In these Terms and Conditions (Conditions):
1.1 Australian Consumer Law means the law as set out in Schedule 2 of the Competition and Consumer Act 2010.
1.2 Booking means the proposal for the provision of services provided by EKI to the Traveller.
1.3 Confidential Information means any Information provided by or to EKI for the purposes of the Service where such information is by its nature confidential, is identified as confidential or has actual or potential commercial value to any person.
1.4 Contract means a contract for the provision of Services in accordance with these Conditions, as evidenced by the acceptance of the Booking by the Traveller.
1.5 Disbursements means third party costs incurred by EKI on behalf of the Traveller listed in the Booking or otherwise advised to the Traveller by EKI in writing.
1.6 EKI means Alliana Pty Ltd ACN 100 455 650 as trustee for the Adventure Charters Investment Trust trading as Exceptional Kangaroo Island, Kangaroo Island E-Bikes and Kangaroo Island Wilderness Services ABN 63 589 464 913, its staff, representatives, contractors and agents.
1.7 Provider means either EKI or the Traveller who provides Confidential Information of the other.
1.8 Recipient means either EKI or the Traveller who is provided Confidential Information by the other.
1.9 Services means the services provided by EKI to the Client as specified in the Booking.
1.10 Traveller means a person receiving the Service from EKI.
2.1 Unless EKI expressly agrees otherwise in writing, these Conditions apply to all Services provided by EKI to the Traveller and prevail over all inconsistencies in the Booking.
2.2 EKI may vary these Conditions at any time and such variations will have effect from the date of publication to the Traveller.
2.3 If there is a waiver document in respect of the Services and any of the terms of the waiver are inconsistent with these Conditions, the waiver document will prevail to the extent of the inconsistency.
3.1 The Traveller may only accept a Booking within 30 days from the date of the Booking.
3.2 By accepting a Booking, the Traveller is taken to have agreed to these Conditions.
3.3 The Traveller accepts a Booking by:
3.3.1 signing (including by electronic signature) a Booking;
3.3.2 making payment or part-payment for the Services; or
3.3.3 instructing EKI to commence or continue providing the Services.
4.1 In providing the Services, EKI will:
4.1.1 exercise due care and skill;
4.1.2 comply with all relevant industry and professional standards; and
4.1.3 comply with all applicable laws.
4.2 EKI will endeavour to provide the Service in accordance with the time frames specified in the Booking, however, such time frames are subject to events outside of the control of EKI.
4.3 EKI will endeavour to provide the Services in accordance with the description, however, sometimes there are circumstances that require EKI to vary or alter the Services, and EKI reserves the right to alter or vary the Services in any manner and at any time.
The Traveller must take out their own policy of travel insurance covering Services cancellations, inability to travel or continue with the Services (for whatever reason), loss or damage to personal effects, medical, evacuation and repatriation expenses, and accidental death or disability.
6.1 EKI may publicise its involvement in the provision of the Services including but not limited to social media publications and print, internet and video advertisements. Unless such information remains commercially sensitive, such publication may include the names of the Traveller and the nature and value of the Services.
6.2 The Traveller approves EKI using the Traveller’s name, and photographs of the Traveller, and other intellectual property for such purposes.
7.1 EKI is not liable for any warranty or representation in relation to the Service unless expressed in writing and any such warranty or representation is limited to its express terms.
7.2 EKI’s liability to the Traveller is limited to supplying substitute Services or providing credit to the Traveller for non-conforming or defective Services supplied (as determined by EKI).
7.3 In no circumstance will EKI be liable to the Traveller or to any other person:
7.3.1 in tort for any loss or damages suffered; or
7.3.2 for any economic loss, including loss arising from interruption of business or loss of profits, or any other indirect or consequential loss; or
7.3.3 for any illness, injury, medical condition or death suffered.
7.4 The limitations on the liability of EKI under this clause 7 apply only to the extent permitted by law, including the Australian Consumer Law.
7.5 A guarantee, condition, warranty or other term of the Service implied by law will only apply to the extent it cannot be lawfully excluded.
Unless otherwise stated, all prices quoted by EKI are exclusive of Goods and Services Tax (GST) and the amount payable by the Traveller will be increased by a percentage equal to the prevailing rate of GST at the time of a Booking.
9.1 The Traveller must pay the Services price as specified in the Booking.
9.2.1 the Traveller provides inaccurate or incomplete information to EKI;
9.2.2 the Traveller seeks to vary the nature or scope of the Service; or
9.2.3 latent issues that may affect the provision of the Service are discovered or suspected.
9.3 The Traveller must pay the amount of any actual or anticipated Disbursements which may be incurred by EKI in connection with the provision of the Services. Such payments must be made at the times and in the manner required by EKI.
9.4 EKI reserves the right to charge a credit card surcharge for any Booking.
10.1 Unless otherwise agreed in writing by EKI, full payment of the Services price is required prior to the commencement of the Services.
10.2 The Booking will outline the specific timeframes for payment of the Services.
10.3 All amounts payable to EKI by the Traveller must be paid in Australian dollars in any manner required by EKI.
10.4 Payment will not be taken to occur until all cheques tendered or electronic funds transfer in discharge of amounts owing to EKI have been presented or received and cleared in full.
EKI may charge the Traveller a reasonable administration fee for issuing duplicate invoices, statements or other documents requested by the Traveller.
12.1 The Traveller may cancel the Services at any time, however, if the Traveller cancels the Services:
12.1.1 more than seven (7) days prior to the commencement of the Services, EKI may retain 10% of the Service price;
12.1.2 more than 48 hours but less than seven (7) days prior to the commencement of the Service, EKI may retain 50% of the Service price;
12.1.3 less than 48 hours prior to the commencement of the Services or the Traveller does not appear for the Services, EKI may retain 100% of the Services price.
