MOUNTAINSHAK VENTURES LLC, a private company duly registered according to the Company Laws of Ohio, United States of America, and having its registered office at 131 E McMicken Avenue, Cincinnati, Ohio, USA (referred to herein as the “Corporation”); and
THE PERSON LISTED IN SCHEDULE 1 (referred to herein as “the Participant”).
A. The Corporation owns all rights in and to the 2021 Put Foot Rally Bus Tour (“the Event”).
B. The Participant wishes to participate in the Event.
C. The Corporation hereby grants the right to the Participant to participate in the Event, and by appending his/her signatures (digital or physical) hereto the Participant agrees to participate in the Event, on the terms and conditions set out herein.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
“Code of Conduct” means the Code of Conduct set out in Schedule 2 hereto;
“Commercial Rights” means all rights of a commercial nature connected with the Event including but not limited to sponsorship rights, media rights, merchandising and licensing rights, ticketing rights, promotional rights and catering and hospitality rights;
“Entry Fee” means the entry fee required to be paid by the Participant for entry into the Event;
“Event” means the Put Foot Rally Bus Tour (or such other name as designated by the Corporation as it deems fit), scheduled to be held from 24 July 2021 to 15 August 2021;
“Event Handbook” means the handbook provided to the Participant prior to the start of the Event and which set out the Event Rules and the logistics relating thereto;
“Event Marks” means the trademarks and logos owned or controlled by the Corporation pertaining to the Event;
“Event Partner” means any official partner of or to the Event as appointed by the Corporation;
“Event Rules” means the rules for the Event as set out in the Event Handbook;
“Group Director” means the person appointed as Group Director by the Corporation in its sole discretion;
“Participant” means the person participating as a passenger in the Event, the identity of whom is set out in Schedule 1 hereto; and
“Registration Day” means the day of registration for the Event as stipulated by the Corporation.
2. AGREEMENT TO PARTICIPATE
2.1 On signature hereof, the Participant agrees to participate in the Event and any related products or services with the Corporation subject to the terms and conditions stated herein and those set out in the Event Rules and the Code of Conduct.
2.2 Owing to the nature of the Event, it shall be necessary from time to time to address issues which were not foreseen and are not specifically addressed herein and the Corporation accordingly, and in an effort to address such issues as quickly and effectively as possible in the best interests of the Event, reserves the right to amend the Event Rules to resolve all queries and issue directions during the Event. Such amendments may be to the route, checkpoint locations or dates of the Event. The Participant will be notified of any such changes via the Group Director.
2.3 The Corporation may delegate the rights conferred herein to any member, official or employee of the Corporation.
2.4 Any amendments to the Event Rules shall be final and shall become binding on the Participant upon publication and enforced as if incorporated herein.
3. ENTRY FEE AND BAGGAGE ALLOWANCE
3.1 The Participant will pay to the Corporation the Entry Fee when called upon to do so by written notification and after signature of this Agreement. The Corporation shall have no obligations toward the Participant until such time as the full Entry Fee is paid.
3.2 At the time of booking, the Participant may elect to: (i) pay a non-refundable deposit of USD$500 per Participant with the outstanding balance of the Entry Fee due and payable by no later than 30 April 2021; or (ii) pay the entire Entry Fee (at a discounted price). If the booking is made 60 days or less prior to departure, full payment is due at the time of booking. The non-refundable deposit should be sent to the Corporation or authorized agent, as applicable.
3.3 Unless the Corporation and a Participant agrees otherwise, and at the sole discretion of the Corporation, each Participant is permitted to take, free of charge and at his/her own risk, two pieces of luggage and goods, one piece not exceeding 80cm x 60cm x 30cm in size and one hand luggage (small backpack / handbag and a laptop case), and of a total mass (all luggage and goods combined) not exceeding 25kg.
3.4 The Corporation reserves the right to charge an additional rate per kilogram for luggage exceeding the abovementioned limits. The kilograms as weighed by the Corporation’s scales will be the chargeable kilograms.
