Terms of service
ECOMMERCE WEBSITE TERMS OF SERVICE
These Terms of Service (“Terms”) are effective as of the Effective Date as set out in item 2 of the Table
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE. YOUR CONTINUED USE OF THIS WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS WEBSITE IF YOU DO NOT ACCEPT THESE TERMS. THE PURCHASE OF ANY GOODS AND/OR SERVICES IS SUBJECT TO THESE TERMS. ALL SECTIONS OF THESE TERMS ARE APPLICABLE TO ALL USERS UNLESS THE SECTION EXPRESSLY STATES OTHERWISE.
Clause 1 Introduction
1.1 The website, with the URL being set out in item 3 of the above Table (“the Website”) is operated and/or owned by the Company, whose details are as set out in item 1 of the above Table. The Terms recorded herein are entered into by and between the Company and the User. Any reference to the Company, "we", "our" or "us", shall reference the Company and include our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, service providers and suppliers.
1.2 These Terms, including any document incorporated by reference herein, including, but not limited to the Privacy Policy (collectively, the "Terms") apply to any User who uses any one or more of the Services, purchases any Goods, accesses, refers to, views and/or downloads any information or material made available on the Website for whatever purpose, or Browser who, accesses, refers to, views and/or downloads any information or material made available on the Website for whatever purpose (hereinafter referred to as “User” (where applicable), "you" or "your").
1.3 Accessing and/or use of the Website after the Effective Date will signify that you have read, understand, accept, and agree to be bound, and are bound, by the Terms, in your individual capacity and for and on behalf of any entity for whom you use the Website. Further, and where applicable, you represent and warrant that you have the authority to do so and that you are a Competent Person (as defined in the Protection of Personal Information Act, 4 of 2013, as amended).
1.4 To the extent permitted by applicable law, we may modify the Terms with prospective effect without prior notice to you, and any revisions to the Terms will take effect when posted on the Website. Such modifications will require acceptance by you prior to your continued use of the Website, and shall thereby be construed as your consent to the amended or updated Terms. Your only remedy, should you not agree to these Terms, is to refuse acceptance of the amended or updated Terms, thereby preventing your use of this Website.
1.5 To the extent applicable, and in complying with the Consumer Protection Act 68 of 2008 (“the CPA”), clauses in bold are hereby drawn to your attention. The reason for this is to specifically draw your attention to these clauses, as they either:
1.5.1 limit in some way the risk or liability of the Company or any other person;
1.5.2 constitute an assumption of risk or liability by you;
1.5.3 impose an obligation on you to indemnify the Company or any other person for some cause; or
1.5.4 provide for an acknowledgement of fact or a waiver of rights by you.
Clause 2 Terminology
In these Terms, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings:
2.1 “Browser” shall mean any person who visits any page of the Website, whether by landing at the home page or any other page through use of a hyperlink of another website or by direct access to the Website, and who has no intention of using and/or purchasing, or does not use and/or purchase, any of the Goods and/or Services offered by us;
2.2 “Business Days” shall mean any days which are not a Saturday, Sunday or gazetted public holiday in the Republic of South Africa during working hours;
2.3 “Cart” shall mean the User’s Cart on the Website in which it stores intended purchases prior to payment being made;
2.4 “Company” means the company whose details are recorded in item 1 of the above Table;
2.5 “Excluded Loss or Damage” means any:
2.5.1 loss of profit, revenue (including anticipated revenue), use, product or production (including delayed, postponed, interrupted or deferred production and/or inability to produce, deliver or process), bargain, contract, expectation or opportunity, access to markets, goodwill and/or business reputation even if such loss is a direct loss or a loss that flows naturally from the relevant breach;
2.5.2 cost of removal or storage of defective goods, plants or materials;
2.5.3 indirect loss;
2.5.4 loss consequential on other loss;
2.5.5 remote or unforeseeable loss or damage;
2.5.6 liquidated sums including liquidated damages, penalties, losses or damages arising under any contracts or agreements;
2.5.7 kind of loss or damage considered other than loss arising in usual course of things; and
2.5.8 any similar loss or damage, whether or not in the reasonable contemplation of the Parties at the time of purchasing Goods and/or Services, and/or agreeing to these Terms,
and in each case arising from or in connection with the performance of these Terms, whether arising from a breach of contract or delict (including negligence) or under any statute or any other basis, in law or equity, and whether or not foreseeable by us or the User at the time of purchasing Goods and/or Servicers, and/or agreeing to these Terms;
2.6 “Goods” shall mean the products as made available to a User for purchase on the Website;
2.7 “Parties” shall mean the Company and you, and “Party” shall mean either one of them, as the context implies;
2.8 “Personal Information” shall mean personal information as defined in the Protection of Personal Information Act 4 of 2013, which Personal Information is provided to the Company by the User in the Registration Process or otherwise;
2.9 “Privacy Policy” shall mean the Privacy Policy which is to be read as if specifically incorporated in the Terms, which Privacy Policy may be found at the URL recorded in item 4 of the above Table;
2.10 “Registration Process” refers to the process to be followed by a Browser on our Website in order to enable them to purchase any of the Goods and/or Services and thus make the transition from a Browser to a User, which process is set out in item 5 of the above Table;
2.11 “Services” shall mean the services as made available to a User for purchase on the Website;
2.12 “Table” shall mean the table set out on the covering page of these Terms;
2.13 “Terms” shall mean these Terms of Service as read together with the Privacy Policy;
2.14 “User” shall mean the Browser who completes the Registration Process on the Website in order to purchase any of the Goods and/or Services; and
2.15 “VAT” shall mean value-added tax levied in terms of the Value-added Tax Act, 1991.
