Terms & Conditions

1.    INTRODUCTION 

1.1.    This agreement constitutes the Terms and Conditions of use pertaining to the Site, as owned, managed and operated by Newmark Hotels (Pty) Ltd. 

1.2.    You agree and understand that by accessing the Site, you agree to be lawfully bound by these Terms and Conditions, the Privacy Policy, the Bookings and Cancellation Policy and all such other agreements and terms of use that may be referred to herein and/or added to the Site from time to time (collectively ‘the Terms’).

1.3.    In addition to the aforegoing, you warrant and represent that you have familiarized yourself with and understand the contents of the Terms. You are encouraged to re-familiarize yourself with the Terms every time you use the Site, as they are subject to change from time to time. 

1.4.    Should you, for any reason: 

1.4.1.    Object to be being so lawfully bound by the Terms;

1.4.2.    Disagree with the validity of the Terms or any part thereof; and/or 

1.4.3.    Fail to understand the Terms or any part thereof 

then you must immediately refrain from or discontinue your use of the Site until such time as you have sought independent professional advice regarding its Terms and/or are so satisfied that you understand and agree to be so lawfully bound hereby.  

1.5.    You are encouraged to pay special attention to important clauses as denoted by italics or bold text, which indicate that our responsibility to you has been limited and/or that there is a degree of risk that is accepted by you. 

2.    DEFINITIONS 

2.1.    “Business Day” means Monday to Friday, but excludes recognized Public Holidays in the Republic of South Africa; 

2.2.    “Business Hours” means hours between 08h00 and 17h00 on Business Days; 

2.3.    “ECTA” means the Electronic Communications Act 36 of 2005, as amended from time to time;

2.4.    “Intellectual Property Rights” means the copyright in any publication or work in terms of the Copyright Act, 98 of 1978, including the right to reproduce such work, the rights conferred in respect of a trade marked conferred by the Trade Marks Act 194 of 1993, the rights in respect of a design conferred by the Designs Act 195 of 1993 and the rights in respect of a patent conferred by the Patents Act, 57 of 1978; 

2.5.    “Marks” refer to any trademarks, logos, brand names, domain names or other marks of the Site; 

2.6.    “the Site” refers to ‘https://www.newmarkhotels.com’ as owned, managed and operated by Newmark; 

2.7.    “Newmark”, “ourselves”, “us”, “we” refer to Newmark Hotels (Pty) Ltd (registration number: ______________) a private company incorporated in terms of the Laws of the Republic, carrying out business in the accommodation and tourism industry with its principal place of business as at 2nd Floor, Merchant House, 19 Dock Road, V&A Waterfront, Cape Town, South Africa. 

2.8.    “You” and “your” refer to the user of the Site and/or client and/or customer of Newmark and/or such person’s duly authorized representative entering into this agreement with Newmark. 

2.9.    Words importing the singular shall include the plural and vice versa and words importing the masculine gender shall include all other genders and vice versa and words importing persons shall include partnerships, trusts bodies corporate and visa versa; 

3.    CONCLUSION OF THIS AGREEMENT AND CONTRACTUAL RELATIONSHIP 

3.1.    This agreement is concluded in accordance with the ECTA and we confirm that we shall, in respect to all electronic transactions entered into pursuant hereto, afford you an opportunity to: 

3.1.1.    review the entire electronic transaction; 

3.1.2.    correct any mistakes in respect thereof; and 

3.1.3.    cancel the transaction before confirming or executing same. 

3.2.    Our contact details, domicilium citandi et executandi and further particulars are available both herein and on the Site. 

3.3.    By entering into the agreement you specifically acknowledge and understand that: 

3.3.1.    We are not responsible for providing you with accommodation; 

3.3.2.    Our obligations to you cease upon such time as you successfully place a booking and/or as otherwise stipulated in the Bookings and Cancellation Policy; and 

3.3.3.    The sole agreement regarding the provision of accommodation to you and all countervailing rights and obligations pursuant thereto is between yourself and the relevant establishment so providing you with accommodation. 

