Standard Trading Terms of Boomtown Events
Introduction
A. Boomtown Events provides corporate hospitality services to its Clients.
B. All and any Business undertaken by Boomtown Events will be governed by these Trading Terms.
1. Definitions and interpretation
1.1 In this Agreement:
(1) Agreement means any agreement to provide the Services, which will comprise these Trading Terms and the Booking Form together with all annexures, if any;
(2) Boomtown Events means Boomtown Events, registration number 2016/358578/07
(3) Alternative Period has the meaning given to it in clause 21.1(3);
(4) Booking Form means the Boomtown Events Client Booking Form;
(5) Business means all and any business undertaken by Boomtown Events, including but not limited to any advice, information or service provided, whether gratuitously or not, in connection with the Services;
(6) Client means the Client as described Booking Form, if applicable, and/or any party, at whose request or on whose behalf Boomtown Events undertakes any Business or renders any Services;
(7) CPA means the Consumer Protection Act, 2008;
(8) Entrance Ticket, where applicable, means the official entrance ticket or general access ticket issued by the Event Organiser or Ticketing Body, where applicable, for the Event or for a designated day of an Event should the Event take place over more than one day;
(9) Event means any sporting, musical, recreational or social function or event which is the subject of the Services and for which the Hospitality Package was purchased;
(10) Event Organiser means the authority responsible for the Event, which may in certain circumstances be Boomtown Events;
(11) Fees means any amount specified in the Booking Form payable for the Hospitality Package and any additional charges or costs due to Boomtown Events in terms of the Booking Form and/or these Trading Terms;
(12) Guest means any person in possession of a Hospitality Pass or Hospitality Package, who is an invitee of the Client and whose name has been provided to Boomtown Events in writing;
(13) Hospitality Area means the area designated for the provision of the Services;
(14) Hospitality Package means one hospitality package packed per Guest per day as described in the Booking Form;
(15) Hospitality Pass means an appropriate authorisation / pass issued to the Client entitling the Guest to admission to the Hospitality Area;
(16) Legal Requirements means any law, by-law, regulation, ordinance, licence, approval, permit, consent, regulation or requirement of any relevant authority;
(17) Party/ies means either or both, as the context requires, the Client and Boomtown Events and, where applicable, the Guests;
(18) Rights Owner means any person or entity that is a sponsor of the Event or has sponsored the Hospitality Package or who is authorised to advertise at the Event and/or Hospitality Area;
(19) Services means the services provided by Boomtown Events, which may include the provision of food and bar facilities for a specified limited period of time and in relation to the specific Hospitality Package purchased, corporate events management and hospitality and any ancillary services provided by Boomtown Events in terms of the Agreement, as may be agreed in writing between the Parties from time to time;
(20) Ticketing Body means the person or entity responsible for the issuing of Entrance Tickets, whether designated or appointed by the Event Organiser or Boomtown Events;
(21) Trading Terms means these standard trading terms and conditions of Boomtown Events, including any annexure and schedule hereto and any Booking Form completed by the Client;
(22) Unauthorised Attendee means any person in possession of a Hospitality Pass or Hospitality Package purchased by the Client who is not a Guest of the Client and who would not otherwise be permitted access to the Hospitality Area; and
(23) VAT means value-added tax as defined in the Value-Added Tax Act, 1991.
1.2 Any reference in these Trading Terms to:
(1) in writing/written means by letter, facsimile or e-mail; and
(2) person or party is construed as a reference to any natural or juristic person, firm, Boomtown Events, Client, corporation, government, state, agency or organ of a state, association, trust or partnership (whether or not having separate legal personality).
1.3 Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
1.4 The headings do not govern or affect the interpretation of these Trading Terms.
1.5 Unless the context indicates otherwise an expression which denotes any gender includes both the others; reference to a natural person includes a juristic person; the singular includes the plural, and the plural includes the singular.
1.6 Any reference to day refers to calendar days.
1.7 The words including and in particular are without limitation.
1.8 Any reference to a document or instrument includes the document or instrument as ceded, delegated, novated, altered, supplemented or replaced from time to time.
