I declare the information on this form is accurate, correct and binding. I have read and agree to the Terms and Conditions, and the Partner Cooperation Agreement. (Also to be emailed to you) *
Partner Cooperation Agreement for Tour Operators, Activity Providers and Tourist Transport Operators, supplementary to Customers Terms and Conditions:
https://toursouthafrica.co.za/index.php/terms-and-conditions/ 2020-04-07 A. COMMERCIAL DETAILS A.1 Parties 1) TourSouthAfrica, with its registered offices at Boutique Office Park, 6 Butia Place, Pretoria, South Africa, including any current or future subsidiary as further defined in Section C (“TourSouthAfrica”) 2) Partner ("Operator") Address, email and brand name as captured at registration form. A.2 Subject Section A Commercial Details Section B TourSouthAfrica Cooperation Agreement Section C Definitions -Annex 1 TourSouthAfrica Operator Standards -Annex 2 Data Processing Agreement A.3 Commencement: Upon ticking the box: “I have read and agree to the Terms and Conditions, and the Partner Cooperation Agreement” during application. A.4 Term and Termination Initially valid until 30/4/2021 and automatically extended for further 12 month periods, unless terminated by either Party with one month termination notice to the end of a month. A.5 Payment Terms TourSouthAfrica collects the Gross Tour Price from the Customer immediately after a booking was made by way of i Electronic Fund Transfer/Bank Deposit/Wire Transfer, or ii Credit Card Payment , - as initial deposit payment if specified at ‘Deposit payment options’ under the Price Settings tab, - not later than the period indicated as the ‘Minimum days to book before departure’ under the Information tab by Operator. TourSouthAfrica will consequently forward the deposit payment less the full service fees (commission payment) to the Operator as soon as funds are settled. In the case where no deposit is required, TourSouthAfrica will forward the Net Tour Price (full payment) less the service fees (commission payment) to Operator one (1) day after the start of the tour. [A method to guarantee departures to Customers] (Customer’s Terms and Conditions on the website specify that: An invoice requesting payment for the balance in the case where a deposit was paid will be e-mailed to the Customer by TourSouthAfrica when payment is due according to Organizer’s payment terms.) Operator must indicate the following when products are being uploaded on the site: Under the ‘Info’ tab when adding a new tour (product), there is a tab called ‘Tour FAQ, Cancellation Policy, Payment Terms’. This is where you must add: 1. ‘Frequently Asked Questions’ 2. ‘Cancellation Policy’ 3. ‘Payment Terms’ The payment will be forwarded to the Operator by: A.5.1 Bank Transfer - Payout will become due and payable as soon as funds are settled in account, one day after the tour’s departure date. A.6 Service Fees: A.6.1 -Tour Operators and Activity Providers: Service Fee on Gross Tour/Activity Price: 12% -Tourist Transport Operators: Service Fee on Gross Tourist Transport Price: 8% This Service Fee or commission rate goes toward all the costs from promotion of your products through our marketing strategies, promotion of our tours through distribution partners, content optimization, translation services, supplier support, customer support, credit card fees, and banking transaction fees. A.6.2 Service Fee on Ancillary Products Price: 10% or as agreed separately A.6.3 Service Fee in case of cancellations 5% of Operator’s cancellation fee [main purpose is to recover bank costs] B. COOPERATION AGREEMENT between TourSouthAfrica (“TourSouthAfrica”) and "Operator" (the Operator and TourSouthAfrica hereinafter also jointly referred to as the "Parties" and each as a "Party") WHEREAS TourSouthAfrica owns and operates the online platform https://toursouthafrica.co.za/ and related channels and applications (“the Platform”), which serve as a platform for customers to select, compare and book multi-day tours and travel experiences in Africa; WHEREAS Operator is in the business of providing daily and multi-day tours, activities and Tourist transportation and wishes to promote, offer and sell its services to customers through the Platform by appointing TourSouthAfrica as its non-exclusive commercial agent acting in the name and on behalf of Operator; NOW THEREFORE, the Parties agree as follows: 1. TOURSOUTHAFRICA SERVICES 1.1. By virtue of this Agreement, TourSouthAfrica is appointed the Operator’s non-exclusive commercial agent. As such, TourSouthAfrica is responsible to make access to the Platform available to Operator in accordance with Annex 1 and collect customer payments relating to Bookings of Tours through the Platform in the name and on behalf of Operator. 