3.5 The Corporation reserves the right to refuse the carriage of luggage, goods or any person in its sole discretion.
4. MINIMUM REQUIREMENTS FOR ENTRY AND PARTICIPATION
4.1 Each Participant shall be 12 years of age or older. Participants below the age of 18 years must be accompanied by a parent or guardian. One parent or legal guardian may accompany up to a maximum of 2 minors. All bookings with a minor are subject to review and approval by the Corporation. If the consent of a parent, guardian or any other person is required by applicable law for any minor to travel, the accompanying adult is responsible for securing all consents, documentation and ensuring that they and the minor(s) meet all legal requirements to travel, to enter into and depart from applicable countries and regions. The Corporation will not be responsible for any fees, damages, or losses incurred as a result of any failure to secure necessary consents, permits, and approvals.
4.2 Each adult on a booking with a minor or minor(s) is jointly and severally responsible for the behavior, wellbeing, supervision and monitoring of such minor(s), and jointly and severally accepts these terms and conditions for and on behalf of any minor(s) on their booking, including all assumptions of risk and limitations of liability. The Corporation does not provide care services for minors and expressly disclaims any responsibility for chaperoning or controlling any minor(s).
4.3 The Participant shall take out the necessary travel, death, accident and health insurance covering South Africa, Namibia, Botswana, Zambia, Malawi and Mozambique and a certified copy of such insurance policies shall be provided to the Corporation upon request.
4.4 The Participants shall wear corporate clothing provided (by the Corporation) at all relevant times when attending any promotional activity or other occasion conducted in connection with the Event.
4.5 All Participants shall at all times observe and comply with all relevant laws of the country through which they are travelling at the time.
4.6 The Participant is required to purchase all entries by the cut-off date and time indicated on the Corporation’s website and social media platforms. Failure to do so will forfeit any existing entries and the Participant will be disqualified from the Event. The entry is only valid for the use only by the Participant to whom it is issued and for the Event shown thereon.
4.7 Check-in of the Participant shall be done on a date to be determined by the Corporation, not less than 1 (one) calendar day before the commencement of the Event.
4.8 The Participant shall present his/her participant entry at Registration Day. It is the Participant’s responsibility to ensure that the correct information is shown on the entry ticket.
4.9 The Corporation and/or Group Director reserves the right to revise seat allocations without prior notice and to operate substitute vehicles of a different standard from those advertised should operational requirements or circumstances so dictate.
5 VOLUNTARY ASSUMPTION OF RISK
5.1 All Participants acknowledge and understand that participating in the Event is a potentially dangerous activity due to the nature of the Event, including, inter alia, the physical terrain, the climate, the driving conditions, the duration of the Event and the use of vehicles over prolonged stretches. The Participant acknowledges that they are fully aware of the nature of the Event and may, during the participation of the Event, expose themselves to high degree of risk of serious bodily injury or death. By participating in the Event, the Participant voluntarily assume that risk.
5.2 The Corporation, it’s officials, members, agents, employees, partners or sponsors, shall not be liable to any Participant for death or personal injury, damage to property or other loss or damage of any nature whatsoever suffered by any Participant to the fullest extent permitted under South African law.
5.3 The said parties referred to in clause 5.2 above shall furthermore not be liable for any consequential loss whatsoever, whether such loss be attributed to loss of profits, anticipated profits, savings, business or opportunity or loss of publicity or reputation.
5.4 The Participant herewith irrevocably indemnifies and holds the Corporation harmless from and against all costs and expenses including all legal costs, actions, proceedings, claims, demands and damage arising from a breach of this Agreement.
6 BREACH, NOTICES AND DISPUTE RESOLUTION
6.1 If either party breaches the terms and conditions of this Agreement, the parties shall give notice of such breach in writing either personally or by e-mail to the other party.