1.9 A reference to a Party includes that Party’s successors-in-title and permitted assigns.
1.10 The rule of interpretation that, in the event of ambiguity, the contract must be interpreted against the party responsible for the drafting of the contract does not apply.
1.11 The termination of these Trading Terms does not affect those of its provisions which expressly provide that they will operate after termination, or which must continue to have effect after termination, or which must by implication continue to have effect after termination.
2. Application of these Trading Terms
2.1 All Business is undertaken by Boomtown Events subject to these Trading Terms.
2.2 Boomtown Events will provide the Services only on the basis set out in these Trading Terms read with any Booking Form and any other terms agreed in writing between the Parties.
2.3 The Client is obliged to procure that all Guests of any Event adhere to and are bound by these Trading Terms, and will be jointly and severally liable for any Guest’s failure to do so.
2.4 Unless the Parties agree in writing specifically to the contrary, these Trading Terms shall prevail in the event of the Client itself having standard trading conditions, even if the latter conditions are apparently incorporated after these Trading Terms, in terms of an accepted purchase order or otherwise.
2.5 Should the Client amend or strike out any term of these Trading Terms before its signature hereof it must bring that amendment or striking out to the attention of Boomtown Events. Any such amendment or striking out amounts to a counter offer by the Client and is only effective if Boomtown Events acknowledges and consents to the amendment or striking out in writing.
2.6 Boomtown Events is entitled to amend these Trading Terms and to publish supplementary terms and conditions, which amendments and supplements shall take effect from the date on which they are published by Boomtown Events. As and when any amendment or supplement is made it shall be available at the offices of Boomtown Events. Whilst Boomtown Events will take reasonable steps to publicise amendments by an indication to that effect on its email correspondence or on its website, its failure to do so shall not in any way prevent the amendment or supplement taking effect.
2.7 Subject to clause 2.6, no addition to or variation or consensual cancellation of this Agreement, including this clause, has effect unless in writing and signed by the Parties. Only members or individuals authorised or ratified by the members of Boomtown Events are authorised to alter, amend or vary these Trading Terms.
3. Booking and Confirmation
3.1 The Client shall complete the Booking Form in full. Boomtown Events reserves the right to refuse to consider or process incomplete Booking Forms.
3.2 All completed Booking Forms must be either hand delivered, faxed or emailed (the Client shall ensure that scanned copies of the Booking Forms are legible) to Boomtown Events at the physical address, facsimile number and/or email address stipulated in the Booking Form.
3.3 On return of the Booking Form by the Client to Boomtown Events, it shall constitute an irrevocable offer by the Client to purchase the Hospitality Packages from Boomtown Events, which offer shall remain valid for a period of 30 days, calculated from the date that the Booking Form is received by Boomtown Events.
3.4 Upon receipt of the Booking Form and signed Trading Terms, Boomtown Events will consider the Client’s application and, if accepted, confirm the order. Only Booking Forms confirmed by Boomtown Events in writing are binding on Boomtown Events. Boomtown Events is entitled but not obliged to perform in terms of a Booing Form not confirmed by it in writing.
3.5 Before confirmation by Boomtown Events, all sales of Hospitality Packages are subject to availability.
3.6 No provisional booking will be considered by Boomtown Events.
3.7 Boomtown Events reserves the right to refuse to sell Hospitality Package to any party.
4. Client’s instructions and information
4.1 Wherever it is necessary for instructions to be given to Boomtown Events, the Client will provide those instructions timeously and in writing. Standing and general instructions are not binding on Boomtown Events.
4.2 In the absence of specific instructions as to the performance of the Services, Boomtown Events is entitled to take any steps or refrain from taking any steps it seems fit, in its sole discretion.
4.3 If at any stage during the provision of any Services Boomtown Events should consider that there is good reason, making it advisable in the Client's interest to depart from any of the Client's instructions, Boomtown Events shall be permitted to do so, at the Client’s cost, without incurring any additional liability.
