display information specified by the Adventure Venue.
- AdvEsc may use third party service providers to fulfil some part of the services to the Adventure Venue and to the Customer.
- AdvEsc shall have the right to reject products, descriptions of products and/or pictures of products specified by the Adventure Venue in the event that those products and/or pictures do not meet AdvEsc’s quality standards. Should a product be rejected, AdvEsc will provide the Adventure Venue with reasons for the rejection.
- AdvEsc reserves the right to:
- Remove the entire or a portion of a Product page which would contravene the terms and conditions of this Agreement.
- Remove an image proposed by the Adventure Venue for any reason, including but not limited to the following:
- The quality of the image is deemed by AdvEsc as insufficient, in terms of quality or accuracy, or
- The image offends the sensibility of Customers or the image is not compliant with moral ethics.
- AdvEsc shall send a Confirmation of Sale to the Adventure Venue via the Platform and/or by email.
- AdvEsc shall be responsible for delivering the Voucher to the Customer.
- AdvEsc shall be under no obligation whatsoever to pay over to the Adventure Venue, any revenue derived from customers, who have made purchases from AdvEsc, but who have not presented themselves to the Adventure Venue to redeem the vouchers purchased. It shall be the sole responsibility of the Adventure Venue to solicit from the customer, and present to AdvEsc such vouchers, and the Adventure Venue shall have no right or title to the revenue represented by said vouchers until it has done so. Until such time as the voucher is received by AdvEsc from the Adventure Venue, its obligation to refund, if any, lies between AdvEsc and the customer. However once the voucher has been redeemed by the Adventure Venue, any disputes from the customer lie with the Adventure Venue and AdvEsc holds no obligations or liability herein.
- At AdvEsc’s discretion, it may provide the Adventure Venue with analytics about the performance of the Adventure Venue’s products and additional marketing support.
- AdvEsc will provide the Adventure Venue with training material and the requisite support for the Adventure Venue to build the level of competence and acquire the knowledge to operate on the Platform. Training may be provided online or offline. AdvEsc reserves the right to charge a fee for certain training programmes. Adventure Venues may be required to attend training in order to be eligible to sell on the Platform.
5. Adventure Venue’s Rights and Obligations
- Adventure Venue Account
- Every Adventure Venue who lists Products on Platform must have established an account with AdvEsc.
- The Adventure Venue acknowledges that Adventure Venue information shared with AdvEsc is necessary to provide the services.
- Product Listing and Content
- The Adventure Venue authorises AdvEsc, by virtue of this Agreement, to market and sell the Product/s on the Platform to Customers on behalf of the Adventure Venue, which pass quality control. The Adventure Venue further authorises AdvEsc to divulge data and information about the Adventure Venue and the Products on its Platform to the extent required for marketing.
- The Adventure Venue shall be responsible for providing information for the listing of its own products. The Adventure Venue shall provide a detailed description of the Products and all relevant and necessary information to AdvEsc, prior to displaying a Product on the Platform. This includes, but is not limited to, a detailed title and sub-title, prices, quantity, picture and description of the Product.
- The Adventure Venue grants AdvEsc the perpetual right to use, reproduce, modify, adapt, publish, translate and create other content and to distribute the content that the Adventure Venue provides to describe the Products and the image itself.
- AdvEsc offers Customers the opportunity to evaluate the Products on the Platform. AdvEsc will review these evaluations and may publish them but reserves the right to delete ratings and reviews.
- The Adventure Venue acknowledges and undertakes that all the information relating to the Products provided to AdvEsc is true and does not violate any third party’s Intellectual Property Right. The Adventure Venue further guarantees that this information satisfies all legal requirements, and in particular satisfies information requirements for consumer protection
- The Adventure Venue indemnifies AdvEsc against any third party claims resulting from the Product information provided by the Adventure Venue and/or resulting from the product/s itself.
- Every Activity/Item sold shall be identical to its description on the Platform and to the image provided. AdvEsc may inspect the Products listed by the Adventure Venue in order to check their conformity with the specifications mentioned by the Adventure Venue and with the standards of quality stated therein. The Adventure Venue shall not knowingly deceive a potential Customer by misrepresenting a Product.
- The Adventure Venue shall assume responsibility for the content it provides to be published on its Product page.
- The Adventure Venue agrees that because of lead time due to quality control, the Product page may not go online instantly.
- Sale of the Products
- The Adventure Venue is responsible for setting the price of its Products on the Platform. The price must include taxes and comply with applicable laws in effect for the full duration of the listing.
- The Adventure Venue authorizes AdvEsc to accept binding sales on its behalf. AdvEsc will ensure that order data is passed on to the Adventure Venue through the platform or via email within one (1) Business Day.
