This Agreement is entered into between us and you, together the Parties and each a Party.
1. Services
1.1 In consideration of your payment of the Price, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.
1.2 We may, at our discretion and with your prior agreement, work alongside other travel agents where you have existing relationships with such agents.
1.3 We may use preferred hotel chains and other suppliers with whom we have established partner relationships. You acknowledge that these relationships may influence our choice of accommodations and services included in your Travel Plan.
1.4 Notwithstanding clause 4.41.3, all variations to the Services must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instructions or directions from you constitute a variation to the scope of the Services or our obligations under this Agreement, then we will not be obliged to comply with such instructions or directions unless agreed in accordance with this clause.
1.5 In the event of flight or sporting event postponement or cancellation that does not amount to a Force Majeure Event, we will endeavour to secure a refund from the venue or service provider (as applicable). Any refund will be passed on to you once received by us.
2. Travel Requirements
2.1 You are responsible for:
• ensuring that all travellers have valid passports and obtain all necessary visas and travel documents required for us to provide the Services;
• obtaining and maintaining appropriate travel insurance for all travellers for the duration of your trip;
• complying with all terms and conditions of travel imposed by airlines, accommodation providers, and other service providers;
• meeting all border entry requirements of the destination country;
• complying with any re-entry requirements imposed by New Zealand upon your return; and
• any other personal travel arrangements not specifically included in the Travel Plan.
2.2 We will provide guidance on passport and visa requirements to the best of our knowledge, but you acknowledge that these requirements may change and that our advice does not constitute a guarantee of entry to any country.
2.3 You agree to comply with all local laws and regulations of the countries visited during your travel. You acknowledge and agree that we are not responsible for any violations of local laws or regulations committed by you or your travel companions.
3. Your Obligations
3.1 You agree to (and to the extent applicable, ensure that your Personnel agree to):
• comply with this Agreement, all applicable Laws, and our reasonable requests;
• provide us with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to provide the Services; and
• not (or not attempt to) disclose, or provide access to, the Services to third parties without our prior written consent.
3.2 You agree to pay our additional costs reasonably incurred as a result of you failing to comply with this clause 3.
4. Travel Plans
4.1 During the Term, you may request us to supply the Services by notifying us in writing or by any other process we specify (“Travel Plan Request”).
4.2 If we accept the Travel Plan Request, we will provide you with a formal Travel Plan, and once the Travel Plan is agreed by both Parties in writing it will be binding in accordance with the terms of this Agreement and the Travel Plan.
4.3 Each Travel Plan must be accepted within 7 days of the date it is issued. After this period, we cannot guarantee seat, airfare, or hotel availability, or pricing as specified in the Travel Plan. Any changes in availability or pricing after the 7-day period may result in a revised Travel Plan being issued, at our discretion.
4.4 We reserve the right to make changes to your Travel Plan where reasonably necessary, including where certain elements are sold out or unavailable. If a significant change becomes necessary, we will inform you as soon as reasonably possible and work with you to adjust the Travel Plan as required.
4.5 Each Travel Plan is subject to, and will be governed by, this Agreement and any other conditions expressly set out in the Travel Plan. To the extent of any ambiguity or discrepancy between a Travel Plan and this Agreement, the terms of the Agreement will prevail.
5. Price and Payment
5.1 In consideration for us providing the Services, you agree to pay all amounts due under this Agreement in accordance with the Payment Terms.
5.2 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under this Agreement or at Law):
• after a period of 5 Business Days from the relevant due date, cease providing the Services, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs); and/or
• charge interest at a rate equal to the Reserve Bank of New Zealand’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms.
5.3 When applicable, Goods and Services Tax (under the Goods and Services Tax Act 1985 (GST)) payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges.
6. Confidential Information
6.1 Subject to clause 6.2, each Party must (and must ensure that its Personnel):
• keep confidential; and
• not use (except to perform its obligations under this Agreement) or permit any unauthorised use of,
information provided by the other Party, including information about this Agreement and the other Party’s business and operations.
6.2 Clause 6.1 does not apply where:
• the disclosure is required by Law; or
• the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement,
provided that the disclosing Party ensures the adviser complies with the terms of clause 6.1.