4.4 The Client warrants that all information provided to Boomtown Events is accurate, complete and up-to-date. The Client undertakes to immediately inform Boomtown Events of any changes to the information provided by it or of any additional relevant information that may have a bearing on the provision of Services. The Client must at least ensure that Boomtown Events is at all times in possession of the following information:
(1) the number of Guests that will be in attendance at the Hospitality Area;
(2) the ages and names of all Guests;
(3) allergies, special dietary requirements (per clause 10) and special needs of all Guests; and
(4) any other information which Boomtown Events may, from time to time, reasonably request.
5. Notification of attendance numbers
5.1 In accordance with clause 4.4(1), the Client must advise Boomtown Events of the number of Guests attending any Hospitality Area as follows:
(1) approximate numbers seven working days prior to the Event; and
(2) final numbers five working days prior to the Event.
5.2 Regardless of the final number of Guests attending the Event, the Client will be obliged to pay to Boomtown Events the full Fees due in the Booking Form or otherwise agreed in writing.
6. Payment terms and delivery of Hospitality Packages
6.1 The Client will pay Boomtown Events the Fees on receipt of an appropriate VAT invoice from Boomtown Events and on or before collection of the Hospitality Package.
6.2 The Client acknowledges that it will only be entitled to receipt of the Hospitality Package once full payment of the Fees has been received by Boomtown Events.
6.3 Boomtown Events will provide the Client with the date by which and the place where the Hospitality Package can be collected.
6.4 Should payment not be received by Boomtown Events and/or the Hospitality Packages not be collected on the date advised by Boomtown Events, Boomtown Events will have the right, without prejudice to any of its rights in law, to cancel the applicable Agreement on notice to the Client and to retain any and all payments received as compensation for Services already provided and/liquidated damages suffered, without prejudice to any other claim it may have. Boomtown Events is entitled in its sole and absolute discretion to deal with that Hospitality Package as it may deem fit.
6.5 Boomtown Events reserves the right to change the Fees stated in the Booking Form should the Entrance Ticket price change or be altered by the Event Organiser in any way or should circumstances change beyond the reasonable control of Boomtown Events resulting in additional costs incurred in providing the Services.
6.6 The Hospitality Package must be collected from Boomtown Events, unless otherwise determined by Boomtown Events. Where the Event Organiser or a Ticketing Body is responsible for the issuing of tickets, their terms and conditions will apply in addition to these Trading Terms. In the event of conflict, these Trading Terms will apply.
7. The Services and Hospitality Packages
7.1 Boomtown Events will provide the Services to the Client and the Guests in terms of these Trading Terms.
7.2 Boomtown Events will provide the Services and Hospitality Package described in the confirmed Booking Form and agreed to in writing between the Parties.
7.3 At any time, and on notice to the Client, Boomtown Events reserves the right to make suitable substitutions or amendments, where necessary, and required by circumstances beyond its reasonable control.
8. Food and beverages
8.1 Unless otherwise agreed in writing between the parties, Boomtown Events and/or its nominee has exclusive right and responsibility to all catering and the supply of all food and/or a variety of alcoholic and non-alcoholic beverages within the Hospitality Area.
8.2 No food and beverages of any kind may be brought into the Hospitality Area without the consent of Boomtown Events, which consent will not be unreasonably withheld.
8.3 Without limiting clause 8.2, Boomtown Events reserves the right to levy a service or corkage charge, respectively, for any food and beverages brought into the Hospitality Area in breach of this Agreement, which charge will approximate its lost revenue as a consequence of that breach and may be determined in its sole and absolute discretion.
8.4 Boomtown Events abides and adheres to the Legal Requirements related to the sale and distribution of alcohol, therefore where alcoholic beverages are to be served at the Hospitality Area, Boomtown Events will require the beverages to be dispensed only by Boomtown Events’s servers and bartenders.
8.5 In terms of the Legal Requirements related to the sale and distribution of alcohol, Boomtown Events may refuse alcoholic beverages to any persons under the age of 18 years or any persons who, in the discretion of Boomtown Events, appears to be intoxicated.
8.6 Boomtown Events and any of its employees, agents, representatives or suppliers may request any Client or any of its Guests to produce identity documents before any alcohol is served. Boomtown Events will refuse to serve any alcohol beverage to any person, should the Client or any of its Guests fail to produce identity documents.