- The Adventure Venue shall not send advertising or promotional emails to a Customer without the prior consent of AdvEsc and the Customer.
- The Adventure Venue is responsible for keeping an up-to-date inventory of all the Products displayed on the Platform and undertakes to immediately notify AdvEsc if any Product is no longer available or if the Product information needs to be updated.
- The Adventure Venue must adhere to its range of Products and prices as provided to AdvEsc and as described on the Product listings on the Platform.
- The Adventure Venue acknowledges and undertakes that there are no ongoing criminal, insolvency or tax investigation proceedings or other penalties outstanding in relation to the Product. The Adventure Venue further undertakes to take great care to keep his range of Products, descriptions prices and associated terms and conditions up to date.
- The Adventure Venue shall accept the Order and fulfill the requisite services on receipt of the issued voucher.
- Promotions / Specials
- If an Adventure Venue submits Products as a Promotion or Special to AdvEsc the Adventure Venue agrees to sell the Products at the price agreed for the Promotion Feature, for the period mentioned in the Promotion description.
6. Payment and Taxes
- AdvEsc’s commission:
- AdvEsc’s commission for services rendered shall be calculated as a fixed percentage of the Recommended Retail Price (“RRP”) of the Product, excluding VAT. The fixed percentage shall be set out in Annexure A, attached hereto.
- The commission percentage shall exclude VAT and VAT shall therefore be added to the commission amount on AdvEsc’s Invoices.
- In the event that products are discounted by the Adventure Venue, the parties agree that AdvEsc’s commission shall still be calculated on the discounted RRP.
- Monthly Fees (where applicable):
- The fee structure is set out in Annexure A (all in ZAR, excl. VAT):
- All monthly fees shall be paid in advance using by one of the following options: payment by credit card, debit card, debit order or EFT.
- Discount for extended advance payments shall be at the discretion of AdvEsc.
- AdvEsc’s invoicing and payment to the Adventure Venue:
- No payment shall accrue to the Adventure Venue until such time as it has presented to AdvEsc a valid voucher from a customer in respect of the sale in question.
- AdvEsc shall provide the Adventure Venue, by the 30th of every month, with:
- a statement of all the Adventure Venue’s Products redeemed in the preceding month, known as an Account Statement. The Account Statement shall include inter alia the details of the Products sold, the quantity sold, the amount the Products were sold for and the amount of VAT charged; and
- a Tax Invoice for AdvEsc’s commission earned during the preceding month;
- The Adventure Venue shall be entitled to the total amount recorded in the Account Statement at Display Price.
- AdvEsc shall settle the balance between the total amount due to the Adventure Venue as per the Account Statement and AdvEsc’s Tax Invoice for commission and any other costs as agreed, within one (1) calendar month from month-end of the period described in the Account Statement.
- The Adventure Venue shall furnish AdvEsc with an original letterhead, with the correct bank account details and signed by an authorized signatory, which details shall act as the agreed bank account into which payments shall be made.
- AdvEsc shall pay all amounts owing in terms of clause 7.3.3 into a bank account nominated by the Adventure Venue, by electronic funds transfer.
- It is specifically recorded that it is the Adventure Venue’s responsibility to declare VAT on Product sales reflected in the Account Statement. For the avoidance of doubt, the parties specifically agree that Section 54(2) of the VAT Act No. 89 of 1991 is applicable. From the time the customer redeems their Voucher from the Adventure Venue, Products to Customers is deemed to be made by the Adventure Venue and not AdvEsc.
- Payment method may be subject to change with thirty (30) calendar days written notice.
- Each party shall be responsible for the settlement of its respective tax obligations which arises from any transaction in relation to this contract.
7. General acknowledgments
- The Parties acknowledge and agree that AdvEsc has the right to amend/modify the general terms and conditions of the Platform at any time and without giving any justification. In this case, AdvEsc will furnish the Adventure Venue with notice of intended amendments/modifications via email, at least three (3) business days prior to making the changes. If the Adventure Venue does not object to these amendments/modifications in writing within three (3) business days of delivery of the notice, the changed terms and conditions will be considered accepted by the Adventure Venue.
- The Parties acknowledge and agree that AdvEsc may carry out changes to the Platform or the service, or suspend the service, without notice to the Adventure Venue.
8. Returns & Refunds
- The Adventure Venue shall accept AdvEsc’s refunds according to the Refunds Policy provided on the Platform. Which shall remain in the control of AdvEsc. Once the customer redeems their voucher any return or refund must be dealt with by the Adventure Venue.
