The definitions in this clause apply to these Terms:
Application Form: our standard application form on which you specify the Expedition you would like to attend;
Booking Confirmation: our written acceptance of an Application Form;
Departure Date: the date specified by us as the departure date of the Expedition;
Deposit: the amount specified as such in the Payment Schedule;
Expedition: the expedition you specify in the Application Form;
Medical Form: our medical form on which you specify your current health and all relevant medical information about you;
Payment Schedule: the payment schedule provided to you by us in writing;
Price: the price of the Expedition notified by us to you;
Terms: the terms and conditions set out in this document;
We/us/our: Himalayan Experience (BVI) Limited, a company incorporated in the British Virgin Islands and with its registered office at Offshore Incorporations Centre, PO Box 957, Road Town, Tortola, British Virgin Islands;
Writing or written: includes fax and e-mail;
You/your: the person who submits an Application Form.
Any quotation for the Expedition is given on the basis that a binding contract shall only come into existence in accordance with clause 2.5.
If you would like to attend one of our expeditions, you will need to submit an Application Form and a Medical Form to us. The Application Form is an offer by you to enter into a binding contract with us subject to these Terms, which we are free to accept or decline at our absolute discretion. If any of these Terms are inconsistent with any term of the Application Form, these Terms shall prevail.
You must be over the age of 18 to book and take part in the Expedition.
We may require you to undertake medical tests and have your Medical Form signed by a doctor confirming that you are fit to take part in the Expedition, particularly if you are over 60.
These Terms shall become binding on you and us when we issue you with a Booking Confirmation, at which point a contract shall come into existence between you and us, subject to clause 2.9 below.
You agree to notify us promptly should there be any subsequent changes to the information you have supplied on the Application Form or Medical Form after sending it to us.
Where you notify us that your circumstances have changed since sending us a completed Application Form or Medical Form, or if you refuse, following our request, to comply with clause 2.4, we may, in our absolute discretion, if we consider that you are no longer fit to take part in the Expedition, cancel your participation in the Expedition in accordance with clause 5.6.
If, following the issue of a Booking Confirmation, we reasonably believe that you have provided us with incomplete, incorrect or misleading information in the Application Form or Medical Form we may, at our discretion, deem you to have cancelled your participation in the Expedition in accordance with clause 5.5.
Expeditions will usually only take place if a minimum of six people join the Expedition. Should this minimum not be reached within 60 days of the Departure Date, we may, in our absolute discretion, cancel the Expedition in accordance with clause 5.6.
We reserve the right to revise and amend these Terms from time to time. The contract between us will be subject to the policies and terms in force at the time that you submit the Application Form, unless any change to those policies or these Terms is required by law or government or regulatory authority in which case it will apply to all bookings.
Price and payment
You shall pay to us the Price in accordance with the Payment Schedule. The Price includes sales tax where applicable.
Without limiting any other remedies or rights that we may have, if you do not pay us within 30 days of any due date for payment specified in the Payment Schedule, in our absolute discretion, we may cancel your participation in the Expedition and you shall be responsible for payment of the relevant cancellation fee as if you had cancelled in accordance with clause 5.5.
If you do not pay us by any due date for payment specified in the Payment Schedule, we may charge interest to you on the overdue amount at the rate of 4% above the base lending rate of Barclays Bank plc from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment.
From time to time relevant authorities (for example mountaineering or other authorities of the country or countries where the Expedition is due to take place) may change certain rules which can affect the cost of the Expedition. Upon notification to you of such changes, we reserve the right to increase the Price on a pro-rata basis, to be shared equally between all participants in the Expedition.
Payment of the Price shall be in Euros.
You are responsible for all bank charges incurred by us in relation to the transfer of funds from your account. We shall charge any such charges to you, and these will be payable by you immediately upon notification.
Supply of services
We will lead the Expedition using all due skill and care although you acknowledge that there are inherent risks in mountaineering expeditions (as addressed further in clause 7.1).
We reserve the right to make changes to the Expedition which are necessary to comply with applicable law, regulations or safety requirements, or which do not materially affect the nature or quality of the Expedition.
During the Expedition you shall at all times comply with all policies, procedures and instructions we or our employees, guides or contractors may give to you.
