TERMS AND CONDITIONS
Introduction
The following is the terms and conditions of Avante Hospitality (PTY) Ltd (registration number: 2004/002588/07) trading as Take a Break (herein after referred to as “Take a Break”).
All and any business relations with Take a Break by any entity is subject to these terms and conditions and by using any of the Take a Breaks’ services or engaging in any business relations whatsoever, by doing so you agree to these terms and conditions.
Conclusion of Agreement
Any person or entity entering into an agreement with Take a Break in their personal capacity or on behalf of a juristic entity warrants their legal capacity to do so without limitation.
In the event of any electronic transactions, Take a Break will provide you with an opportunity to:
- review the entire electronic transaction;
- correct any mistakes; and
- withdraw from the transaction, before finally placing the order.
All legally required information regarding Take a Break is available on its website.
Cooling Off Periods
Take a Break hereby acknowledges that stipulations of Section 44 rate with Section 42 (2) of the Electronic Communications and Transactions Act 25 of 2002, as well as Section 16 of the Consumer Protection Act 68 of 2008 in as far as it is applicable to any transaction entered into with Take a Break.
Commission
Commission is payable on any bookings made by any customers who are introduced via Take a Break or who makes use of Take a Break booking platform as follow:
- 95%. on bookings where a 50% Deposit is collected (VAT excluded)
- 15% on bookings where a 100% Deposit is collected (VAT excluded)
The applicable commission plus VAT will be deducted from the deposit collected by Take a Break prior to it being paid to the establishment.
Any attempts to secure bookings with customers, which were introduced by Take a Break “offline” will be penalized with an extra 5% added to the commissions as stipulated here above.
Cancellations
Each party is responsible to refund customers according to their own applicable refund policy which must be clearly communicated or displayed to each customer.
In the event that a refund policy is absent the following default refund policy will be applicable:
- No show or cancellation within 14 days of stay – No refund due.
- Cancellation between 15 and 30 days before stay – 25% of the deposit will be refunded.
- Cancellation between 60 and 30 days before stay – 50% of the deposit will be refunded
- Cancellation more than 60 days before stay – full refund.
Take a Break is hereby identified against any claim that originate as a result of a lack of or a reasonable refund policy.
On-Payments
All payments received by Take a Break will be paid on within five (5) business days after receipt thereof inclusive of balance payments.
SWIFT payments will equally be paid within five (5) business days after receipt of an accurate invoice.
In the event of any reasonable suspicion of any fraudulent activity, payments will be withheld until the suspicion is resolved.
Take a Break reserves the right to offset any amounts owing to it against any payment due by it.
All parties acknowledge that the electronic payment transfer system between the bank may cause delays during high usage period in which instance no party will have any claim against each other due to such delay.
Take a Break will not be held responsible for any extra bank charges like SWIFT fee and or currency related charges.
Taxes
Each party shall be liable to pay its own taxes, duties, levies, tariffs or any similar charges imposed on such part by any authority, exclusive of taxes based solely on Take a Breaks’ net in which such amounts will be withheld and Take a Break will be provided with the necessary documentation to claim against the relevant authority. Take a Break will not be held responsible in the event that all necessary documentation is not provided.
Correctness of information and Reviews
Each party warrants the correctness of all, and any information provided on any of its platform and hereby agree that incorrect information will be to the detriment of the party who supplied such incorrect information.
Each parties’ rights to its trademarks and copy rights in all its names, logos, and photographs all just displayed on their website or otherwise are protected.
Take a Break uses a network of authorised affiliates to publish information. You hereby authorise us to use such affiliates to publish your information. Due to issues of real time updates certain information provided or amended by you may not update automatically on all affiliate websites. If this occurs, we cannot be responsible for information or misrepresentations on affiliate’s sites. These affiliates serve as traffic generators and although effort is made to ensure correct information Take a Break does not vet the content on these websites and accordingly you agree that we cannot be held responsible for inaccuracies found on websites not owned and updated by Take a Break or as a result of any infringement of any third-party rights. Should you come across any inaccuracies please notify us and we will immediately request the affiliate concerned to update their information within a reasonable timeframe from notification.
Take a Break invites all guests who stay at your establishment to submit a review of their stay which you hereby consent to us publishing on your homepage on our website. You will be provided with an opportunity to respond to such review. Such response will be dealt with in terms of our Review Policy and Posting Guidelines available on our website. You hereby agree to allow Take a Break to publish these reviews and acknowledge that Take a Break is not responsible for the content thereof and indemnify us from any and all damages that you may suffer as a result hereof.
Bank Details
Each party will be responsible to provide any other party with its correct banking details and hold any other party harmless in the event that incorrect banking details were provided.