6.2 The breaching party shall have the opportunity to remedy the breach as soon as possible. In the event that the breach has not been remedied within 48 hours of notice of the breach, or the breach is incapable of being remedied in time for the Event, the non-breaching party shall be entitled to terminate this Agreement, in writing, provided that, in the case of a breach on the part of the Participant, the Corporation shall be entitled, notwithstanding its rights of termination, to suspend the Participant, or impose sanctions or fines on such Participant as are reasonable and appropriate in the circumstances.
6.3 The Corporation reserves to terminate this Agreement if it no longer wishes or is no longer able to stage the Event by providing the Participant with 14 days’ notice, in writing. Should the Corporation terminate the Agreement in accordance with this clause 6.3, then all funds paid to the Corporation will be refunded to the Participant, subject to a deduction of a $50.00 administration fee.
7. REFUND AND TRANSFER POLICY
7.1 Subject to clause 6.3 above, payment of the deposit payable in terms of clause 3.2 above shall be strictly non-refundable.
7.2 The published price of the Event and any products or services offered by the Corporation is subject to change at any time without prior notice to the Participant, before or after booking confirmation, up to 30 days before departure. The Events are priced and advertised inclusive of applicable sales taxes. After a confirmation invoice has been issued by the Corporation, the Corporation reserves the right to impose surcharges on any products or services booked for reasons arising from increases in transportation costs, fuel costs, dues, taxes or fees chargeable for services such as landing taxes or embarkation or disembarkation fees at ports and airport charges, local operator costs, currency and exchange fluctuations, increases in taxes, or government action which impacts the price of the applicable products or services; provided however, the Corporation will only do so where the increase in question is greater than 2% of the original price paid for the products or services (excluding add-ons, insurance, and taxes). Upon learning of the necessity to impose a surcharge in accordance with this section the Corporation will provide notice to the Participant as soon as reasonably possible.
7.2 Where the increase in price is greater than 7% of the original price of the applicable products or services (excluding add-ons, insurance and taxes), the Participant may choose to either:
(a) cancel the applicable booking without incurring any penalty; or
(b) accept the change of price.
7.3 The Participant must notify the Corporation of his/her choice within 14 days of receipt of notice of the increase or the Participant will be deemed to have accepted the price change and will be liable for payment of the increase.
7.2 All entries are non-transferable and no entry may be sold, assigned or transferred to any third party or deferred for a later or alternative event. Only the Participant named on the ticket may use the ticket of entry for the Event.
7.3 Any person who attempts to advertise on any platform (whether public or private) the sale of an entry ticket shall be in breach of this Agreement.
7.4 No person shall be entitled to create or re-sell travel packages that include participation in the Event.
8. CANCELLATION BY THE PARTICIPANT
8.1 The Participant may cancel his/her booking by notifying the Corporation. Cancellation fees, if any, will be determined with reference to the date on which notice of cancellation is received by the Corporation and are expressed as a percentage of the total price paid for the cancelled Event, product or service (excluding any insurance products).
8.2 Cancellation received 90 or more before the commencement of the Event: the non-refundable deposit of US$500.00 will be held by the Corporation in accordance with these terms and conditions and the remainder of the payments made to the Corporation (if any) in respect of the cancelled Event will be refunded to the Participant.
8.3 Cancellation received 60-89 days before the commencement of the Event: the non-refundable deposit of US$500.00 will be held by the Corporation in accordance with these terms and conditions and an amount equal to 50% of the remainder of the payments made to the Corporation in respect of the cancelled Event will be refunded to the Participant.
8.4 Cancellation received 1 – 59 days before the commencement of the Event: the non-refundable deposit as well as any other amounts paid to the Corporation in respect of the Event shall be retained by the Corporation in accordance with these terms and conditions and no further refund will be payable by the Corporation to the Participant.
8.5 Cancellation of arrival and departure transfers and optional activities booked directly with the Corporation:
8.5.1 cancellation 31 days or more before the commencement of the Event: the Participant will receive a full refund in respect of the cancelled arrival or departure transfers and/or optional activities; or
8.5.2 cancellation 30 days or less before the commencement of the Event: the Participant shall not be entitled to receive any refund in respect of any cancelled arrival or departure transfers and/or optional activities.