- The Parties acknowledge and agree that AdvEsc does not guarantee the quality of the sold Products. The Adventure Venue acknowledges that all the Products are safe and clear of any liens, claims and encumbrances and comply with all relevant laws, regulations and requirements. The Adventure Venue also acknowledges that the Products, fit for the particular purpose for which they are intended and match their description. The Adventure Venue undertakes to indemnify AdvEsc against any third party claims relating to the quality or the condition of the sold Products or Services or resulting from the Adventure Venue’s violation of any of the applicable laws or regulations.
- AdvEsc does not guarantee that the Platform will be free from all malfunctions, but will exercise all reasonable care and skill to resolve any such issue.
- AdvEsc does not guarantee any commercial results to the Adventure Venue concerning the products that the Adventure Venue puts on AdvEsc’s platform.
- AdvEsc shall not be held responsible for any prejudice and direct or indirect damages of whatsoever nature done to the Adventure Venue because of the use, interruption or dysfunction of AdvEsc’s website, mobile website, Android Application or any other service provided by AdvEsc.
- AdvEsc, its subcontractors and suppliers shall not be responsible for any delays or impossibility to fulfil their contractual obligations in case of:
- force majeure;
- interruption of the website connection because of maintenance operations or refreshing information published;
- momentary inability to have access to the website or mobile application because of a technical problem;
- hacking or any other cause which interrupts the access to the internet laws, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes;
- interruption of traffic;
- interruption of production or operation, difficulties in obtaining labour, fuel, parts or machinery;
- power failure or breakdown in machinery.
- The Adventure Venue acknowledges that due to unforeseen technical challenges of telecommunication operators, the permanent availability of the Platform cannot be guaranteed.
- The Parties undertake that, for the duration of this Agreement and for one (1) year after termination, they will not disclose, provide, copy or otherwise make available to any third party any Confidential Information of any kind concerning the other Party except to the extent necessary to implement this Agreement and perform the marketing services stated thereto, this includes, but is not limited to, the content of this Agreement, all the information and data acquired in connection or for the purposes of this Agreement. The Parties undertake to comply with all applicable privacy laws and handle accordingly all data related to Customers, Adventure Venues and business partners.
- Upon termination of this Agreement each Party must immediately return to the other Party all material in its possession which contains Confidential Information of the other Party.
11. Intellectual Property Rights
- For the purposes of this Agreement, the Parties acknowledge and agree that AdvEsc has the right to utilize the Products and the Adventure Venue’s name, logos, listings, trademarks, intellectual property rights and significant signs by several means and forms for marketing purposes and disclose the relationship with the Adventure Venue.
- The Adventure Venue grants to AdvEsc a royalty-free, perpetual, unrestricted license to use and distribute any materials provided by the Adventure Venue to AdvEsc, for the purpose of advertising AdvEsc’s Platform. In particular, this includes using it in Google AdWords campaigns, and other online marketing, social media and search engine optimization measures.
12. Representation and Warranties
- The Adventure Venue represents and warrants that:
- It has good title to, and is the sole beneficial owner of, the Products supplied to AdvEsc under this Agreement;
- As at the date of this Agreement, the Adventure Venue is not aware of any claim for infringement of Intellectual Property Rights or for the breach of any obligation of confidence, arising out of the manufacture, sale or use of the Products, having made reasonable investigations in this regard, and will immediately notify AdvEsc should such a claim arise;
- It will, at no further cost to AdvEsc, procure for AdvEsc all licenses reasonable and necessary to fulfil the services;
- The Intellectual Property relating to the Product does not and will not infringe any rights of third parties;
- The provision of the Products does not and will not infringe the rights (including, but not limited to, Intellectual Property Rights) of any third party;
- It has the right, power and authority to enter into and perform its obligations in accordance with this Agreement;
- All corporate and other necessary action has been taken to authorise the signing and performance of this Agreement; and
- This Agreement is valid and legally binding on the Adventure Venue.
- The Adventure Venue further warrants that the Products will meet the relevant Standards and comply with all relevant laws, regulations and Standards.
- The Adventure Venue shall be liable for and hereby indemnifies AdvEsc against proven liabilities, claims, proceedings, judgments, damages, obligations, costs and expenses of any nature (including legal fees on the scale most favourable to AdvEsc and court costs), arising in any manner out of the Adventure Venue’s conduct (acts and/or omissions), or those of the Adventure Venue’s employees, agents or contractors, whether in delict, contract or otherwise, including:
(a) Personal injury or the death of any person;
(b) Loss of or damage to any property; and
(c) Breach of any representation or warranty contained in this Agreement.
- It is not necessary for AdvEsc to incur any cost or expense or make any payment before enforcing a right of indemnity conferred by clause 13.1, and AdvEsc shall be entitled to require the Adventure Venue to step into the AdvEsc’s shoes, and/or to do all such things and incur all such costs as may be reasonably necessary to give effect to the indemnity in this clause, but such costs shall first be discussed and agreed with AdvEsc.