1.2. TourSouthAfrica renders its services exclusively as an intermediary (agent) in the name and on behalf of the Operator. TourSouthAfrica has no control over the conduct of Operators, Customers and other users of the TourSouthAfrica Services. Bookings are made at the Customer’s and Operators’ own risk. 2. OPERATOR’S OBLIGATIONS 2.1. The Operator undertakes to render the Tour services offered and sold to customers through the Platform in accordance with the Tour Information and the terms of this Agreement, and may upload Tour, Activity and Tourist Transport products when verified. 2.2. Operator is solely liable to ensure compliance of its terms and conditions including payment, cancellation and refund policies with applicable (travel) laws, and to make these terms available to see for potential Tourists. 2.3. Except for technical failure attributable to TourSouthAfrica, Operator is fully responsible for the validity and accuracy of all Tour Information displayed on the Platform and honoring its obligations towards the Customer arising out of Bookings made through the Platform. 2.4. Operator shall not redirect booking inquiries with Customers from the Platform to separate communication channels. (Redirection of booking inquiries can be done by displaying your contact details like email or phone number.) Bookings resulting from a violation of this Section B. 2.4, will be treated as Bookings made through the Platform and thus entitle TourSouthAfrica to the full Service Fee stipulated herein. Violation of this obligation may lead to suspension and or termination. 2.5. The Operator undertakes to inform TourSouthAfrica of any financial bonding (e.g. SATSA or ABTA travel insurance) and present the corresponding documentation upon TourSouthAfrica’s reasonable request. 2.6. The Operator must have any and all rights and licenses necessary to offer the Operator’s services on the Platform and render such services to the Customers according to the laws applicable in the Operator’s country of registration. 2.7. The Operator must have valid public liability insurance covering any personal injury or financial loss that may be incurred by the Customer during or in connection with a Tour. 2.8. The Operator is solely responsible for all Operator Generated Content and shall only upload or otherwise make available content where the Operator has all rights, licenses, consents and releases necessary for the purposes contemplated in this Agreement. 2.9. Operator shall at all times adhere to the Operator Standards and Guidelines (Annex 1) and Data Processing and Non Disclosure Agreement (Annex 2). 2.10. Nothing in this Agreement shall be construed to limit Operator’s responsibilities as contemplated in this Agreement and TourSouthAfrica assumes no responsibility in this regard. 3. SERVICE FEES 3.1. The Operator agrees to pay to TourSouthAfrica a Service Fee for Tours and Ancillary Products as stipulated in Section A.6.1 and A.6.2. above, which becomes due with the Booking and will be deducted from the Customer payments. 3.2. Local payments or food funds (e.g. payments which are made in cash directly to the local supplier at the start of a tour) shall be excluded from the Service Fee. 4. PAYMENT AND PAYOUT TERMS 4.1. TourSouthAfrica will collect the Gross Tour Price from the Customer not later than the date of Final Payment as specified by Operator in its payment terms and conditions or, if not specified by Operator, when the booking (payment) is made. 4.2. TourSouthAfrica works with the Operator on ‘statement’. This means TourSouthAfrica will pay the Operator the Net Tour Price in accordance with the timelines of the payment method opted for by the Operator as outlined herein. 4.3. When a Tour Booking is confirmed to the Customer, TourSouthAfrica will email the Operator an electronic booking document (as PDF file) that contains a: 4.3.1. Booking statement including the Gross Tour Price; 4.3.2. Tax Invoice for the Service Fee; 4.3.3. Payment advice note with the amount payable to the Operator (Net Tour Price). The booking document serves as a basis for settlements between TourSouthAfrica and the Operator. Operator shall send any claims or disputes on the content of the booking document to TourSouthAfrica within 7 days of receipt of the booking document. 5. CANCELLATIONS 5.1. In case of a cancellation of a Booking by a Customer, TourSouthAfrica shall be entitled to a reduced Service Fee in the amount of 5% of Operator’s cancellation fee as set out in A.6.3 above, unless the Operator’s cancellation fee amounts to 100% of the Gross Tour Price, in which case TourSouthAfrica shall be entitled to the full Service Fees as stipulated in Section A.6.1 and A.6.2 above. 5.2. In the event of cancellations, TourSouthAfrica shall be responsible to refund Customer with the amount already paid minus Operator’s cancellation fee (including the applicable Service Fee). 5.2.1. In the event of cancellations prior to Payout: TourSouthAfrica shall be liable to refund Operator the Operator’s cancellation fee less the applicable Service Fee. 5.2.2. In the event of cancellations post Payout: Operator shall be liable to refund TourSouthAfrica with the difference of the Gross Tour Price and Operator’s cancellation fee (both net of applicable Service Fees). 