Change of banking details must be brought under other relevant parties’ attention very explicitly and it is such party with the changed banking details responsibility to ensure that the changes are reached and acknowledged by all other relevant parties.
Chargebacks
In the event of chargeback, it is agreed that Take a Break is allowed to set such chargeback amount of any future moneys due and payable, or that Take a Break will be refunded within three (3) to five (5) business days in the event of chargeback money already paid over.
Quotation Errors
It is agreed that Take a Break will never be held responsible for any incorrect quotations. Incorrected quotations may be corrected directly with the relevant party if applicable.
Double Bookings
Double bookings are the result of quoting for a customer’s enquiry, or accepting a customer’s booking, and then selling the same accommodation to another customer.
Your quote is legally binding (for as long as you make it valid), and you must honour the quote, or booking.
You are responsible for any liability that may arise as a result of any double booking or your failure to honour any booking for any reason.
Take a Break will seek to relocate customers to another similar establishment on our website. You undertake to pay any difference in the cost of the stay together with any reasonably necessary ancillary costs associated therewith including without limitation any transport costs required. Take a Break will be entitled to recover this difference from you, be it directly or via set off against other amounts owing to you. Furthermore you undertake to refund any deposit paid to Take a Break within 1 (one) working day of your failure to honour any booking. Should such amount not be received timeously Take a Break reserves the right to set off such amount against any sums owing to you by Take a Break, or held by Take a Break on behalf of a customer in which event you undertake to utilise such deposit against further deposits required by customers booking through our website.
Take a Break is entitled to charge the full commission on the quote value of the double booking or any booking which you fail to honour.
You’re ranking on Take a Break will be negatively affected and you will move down on our search results.
No Shows
Take a Break is sympathetic to the impact upon you of customers booking and not arriving we are unable to assume any liability in this regard. Due to the nature of the service we are merely facilitating the transaction between the customer and you and as such we do not have control over whether or not they comply with their obligations towards you. As such any recourse will need to be sought against the customer themselves and Take a Break specifically disclaims any liability or responsibility in this regard.
Take a Break will equally not be held responsible for any theft or other dishonest committed by any comminated customer.
De-listing
Take a Break reserves the right to de-list any entity in the event that such entity in breach of any of these terms and conditions and fails to remedy such breach.
In such event any de-listed entity undertakes to honour any already-made booking.
Username and Password
A username and password is required in order to use Take a Breaks’ service. The supply of a username and password by Take a Break is subject to the following conditions:
- the username and password will not be disclosed to any unauthorised person for any reason whatsoever and the confidentiality thereof will be maintained at all times;
- in the event that the password is compromised, Take a Break must be notified immediately;
- any abuse of a username or password will be the responsibility of the entity which leaked the confidentiality of the username and will be reported;
- any person who uses a username and password with permission is also bound by these terms and conditions.
- the holder of the username and password acknowledge sole responsibility for all transactions, irrespective of whether the service has been utilized or is being utilized, and accordingly the entire amount outstanding on the account will be deemed to have arisen from (or relate to) authorised access to and/or use of the Take a Break service.
- It is agreed that all persons who use any services under the account will comply with these Terms and conditions and the authorised user will take full responsibility for all such use;
- It is agreed that no attempt to circumvent Take a Breaks’ user authentication processes or engage in attempts to access Take a Breaks’ network where not expressly authorised to do so will take place;
- Take a Break also offers a password reset service. Take a Break will send a password reset link to the registered email address or cell phone number should it be necessary. Subscription to this service is voluntary. Password reset emails will only be sent to registered details and should such details change it is the responsibility of the authorised user to notify Take a Break thereof and to update the details. Take a Break will not be responsible for any loss arising due to a third-party gaining access to the password through the use of this password reminder service and accordingly Take a Break is indemnified us from any loss the authorised user may suffer as a result thereof.
Service Delivery and Interruptions
Take a Break will use reasonable endeavours to make its services available to you, and to maintain the availability thereof for use by you. However, we provide the services “as is” and “as available” and do not warrant or guarantee that the services will at all times be free of errors or interruptions, be always available, fit for any purpose, not infringe any third-party rights, be secure and reliable, or will conform to your delivery timeline requirements.
Take a Break will use its best endeavours to notify you in advance of any maintenance and repairs which may result in the unavailability of a service, but cannot always guarantee this.
Support
Take a Break have an establishment support team working Mondays to Fridays from 9:00am to 5:00pm.