8.7 The Guests are prohibited from knowingly (including where they ought reasonably to have known) serving, giving or allowing any person under the age of 18 years to consume alcoholic beverages.
8.8 The Client will and its Guests will procure that they exercise control and ensure responsible drinking.
8.9 The Client and its Guests hereby indemnify the venue owner, the Event Organiser and Boomtown Events, its employees, agents, representatives or suppliers,
(1) against any prosecution or penalties that may be instituted or imposed by any competent authority as a result of the Client or any of its Guests or Unauthorised Attendees contravening the Legal Requirements related to the sale and distribution of alcohol;
(2) against any injury or death suffered by any third party as a result of assault, loss of or damage to property by the Client or any of its Guests intoxicated by alcohol; and
(3) against loss of income and any other patrimonial damages suffered by the venue owner, Event Organiser and/or Boomtown Events, as a result of a competent authority revoking, cancelling/withdrawing the venue owner, the Event Organiser or Boomtown Events’s liquor license or as a result of a competent authority’s refusal to grant the venue owner, the Event Organiser or Boomtown Events any liquor license in the future due to the Client or any of its Guests contravening any Legal Requirements related to the sale and distribution of alcohol.
8.10 The benefits of the indemnity in clause 8.9 are capable of acceptance at any time.
8.11 The Client or any of its Guests are prohibited from removing any food and alcoholic drinks from the Hospitality Area under all circumstances. All food and alcoholic beverages must be consumed within the Hospitality Area.
9. Special dietary requirements
9.1 It is the Client’s obligation to ensure that it informs Boomtown Events on the Booking Form, of any special dietary requirements (Vegetarian, Halaal or Kosher), whether for itself or for any of its Guests, failing which it shall be deemed that no special dietary requirements are necessary.
9.2 Special dietary requirements may incur additional costs, which will be charged to and paid by the Client in accordance with these Trading Terms.
10. Access to Hospitality Area
10.1 To gain access to the Hospitality Area, the Client and its Guests must ensure that they bear the Hospitality Pass and present such Hospitality Pass together with the Entrance Ticket to the security guards at the Event and at the Hospitality Area. No access to the Hospitality Area will be granted, without the Hospitality Pass being presented at the security check points.
10.2 In the event that a Hospitality Package does not contain a Hospitality Pass, then in order to gain access to the Hospitality Area, the Client and its Guests must present the Entrance Ticket and proof of identification at the security point.
10.3 Safe-keeping of the Hospitality Pass/Package is the responsibility of the Guest, and Boomtown Events is not responsible for any cost, expense, loss, liability or claim arising from, or in connection with lost, stolen or misplaced Hospitality Passes or the unauthorised use of Hospitality Passes. Boomtown Events is entitled, but not obliged, to verify the identity of any holder of a Hospitality Pass. Boomtown Events is entitled, but not obliged, to admit any person not holding a Hospitality Pass or to provide additional Hospitality Passes.
10.4 Right of admission to the Hospitality Area is reserved by Boomtown Events and Boomtown Events may, in its discretion, refuse entry to any Guest who does not appear to be abiding by these Trading Terms or Boomtown Events’s reasonable requirements from time to time.
11. Transfer of Hospitality Packages
11.1 The Client is not entitled to transfer, in any way whatsoever, the Hospitality Package to any other person other than a Guest as contemplated in these Trading Terms, unless specifically authorised by Boomtown Events in writing, which authorisation is within Boomtown Events’s sole and absolute discretion.
11.2 The Client may permit only Guests to hold Hospitality Passes and will ensure the safe-keeping of those Hospitality Passes.
11.3 Any unauthorised transfer contrary to this clause 11 could result in the Client’s and/or Guest’s access to the Event or the Hospitality Area being denied.
12. Parking
If the Hospitality Package includes a parking ticket, then the Client acknowledges that it parks their vehicle at their own risk. Boomtown Events and/or the Event Organiser and/or the owner of the venue where the Client parks its vehicle shall not be held liable for any damage or loss suffered by the Client and/or any of its Guests.