9 CORPORATION’S REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
The Corporation represents warrants and undertakes that it is has and will continue to have, throughout the Event, full right and title and authority to enter into this Agreement and to accept and perform their obligations imposed on it in this Agreement, to organize, manage and stage the Event, that it owns or controls the Event Marks and shall take all measures it considers reasonable during the Event to protect its rights in the Event Marks from infringement by any third party.
10. PARTICIPANT’S REPRESENTATIONS, WARRANTIES AND UNDERATKINGS
10.1 The Participant represents, warranties and undertakes on his or her own behalf that he/she shall not:
a) do or say anything which brings the Event, any Event Partner or the Corporation into disrepute;
b) do or say anything which undermines any of the Commercial Rights. The Participant acknowledges that the Company shall enter into a number of agreements with various third party partners to maximize the Commercial Rights and accordingly the Participant undertakes to co-operate with the Corporation and the Event Partner to so protect the Commercial rights of the Corporation. No Participant shall, during the Event, directly or indirectly allow its or his or her name, image or likeness to be used in an advertising endorsement of any commercial purpose which involves a direct or indirect association with the Event or seek to exploit any connections therewith;
c) knowingly breach the Event Rules;
10.2 By booking on behalf of other Participants, the signatory hereof is deemed to be the designated contact person for every Participant included on that booking. This means that the signatory hereof will be responsible for making all payments due in connection with your Event booking, notifying the Corporation if any changes or cancellations are required and keeping your party informed. By booking on behalf of another Participant, the signatory hereof represents and warrants that he/she has obtained all required consents.
11. REQUIRED MEDICAL INFORMATION
11.1 The Participant shall be required to provide any medical information reasonably requested by the Corporation. The Corporation shall provide each Participant with a standard template medical form that each Participant shall be required to complete and return to the Corporation by no later than 30 days prior to the commencement of the Event.
11.2 If the Participant has any pre-existing medical conditions which may impact their ability to travel, participate in the Event, travel to remote areas without access to medical facilities or may adversely affect the experience of other Participants on the Event, the Participant must provide a medical form, signed by a licensed and practicing physician to the Corporation prior to or at the time of final payment for the applicable booking.
11.3 The Corporation reserves the right to request further information or professional medical opinions where necessary, as determined in its sole discretion, for the Participant’s safety or the safe operation of the Event.
11.4 The Corporation and/or Group Director reserves the right to deny the Participant permission to travel or participate in any aspect of the Event at any time and at the Participant/s own risk and expense where the Corporation or Group Director determines that the Participant’s physical or mental condition renders him/her unfit for travel or the Participant represent a danger to himself/herself or others. In such instances the Participant shall be escorted to the nearest airport and shall be solely responsible for any additional travel expenses incurred on his/her behalf thereafter.
11.5 Pregnancy is considered a medical condition and must be disclosed to the Corporation at the time of booking. The Corporation may refuse to carry pregnant women over 24 weeks. The Corporation may refuse to carry anyone with certain medical conditions if reasonable accommodation or alternatives cannot be arranged.
11.6 In the event that the Participant does not provide the medical information reasonably required by the Corporation for any reason, the Corporation reserves the right to cancel your booking and all applicable cancellation fees will apply.
11.7 Participation in the Event may involve visiting remote or developing regions, where medical care may not be easily accessible and medical facilities may not meet the standards of those found in the Participant’s home country. The condition of medical facilities in the countries the Participant may visit during the Event varies and the Corporation makes no representations and gives no warranties in relation to the availability or standard of medical facilities in those regions. The Participant shall be solely responsible for ensuring that he/she has received proper medical advice and administered the necessary and relevant vaccinations and/or medication.