5.2.3. In the event the Operator cancels a booking for whatever reason he shall fully refund Customers, unless otherwise agreed between the Operator and Customer. 5.2.4. TourSouthAfrica provides costly and intensive efforts to market Services to Customers. Therefore, if Operator unjustifiably or with negligence fails to deliver or cancels Services that have been booked by Customers, Operator agrees that TourSouthAfrica may (i) make a full refund to the affected Customer, and (ii) deduct the amount of the refund plus a contractual penalty from any amount due Operator hereunder. The contractual penalty shall be ten percent (10%) of the gross selling price of the Service on the Platform for each affected Customer. TourSouthAfrica may, at its sole option, forgo this contractual penalty, in whole or in part, if Operator provides an alternative but equivalent Service at the same date to the affected Customers. 6. TERM AND TERMINATION 6.1. The Agreement enters into force on the Effective Date for an initial term as stipulated in A.4 above and shall automatically renew for 12 (twelve) month periods, unless terminated by either Party in accordance with this Section B.6. 6.2. Each Party shall be entitled to terminate this Agreement by written notice with a termination period of one month, effective to the end of a month, without giving reasons therefore. 6.3. Each Party shall further have the right to terminate this Agreement with immediate effect for good cause in case the other Party commits a material breach of the terms of this Agreement and (where such breach is capable of remedy) fails to remedy the breach within 7 (seven) days starting on the day after receipt of notice from the no breaching Party giving details of the breach and requiring the breach to be remedied. 6.4. Any rights or obligations of either Party in respect to Bookings made through the Platform before the termination date will continue until discharged. 7. LIMITATION OF LIABILITY / FORCE MAJEURE 7.1. TourSouthAfrica shall be liable under statutory regulations only to the extent that TourSouthAfrica has violated any contractual obligations with intent or gross negligence. 7.2. TourSouthAfrica shall in no case be liable for indirect damages, loss of profit, loss of interest, lost savings, consequential and pecuniary damages or damages resulting from third party claims. 7.3. Operator is liable for any damages incurred by TourSouthAfrica resulting from any Operator Generated Content on the Platform and TourSouthAfrica may take any legal actions, if deemed necessary and appropriate. In the event that infringement claims are brought against TourSouthAfrica by third parties in relation to the use of Operator Generated Content on the Platform, and such infringement is caused by Operator’s violation of the terms of this Agreement, TourSouthAfrica in its sole discretion may either forward such complaints on to Operator to deal with them itself and hold TourSouthAfrica harmless or settle such claims on behalf of the Operator (up to an amount of ZAR 20,000 or equivalent) and deduct any costs incurred from the Operator’s Payout. 7.4. Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement resulting from Force Majeure. If such circumstances continue for a continuous period of more than one month, either Party may terminate this Agreement by written notice to the other Party. 7.5. In case of “Force Majeure”, which are circumstances beyond the Parties’ reasonable control, including without limitation, natural catastrophe, war, act of terrorism, interruption of electricity and strikes, either Party may suspend or end this Agreement. Furthermore, Operator shall allow Customers to return purchased tickets for a full refund if a force majeure situation occurs at the travel destination, regardless of whether Supplier continues to provide Services during the affected period of time. TourSouthAfrica will process the refunds and transmit them to affected Customers. In the event that Operator cancels the Service due to the occurrence of Force Majeure, he must notify TourSouthAfrica immediately. 8. FINAL PROVISIONS 8.1. This Agreement shall enter into force on the Effective Date and supersede and replace all previous agreements between Operator and TourSouthAfrica, whether oral or in writing. 8.2. Any changes to this Agreement can exclusively be agreed to by the Parties in writing and in accordance with the terms set out therein. 8.3. This Agreement will be construed and enforced according to the laws of South Africa without regard to its conflicts of law rules and the UN Sales Convention. 8.4. If any provision of this Agreement is held to be illegal or invalid by a court of competent jurisdiction, such provision shall be modified to the extent necessary to make it valid and enforceable; and neither such provision, nor its modification or deletion, shall affect the validity of the remaining provisions. 8.5. The Parties shall direct all correspondence relating to the Agreement to the contact details indicated in Section A.1 above. 