The establishment team is responsible for support relating to:
- Written content; general description and rooms
- Loading images
- Booking processes and policies
- Child policies
- Rates; adding seasons
- Calendar updates
- Setting the location of the establishment (GPS location)
- Adding select features; swimming pool, sea views, etc
- Linking to NightsBridge and eRes (real time systems that we work with)
- Changing commission structure
- Changing contact details
In addition, we have a Customer Service team on call from Monday to Friday between 8:30am and 5:00pm, Saturdays between 9:00am and 2:00pm, and public holidays between 9:00am and 1:00pm.
The Customer Service team can assist with any reservation related queries, including:
- Calendar updates
- Payment queries
- Establishment educational/how to use the system
- Review resolution
- Getting banking details to facilitate payments
- Getting more information from guests regarding bookings
- Following up with clients that have not responded to establishments online
- Updating booking information, i.e., change in number of room or dates etc.
- Fraud checks
- Refunds
- Assistance with cancellations
All support will be on a best-efforts basis. We will endeavour to assist you as soon as is commercially reasonable but cannot guarantee any specific turnaround times.
Payment Breach
Should you fail to pay any amount on the due date for payment then Take a Break may, without prejudice to any of its other rights:
- take all such further steps as may be necessary to recover the outstanding amount (including all legal costs actually incurred by us in recovering or attempting to recover the sums outstanding) from you, including without limitation the use of debt collection mechanisms; and if the debt arises from an agreement which is a credit agreement, then in accordance with the collection and repayment practices as prescribed in the NCA;
- charge interest at the rate of 2% above the prime overdraft rate published by Take a Breaks’ bankers from time to time on the overdue amount, calculated from the due date until the date of payment (both dates inclusive), which interest, if charged, will be capitalised monthly;
- terminate this agreement with immediate effect.
Breach
Should you be in breach of any provision of this agreement Take a Break shall be entitled, without prejudice to any other rights that it may have and without notice to you, to forthwith:
- afford you a reasonable opportunity to remedy the breach; or
- suspend your access to a service.
- cancel all agreements concluded between us; or
- claim immediate performance and/or payment of all your obligations in terms hereof.
CPA Obligations
In the event of breach it is recorded that the CPA will apply to our promotion of your establishment via the Website and that are thus exposed to wide potential statutory liability to consumers. It is agreed that –
- all the statutory obligations imposed upon us vis a vis consumers under the CPA are hereby equally imposed as contractual obligations upon you vis a vis us (“CPA Obligations”); and
- we shall have the same rights over you, as consumers will have over us under the CPA.
- Without derogating from the generality of the aforegoing, your CPA Obligations shall include but not be limited to your obligations under the provisions relating to deposits, promotions, cancellation of advance bookings, over selling, over booking as well as its obligation to clearly and accurately describe and/or depict the products and services and their prices in any communications with us.
Obligations
By entering in an agreement with Take a Break it is warranted that:
- You have the right to enter into this agreement;
- You will at all times act in a lawful manner and ensure compliance with all applicable laws and regulations, including specifically your obligations towards consumers as set out in the Consumer Protection Act, No 68 of 2008;
- You have the right to use all intellectual property including trade marks (registered or unregistered), names and logos and that Avante Hospitality/Take a Break will not infringe any third party intellectual property rights by marketing your establishment in any way; and
- All information provided by you is accurate and true in all material respects.
You hereby indemnify Take a Break unconditionally and irrevocably and agree to hold Take a Break harmless against all loss, damages, claims, or any other liability, of whatsoever nature, howsoever and whensoever arising, suffered or incurred by Take a Break or instituted against Take a Break as a result of (without limitation):
- your use of our services;
- your failure to comply with these terms and a provision of any agreement concluded between us;
- any unavailability of, or interruption in the service;
- Your failure to comply with the provisions of any piece of law or regulations applicable to you; and
- any other cause whatsoever relating to our provision of services to you.
Disclaimer and Limitation of Liability
To the extent permitted by applicable law, Take a Break shall not be liable to you for any direct damages howsoever arising and neither party shall be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out of or relating to this agreement, whether resulting from negligence, breach or any other cause. To the extent that a competent court or tribunal finally determines, notwithstanding the limitation contained in this clause, that Take a Break is liable to you for any damages, Take a Breaks’ liability to you for any damages howsoever arising shall be limited to the of R1000.00 (one thousand rand) only.
General
Amendments: Take a Break reserves the right to amend these terms and conditions from time to time. Any new version of the Agreement will be displayed on our website together with the date on which it will become effective, which will never be less than 30 (thirty) days after the date on which it is first published. It is your obligation to visit our website on a regular basis in order to determine whether any amendments have been made.