12 SPECIAL REQUIREMENTS
Any special requirements must be disclosed to the Corporation at the time of booking the entry. The Corporation shall use its reasonable endeavours to accommodate special requirements, but this may not always be possible given the nature of the Event. Certain activities may be inaccessible to the Participant if the Participant’s mobility is limited in any way. All food allergies and dietary restrictions must be disclosed to the Corporation at the time of booking but the Corporation cannot guarantee that dietary needs or restrictions can be accommodated. Any special requirements do not form part of these terms and conditions or the contract between the Participant and the Corporation and the Corporation is not liable for any failure to accommodate or fulfil such requests.
13 INTELLECTUAL PROPERTY
13.1 The Participant further acknowledge and agree that they shall not obtain any right in the intellectual property rights arising from or in relation to the Event by virtue of their entry or participation in the Event.
13.2 The Participant in consideration of the acceptance of the Participant’s entry to participate in the Event by the Corporation, hereby acknowledge and agree that all intellectual property rights arising from and in relation to the Event, including its name, logo type, format and films and photographs of the Event, shall be exclusively invested in the Corporation.
14.1 Only the Corporation may sell or distribute official Event merchandise.
14.2 If the Participant and or its representatives should wish to sell or distribute any merchandise at or in relation to the Event, they may only do so with the express permission of the Corporation in writing.
15.1 The Participant shall be entitled to film any part of the Event, provided that they comply with reasonable directions as to filming made by the Corporation and that the film is made and used only for private (and not commercial) use. Any such film for personal use shall vest in the Participant creating the footage concerned, provided that the Corporation shall be entitled to use such footage on its own platforms to promote the Event at no charge if it so wishes.
15.2 The Participant acknowledges that an Event of this nature relies heavily on media rights and accordingly consents on a royalty free basis to the use of their names, initials, nicknames, signatures, photographs, likenesses, voices, quotations, biographical details, fame and reputation, the name and photograph of the Participant’s name and logo types of sponsors and suppliers who appear on the Participant’s clothing in all media and in all context for all advertising, promotion, endorsement and/or other purposes of the Corporation, the Event Partners, the Event and any other approved third parties at the discretion of the Corporation.
15.3 For the avoidance of doubt, the Participant shall have no right to approve the use of the rights licensed under clause 15.2. The Corporation reserves the right to request the removal of any media publications that the Participant may have published from time to time in relation to the Event and bearing the Event Marks.
16.1 The Participant agrees to abide by the Code of Conduct set out in Schedule 2 hereto. A breach of the Code of Conduct may result in disqualification from the Event. In such instances the Participant shall be escorted to the nearest airport and shall be solely responsible for any additional travel expenses incurred on his/her behalf thereafter.
16.2 In particular, each Participant accepts and acknowledges that the following conduct is regarded as a material rule of the Event to ensure the successful and safe running of the Event:
a) If a Participant brings the Event or any Event Partner into disrepute (including as a result of fighting, racism, threatening or abusive conduct, cheating, breaking the law of the country visited, or causing duress to a local inhabitant), the Participant may be disqualified from the Event;
b) A Participant shall not commit software or data breaches before, during or after the Event, including but not limited to hacking into the Event’s digital media platforms, unlawfully collecting participant’s or Event data for his or her own commercial purposes or manipulating any information accumulated, owned or stored by the Corporation;
c) If a Participant posts content on any digital media platforms arising from or pertaining to the Event and such content damages the good name and reputation of the Event, he or she shall indemnify the Corporation for any losses arising as a result of the publication of such content.