6.3 This clause 6 will survive the termination of this Agreement.
7. Privacy
7.1 If you are required to provide us with Personal Information so that we can provide the Services, you agree to comply with the Information Privacy Principles as set out in the Privacy Act 2020, and any other applicable Laws relating to privacy (Privacy Laws).
7.2 Without limiting this clause 7, you must ensure that:
• you have collected, used, stored and otherwise dealt with Personal Information in accordance with all Privacy Laws; and
• we are capable of collecting, using, storing and otherwise dealing with Personal Information, in the manner contemplated by this Agreement, without infringing any third-party rights or violating any Privacy Laws.
7.3 Without limiting this clause 7, you agree to only disclose Personal Information to us if:
• you are authorised by the Privacy Laws to collect the Personal Information and to use or disclose it in the manner required by this Agreement; and
• you have informed the individual to whom the Personal Information relates, that their Personal Information will be disclosed to us.
7.4 We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under this Agreement, and in accordance with any applicable Laws.
8. Consumer Law
8.1 Certain legislation, including the Consumer Guarantees Act 1993 and Fair Trading Act 1986, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in this Agreement excludes those Consumer Law Rights.
8.2 If you are a business, you agree and represent that you are acquiring the Services for the purposes of trade. The Parties agree that:
• to the maximum extent permitted by law, the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the New Zealand Fair Trading Act 1986 do not apply to the supply of the Services or the Agreement; and
• it is fair and reasonable that the Parties are bound by this Agreement, including this clause.
8.3 This clause 8 will survive the termination or expiry of this Agreement.
9. Liability
9.1 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law:
• neither Party will be liable for Consequential Loss;
• a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss;
• our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again;
• we are not liable for third-party operations, including but not limited to flight delays or cancellations, or changes to sporting events; and
• our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the Price paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
9.2 This clause 9 will survive the termination or expiry of this Agreement.
10. General
10.1 Amendment: Subject to clauses 1.2 and Error! Reference source not found., this Agreement may only be amended by written instrument executed by the Parties.
10.2 Assignment: Subject to clauses 10.3 and 10.10, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
10.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
10.4 Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, this Agreement (Dispute) without first meeting a representative of the other Party within 10 Business Days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting, either Party may refer the Dispute to mediation administered by the New Zealand Disputes Resolution Centre.
10.5 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
• as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
• uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
10.6 Where the Force Majeure Event prevents a Party from performing a material obligation under this Agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
10.7 Governing Law: This Agreement is governed by the laws of New Zealand. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New Zealand and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
10.8 Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
10.9 Publicity: Despite clause 6, with your prior written consent, you agree that we may advertise or publicise the broad nature of our supply of the Services to you, including on our website or in our promotional material.
10.10 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
10.11 Subcontracting: We may subcontract the provision of any part of the Services without your prior written consent. We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractor.
Definitions
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:
• “Agreement” means these terms and conditions and any agreed Travel Plan issued under it and any documents attached to, or referred to in, each of them.
• “Business Day” means a day on which banks are open for general banking business in Whangaparaoa, New Zealand, excluding Saturdays, Sundays and public holidays.
• “Commencement Date” means the date this Agreement is signed by the last of the Parties.
• “Consequential Loss” includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Price will not constitute “Consequential Loss”.
• “Consumer Law Rights” has the meaning given in clause 8.1.
• “Force Majeure Event” means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, travel specific events such as airline strikes, airport closures, changes in travel/visa requirements, and any other event that materially impacts our ability to provide the Services as outlined in the Travel Plan, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
• “Law” means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of the Services.
• “Liability” means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
• “Personal Information” means information or an opinion, whether true or not and whether recorded in a material form or not, about an individual who is identified or reasonably identifiable.
• “Personnel” means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
• “Price” means the price set out in the Schedule or any Travel Plan, as adjusted in accordance with this Agreement.
• “Schedule” means the schedule to this Agreement.
• “Services” means the services set out in the Schedule or any Travel Plan, as adjusted in accordance with this Agreement.
• “Travel Plan” means a Travel Plan for the supply of Services, placed in accordance with clause 4, a form of which is provided at Annexure 1 to this Agreement.