Intellectual Property: Nothing contained in this agreement shall, unless the contrary is expressly stated elsewhere in this agreement, be construed as an express or implied license of, or transfer of any rights in or to, any copyright, trademark, trade names, logos, devices, patents or other intellectual property owned or used by each party and each party shall respectively retain all such rights.
Whole Agreement: This agreement constitutes the sole record of the agreement between the parties with regard to the subject matter hereof. No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.
Non-Variation: No addition to, variation of, or agreed cancellation of, this agreement shall be of any force or effect unless in writing and signed by or on behalf of the parties.
Waiver: No relaxation or indulgence which any party may grant to any other shall constitute a waiver of the rights of that party and shall not preclude that party from exercising any rights which may have arisen in the past or which might arise in future.
Certificate of Indebtedness
Any amount due and payable by you to Take a Break in terms of any agreement between us at any time, shall be determined and proved by a certificate signed by one of Take a Breaks’ directors, whose appointment, qualification and authority need not be proved. Such certificate shall be deemed to be a liquid document for the purpose of obtaining summary judgment, provisional sentence and/or any other judgment against you.
Jurisdiction
You hereby consent to the jurisdiction of the Magistrate’s Court in the Republic of South Africa in respect of any proceedings that may be initiated by us arising out of this Agreement, provided that we shall be entitled, in its sole discretion, to institute such proceedings in the High Court of South Africa and, in such event, you consent to the jurisdiction of such court and agree that costs shall be calculated in accordance with the tariff of such court.
Costs
Should Take a Break, instruct an attorney pursuant to any breach or failure to perform any obligation on your part (the part of Contracting Party, or be required to direct any correspondence to you regarding such breach or failure to perform, then without prejudice to any other rights which Take a Break may have, it shall be entitled to recover from you all legal costs incurred by it, whether or not legal proceedings are instituted against you, on an attorney and own client scale including tracing fees and collection commission and which costs shall be payable on demand and shall not be required to be taxed
Domicilium Citandi et Executandi:
The address displayed on each party’s website or other platform will be regarded is hereby added as such entities Domicilium Citandi et Executandi.
Establishment as your address for the service of legal documents. The following is hereby put on record:
Accepted electronically:
Annexure A: Commission Payable Commission will be calculated as follows:
Bookings with 50% deposit: 12,5 % VAT excl.
Bookings with 100% Deposit 15% VAT excl.
Commission is deducted from the deposit of the total quote value.
Commission includes payment processing and on-payment charges.
Quotations provided must be consistent with the direct or walk in rate applicable to customers staying at your establishment. All costs payable by customers must be included in the quotation.
The rates setup and quote submission system allows for the addition of certain commissionable costs (such as cleaning fees) and non-commissionable costs (such as breakage deposits). Please make sure that you utilize this system for these additional charges.
You undertake not to levy additional costs other than those included through the rates setup and quote submission system. You may not charge the customer any additional costs on top of the price displayed on the Take a Break quote submitted, be this before or after their stay, via the quote or via any other mechanism for informing them of any additional charges.
Appointment as Agent for VAT Purposes
The parties hereby place the following on record:
That whereas the establishment may be registered as vendor as described in the VAT Act 1991
That Take a Break is registered as a vendor as described in the Act (VAT no. 4110197904)
The establishment hereby appoints Take a Break as an agent in terms of section 54 of the Act, and in the context of this agreement.
Where any accommodation is booked by Take a Break who is acting on behalf of the establishment for the purposes of accommodation, the supply shall be deemed to be made by the establishment and not by Take a Break.
Where a tax invoice or a credit or debit note in relation to a supply of accommodation has been issued by Take a Break as contemplated in part 1.3 above, Take a Break shall maintain sufficient records to enable the name, address and registration number of the establishment to be ascertained.
Take a Break is hereby authorised to provide the Customer with a tax invoice on your behalf. You confirm that in the instance that you provide the Customer with a separate invoice this will be a copy only and that it shall not be capable of being used in terms of the VAT Act to claim for the supply in addition to the invoice already supplied by Take a Break.
All the following information in respect of any supply of accommodation, shall be available to the establishment in their online establishment account:
- A description of the goods or services supplied;
- The quantity or volume of the goods or services supplied; and
- The value of the supply, the amount of tax charged and the consideration for the supply or the consideration for the supply and the amount of tax charged of the rate at which the tax is charged.
The establishment shall account for the VAT in respect of supplies made to Take a Break on its behalf under this agreement, in the establishment’s VAT returns.
It is recorded that “Take a Break” was and is authorised to hold supporting documentation in its name but in the capacity as agent for the establishment in respect of accommodation reservations made by the establishment to “Take a Break”.