3.4.    Notwithstanding anything else contained herein, and subject to the Bookings and Cancellation Policy as amended from time to time, upon your successful booking of a service you will receive electronic confirmation of your booking from the establishment in respect of which your booking was made, which confirmation will contain the said establishment’s terms and conditions, including inter alia their specific refund and cancellation policies to which you hereby agree to be bound.

4.    WARRANTIES AND INDEMNITY 

4.1.    You hereby specifically warrant as follows: 

4.1.1.    You have the right and requisite legal capacity to enter this agreement; and 

4.1.2.    All information provided by you herein, or pursuant to the conclusion hereof is and/or will be true in all material respects. 

4.2.    You hereby irrevocably and unconditionally indemnify us and/or agree to hold us harmless against all losses, damages, claims liability and/or costs, of whatsoever nature, suffered or incurred by us as a result of inter alia: 

4.2.1.    Your use of the Site and/or our services;

4.2.2.    Your failure to comply with the Terms; and 

4.2.3.     Any unavailability or interruption of the Site and/or our services. 

5.    DISCLAIMER AND LIMITATION OF LIABILITY 

5.1.    To the extent permitted by law, we shall not be liable to you in respect of: 

5.1.1.    Any direct damages howsoever arising; and 

5.1.2.    Any consequential, special, indirect, incidental, consequential or punitive damages arising out of or relating to this Agreement resulting from breach, negligence, gross negligence or any other cause. 

5.2.    If we are found so liable by a Court or Tribunal with jurisdiction, our liability to you will be limited to the total transaction value and/or value of the booking as made by you. 

6.    PROMOTIONS 

6.1.    Any prize, voucher, reward and/or any other such promotional instrument redeemed by you will, notwithstanding anything else contained in this agreement: 

6.1.1.    Be subject to the terms and conditions of the relevant vendor and/or such other third party being the producer of such instrument, whatsoever the case may be; and 

6.1.2.    Will always be subject to the availability of the establishment in respect of which such promotional instrument is redeemable. 

 

7.    GENERAL TERMS

 

7.1.    We will have the right, in our sole discretion, to amend the Terms or any part thereof at anytime without prior notice or justification. All such amendments will be posted on the Site, on which date the amendments will be deemed to have been effected. You are encouraged to review the Terms at the start of each session as you will be deemed to have accepted such amendments if you continue to use the Site after they have been so posted. 

7.2.    The Site and the Terms are governed by the Laws of South Africa and we hereby choose our domicilium citandi et executandi at our address recorded above. The parties expressly consent to the jurisdiction of the applicable Magistrate’s Court to hear any and all actions and applications which may arise from this Agreement.  

7.3.    Nothing contained in the Terms shall, unless the contrary is expressly stated elsewhere therein, be construed as an express or implied license of, or transfer of any rights in or to, our copyrights, trademarks, trade names, logos, devices, patents or other intellectual property to you. 

7.4.    No relaxation or indulgence which we may grant you shall constitute a waiver of our rights herein, and same shall not preclude us from exercising any rights which may have arisen in the past or which may arise in the future. 

7.5.    The Terms and any amendments thereto constitute the whole Agreement between you and Newmark and no party hereto shall be bound by an express or implied term, representation, warranty, promise or the like not recorded in the Terms. 

7.6.    To the extent that any term or provision of the Terms is held to be invalid or unenforceable, same will be severed herefrom, and its invalidity and/or unenforceability will, as far as possible, have no effect on the balance of the agreement which shall remain in full force and effect. 

7.7.    This agreement will not be construed so as to favour any of the Parties hereto over the other by virtue of our preparation  hereof. 

7.8.    Should there be any conflicting provisions contained in any of the policies or agreements constituting the Terms, then the provisions of this document will supersede all such conflicting provisions, unless:

7.8.1.      the contrary intention is implied by the Terms; or 

7.8.2.    the supremacy of this document would result in absurd or otherwise untenable consequences.