2.16 Any use of the above terminology or other words in the singular, plural, capitalisation and/or he/she or they, are taken as interchangeable and therefore as referring to the same.
Clause 3 Your agreement to these Terms
3.1 Subject to, and on the basis of your acceptance of the Terms, we grant to you a limited, revocable, non-transferable license to access and use the Website in accordance with the various policies and agreements which may govern such use and access.
Clause 4 Registration Process
4.1 Only Users may order and purchase Goods and/or Services through the Website.
4.2 In order to register as a User you will, through the Registration Process as recorded in item 5 of the above Table, be prompted to provide login details (which shall include he provision of a unique username and password as selected by you) as well as submit certain Personal Information.
4.3 The provisions pertaining to the processing of your Personal Information are set our more fully in our Privacy Policy, which may be found at the URL recorded in item 4 of the above Table.
4.4 In the event of a User being of the view that their login details are being used by someone else, please contact us immediately on the email address recorded in item 1 of the above Table.
Clause 5 Purchase of Goods and/or Services
5.1 The Goods and/or Services as selected by the User for purchase together with the individual price thereof shall be reflected in the User’s Cart. The price of each of the Goods and/or Services shall automatically be tallied in the Cart, as a total, which total shall be inclusive of VAT.
5.2 Prior to the purchase being finalised, a User shall view the Cart and either accept all of the Goods and/or Services reflected therein or edit same by removing one or more of the Goods and/or Services.
5.3 Once the User is satisfied that the Cart reflects all of the Goods and/or Services that it wishes to purchase, it shall be prompted to proceed to payment.
5.4 The cost of delivery of the Goods shall also be included in the total as recorded in the User’s Cart.
Clause 6 Payment
6.1 The payment options available to a User are those set out in item 6 of the above Table.
6.2 Goods will only be released for delivery and/or Services rendered once payment has been received.
Clause 7 Delivery / Collection of Goods
7.1 Physical Goods shall be delivered to the User by the method recorded in item 7 of the above Table.
7.2 Digital Goods shall be delivered by way of email, using the email address recorded by a User during the Registration Process.
7.3 Our obligation to provide the Goods to you is fulfilled upon delivery thereof. We are not responsible for any loss or unauthorised use of the Goods after provision thereof to you.
Clause 8 Return / Refund Policy
8.1 In the event that we offer a return and/or refund policy, the details of same may be found in item 9 of the above Table.
8.2 To ensure that your request in respect of a refund or return is processed expeditiously, we require that you follow the procecure and adhere to the requirements set out therein.
8.3 Failure to adhere to any of the requirements could delay the processing of your request or result in its decline altogether.
Clause 9 Warranties by the User
9.1 The User warrants and represents that the Personal Information provided to us is and shall remain accurate, true and correct and that the User will update the Personal Information held by us to reflect any changes as soon as possible.
9.2 The User further warrants that when registering on the Website it:
9.2.1 is not impersonating any person; and
9.2.2 is not violating any applicable law regarding use of personal or identification information.
9.3 Further and insofar as the Registration Process is concerned, the User warrants that the login details shall:
9.3.1 be used for personal use only; and
9.3.2 not be disclosed by a User to any third party.
9.4 The User agrees that, once the correct login details relating to the User’s account have been entered, irrespective of whether the use of the log in details is unauthorised or fraudulent, the User will be liable for payment of any such Goods and/or Services purchased.