- The indemnities provided shall survive the termination of this Agreement.
- Any amendments to this Agreement or the Guideline will be communicated to the Adventure Venue by email account notification. The Adventure Venue will have two (2) weeks to accept amendments to the Agreement or to communicate its disagreement. If the Adventure Venue does not agree within the fourteen (14) calendar days, its account will be suspended.
- The Parties acknowledge and agree that the rights and duties created by this Agreement are personal to the Parties and that it was granted in reliance upon their individual or collective character and business ability, therefore neither Party may assign this Agreement wholly or partially without the prior written consent of the other Party.
16. Entire Agreement
- The Parties acknowledge and agree that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressed in it.
- The Parties acknowledge and agree that the provisions of this Agreement are severable and if any provision in this Agreement is held invalid or unenforceable under any competent jurisdiction, such invalidity or enforceability will be restricted only to this provision and will not in any manner effect the validity or enforceability of the other provisions in this Agreement. The parties will endeavour to replace the invalid clause by a valid one that reproduces as closely as possible the intended meaning of the invalid clause.
18. Independent Contractors
- AdvEsc and the Adventure Venue are acting hereunder as independent contractors. Adventure Venue will not be considered or deemed as an agent, employee, joint venture or partner of AdvEsc. The Adventure Venue’s personnel will not be considered employees of AdvEsc, will not be entitled to any benefits that AdvEsc grants it’s employees and will have no authority to act on AdvEsc’s behalf.
19. Term and Termination
- Duration of Agreement
This Agreement will remain in full force and effect until it is terminated by either Party by serving a thirty (30) day written notice of termination on the other Party. The rights and obligations generated during this notice period are still subject to the terms and conditions of this Agreement.
- Immediate Termination by AdvEsc
AdvEsc may terminate this Agreement immediately if the Adventure Venue fails to satisfy a minimum level of operational performance in order to provide a satisfactory Customer experience of the purchase on the Platform. Termination on this basis shall be at AdvEsc’s sole discretion.
AdvEsc may also terminate this Agreement with immediate effect where the Adventure Venue repeatedly receives negative ratings and reviews which are not unjustified or where Adventure Venue repeatedly provides misleading information or withholds information required to present the Adventure Venue’s products. For the avoidance of doubt, typos, mistakes and transmission errors shall not be grounds for immediate termination of this Agreement unless they are intentionally caused or caused by gross negligence, or if the Adventure Venue fails to fulfil any of its obligations or undertakings stated in Clause 5 of this Agreement.
20. Consequences of Termination
- The Parties will settle within a maximum period of thirty (30) calendar days any amounts due in accordance with the terms and conditions of this Agreement.
- Termination of this Agreement is without prejudice to any of the rights, remedies or obligations of the Parties existing at the time of termination and the obligation to pay any amounts due and/or payable hereunder.
21. Breach of Agreement
- AdvEsc may:
- Terminate this Agreement with immediate effect, if the Adventure Venue is in breach of its obligations under this agreement and such breach is not remedied within seven (7) calendar days of receiving a notice of breach from AdvEsc; or
- Terminate this Agreement on the occurrence of the third breach, if the Adventure Venue commits a breach of this Agreement on any three (3) occasions in a rolling six (6) calendar month period; or
- Impose appropriate penalties, such as delisting/suspension of the Adventure Venue from the Platform for an appropriate period.
22. Governing Law and Dispute Resolution
- All transactions contemplated hereby, shall be governed by, construed and enforced in accordance with the laws of South Africa. All disputes are to be submitted in writing to the Company within 14 (fourteen) calendar days of initial dispute and, if not resolved within 30 (thirty) calendar days thereafter, referred to Venns Attorneys, Pietermaritzburg, to mediate. The cost of this mediation is to be split equally between the Parties.
23. Privacy and Data Protection
- In performing their responsibilities under this Agreement, the Parties shall comply with the provisions of the prevailing privacy and data protection legislation governing the collection, use and processing of Personal Information as defined in the Protection of Personal Information Act 4 of 2013.
- The Adventure Venue shall at all times during the performance of its obligations in terms of this Agreement ensure that (a) no data collected from any person during the supply of the Products, is sold, disclosed, commercially exploited, or used in any way other than as expressly authorized by AdvEsc and (b) ensure that it processes data for only the express purpose for which it was obtained.
- The Adventure Venue consents to the collection, processing and further processing of its personal information (including personal information contained in electronic communications) by the Purchaser for the purposes of implementing this Agreement and facilitating the supply of the Products.