TERMS & CONDITIONS OF SERVICE
Kaya Beach Restaurant
In terms of this Agreement, the following words and expressions bear the meanings assigned to them and cognate expressions bear the corresponding meanings, unless the context indicates a contrary intention:-
a) Words and phrases denoting natural persons refer also to juristic persons, and vice versa.
b) Clause headings appear in these terms and conditions of service for purposes of reference only and shall not influence the proper interpretation of the subject matter.
c) Expressions in the singular also denote the plural, and vice versa.
d) Pronouns of any gender include the corresponding pronouns of the other genders.
e) “Acceptance” means, in relation to telephone reservations Kaya Beach, verbal confirmation or acceptance and in the case of any other reservations, a written confirmation or acceptance of a reservation issued by Kaya Beach (both also referred to as the “booking confirmation”). In relation to this Agreement, the Client’s full and unconditional acceptance of these terms and conditions of service either by verbal acceptance thereof, signing this document or by clicking on “accept” on Kaya Beach’s official website.
f) “Agreement” means these terms and conditions of service, this document and/or any transaction entered into between the Parties in terms of these terms and conditions of service or this document.
g) “Binding Reservation” means a reservation made by a Client and confirmed and /or accepted by Kaya Beach or confirmed and /or accepted by Kaya Beach in the case of online / email reservations by issuing a written booking confirmation.
h) “Cancellation fee” means the fee levied for Cancellation by either party in terms of this Agreement or the penalty fee or penalty charge or similar amount levied.
i) “Client” means both natural and/or juristic person(s) who enter into this Agreement with Kaya Beach or any such person(s) who enter into a transaction with Kaya Beach or any such person(s) making a Binding Reservation with Kaya Beach.
j) “Deposit” means a non-refundable deposit or non-refundable booking fee or non-refundable reservation fee, as more fully set out in clause 4 of this Agreement.
k) “Direct marketing” in terms of section 1 of the Consumer protection Act 68 of 2008, as amended (the “Act”) means to approach a person, either in person or by mail or electronic communication, for the direct or indirect purpose of: (i) Promoting or offering to supply, in the ordinary course of business, any goods or services to the person; or (ii) requesting the person to make a donation of any kind for any reason as more fully set out in the Act.
l) “Parties” mean the Parties to this Agreement or the Client and Kaya Beach jointly.
m) “Promote or Promoting ” in terms of section 1 of the Act means to: (i) advertise, display or offer to supply any goods or services in the ordinary course of business to all or part of the public for consideration; (ii) make any representation in the ordinary course of business that could reasonably be inferred as expressing a willingness to supply any goods or services for consideration or (iii) engage in any other conduct in the ordinary course of business that may reasonably be construed to be an inducement or attempted inducement to a person to engage in a transaction as more fully set out in the Act.
2.1 The Client is entitled to a cooling-off period in terms of section 16(3) of the Act, provided that this Agreement is based on Direct Marketing in terms of the said Act and thus also falls within the definitions of “Direct marketing” and “Promote or Promoting” in terms thereof (see definitions above). The onus of proof that this Agreement is based on Direct Marketing shall wholly rest on the Client.
2.2 In terms of the right to cooling-off set out in 2.1, the Client is entitled to cancel this Agreement free from any penalty, within 5 (FIVE) business days from date of Acceptance of this Agreement, or from date of receipt of a Booking Confirmation (Binding Reservation) from Kaya Beach.
2.3 All Cancellations in terms of clause 2 must be reduced to writing and delivered to Kaya Beach, as set out in this clause 2, by email to firstname.lastname@example.org.
2. Rates, special offers, schedules of service and related information
Any rates, special offers, schedules of service and any related information found in any other forum or source other than on Kaya Beach’s official website may be out dated and or incorrect. Thus, only rates, special offers, schedules of service and any related information contained on Kaya Beach’s official website and/or specifically communicated to the Client in any direct written correspondence from Kaya Beach are guaranteed to be correct and shall be the agreed rates, special offers, schedules of service and any related information in terms of this Agreement and therefore be legally binding between the Parties in terms of this Agreement.