Clause 10 Warranties by the Company
10.1 We make no representation or warranty (express or implied) that the Website, Goods or Services will:
10.1.1 meet a User’s needs;
10.1.2 be accessible at all times;
10.1.3 be accurate, complete or current; or
10.1.4 be free from viruses.
10.2 Subject to any express terms, we make no representation or warranty as to the volume or subject area of Goods and/or Services accessible through the Website.
10.3 Except for any express warranties in these Terms, the Goods and Services are provided “as is”. We make no other warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or non-infringement. We do not provide any warranties against viruses, spyware or malware that may be installed on your computer as a result of you accessing or using the Website.
10.4 We do not warrant that the use of the Website will be uninterrupted or error free, nor do we warrant that we will review information for accuracy.
10.5 We shall not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside our reasonable control. While a User may have statutory rights, you agree that the duration of any such statutorily warranties will be limited to the shortest period to the extent permitted by required law.
10.6 The provision of any act or law implying terms, conditions, guarantees and/or warranties which might otherwise apply hereto are hereby expressly excluded to the full extent permitted by law.
10.7 If the Goods and/or Services are acquired by a consumer as defined in the the CPA, subject to any other warranty, the Company warrants that the Goods and/or Services will be of good quality as defined in section 55 of the CPA.
10.8 Any warranties extend only to the relevant User and to no other person.
Clause 11 Unauthorised use of the Website or email addresses as provided by us
11.1 You may not use the Website for any objectionable or unlawful purpose.
11.2 You undertake not to send to us spam mail, or make use of other unsolicited mass e-mailing techniques.
11.3 You shall not introduce any virus, worm, trojan horse, malicious code or other program which may damage computers or other computer-based equipment through email communication with us.
11.4 You may not sell, redistribute or use information contained on the Website for a commercial purpose without our prior written consent.
11.5 You may not remove or alter our copyright notices or other means of identification including any watermarks, as they appear on the Website or any of our emails.
11.6 You understand and agree that you are solely responsible for compliance with any and all laws, rules and regulations that may apply to your use of the Website, Goods and/or Services.
Clause 12 Links to other Websites
12.1 The Website may contain links or portals to other websites. We have no control over websites operated by third parties and the User agrees that we are not responsible for and will have no liability in connection with a User’s access to or use of any third-party website.
Clause 13 Limitation of Liability and Indemnity
13.1 The User acknowledges and agrees that:
13.1.1 it has determined that the Goods and/or Services are fit for the purpose for which the User requires them; and
13.1.2 it has not relied on our skill and judgment in selecting the Goods and/or Services.
13.2 We are not subject to, and the User releases us from any liability (including but not limited to Excluded Loss and Damage) arising from any delay in delivery of or any defect or fault in the Goods and/or Services to the full extent permitted by law.
13.3 If the provisions of the CPA or any other act or the general law impose on us a liability for a defect or fault in the Goods and/or Services then, to the extent to which we are entitled to do so, our liability is limited, at our option, to:
13.3.1 replacement or repair of the Goods and/or Services;
13.3.2 supply of equivalent Goods and/or Services; or
13.3.3 payment of the cost of replacing or repairing the Goods or of acquiring equivalent products,
and in any case:
13.3.4 we will not be liable for any Excluded Loss or Damage; and
13.3.5 our total liability to the User is limited to the invoice value of the Goods and/or Services.
13.4 The Website shall be used entirely at your own risk.
13.5 We are not responsible for, and the User agrees that we will have no liability in relation to, the use of and conduct in connection with the Website, or any other person’s use of or conduct in connection with the Website, in any circumstance.
13.6 We cannot guarantee or warrant that any file downloaded from the Website or delivered to you via email will be free of infection or virus, worms, trojan horses or other code that has contaminating or destructive qualities. A User is responsible for implementing appropriate processes, systems and procedures to protect itself from this type of issue.
13.7 A User indemnifies us, and agrees to keep us indemnified, from and against any claim, loss, damage, cost or expense that a User may suffer or incur as a result of or in connection with a User’s improper use of or conduct in connection with the Website, including any breach by a User of these terms or any applicable law or licensing requirements.
13.8 To the maximum extent permitted by law we exclude all implied representations and warranties which, but for these terms, might apply in relation to a User’s use of the Website.
13.9 To the extent that our liability cannot be excluded by law, our maximum liability, whether in contract, equity, statute or delict (including negligence), to a User will be limited to the minimum amount imposed by such law.
13.10 Notwithstanding anything to the contrary in these Terms, in no circumstances will we be liable for any indirect, punitive or consequential loss or damages, loss of income, profits, goodwill, data, contracts, use of money or any loss or damages arising from or in any way connected to interruption of the Websites of any type, whether in delict, contract or otherwise.