17. AIRFARE AND TRAVEL DOCUMENTS
17.1 The Event prices do not include international, domestic or other airfare prices.
17.2 It is the Participant’s responsibility to obtain information and to have in his/her possession all the required documentation and identification required for entry, departure and travel to each country or region. This includes a valid passport and all travel documents required by the relevant governmental authorities including all visas, permits and certificates (including but not limited to vaccination or medical certificates) and insurance policies for each of the jurisdictions visited during the Event (South Africa, Namibia, Botswana, Zambia, Malawi, Zimbabwe and Mozambique). The Participant must have a passport that is valid 6 months after the last date of travel with the Corporation as set out on the Participant’s itinerary. The Participant accepts full responsibility for obtaining all such documents, visas and permits prior to the commencement of the Event, and the Participant is solely responsible for the full amount of costs incurred as a result of missing or defective documentation. The Participant agrees that he/she is responsible for the full amount of any loss or expense incurred by the Corporation that is a direct result of the Participant’s failure to secure or be in possession of proper travel documentation. The Corporation does not provide advice on travel documents and makes no representations or warrantees as to the accuracy or completeness of any information provided on visas, vaccinations, climate, clothing, baggage, or special equipment and you agree that the Corporation is not responsible for any errors or omissions in this information. The Participant hereby acknowledges that his/her failure to obtain the necessary documentation shall result in his/her disqualification from the Event.
18. THIRD PARTY SUPPLIERS
18.1 The Corporation is not liable and will not assume responsibility for any claims, losses, damages, costs or expenses arising out of inconvenience, loss of enjoyment, upset, disappointment, distress or frustration, whether physical or mental, resulting from the act or omission of any party other than the Corporation and its employees.
18.2 The Corporation shall not be liable for the acts or omissions, whether negligent or otherwise, of third party suppliers or any independent contractors.
19.1 This Agreement shall constitute the entire Agreement between the parties with respect to subject matter hereof and shall supersede any prior agreements, representations or understanding between the parties, whether written or oral.
19.2 All dates, itineraries and prices of the Event is subject to change at any time and the current price will be quoted and confirmed at the time of booking, subject to any surcharges that may be levied in accordance these Terms. The Participant acknowledges that he/she is responsible for keeping up to date on the specific details of his/her Event and any other products or services, including, but not limited to checking the Corporation’s website at least 72 hours prior to departure as minor changes may have been made after the time of booking.
19.3 The Participant acknowledges that the nature of adventure travel requires flexibility and acknowledges that they will permit reasonable alterations to products, services or itineraries by the Corporation or Group Director. The route, schedules, accommodations, activities, amenities and mode of transportation are subject to change without notice due to unforeseeable circumstances or events outside the control of the Corporation or Group Director (including but not limited to Force Majeure, illness, mechanical breakdown, flight cancellations, strikes, political events and entry or border difficulties). No reimbursements, discounts or refunds will be issued for services that are missed or unused after departure due to no fault of the Corporation, including the Participant’s removal from the Event because of the Participant’s negligence or breach of these terms and conditions.
19.4 The granting by the Corporation of any indulgence in respect of any breach of any term of this Agreement by the Participant, shall not be deemed a waiver of such breach. The waiver by the Corporation of any breach of any term of this Agreement by the Participant, shall not prevent the subsequent enforcement of that term, nor be deemed a waiver of any breach by the Corporation.
19.5 The Participant shall not be permitted to cede or assign any of its rights or obligations under this Agreement without the prior written consent of the Company, which consent shall not be unreasonably withheld.
19.6 Rights, remedies and powers conferred upon the parties herein are accumulative and shall not be deemed to be exclusive of any rights, remedies or powers now or subsequently conferred upon them by law or otherwise.
19.7 This Agreement shall be governed by South African law and any disputes shall be subject to the exclusive jurisdiction of the South African courts.
19.8 The Participant consents to the collection and storage by the Corporation of his or her personal information for the purposes of successfully managing and running the Event. This information shall not be shared with any third party without your consent.
19.9 The terms and conditions set out herein shall be severable of each other and the invalidity of any part of these terms and conditions shall not affect the validity of any other part.
19.10 The Corporation reserves the right to update or alter these terms and conditions at any time and will publish the revised terms and conditions on the Corporation’s website. Any amendment will take effect 10 days after being published on the Corporation’s website. The Participant is deemed to have accepted any amendments to these terms and conditions on the date that is 10 days after their posting on the Corporation’s website.