Transfers and Cancellations
You may transfer to another of our expeditions at any time up to 120 days prior to the Departure Date. If you elect to do this the Price shall be adjusted by us to reflect the advertised price of the new expedition.
You may transfer to another of our expeditions between 60 and 120 days prior to the Departure Date so long as a replacement expedition member can be found by us. If we are not able to find a replacement expedition member you may transfer to another of our expeditions subject to the applicable transfer fee set out in the Payment Schedule. If you elect to transfer to another of our expeditions, the Price shall be adjusted by us to reflect the advertised price of the new expedition.
You may transfer to another of our expeditions less than 60 days prior to the Departure Date at the applicable transfer fee set out in the Payment Schedule, so long as a replacement expedition member can be found by us. If you elect to do this the Price shall be adjusted by us to reflect the advertised price of the new expedition.
You may, within seven working days of the Booking Confirmation, cancel your booking by notifying us in writing.
You may cancel your booking at any other time subject to payment of the relevant cancellation fee set out in the Payment Schedule.
If we elect to cancel the Expedition pursuant to these Terms, as your exclusive remedy, you may choose to be:
5.6.1 refunded in full; or
5.6.2 transferred to another of our expeditions whereupon the Price shall be adjusted by us to reflect the new expedition’s advertised price; or
5.6.3 transferred to another operator’s expedition, whereupon the Price shall be adjusted by us to reflect the new expedition’s advertised price.
You shall, prior to the Departure Date, supply to us valid credit card details to settle any unpaid personal expenses incurred by you during the Expedition such as telephone, email, emergency evacuation and lost equipment charges etc for which we may become liable.
Limitation of liability
Subject always to clause 7.2:
7.1.1 by submitting an Application Form you acknowledge that participation in the Expedition is an inherently risky activity which carries a serious risk of death, altitude sickness, frostbite and dietary problems (amongst others). You irrevocably waive any claim against us and our employees, guides and contractors which may arise in relation to death or personal injury sustained by you whilst participating in the Expedition;
7.1.2 you are responsible at all times for your own equipment and we shall not be liable in any way for its loss or damage except where it is under our complete control;
7.1.3 if we fail to comply with these Terms, we shall only be responsible for those losses you suffer which are a direct result of our failure to comply with these Terms and which we could reasonably foresee would result from the failure to comply with these Terms; and
7.1.4 our total liability to you, howsoever arising including in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the Price.
Nothing in these Terms is intended to exclude or limit in any way our liability for:
7.2.1 death or personal injury caused by our negligence; or
7.2.2 fraud; or
7.2.3 any breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
7.2.4 any matter for which it would be illegal or unlawful for us to exclude or attempt to exclude our liability.
You must take out insurance acceptable to us to insure against all the risks that may occur in relation to the Expedition, including without limitation sufficient emergency evacuation insurance that will cover the costs of an evacuation from high altitude during the Expedition.
If you do not obtain adequate insurance acceptable to us within 30 days of the Departure Date we reserve the right to deem you to have cancelled your participation in the Expedition in accordance with clause 5.5.
You may only use any materials, documents or other items we provide to you for non-commercial purposes.
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by events outside our reasonable control including, but not limited to, avalanches, the closing of a country’s borders or natural disasters.
If any court or competent authority decides that any of the provisions of these Terms are invalid, unlawful or unenforceable to any extent, the term will, to that extent only, be severed from the remaining terms, which will continue to be valid to the fullest extent permitted by law.
If we fail, at any time while these Terms are in force, to insist that you perform any of your obligations under these Terms, or if we do not exercise any of our rights or remedies under these Terms, that will not mean that we have waived such rights or remedies and will not mean that you do not have to comply with those obligations. If we do waive a default by you, that will not mean that we will automatically waive any subsequent default by you. No waiver by us of any of these Terms shall be effective unless we expressly say that it is a waiver and we tell you so in writing.
These Terms and the Application Form set out the whole agreement between you and us for the supply of the Expedition.
Save for clause 7.1.1 which shall be for the express benefit of our employees, guides and contractors, a person who is not party to these Terms shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.
You may not transfer any of your rights or obligations under these Terms to another person without our prior written consent.
These Terms shall be governed by English law and you and we both agree to the non-exclusive jurisdiction of the English courts.