APAC Journey Pty Ltd Tour Services Agreement, 20200224.
This Agreement, applies to the tour specified on http://www.apacjourney.com (the Site) relating to small local tours or assisted travel for elderly or disabled travelers (the Tour) applied for by you, the person or entity named and described in the online application on the Site (You or Your). This Agreement also applies to any small tour, assisted travel and related services (the Services) that We provide You as detailed in the online application (the Application).
By placing an order for the Tour as listed on the Site and for Us to provide the Services, You agree:
You must complete and submit the Application.
If We accept the Application, this Agreement is binding between You and APAC Journey Pty Ltd ACN 639 630 532 (Us or We).
To engage Us to provide the Services.
As payment for the Tour and the provision of Services, that We are authorized to deduct the fee specified in the Application (the Fee) at the time We process any travel bookings.
e. You have the legal capacity and authority to enter into this Agreement.
You acknowledge and agree that:
We are not trained in the provision of any specific services, including any health care services (such as nursing). Despite this, We have experience in providing for the needs of elderly or disables persons, and we have police checks and working with children approvals, all of which can be provided on written request).
We do not provide any assurances or guarantees regarding the performance, effectiveness or result of the Services or Tour.
If the Tour includes travel to a country in which you are not a citizen or resident, then You have a valid passport to travel to that location (and with sufficient time before the expiry date to enable You to return to the country of Your residence).
Any consequences associated with you not travelling on a valid passport will be your sole responsibility (except to the extent caused by Our negligent act or omission).
You must effect and maintain travel insurance for the duration of the Tour, together with the insurance specified in the Application, and give evidence of these insurances and their currency to Us on request.
In consideration of your participation in the Tour and Our provision of Services under this Agreement, You must pay to Us the Fee specified in the Application.
5. Except to the extent disclose on the Application, You are not aware of any medical condition, impairment, disease, illness or any other reason why You should not participate in the Tour and that You have not been advised by a qualified medical practitioner not to participate in the Tour. Where you become aware of any medical condition or impairment or are otherwise sick or injured prior to or during the Tour, you may be required to discontinue your participation in the Tour.
Your participation in the Tour is at Your own risk and You acknowledge the usual and acknowledged risks associated with your participation in the Tour include strenuous physical activity, physical exhaustion, abnormal blood pressure, dehydration, fainting, dizziness, use of equipment failure of equipment, use of facilities, hazards arising from use of facilities, tripping, falling, hazards caused by environmental factors or other participants on the Tour, heat, humidity, recurrence and exacerbation of existing or prior physical injuries or conditions (whether known or unknown), and the risk of becoming lost in an unfamiliar location (the Usual and Acknowledged Risk).
You acknowledge and assume the Usual and Acknowledged Risk of loss and injury to You as a direct or indirect consequence of participation in the Tour and receiving the Services.
8. You consent to receiving medical treatment during the Tour if unable to provide consent at the time such treatment is deemed to be required.
We will not be liable to You for any actions, claims, damages, liabilities, costs, expenses, or losses in any way arising (including a breach of this Agreement or any negligent act or omission) out of or relating to the Services for an aggregate amount in excess of the Fees paid by You to Us under this Agreement.
In no event will We be liable for special, indirect, incidental, consequential or punitive damages, costs, expenses or losses of any nature, including, without limitation, lost profits and opportunity costs.
You continually indemnify Us and Our officers, employees and agents (those indemnified) from all liability for any claims, actions, suits, losses, actual or contingent costs, damages and expenses suffered or incurred by those indemnified in connection with:
the Usual and Acknowledged Risk;
any breach of this Agreement by You (or any of Your officers, employees, contractors or agents);
any negligent act or omission by You (or Your officers, employees, contractors or agents);
any warranty given by You being, or subsequently becoming, untrue;
Where this clause refers to a person who is not a party to this Agreement We hold the benefit of this clause on trust for that person.
12. We will perform the Services in good faith, with due care and skill, but subject to the Consumer Guarantees, we disclaim all other warranties, either express or implied, including without limitation warranties of merchantability and fitness for a particular purpose.