13. Children and minors
13.1 The Client and/or any of its Guests shall ensure that any children and minors that accompany them to the Event are adequately supervised at all times.
13.2 The Client and/or its Guests will at all times be responsible for the safety of the children and minors that accompany the Client or any of its Guests. Boomtown Events will not be held liable for any injury or death of any minor or child, irrespective of whether such injury or death is caused by the negligence, or any act or omission of Boomtown Events or any of its employees, agents, representatives, suppliers or sub-contractors or any failure of the Client and/or Guests to comply with this clause 13.
14. Equipment and services
14.1 The Client will specify in the Booking Form such equipment or additional services that are required for the Event, and will deliver to Boomtown Events upon request, all necessary details to enable Boomtown Events adequately to supply such equipment and services.
14.2 Any changes to the details mentioned in clause 14.1 are only binding upon Boomtown Events if made in writing and signed by Boomtown Events. Boomtown Events shall be entitled to revise its Fees should any costs be occasioned by such changes.
15. Smoking, fire and electricity
15.1 Smoking is only permitted in areas specifically designated by the Event Organiser or Boomtown Events, where applicable, as areas for smoking.
15.2 The Client and its Guests hereby indemnify Boomtown Events against any prosecution or penalties that may be instituted or imposed by any competent authority as a result of a contravention of the Legal Requirements related to the smoking of tobacco, by the Client, its Guests and/or Unauthorised Attendees.
15.3 All fire regulations are to be observed at all times while the Clients and its Guests are at the Event and in the Hospitality Area.
15.4 Boomtown Events shall not be liable to the Client and/or its Guests or to any third party in respect of any claim arising from or relating to the interruption of the supply of electricity to the Hospitality Area, unless such interruption was caused by the gross negligence of Boomtown Events.
16. Damage to or loss of property
16.1 The Client and its Guests will use the Hospitality Area in such a way that it is maintained in a safe condition at all times.
16.2 The Client will be responsible for any damage caused to the Hospitality Area or damage to or loss of the furnishings, utensils and equipment therein or to any other property of Boomtown Events, as a result of act, default or negligence of the Client, its Guests or Unauthorised Attendees and will pay to Boomtown Events, on demand, the amount required to make good or remedy such damage or loss.
17. Disposal of property left at Hospitality Area
17.1 Boomtown Events accepts no responsibility for the safe-keeping of any property left at the Hospitality Area. The Client must ensure that no property is left at the Hospitality Area and advise Boomtown Events in writing within six hours after such expiry of any items left at the Hospitality Area.
17.2 If Boomtown Events collects and stores any such property it accepts no liability for such safe-keeping and the Client will be liable to pay Boomtown Events’s reasonable charges for removing that property and storing it.
17.3 If the Client fails to pay Boomtown Events’s removal and storage charges within 30 days of the presentation of an invoice therefore, Boomtown Events may sell the property concerned and set off the proceeds of the sale against any sums owing to Boomtown Events.
18. Failure of Client to vacate after the Event/Alternative Period
If the Client or its Guests fail to vacate the Hospitality Area by the expiry of the Event, Boomtown Events will be entitled:
18.1 to levy a charge for the labour, facilities or services additional to that covered by the Fees set out in the Booking Form, which additional charge will be based on an agreed rate between Boomtown Events and the Client for the actual time booked by the Client; and
18.2 to recover any damages from the Client that Boomtown Events may suffer as a consequence of the Client’s failure to vacate, howsoever they may have arisen.
19. Consent to disclosure of personal information
The Client consents to the disclosure of all personal information required in terms of these Trading Terms and warrants that the Guests’ consent for such disclosure has been obtained.
20. Consent to perform the Services
20.1 The Client specifically consents to Boomtown Events performing the Services in terms of these Trading Terms, on behalf of:
(1) the Client; and
(2) the Guests,
and warrants that it is authorised and entitled to provide such consent.
20.2 The Client undertakes to ensure and warrants that at all times all Guests and, where applicable, their legal guardians are aware of these Trading Terms and that he/she/it is authorised to accept these Trading Terms on behalf of those parties, including to consent to the performance of the Services. All provisions of these Trading Terms apply to the Guests, including all limitations on Boomtown Events’s liability and all indemnities.