8.6. Annex 1 (Operator Standards and Guidelines) and Annex 2 (Data Processing Agreement) form an integral part of the Agreement (comprising Sections A, B and C). In case of any inconsistency or discrepancy between the terms of the Annexes and the terms of the Agreement, the terms of the Agreement shall prevail. 8.7. All information, agreements and materials in relation to this Agreement are confidential and are not to be disclosed to any third party without the prior written consent of the other Party. No information disclosed in this Agreement is to be assumed to be of general knowledge in any market place. Terms of this Agreement may only be disclosed to the professional advisers of the Parties or where disclosure is required by law. The termination of this Agreement does not release either Party from the confidentiality terms in relation to all information, agreements and materials documented in this Agreement. C. DEFINITIONS Capitalized terms used in the Agreement and the Annexes shall have the meaning as defined in this Section C. 1. Ancillary Products Price: means the amount charged by Operator and payable by Customer for any additional or ancillary products and/or services (e.g. meals, accommodation, etc.) relating to a Tour offered and sold through the Platform, which is not included in the Gross Tour Price. 2. BCP or Booking Conversation Page: means the messaging system implemented by TourSouthAfrica on the Platform to be used both by TourSouthAfrica and the Operator for the purpose of processing Customer inquiries. 3. Booking: means the binding agreement entered into between Operator and Customer regarding Operator’s services through the use of the Platform. 4. Cooperation Agreement or Agreement: The present cooperation agreement between TourSouthAfrica and Operator including its Annexes. 5. Customer: shall mean any individual who visits the Platform and/or has made a Booking of Operator’s services through the use of the Platform. 6. Dashboard: means the information management tool implemented by TourSouthAfrica on the back end of the Platform. As an alternative to the Feed, the Dashboard is made available by TourSouthAfrica to Operator for the purpose of providing complete and accurate Tour Information as displayed on the Customer facing front end of the Platform. The Dashboard is accessible using the Operator’s unique username and password. 7. Effective Date: means the date of the last signature of this Agreement; 8. Feed: means a technical feed from a reservation platform connected to the Platform. As an alternative to the Dashboard, the Feed is made available by Operator to TourSouthAfrica for the purpose of providing complete and up to date Tour Information as displayed on the Customer facing front end of the Platform. The Feed is integrated to the Platform via an interface or communication protocol (API). 9. Final Payment: means the sole or last instalment of the Tour Price collected by TourSouthAfrica in the name and on behalf of Operator from the Customer in accordance with the Operator’s payment terms and conditions. 10. Force Majeure: means any unusual and unforeseeable circumstances beyond the reasonable control of that Party, the consequence of which neither Party could avoid even with all due care, including, but not limited to, war, threat of war, riot, civil strife, terrorist activity (actual or threatened), industrial dispute, unavoidable technical problems with transport, machinery or equipment, power failure, changes imposed by rescheduling or cancellation of flights by an airline, natural or nuclear disaster, fire, flood, drought, adverse weather conditions, epidemics or outbreaks of illness and level of water in rivers. 11. Operator Generated Content or OGC: shall mean all media content (including but not limited to text, graphics, images, music, software, audio, video, information or other material) uploaded or otherwise made available by Operator to the Platform as further set out in the Operator Standards and Guidelines (Annex 1); 12. Payout: means transfer of payment of the Net Tour Price to Operator by TourSouthAfrica in accordance with the payment terms set forth in Section B.4 of this Agreement; 13. Platform: means toursouthafrica.co.za in all its local versions including related channels (e.g. Social Media); 14. Service Fee: means the fee charged by TourSouthAfrica from Operator for TourSouthAfrica’s services under the Agreement and as further specified in Sections A.6 and B.3-5.; 15. Term: shall mean the term of the Agreement as defined in Section A.3 and A.4.; 16. Tour: means the travel services offered and sold by Operator to Customer through the Platform as indicated in the Tour Information; 17. TourSouthAfrica: means TourSouthAfrica, with its registered offices at Boutique Office Park, Butia Place 6, Pretoria, South Africa, including any current or future subsidiary of TourSouthAfrica, in which TourSouthAfrica directly or indirectly holds an interest of 50 percent or more or a controlling interest (each a “Group Company” and together “TourSouthAfrica”); 18. Tour Information: means the complete and accurate description of Operator’s services (tours, travel experiences and ancillary services including day-to-day itinerary, trip notes, departure dates, pricing and seating availability) as offered to Customers on the Platform and rendered to Customers accordingly. 