3. Reservations and service schedules
3.1 All meals are served by Kaya Beach, by prior Binding Reservation only.
3.2 Reservations are made by the Client via www.kayabeach.co.za and an online booking form is to be completed and submitted.
3.3 All reservations made by Clients shall be confirmed and accepted by Kaya Beach, if by email, in writing, or verbally in case of telephone reservations. Only upon verbal confirmation and acceptance or issue of a written confirmation and Acceptance by Kaya Beach or Kaya Beach issuing a written Booking Confirmation, but subject to the provisions of 4 and 7 below, does a Binding Reservation come into existence and become legally binding between the Parties in terms of this Agreement.
3.4 Groups of 10 or more must confirm their final numbers no later than 1 week prior to their booking. Should their numbers change, Kaya Beach is to be notified via email no later than 5 (FIVE) calendar days prior to their booking. Should Kaya Beach not be notified in the specified amount of time, the client will be charged for the full amount.
4.1 A strictly non–refundable deposit of 10% of the estimated bill (meal price) shall be paid to Kaya Beach in respect of reservations
4.2 The Deposit shall be paid by no less than 7 (SEVEN) calendar days from receipt of a verbal or written Acceptance or confirmation of the reservation from Kaya Beach. Full payment must be received by Kaya Beach by no less than 3 (THREE) calendar days from date of reservation for bookings of 9 (NINE) people or less. For bookings of 10 (TEN) or more people, full and final payment must be received by Kaya Beach no less than 5 (FIVE) calendar days from date of reservation.
4.3 Proof of payment of the Deposit shall be sent to Kaya Beach via email to email@example.com in order for the Client to make a valid group reservation. The correct reference number must be used when making payments. If the incorrect reference number is used, payment will not be allocated and it will be as if no payment has been received. Kaya Beach will not be able to confirm bookings that have used incorrect reference numbers. If a payment has been made using the incorrect reference number and Kaya Beach has not been able to allocate the payment to the correct booking, Kaya Beach cannot be held responsible if a booking has not been secured before they are fully booked. If Kaya Beach does not issue a verbal or written Acceptance or confirmation of the reservation and no Deposit as set out above is received by Kaya Beach, no legally binding group reservation exists or comes into existence between the Parties in terms of this Agreement, subject to the provisions of 7 below.
5. Cancellation by Kaya Beach
5.1 Kaya Beach is an outdoor restaurant and/or an open–air buffet restaurant therefore conditions such as, without limitation, unpleasant or bad weather and insufficient number(s) of Binding Reservations or any such factors that fall outside the direct control of Kaya Beach may therefore occasion the cancellation of Binding Reservations by Kaya Beach
5.2 Kaya Beach therefore reserves the right to cancel any Binding Reservation in its sole discretion, occasioned, without limitation, by-:
5.2.1 change(s) or the potential threat of change(s) or forecasted change(s) in climate or weather, such as wind, rain, and extreme temperatures and/or,
5.2.2 an insufficient number of Binding Reservations, Kaya Beach requires a minimum of 30 (Thirty) Binding Reservations in order to open the restaurant and serve Clients.
5.3 Kaya Beach shall give Clients a minimum of 3 (THREE) hours verbal notice by calling the telephone number(s) provided to it by the Client when making the reservation of cancellation before the meal time to which their Binding Reservation relates. Thus in respect of lunches, Kaya Beach shall give Clients notice of cancellation by no later than 9:00 am and in respect of dinners by no later than 3:00 pm on the day of the meal to which their Binding Reservation relates. Kaya Beach shall not be liable for any inconvenience, damage or losses occasioned by the Client’s unavailability on any of the telephone numbers given to it.