21. Cancellation or postponement of the Event other than by the Client
21.1 Without limiting clause 29 or any other provision, should the Event, for reasons beyond the reasonable control, and not due to the gross negligence of Boomtown Events be cancelled—
(1) more than 21 days but more than 10 days prior to the scheduled date of the Event, the Client will be liable to pay an amount equivalent to 25% of the Fees (inclusive of VAT);
(2) less than 21 days prior to the scheduled date of the Event, the Client will be liable to pay an amount equivalent to 50% of the Fees (inclusive of VAT); or
(3) 10 days prior to the Event, Boomtown Events may retain the full Fees. Where reasonably possible, the Client will be entitled to utilise the Services at the alternative time time specified by Boomtown Events (Alternative Period).
21.2 In the event of the Client having paid the Fees, or part thereof, in terms of 21.1, Boomtown Events may retain such amount and must refund the balance, if any, to the Client.
21.3 Any refunds or payments made in terms of this clause 21 will not include any interest whatsoever.
21.4 Should the Event, for reasons beyond the reasonable control of Boomtown Events be postponed, Boomtown Events may retain the full Fees (inclusive of VAT). The Event Organiser may agree to make the Entrance Tickets valid for an allocated new date on which the Event is to take place. Boomtown Events will use all reasonable endeavours to provide the Services on the new allocated date.
21.5 Under no circumstances will Boomtown Events be liable for any indirect consequential damages or losses arising out of or in connection with any cancellation or postponement of an Event, including without limitation the cost of accommodation, travel, flights or any other cost or expense.
22. Non-payment and cancellation by the Client
22.1 Should the Client cancel any Agreement for the Services and Hospitality Package for any reason whatsoever—
(1) more than 42 days prior to the scheduled date of the Event, the Client will be liable to pay an amount equivalent to 25% of the Fees (inclusive of VAT);
(2) more than 21 days prior to the scheduled date of the Event, the Client will be liable to pay an amount equivalent to 50% of the Fees (inclusive of VAT); or
(3) less than 21 days prior to the scheduled date of the Event or on the day of the Event, Boomtown Events will be entitled to retain the full Fees.
22.2 In the event of the Client having paid the Fees, or part thereof, in terms of clause 22, Boomtown Events may retain such amount and must refund the balance, if any, to the Client.
22.3 Any refunds or payments made in terms of this clause 22 will not include any interest whatsoever.
22.4 In the event of cancellation by the Client, Boomtown Events is entitled in its sole and absolute discretion to deal with the Hospitality Package as it may deem fit.
22.5 All cancellations by the Client in terms of clause 22.1 must be given in writing to Boomtown Events.
23. Sub-contracting
Boomtown Events is entitled to sub-contract any or all of the Services without the consent of the Client.
24. Advertising, sponsorship or association
24.1 Unless otherwise agreed in writing by Boomtown Events—
(1) the purchase of the Hospitality Package does not entitle the Client to any marketing, advertising or promotional rights;
(2) the Client will not before, during or after the Event, use the Hospitality Package or any part thereof for marketing or promotional purposes, including use as a prize in competitions, games, lotteries, sweepstakes or any similar operations or conduct any promotional, advertising or marketing activity without Boomtown Events’s prior written consent;
(3) the Client warrants that it will not portray itself as a sponsor of, or otherwise associate itself or its name in any manner whatsoever with, the Event, Boomtown Events or the Event Organiser;
(4) the Client has no rights to use the official emblem(s), logos, designations and mascot(s), if any, or name of the Event, Boomtown Events, the Rights Owner or the Event Organiser;
(5) the Client is prohibited from introducing into the area where the Event is being staged, any promotional or commercial items of whatever nature, including banners, signs, symbols, brochures and leaflets; and
(6) the Client is prohibited from erecting advertising or distributing advertising of any nature and from selling any item, merchandise or goods in the Hospitality Area without the prior written approval of Boomtown Events.