19. TourSouthAfrica IP: means TourSouthAfrica’s Intellectual Property Rights such as the TourSouthAfrica brand/logo (including trade name, trademark, service mark or other similar indicia of identity or source); 20. Tour Price (Gross and Net): Gross Tour Price shall mean the amount payable by Customer (minus discounts given by Operator plus local taxes, if any). Net Tour Price shall mean the amount payable by TourSouthAfrica to Operator as Payout in accordance with Section B.4. 21. TourSouthAfrica Services: shall mean the services rendered by TourSouthAfrica under the terms of this Agreement and as further specified in Section B.1. Annex 1: TourSouthAfrica Operator Standards and Guidelines For ease of reference the current version is attached as follows and may be updated by TourSouthAfrica in its sole discretion from time to time. The Operator Standards and Guidelines are deemed to be accepted by Operator with the confirmation of every Booking. In the interest of both TourSouthAfrica and Operator and to ensure that the highest possible standard of customer service is, the Operator agrees to use its best efforts to adhere to the following Operator Standards and Guidelines. Capitalized terms shall have the meaning given to it in Section C of the Cooperation Agreement between TourSouthAfrica and Operator. 1. Tour Information a. The Operator shall provide accurate and up to date Information to TourSouthAfrica by one of the technical means implemented by TourSouthAfrica on the Platform specifically for this purpose from time to time, currently the Dashboard or the Feed. b. If Operator uses a Feed to provide Tour Information, TourSouthAfrica shall pull automatic daily updates from the Feed to ensure the information presented on the Platform is up-to-date. TourSouthAfrica may add additional Feed providers. c. TourSouthAfrica will display the Tour Information as made available by Operator on the Customer facing front end of the Platform. 2. Response to Customer Inquiries a. The Operator will closely cooperate with TourSouthAfrica regarding the handling of any Customer complaints on the Platform relating to any Tours and other services offered by Operator in a professional and supportive manner. b. The Operator shall be available to TourSouthAfrica’s Customer Support Team within a maximum of 1 (one) business day, either by telephone or email to enable status updates on pending Booking requests. c. The Operator acknowledges and agrees that failure to respond to Customer inquiries and Booking requests within a maximum of 72 hours will result in an automated cancellation of such Bookings and the customer’s payment/s, if any, will be refunded. d. The Operator is obliged to provide TourSouthAfrica with a list of any promotions, early birds and offers that are being marketed by the Operator with a minimum of two weeks prior notice. e. The Operator is exclusively required to use the BCP to communicate with Customers. 3. Bookings a. The Operator must bindingly confirm Booking requests, before TourSouthAfrica will confirm Booking requests and collect Customer payments in the name and on behalf of Operator. b. Any documents relating to the travel agreement between Operator and Customer (travel agreement, vouchers, confirmations, folders etc.) shall be provided to the Customer by Operator exclusively via E-Mail. 4. Cancellations and Customer Complaints TourSouthAfrica shall without undue delay inform the Operator about cancellations, amendments, Bookings and/or complaints received by Customers in relation to services offered by Operator on the Platform. 5. Operator Generated Content a. TourSouthAfrica may, in its sole discretion, permit Operator to post, upload, publish, submit, transmit or make otherwise available Operator Generated Content (OGC). By doing so, Operator agrees that TourSouthAfrica may use the OGC on its Platform, online/offline promotional materials and other publications. Operator hereby grants to TourSouthAfrica a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit the OGC on, through, or by means of the Platform. TourSouthAfrica does not claim any ownership rights in the OGC and nothing in this Agreement will be deemed to restrict any rights that Operator may have to use and exploit OGC. b. The Operator may not provide any Operator Generated Content, that is threatening, coercing, defamatory (e.g. mobbing), offensive, nudging and/or pornographic of any kind or of a similar nature; or is racist, race baiting, anti constitutional and/or prosecutable/illegal of any kind or of a similar nature; or violates applicable laws; or infringes rights of third parties, e.g. copyrights and trademark law. c. TourSouthAfrica shall not be obliged