13. The Australian Consumer Law (as embodied in the Competition and Consumer Act 2010 (Cth) (the ACL) provides statutory guarantees in respect of consumer contracts, which cannot be excluded, restricted or modified (the Consumer Guarantees).
14. Subject to any of the Consumer Guarantees, We give no guarantee, conditions, warranty or undertaking, and make no representations about the effectiveness or suitability of the Tour or the Services, their quality, fitness for purpose or safety, other than those set out in this Agreement.
15. If the fees You pay to Us under this Agreement do not exceed $40,000, then:
You are entitled to the Consumer Guarantees.
If We fail to comply with the Consumer Guarantees, Our total liability to You is limited to one or more of the following (at Our discretion):
i. the resupply of the Services; or
ii. the reasonable cost of having the Services resupplied.
The manner in which We collect, use and disclose personal information supplied by You in the Application is described in Our privacy policy, a copy of which can be found “1.14 APAC JOURNEY PRIVACY POLICY 2020 V1.doc”
If any of the following things happen, We may give You a written notice terminating this Agreement, with immediate effect:
The third party organizing the Tour cancels or delays the Tour.
An act of God occurs which prevents the Tour from proceeding.
You breach one or more of Your obligations under this Agreement, and then fail to rectify the breach within 14 days of receiving a notice of the breach;
You (being a company), become, threaten or resolve to become or are in jeopardy of becoming subject to any form of insolvency administration;
You (being a partnership), dissolve, threaten or resolve to dissolve or are in jeopardy of dissolving; or
You (being a natural person), die.
Either party (a non-defaulting party) may terminate this Agreement with immediate effect by notice to the other party (defaulting party) if the defaulting party breaches a material term of this Agreement that in the reasonable opinion of the non-defaulting party is incapable of being remedied.
If this Agreement is terminated by Us after the commencement of the Tour, then in addition to terminating this Agreement:
We will retain any fees paid;
We will be regarded as discharged from any further obligations under this Agreement;
You must pay Us the fees that are, on the date of termination, due and payable under this Agreement; and
You must indemnify Us in relation to Our unavoidable and unrecoverable costs directly arising from the termination.
If this Agreement is terminated by Us prior the commencement of the Tour or if an act of God prevents to Tour from proceeding, then we will reimburse you for all Fees paid to Us, except for Our unavoidable and unrecoverable costs.
It is understood and agreed that each of the parties to this Agreement is an independent contractor and subject to below, that neither party is, nor will it be considered to be, an agent or representative of the other. Neither party will act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other except that You appoint Us as your agent for the limited purpose of providing the Services (including accepting and processing bookings for travel packages and tours).
If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then such provision will be null and void and will be severed from this Agreement, but each other provision is not affected and will continue to be valid and enforceable.
The parties agree that the terms of this Agreement are confidential.
The parties acknowledge that by virtue of this Agreement, each may be afforded access to, and acquire knowledge of the other party’s confidential information. The party receiving that information agrees that that information will not be disclosed to others or independently used without proper authorisation from the disclosing party.
If GST is or will be payable by a party on a supply under this Agreement, then the supplying party may, subject to issuing a valid tax invoice, increase the amount otherwise payable for the supply by the amount of such GST.
You must not assign, sub-contract or sub-license any rights or obligations under this agreement without Our prior written consent.
We may subcontract or delegate any of Our obligations and responsibilities under this Agreement, provided that We will not be relieved of Our obligations under this Agreement.
This Agreement (including details in the Application) contains everything each party has agreed to in relation to the transaction the Agreement deals with. A party cannot rely on an earlier agreement, or on anything said or done by either party before this Agreement was entered into.
The failure of either party to insist upon strict performance of any of the provisions contained in this Agreement will not constitute a waiver of its rights under this Agreement.
This Agreement is governed by the laws of the State of Western Australia and each party unconditionally submits to the non-exclusive jurisdiction of the Courts of the State of Western Australia.
By continuing and placing an order for the Tour and/or the Services, you will be deemed to have read, fully understood and agreed to the terms and conditions of this Agreement.
20200224. Moulis Legal. 6/2 Brindabella Circuit, Brindabella Business Park, Canberra International Airport. ACT, 2609. Australia.