Clause 14 Copyright
14.1 The contents of the Website are the property of the Company, unless specified otherwise, and are protected by South African and international copyright laws. Furthermore, the compilation (meaning the collection, arrangement, and assembly) of all content on the Website is our property, unless credit is attributed to the author thereof, and is, likewise, protected by South African and international copyright laws.
14.2 Except as stated in the Terms, none of the contents may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, except as permitted by the fair use privilege under the South African copyright laws or without our prior written permission, which should such consent be provided, we reserve our right to withdraw such consent at any stage, in our sole and absolute discretion.
14.3 You are expressly prohibited to “mirror” any content, contained on the Website, on any other server unless our prior written permission is obtained, which should such consent be provided, we reserve our right to withdraw such consent at any stage, in our sole and absolute discretion.
14.4 The User is granted a limited, revocable, and non-exclusive right to create a hyperlink to the Website, so long as the link does not portray us, our affiliates, Goods or Services in a false, misleading, derogatory, or otherwise offensive manner. You may not use our logo or other proprietary graphic or trademark as part of the link without our permission or the permission of our affiliates or content suppliers.
14.5 All trademarks and copyrights, together with any other intellectual property rights, in and to any of the content of the Website, where not evidently that of third parties, are our exclusive property.
Clause 15 Intellectual Property
15.1 You undertake not to attempt to decipher, decompile, disassemble or reverse engineer any of the software or code comprising or in any way making up a part of the Website including any algorithm used by us.
15.2 We own or are licensed to use all intellectual property on the Website. You may not use any of our intellectual property for any purpose other than as may be required to use the Website for its intended purpose.
Clause 16 Breach
16.1 If either Party commits a breach of the Terms and fails to remedy such breach within 7 (seven) days of receipt of written notice requiring the breach to be remedied, then the Party giving notice shall be entitled, at its option, either to cancel the Terms and claim damages or alternatively to claim specific performance of all the defaulting Party’s obligations, together with damages, if any, whether or not such obligations have fallen due for performance.
17.1 Any dispute which arises between the Parties in respect of the Terms shall require the Parties to use their best endeavours to resolve the dispute informally within 7 (seven) days of the dispute having been raised in writing.
17.2 If either Party provides written notification to the other that such attempt has failed then each Party shall attempt to agree upon the appointment of a suitably qualified mediator, within 7 (seven) days of such dispute being referred.
17.3 If agreement is not reached as to the appointment of such mediator within 7 (seven) days after either Party has in writing called for the appointment of a mediator, or where an appointment has been agreed upon and such mediator is not able to mediate a resolution of such dispute within 30 (thirty) days after such appointment then either Party may give written notice to the other Party referring the dispute to arbitration in accordance with the provisions of this clause (“Arbitration Notice”).
17.4 The arbitration shall be:
17.4.1 held in the province reflected in item 8 of the above Table, or other venue agreed by the Parties in writing;
17.4.2 conducted in the English language;
17.4.3 held before a single arbitrator;
17.4.4 subject to the provisions of this clause, conducted in accordance with the Arbitration Foundation of Southern Africa (AFSA) Rules; and
17.4.5 held as soon as is reasonably practicable in the circumstances and with a view to it being completed within 30 (thirty) Business Days of the date of the Arbitration Notice.
17.5 The arbitrator shall be if the question in issue is:
17.5.1 primarily an accounting matter an independent accountant advocate with no less than 10 (ten) years' experience agreed upon between the Parties;
17.5.2 primarily a legal matter, an independent practicing senior advocate with no less than 10 (ten) years' standing agreed upon between the Parties;
17.5.3 any other matter a suitably qualified independent person agreed upon between the Parties.
17.6 If the Parties cannot agree upon a particular arbitrator under the provisions of clause 17.3 above within 7 (seven) Business Days after the arbitration has been demanded, the nomination shall be made by the President for the time being of the South African Institute of Chartered Accountants within 7 (seven) days after the Parties have so failed to agree.
17.7 The arbitrator shall determine which Party shall pay the costs of and incidental to the arbitration or, if more than 1 (one) Party is to contribute, the ratio of their respective contributions, and the scale on which such costs are to be paid.
17.8 Subject to each Party’s rights of appeal in accordance with the AFSA Rules, the Parties irrevocably agree that the decision of the arbitrator shall be final and binding on them, shall be carried into effect, and shall be capable of being made an order of any court of competent jurisdiction.