24.2 In the event of a breach of this clause 24, any items, merchandise or goods, which are the subject of such breach, removed without compensation and the Client and/or its Guests may be evicted from the Hospitality Area.
25. Legal Requirements
25.1 Boomtown Events shall be excused from performing Services if any Legal Requirement required for it to do so is revoked, terminated, not issued or not renewed for any reason whatsoever or the execution thereof would contravene any Legal Requirement.
25.2 Boomtown Events, by complying with any Legal Requirements shall not be deemed to waive or abandon any rights in terms of these Trading Terms and shall not be deemed to have assumed any obligation, onus, responsibility or liability in favour of the Client or any other party.
25.3 The Client undertakes to comply with all Legal Requirements including, where applicable, statutory and municipal requirements for events with 2000 or more Guests.
26. No Warranties, representations or guarantees by Boomtown Events
Unless specifically agreed to and signed by a director of Boomtown Events or as required by any applicable statute, Boomtown Events gives no warranties or representations in relation to the Services and all warranties whether express, implied or in terms of common law or otherwise are excluded.
27. Liability and claims against Boomtown Events by the Client or third parties
27.1 The Client and its Guests and any Unauthorised Attendees enter the Hospitality Area entirely at their own risk.
27.2 Boomtown Events, its employees, officers and agents shall not be liable for any cost, expense, demurrage, claim, liability, loss, damage, injury or death suffered by the Client or any of its Guests or any Unauthorised Attendees, unless—
(1) the Client establishes that such loss or damage was caused by a breach of these Trading Terms or the gross negligence of Boomtown Events; or
(2) Boomtown Events is liable in terms of section 61 of the CPA, if applicable, but subject always to the exceptions set out in that section.
27.3 The burden of proving Boomtown Events’s gross negligence shall, at all times rest upon the Client or such other party alleging it.
27.4 Subject to clause 27.2(2) and then only to the extent required by section 61 of the CPA, if applicable, Boomtown Events will not be liable for any consequential or indirect damages or loss of profits of the Client or any third party, regardless of the cause.
27.5 To the extent allowed by the CPA, if applicable, and without limiting any other provisions of these Trading Terms, Boomtown Events shall not be liable under any circumstances for claims arising from or in any way connected with:
(1) an act or omission of the Client, its Guests or Unauthorised Attendees, or any person acting on their behalf, including any incorrect, incomplete or misleading instructions;
(2) Boomtown Events complying with instructions given by or on behalf of the Client;
(3) Boomtown Events complying with instructions given by or on behalf of the Event Organiser;
(4) Boomtown Events complying with any Legal Requirement;
(5) the breakdown of or failure of any equipment of Boomtown Events, provided that Boomtown Events has complied with such testing and maintenance standards for the equipment as are customary in Boomtown Events's business;
(6) any act or omission of third party contractors arranged for the Client at its request and on their behalf (including entertainers);
(7) any non-compliance with any Legal Requirements by the Client;
(8) any cancellation or postponement of any Event beyond Boomtown Events’s reasonable control; and
(9) any cause contemplated in clause 29.
27.6 Without limiting any other provision of these Trading Terms, and to the extent allowed by the CPA, Boomtown Events’s liability for any cost, expense, loss (including loss of life, injury and/or damage to or loss of property), liability, damage, whether direct or indirect, arising out or in connection with the Services and/or these Trading Terms will in no circumstances exceed the amount paid to Boomtown Events by the Client.
28. General indemnities by the Client
28.1 Without limiting any other provision of these Trading Terms, the Client shall irrevocably defend, indemnify and hold Boomtown Events and its employees, officers, agents and/or invitees harmless against all loss (including loss of life, injury and loss of or damage to property), damage (direct and indirect), liability or costs (including but not limited to all legal costs on an attorney and own client scale), expenses or claims (whether by the Client or any third party) whatsoever arising from:
(1) any information provided by the Client being inaccurate, incomplete or out of date;
(2) any cost, expense, loss, liability or damage suffered by the Client, its Guests or Unauthorised Attendees or any third party including those as a result of illness or death, where no gross negligence against Boomtown Events can be proven; and
(3) any cost, expense, loss, liability, damage or claim:
(a) in excess of Boomtown Events’s limits of liability contemplated in these Trading Terms; and/or
(b) for which Boomtown Events has excluded liability in terms of clause 27 or otherwise in terms of these Trading Terms.