5.4 Any monies paid by Clients shall be refunded in full where Binding Reservations are cancelled due to the provisions set out in this clause 5. Refund is subject thereto and the responsibility shall rest solely on the Client to provide Kaya Beach with its banking details within 7 (SEVEN) business days from cancellation, alternatively to make or arrange another reservation, failing which, such failure shall be deemed and constitute an irrevocable consent and authority for Kaya Beach to in its sole discretion to either retain the monies paid to it as its property or to donate the monies paid to it to a charity of Kaya Beach’s choice in the Client’s stead.
6. Cancellation by the Client
6.1 In instances where clause 2.2 does not apply and the reservation is cancelled by the Client, 5 (FIVE) business days or more in advance, the 10% (TEN PERCENT) Deposit paid shall be forfeited and kept by Kaya Beach as a reasonable Cancellation fee. The Client hereby acknowledges and accepts the said Cancellation fee to be reasonable.
6.2 Where the cancellation in terms of clause 6.1 is done within less than 5 (FIVE) business days, as set out above, no portion of the Deposit shall be refunded to the Client and Kaya Beach shall retain such Deposit as a reasonable Cancellation fee. The Client hereby acknowledges and accepts the Cancellation fee to be reasonable.
6.3 Notwithstanding any provisions contained in this Agreement to the contrary, the Deposit is strictly non-refundable, save for any cancellations, regardless of notice given, occasioned by death or hospitalization of the Client in which case(s) the Deposit shall be refunded to the Client in full. Refund is subject thereto and the responsibility shall rest solely on the Client to provide Kaya Beach with its banking details, within 60 (SIXTY) business days from cancellation, alternatively to make or arrange another reservation, failing which, such failure shall be deemed and constitute an irrevocable consent and authority for Kaya Beach to, in its sole discretion, either retain the monies paid to it as its property or to donate the monies paid to it to a charity of Kaya Beach’s choice in the Client’s stead.
6.4 All Cancellations in terms of this clause 6 shall be reduced to writing and delivered to Kaya Beach, by email, to firstname.lastname@example.org.
7.1 Kaya Beach accepts the following methods of payment: cash and bank transfers (electronic funds transfer-EFT).
7.2 A Binding Reservation for groups with 10 (TEN) or more people shall become legally binding, subject to the provisions of 4 above on receipt of FULL payment of the meal (“balance”) by no later than 5 (FIVE) calendar days prior to the reservation date. Proof of payment of both the Deposit and balance shall be sent via email to email@example.com in order for the Client to make a valid group reservation. Thus where the provisions of 4 above and this clause are not complied with, no legally binding group reservation exists or comes into existence between the Parties in terms of this Agreement.
7.3 Notwithstanding the provisions of this Agreement, where Kaya Beach issues a verbal or written Acceptance or confirmation of the reservation and the Deposit is paid by the Client as set out in 4 above but payment of the balance has not been made in terms of this paragraph, Kaya Beach is hereby authorised by the Client to deal with such as if it were a cancellation by the Client as one set out in 6.2 above.
7.4 No refunds will be given in respect of any of the customer’s guests that do not show up for the meal after payment has been made as set out in this clause.
8. Public Liability
Kaya Beach does not and will not accept or admit any liability, whether as a direct or indirect result of their or their staff’s actions or omissions or for any damage, harm and/ or injury to any Client or its guest or any other visitor on or off Kaya Beach’s business or restaurant premises, occurring before, during or after any period of stay at Kaya Beach’s business or restaurant premises. The Client hereby indemnifies Kaya Beach against any liability as set out herein in full.
9.1 Only one voucher per booking allowed with a minimum of 5 (FIVE) adult sailors. Under no circumstances will more than one voucher be allowed to be used per booking/occasion.
9.2 Once a booking is made online the customer must indicate that a voucher will be presented and subtracted from the total amount payable. If a voucher is not disclosed prior to the island visit, it will not be accepted at the door.