17.9 The provisions of this clause:
17.9.1 constitute irrevocable consent by the Parties to any proceedings in terms of this clause and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions;
17.9.2 are severable from the rest of this Agreement and shall remain in effect despite the termination, or invalidity for any reason, of this Agreement; and
17.9.3 shall not preclude any Party from obtaining interim relief on an urgent basis from any court of competent jurisdiction pending the decision of the arbitrator.
Clause 18 Assignment and Novation
18.1 We may assign or novate any of our rights or obligations under these Terms without a User’s consent. You may not assign or novate any of your rights.
Clause 19 Force Majeure
19.1 For purposes hereof, the term “Force Majeure” shall mean any event or circumstance, other than a lack of funds required for payment, which is not within the reasonable control of a Party, including, but not limited to, theft, war or civil war (whether declared or undeclared, including the serious threat of same) or armed conflict, invasion and acts of foreign enemies, riots, sabotage, blockades and embargos, civil and/or industrial unrest, commotion or rebellion, any act or credible threat of terrorism, fires and destruction of plant, machinery and machines, boycotts, strikes and lock-outs of all kinds, go-slows or work stoppages, any act of God, earthquake, flood, extraordinary storm, nuclear, chemical or biological contamination or explosion, plague, epidemic, pandemic, any act of any authority (including delaying or refusing of licences, and/or restrictions on construction work), explosion, fire, industrial unrest, failure of any power or utility supplies (including electronic communications).
19.2 The failure of either Party to fulfil any of their obligations under these Terms shall not be considered to be a breach of, or default of these Terms provided such inability arises from an event of Force Majeure, and that either of the Parties who may be affected by such an event has taken all reasonable precautions, due care and reasonable alternative measures in order to meet these Terms, and has informed the other as soon as possible about the occurrence of such an event.
19.3 During the subsistence of Force Majeure, the performance of both Parties under these Terms shall be suspended, on condition that either of them may elect to cancel any Services affected by such Force Majeure should the event of Force Majeure continues for more than 20 (twenty) days, by giving written notice to the other Party.
Clause 20 Application Of The Electronic Communications and Transactions Act 25 of 2002 ("ECT ACT")
20.1 Data Messages (as defined in the ECT Act) will be deemed to have been received by us if and when we respond to the Data Messages.
20.2 Data Messages sent by us to a User will be deemed to have been received by the User, as the case may be, in terms of the provisions specified in section 23(b) of the ECT Act.
20.3 The User acknowledges that electronic signatures, encryption and/or authentication are not required for valid electronic communications between us and the User.
Clause 21 General
21.1 To the extent permitted by law, these Terms shall be governed by and be construed in accordance with South African law, and any dispute arising out of these Terms shall be submitted to the competent South African courts having the requisite jurisdiction to hear the matter.
21.2 Subject to the dispute resolution provisions above, to the extent necessary and/or possible, you consent to the non-exclusive jurisdiction of the High Court in Gauteng or an alternative appropriate South African court seized with appropriate jurisdiction in all disputes arising out of the Terms, the Goods and/or Services, and/or related agreements incorporated by reference.
Clause 22 Severance
22.1 If any of these terms are deemed invalid or unenforceable for any reason (including, but not limited to the exclusions and limitations set out above), then the invalid or unenforceable provision will be severed from these Terms and the remaining terms will continue to apply. Failure by us to enforce any of the provisions set out in these Terms and/or any other agreement, or failure to exercise any option to terminate, shall not be construed as a waiver of such provisions and shall not affect the validity of these Terms or of any agreement or any part thereof, or the right thereafter to enforce each and every provision.
Clause 23 Domicilium Citandi Et Executandi and Contact Information
23.1 We choose as our domicilium citandi et executandi for the purpose of legal proceedings and for the purpose of giving or sending any notice provided for or necessary of these Terms, the address reflected in item 1 of the above Table, and the User chooses the address as provided during the Registration Process as its domicilium citandi et executandi for the purpose of legal proceedings and for the purpose of giving or sending any notice provided for or necessary of these Terms.
23.2 Both the User and the Company may change its domicilium to any other physical address or email address by written notice to the other to that effect. Such change of address will be effective 7 (Seven) days after receipt of notice of change of domicilium.
23.3 All notices to be given in terms of these Terms will:
23.3.1 be given in writing;
23.3.2 be delivered or sent by email; and
23.3.3 be presumed to have been received on the date of delivery.
23.4 Notwithstanding the above, any notice actually received by the Party to whom notice is addressed will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with the provisions of this clause.
Clause 24 Preparation
These Terms have been created for the Company by the good folks at Legal Legends www.legallegends.co.za.