28.2 If there is more than one Client, each Client will be jointly and severally liable to Boomtown Events in terms of this Agreement.
29. Force majeure
29.1 To the extent that it becomes impossible for either Party to perform any obligation (other than a payment obligation) in terms of these Trading Terms or any transaction entered into by the Parties because of an event or circumstance that was neither foreseeable nor reasonably foreseeable when these Trading Terms or any transaction between the Parties was entered into or which could not be guarded against or avoided by reasonable care (including strikes, lock-outs, acts of God, fire, war or warlike acts, civil insurrection, government interference or restrictions, storm, adverse weather conditions, embargo, high-jacking, boycott, machinery breakdown, failure to perform by a third party, structural breakdown to the building / structure in which the Event is being held, or any circumstance beyond the control of Boomtown Events), the Party may:
(1) notify the other Party of the nature, effect, extent and likely duration of the event or circumstance and keep the other party updated as may reasonably be required by that other Party; and
(2) resume performance of its obligations when performance becomes possible.
29.2 Notwithstanding the provisions of clause 29.1, a labour dispute, strike or lockout which could be resolved by the affected party acceding to the demands made of it, shall be deemed to be an event of force majeure.
29.3 Performance of such obligation is suspended for as long as the event or circumstance continues to make performance impossible and the Party prevented from performing is not liable for any cost, expense, loss, damage or liability arising out or in connection with its inability to perform.
30. Domicilium
The Client chooses as its “domicilium citandi et executandi” and address for service of all documents and legal processes the physical address, fax number and/or email address set out in the Booking Form.
31. Breach
Without prejudice to any other rights which it may have, including any right to claim damages or specific performance, Boomtown Events shall be entitled to cancel any or all Agreements between it and the Client by written notice if:
31.1 the Client commits any breach of its obligations under these Trading Terms or any other terms and conditions agreed between the Parties and fails to remedy that breach within five days of written notice calling upon it to do so;
31.2 the Client commits an act of insolvency in terms of any applicable insolvency legislation;
31.3 the Client is deemed to be unable to pay its debts in terms of any deeming provision of any applicable legislation relating to companies or insolvency;
31.4 the Client compromises or attempts to compromise with its creditors;
31.5 any provisional or final order is granted for the sequestration, winding up, bankruptcy, business rescue or judicial management of the Client, or any equivalent order is made in terms of any applicable law with regard to the status of the Client;
31.6 the Client fails to satisfy any default or other judgment granted against it, within 10 days.
32. General
32.1 This Agreement is the whole agreement between the Parties in regard to its subject matter.
32.2 If any legislation is compulsorily applicable to any business undertaken by Boomtown Events these Trading Terms will be read as subject to such legislation which shall be incorporated into these Trading Terms.
32.3 The defences and limits of liability provided for by these Terms and Conditions shall apply in any action against Boomtown Events whether such action be founded in contract or delict (tort) or otherwise.
32.4 Boomtown Events shall only be deemed to have received electronic data and/or or messages when such data and/or messages have been retrieved, processed and read by the addressee.
32.5 No indulgence by a Party to another Party, or failure strictly to enforce the terms of this Agreement, is to be construed as a waiver or variation or be capable of founding an estoppel.
32.6 The Parties undertake to do everything reasonable in their power necessary for or incidental to the effectiveness and performance of this Agreement.
32.7 Save as is specifically provided in these Trading Terms the Client is not entitled to cede any of its rights or delegate any of its obligations under any Agreement without the prior written consent of Boomtown Events.
32.8 Any illegal or unenforceable provision of any Agreement, including these Trading Terms, may be severed and the remaining provisions of any Agreement continue in force.
32.9 These Trading Terms are governed by South African law.
32.10 The Parties unconditionally consent and submit to the non-exclusive jurisdiction of the Kwazulu-Natal High Court, Durban in regard to all matters.