to control OGC. In the event TourSouthAfrica becomes aware that OGC (or parts thereof) violates any third-party-rights or otherwise is considered to be offensive, illegal or inappropriate, TourSouthAfrica reserves the right to remove OGC at any time without further notice from the Platform. d. Operator acknowledges and agrees that Operator is solely responsible for all OGC and accordingly, Operator represents and warrants that: Operator is either the sole and exclusive owner of all rights in and to the OGC or Operator has all rights, licenses, consents and releases that are necessary to grant to TourSouthAfrica the rights as contemplated under this Agreement; and neither the OGC nor making available OGC to the Platform, nor TourSouthAfrica's use of the OGC (or any portion thereof) in accordance with the terms set out herein will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation or breach any agreements Operator has entered into with any third parties. e. Operator warrants that the Content shall not contain any viruses, Trojan horses or infected files. Operator must not make available illegal content on the Platform and TourSouthAfrica does not assume any responsibilities in this regard. f. Operator represents and warrants that OGC is in compliance with all applicable laws, tax requirements and rules and regulations that may apply to any service rendered by Operator, including, but not limited to, tourism, tour guide licensing laws, and other laws governing events and tours of public spaces and other venues. TourSouthAfrica assumes no responsibility for an Operator's compliance with any applicable laws, rules and regulations. 6. Marketing a. TourSouthAfrica shall be entitled to use the Operator’s name and Tours for online marketing campaigns run on the Platform, email marketing and/or pay-per-click (PPC) advertising at its own costs and discretion. b. The Operator is aware of the working methods of search engines, such as spidering of content and ranking of URLs. TourSouthAfrica agrees that if the Operator becomes aware of behaviour by third party platforms that breaches the Operators Intellectual Property Rights, then the Operator will notify TourSouthAfrica in writing with details of the conduct and TourSouthAfrica will use its commercially reasonable endeavours to ensure that the relevant third party takes steps to remedy the breach. c. The Operator is aware of the working methods of search engines, such as spidering of content and ranking of URLs. TourSouthAfrica agrees that if the Operator becomes aware of behaviour by third party platforms that breaches the Operators Intellectual Property Rights, then the Operator will notify TourSouthAfrica in writing with details of the conduct and TourSouthAfrica will use its commercially reasonable endeavours to ensure that the relevant third party takes steps to remedy the breach. d. The Operator agrees not to use, display, benefit from, include, utilize, refer to or specifically target the TourSouthAfrica brand/logo (including trade name, trademark, service mark or other similar indicia of identity or source) whether directly through keyword purchases that use TourSouthAfrica’s Intellectual Property Rights, for price comparison purposes or any other purposes (whether on the Operator platform or any third party platform, system or engine or otherwise), unless approved in writing by TourSouthAfrica. e. The Operator is encouraged to provide at least 2 Tours annually as giveaway prizes for campaigns put together by TourSouthAfrica. Such marketing activities will be agreed upon by both Parties in due time before the campaign and the Operator will be credited as a sponsor on the promotional materials related to the campaign. f. TourSouthAfrica may run sales promotions by offering exclusive online savings for customers booking Tours through the Platform. Any such sales promotions will not have an effect on the Net Tour Price. Annex 2 Data Processor and Non Disclosure Agreement between TourSouthAfrica (the “Controller”) and Operator (the “Processor”) (the “Controller” and the “Processor” hereinafter also jointly referred to as the “Parties” and each as a “Party”) Preamble The Controller owns TourSouthAfrica.co.za, where customers select, compare and book tours and travel experiences. The Processor is a tour operator. Controller and Processor have agreed upon a “Cooperation Agreement” that basically enables the Processor to present its tours on the platform. For booking tours the Data Subjects provide personal data according to the Protection of Personal Information Act (called the POPI Act or POPIA). POPIA is essentially the South African Data Protection Bill or Data Protection Act. Overview of the POPI Act. The POPI Act recognises the right to privacy enshrined in the Constitution and gives effect to this right by mandatory procedures and mechanisms for the handling and processing of personal information. The POPI Act is in line with current international trends and laws on privacy. ‘Processing’ is widely defined, including the ‘collection, recording, organisation, storage, updating or modification, retrieval, consultation, use, dissemination by means of transmission, distribution or making available in any other form, merging, linking, as well as blocking, erasure or destruction of personal information.’ The POPI Act provides eight information protection principles to govern the processing of personal information. There are specific provisions for: 1. direct marketing, 2. automated decision making, 3. the processing of cross-border flows of data (see section 72 of the POPI Act). The need for an Information Regulator to enforce the provisions of the POPI Act has also been recognised, and provision is made for penalties and offences in certain instances. The eight principles: People often provide information for one reason and do not realise that it may be used for other purposes as well. Therefore POPIA prescribes eight specific principles for the lawful processing and use of personal information. In a nutshell, the POPIA principles are: • The processing of information is limited which means that personal information must be obtained in a lawfully and fair manner. • The information can only be used for the specified purpose it was originally obtained for. • The POPI Act limits the further processing of personal information. If the processing takes place for purposes beyond the original scope that was agreed to by the data subject, the processing is prohibited. • The person who processes the information must ensure the quality of the information by taking reasonable steps to ensure that the information is complete, not misleading, up to date and accurate. • The person processing the personal information should have a degree of openness. The data subject and the Information Regulator must be notified that data is being processed. • The person processing data must ensure that the proper security safeguards and measures to safeguard against loss, damage, destruction and unauthorised or unlawful access or processing of the information, has been put in place. • The data subject must be able to participate. The data subject must be able to access the personal information that a responsible party has on them and must be able to correct the information. • The person processing the data is accountable to ensure that the measures that give effect to these principles are complied with when processing personal information. The introduction of these defined principles will limit the processing of personal information to a very large extent, subject to the exclusions provided for in the POPI Act. Cross-Border data flows and data privacy. The electronic flow of data cross-border has lead to a concern that data protection legislation will simply be circumvented by the transfer of personal information to countries where privacy-protecting legislation will not apply and where information will be processed without any hindrance. POPIA only permits the transferring of personal information across borders under the specific circumstances mentioned in section 72. In essence, the country where the information will be processed or the recipient of the information must be subject to rules or regulations effectively similar to the principles stated in POPIA. This can be done by means of legislation or a personal contractual relationship between the parties. In countries where no such rules or regulations do exist, for example in most African countries, the parties can enter into an agreement, outlining the duties on the party processing or receiving the information in the country without data protection legislation, in line with the principles of POPIA. A party’s prior consent to a cross-border transfer of its personal information may also be obtained. Offences and penalties regarding data privacy in South Africa. The POPI Act established the Information Regulator, the supervisory authority or body for South Africa. Part A of Chapter 5 of POPI has 17 sections (section 39-54), that relate to all aspects of this new body. The offences and penalties in POPIA quite limited. For example, one directed against the hindering and obstruction of the Information Regulator in the execution of its obligations and duties. Another important one is failing to protect an account number. A person convicted of these offences will be subject to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and imprisonment. Conclusion regards data protection in South Africa. The regulation of the collection, use, and processing of personal information through legislation is an internationally accepted practice. Not only will individuals and organisations in the private sector gain with data privacy legislation or a data protection Act but it is also important for trade, as concerns around information privacy can create barriers to international trade. This agreement is subject to South African substantive law exclusively with the exclusion of conflict of law rules. Place of jurisdiction is the competent court in South Africa.