Introduction

These terms are the general terms of the relationship between us (website owner) and you (the advertiser). The terms cover any transactions where we provide services to you.

You agree to the terms by visiting and using this website.

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 the parties;
  • administrator means an authorized user that you employ who is authorized to provide, manage and administer certain services;
  • agreement means the agreement between us and you, consisting of the terms and any orders the parties enter into;
  • authorized user means you or a user in your employ where you are a juristic person, who has been assigned credentials;
  • 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, 365 days during the term of the order, calculated from the effective date;
  • credentials means a unique username and password that has been assigned to an authorized user;
  • dashboard means the section on the website accessible by you through a web browser that allows you to control certain aspects of the services;
  • effective date means in respect of each order, the effective date stipulated in each order, in the absence of which it will be the date the order is accepted by us;
  • fees means the fees, charges, or purchase consideration that you will pay to us in respect of services we provide under orders;
  • order means a services order describing the specific services that we will provide to you;
  • our technology means any technology that we 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: concepts or ideas; methods or methodologies; procedures or processes; know-how or techniques; function, process, system, data, or object models; templates; the generalized features of the structure, sequence and organisation of software, user interfaces and screen designs; general purpose consulting and software tools, utilities, routines or frameworks; logic, coherence and methods of operation of systems; and patches or enhancements to open source libraries;
  • 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;
  • 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 services);
  • we, us, or our means Travel Explore Discover South Africa trading as South Africa is, the 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 and/or advertiser that enters into an order and, if specified in the order, those related to it;
  • 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.

Duration
The terms commence on acceptance 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.

Orders

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;
  • are authorized to use the credentials required for any account; 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.

Invitation to do business. The marketing of the services by us is merely an invitation to do business. The parties only conclude a valid and binding order when we accept the generated order made by you. Unless proven to the contrary, we only accept an order relating to services, when we begin providing the services and the fee has been received. We may accept or reject any offer.

Time and place. The parties conclude any agreement between each other at the time when our duly authorized representative accepts the relevant order. We do not need to communicate the acceptance of the order to you.

Cancel. Unless otherwise agreed, we may cancel any order at any time in our absolute discretion. We will refund any monies already paid by you if we do.

Online Services

Registration. Each authorized user must provide the requested information not limited to, a valid email address, and any other information requested by us to complete the registration process.

Access. Only authorized users may access the services by using the credentials issued to them.

Authorized user obligations. Each authorized user agrees:

  • to keep their credentials secure;
  • not to provide access to any person other than an authorized user;
  • not to interfere with the functionality or proper working of the services;
  • not to introduce any viruses, worm, logic bomb, trojan, wares, potentially unwanted program (PUP) or other malicious software into the services; and
  • not use the services for direct marketing, spamming, unsolicited communications, or other advertising or marketing activities prohibited by applicable law.

Administrator obligations. The administrator agrees:

  • not to use bots or other automated methods to register authorized user accounts;
  • to only create one account per email address per authorized user;
  • to make a list of all authorized users available to us on request;
  • to immediately notify us in writing of any lost credentials by an authorized user;
  • to ensure that authorized users who are no longer authorized to use the services do not use them;
  • to notify us of any known breach of our privacy policy; and
  • to take reasonable measures to ensure that authorized users do not introduce any viruses, worm, logic bomb, trojan, wares, potentially unwanted program (PUP) or other malicious software into the services.

Security. Each authorized user is responsible and liable for activities that occur under their account. You authorize us to act on any instruction given by an authorized user, even if it transpires that someone else has defrauded both us and you, unless you have notified us in writing prior to you acting on a fraudulent instruction. We are not liable for any loss or damage suffered by you attributable to an authorized user’s failure to maintain the confidentiality of their credentials.

Privacy and protection of personal information

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

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. The parties both acknowledge that they 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.

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.

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.

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

Intellectual property

Your data. You own all your data. We do not own your data or other third party content used as part of the website. All title, ownership rights and intellectual property rights in and to the content accessed through the website belong to you or the applicable content owner and may be protected by applicable copyright or other law.

Your data license. When you upload your data to the website, you give us a worldwide license to use, host and store your data, solely for purposes of providing the services.

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

Trade marks. Our logo and sub-logos, marks, and trade names are our trademarks 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.

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;
  • reverse engineered or copied; or
  • reproduced or distributed.

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

Our warranties

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

  • we 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 to achieve the service levels; and
  • we will provide the services in accordance with all applicable laws, enactments, and regulations.

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; and
  • we will not knowingly introduce any malicious software into your material or your system.

 Disclaimer of warranties

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, merchant-ability, fitness for a particular purpose, accuracy, system integration, quiet enjoyment, title, and non-infringement
  • any warranties regards third party software;
  • that the services will meet your requirements or be uninterrupted, legally effective or complete, timely, secure, error-free or free from infection by malicious software. You should keep up-to-date security software on any systems used to access the services.

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.

Your warranties

You warrant that:

  • 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;
  • 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.

 

Limitation of liability

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 services related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.

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, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the agreement.

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.

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.

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

Indemnity. We agree to indemnify, defend, and hold you (and your personnel) harmless against any and all:

  • loss of or damage to any property or injury to or death of any person; and
  • loss, damage (including attorneys’ fees on an attorney and own client basis), costs and expenses that you may suffer or incur arising directly or indirectly from: (i) any wilful misconduct or fraud by us or our personnel; or (ii) a breach by us of your proprietary or confidential information, or intellectual property.

Liability. Without limiting liability, neither party will be liable to the other for any loss that it may suffer as a result of theft, fraud, or other criminal act by a party or its personnel.

Breach

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.

Suspension of services

Immediate suspension. We may immediately suspend your right to use any of the services in any of the following circumstances:

  • you attempt a denial of service attack on any of the services;
  • you seek to hack or break any security mechanism on any of the services;
  • we determine in our sole discretion that your use of the services poses a security threat to us, or to any other user of the services;
  • you otherwise use the services in a way that disrupts or threatens the services;
  • we determine, in our sole discretion, that there is evidence of fraud with respect to your account;
  • we receive notice, or we otherwise determine, in our sole discretion, that you may be using the services for any illegal purpose or in any way that breaches the law or infringes the rights of any third party; or
  • we determine, in our sole discretion, that our provision of any of the services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason.

Preservation of data (suspension).In the event that we suspend your access to any services, we will not take any action to intentionally erase any of your data in our possession during the period of suspension and the fees will continue to accrue.

Termination

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.

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

  • we will stop providing the services;
  • your access rights will cease to exist; and
  • we will erase your data, unless we have agreed to provide you with post termination assistance in writing.

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

General

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

Changes to the terms. We may change the terms at any time and where this affects your rights and obligations, we will notify you of any changes by placing a notice in a prominent place on our website or by email. If you do not agree with the change you must stop using the services. If you continue to use the services following notification of a change to the terms, the changed terms will apply to you and you will be deemed to have accepted such terms.

Changes to any third party software license agreement. We will notify you of any changes to any third party software license terms by placing a notice in a prominent place on our website, or notifying you by email. The updated third party software license terms will be effective immediately and you will be deemed to have accepted them upon notification.

Acceptance of changes. If you do not agree with the changes, you must stop using the service. If you continue to use the service following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.

Waiver. Any favour we may allow you will not affect or substitute any of our rights against you.

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.

Governing law. South African law governs this agreement.

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.

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.

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

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.

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.