12.2 In addition to the payments as outlined in clause 12.1, EKI will also be able to retain any sums that are due and payable to third party providers. If EKI does not have these monies from the Traveller then the Traveller must pay to EKI the amount due and payable to the third party provider within seven (7) days of issue of an invoice by EKI to the traveller.
13.1 EKI may cancel the Service for any reason and at any time before the commencement of the Services, including if the number of Travellers participating in the Services does not exceed the minimum number of travellers required by EKI or if third party providers cancel all or part of the Services.
13.2 EKI may suspend the Services at any time during the provision of the Services.
13.3 If the Traveller:
13.3.1 commits any default in its obligations under these Conditions;
13.3.2 fails to comply with a reasonable direction of a representative of EKI during the provision of the Services; or
13.3.3 commits an act of bankruptcy or enters into liquidation whether voluntary or involuntary,
EKI may at its discretion cancel the Services with the Traveller or ask the Traveller to leave at the Traveller’s own cost.
13.4 In the event that there is a state or national lockdown as a result of the COVID-19 pandemic which results in the Services being cancelled or the Traveller not being able to travel to participated in the Services, EKI will offer a credit to the Traveller for use within twelve (12) months of the date of the cancellation. In the event that the Services are booked during a high-season period then EKI reserves its rights to charge the Traveller a surcharge.
13.5 In the event EKI cancels the Services under clause 13.1, EKI will refund to the Traveller the sums paid in connection with the Services.
13.6 In the event EKI suspends the Services under clause 13.2, EKI will refund to the Traveller the sums paid in connection with the Service, which will be adjusted on a pro rata basis depending on the Services provided by EKI to the Traveller.
13.7 In the event EKI cancels the Service under clause 13.3, EKI may retain:
13.7.1 any deposit paid in connection with the Services; and
13.7.2 any other sums paid in connection with Services, including any sums that are due and payable to third party providers,
and if payment is not already made in full, the Traveller must indemnify EKI against all liabilities or losses incurred by EKI in connection with the cancellation.
14.1 EKI will not have any liability in respect of any cancellation of the Services or suspension in the provision of the Services by EKI except as expressly provided in clause 13.
14.2 The cancellation of the Service or suspension in the provision of the Service will be without prejudice to any right or remedy accruing prior to the date of such cancellation or suspension.
15.1 If EKI cancels the Services, EKI may, subject to the consent of the Traveller, substitute the Services with another Services with similar experiences.
15.2 If EKI substitutes the Services under clause 15.1 and the price of the substituted Services is:
15.2.1 higher than the original Services, EKI may require the Traveller to pay the difference in price; or
15.2.2 less than the original Services, EKI may refund to the Traveller the difference in price.
16.1 The Recipient agrees that all Confidential Information provided to the Recipient must be kept confidential by the Recipient and must not:
16.1.1 be disclosed to any person by the Recipient;
16.1.2 or used by the Recipient,
otherwise than strictly as required for the purposes of the Services.
16.2 The duty of confidence in clause 16.1 does not extend to Confidential Information which:
16.2.1 is known to the Recipient prior the commencement of the Services;
16.2.2 becomes publicly known after the commencement of the Services (otherwise than as a result of a breach of confidence by the Recipient);
16.2.3 is disclosed to the Recipient by a third party after the commencement of the Services where such third party is not subject to a duty of confidence;
16.2.4 is disclosed for the purposes of obtaining professional legal advice, or in defending or bringing any claims;
16.2.5 is disclosed for the purposes of making a claim under a policy of insurance; or
16.2.6 is disclosed as required by law.
16.3 The Recipient must bind its officers, employees and permitted subcontractors who have access to the Confidential Information, to comply with the duty of confidence imposed on the Recipient under clause 16.1.
16.4 The Recipient must indemnify the Provider against all liabilities, losses or damage incurred in connection with a breach of the Recipient’s obligations under this clause 14.
EKI is not liable for any failure or delay in performing its obligations under the Service if that failure or delay is due to anything beyond its reasonable control.
18.1 The Contract is governed by the law in South Australia and the Traveller irrevocably submits to the exclusive jurisdiction of the courts of South Australia.
18.2 The Contract may only be altered in writing signed by each party.
18.3 A party may in its discretion give (conditionally or unconditionally) or withhold any approval or consent under the Contract.
18.4 The Contract constitutes the entire agreement between the parties about its subject matter and supersedes any prior agreement about its subject matter.
18.5 A waiver of a provision or right under the Contract must be in writing signed by the party giving the waiver, and is effective only to the extent set out in the waiver.
18.6 A failure, delay, relaxation or indulgence in exercising a power or right under the Contract is not a waiver of that power or right.
18.7 An exercise of a power or right under the Contract does not preclude a further exercise of that or any other right or power.
18.8 Each indemnity, duty of confidence or other term capable of taking effect after the discharge or cancellation of the Contract remains in force after the discharge or cancellation of the Contract.
In these Conditions, unless the context otherwise requires:
9.1 headings do not affect interpretation;
19.2 singular includes plural and plural includes singular;
19.3 a reference to a party includes its servants, executors, administrators, successors and where the context permits, its permitted agents, contractors and assigns;
19.4 a reference to a person includes a partnership, corporation, association, government body and any other entity;
19.5 an agreement, representation, warranty or indemnity by two or more parties binds them jointly and severally;
19.6 a provision is not construed against a party only because that party drafted it;
19.7 an unenforceable provision may be severed, and the remainder of these Conditions continue in force, unless this would materially change the intended effect of these Conditions; and
19.8 the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions.