Conditions of Sale
1.1. The Company shall mean Garden Goods CC 2008/152809/23.
1.2. The Customer shall mean the person or entity who logged into The Website using the relevant User Name and Password, or any person or entity who can reasonably be associated with the relevant User Name and Password on http://www.gardengoods.co.za, or any person or entity who receives, or expects to receive, any goods or services from the Company, or any persons or entities residing at the physical address or email address implied during the course of any correspondence with the Company.
1.3. The Company Systems shall mean all processes or means (regardless of whether they are electronically automated, manually enabled or provided by any third parties), that are used by the Company to capture information, provide information to the Customer or third parties, deliver goods, process payments, keep records, or ensure continuity of the services or products offered by the Company.
1.4. The Website shall mean the Internet website accessible using the Internet URL http://www.gardengoods.co.za.
1.5. The OEM manufactures shall mean any third party entity or organisation whose goods or services are offered by the Company for sale to the Customer.
1.6. The Goods shall mean any and all products and/or services provided by, or offered by the Company to the Customer during the course of this agreement.
1.7. The Delivery Address shall mean information supplied by the Customer that is used by the Company to describe the physical location where the Goods should be delivered to in fulfilment of this agreement.
2.1. Subject to all the provisions of the clauses herein, the Company hereby agrees to deliver the Goods, in a new and unused state, to the Delivery Address, for the consideration amount - all as specified by a valid order generated by the Company System. The Customer hereby agrees to pay the Company the amount, in advance, for delivery of those Goods specified by that same order.
2.2. The Customer further agrees to provide to the Company, on request, all information required for it to meet its obligations in this regard, including but not limited to, the Customers true identity, physical, delivery and email addresses, contact phone numbers, and if necessary bank account information.
3.1. All amounts payable in terms of this agreement shall be payable in advance. No goods will be delivered until payment has been received in full.
3.2. Notwithstanding 3.1 above, in the event that any goods delivered are not paid for, or if payment for such delivered goods has subsequently been reversed for any reason whatsoever, those goods remain the sole property of the Company and will be returned to the Company immediately on demand, in an unused condition, with all original packaging and documentation. Any damages to the goods requiring repair, or costs attributable to the used condition of the goods, or lack of, or damage to packaging, or the cost of transporting or seizing those goods will be payable by the Customer on demand.
3.3. The Company reserves the right at any time during the delivery process, up until the goods are physically delivered to the Customer, to cancel the Customer’s order, for any reason whatsoever. In the event that the Customer’s payment has been processed before the order was cancelled, the Company undertakes to ensure that the all amounts paid by the Customer for that cancelled order are re-paid in full, no later than 10 working days after the Customer receives the notification of cancellation of the order. The Company undertakes, where possible, not to process the payment of any orders cancelled, and/or, in any event, to re-pay in full, any orders cancelled that have been processed.
3.4. The Customer shall be liable for any and all expenses incurred by the Company on an attorney and advocate scale whether incurred prior to or during institution of legal proceedings or if judgement has been granted, in connection with the satisfaction of such judgement, in regards to the enforcement of this agreement.
4. DELIVERY OF GOODS
4.1. Delivery occurs when the Company’s appointed courier service hands the goods to the Customer, or any persons claiming to represent the Customer, at the specified Delivery address. The Delivery Note, generated by the Company’s appointed courier service will serve as sufficient documentary evidence of such delivery. All risks pass to the Customer on delivery.
4.2. The Company assumes that any persons claiming to represent the Customer at the specified delivery address is duly authorised to receive the goods. The Company, or its appointed courier service, cannot be held responsible for any loss or liability whatsoever incurred in this regard.
4.3. If no notification to the contrary has been received by the Company from the Customer within 5 (five) working days after the Delivery Note date, or the quoted delivery date to the Customer in the absence of a Delivery Note, the Customer is deemed to have accepted the goods delivered as conforming in all respects to that ordered.
4.4. The Company assumes that the Delivery Address has been correctly specified by the Customer and thus cannot be held responsible for incomplete, inaccurate, out of date or any other discreprencies relating to information provided by the Customer, particularly with regard to Delivery addresses, Customer contact information or any other information required by the Company from the Customer in order to fulfil any orders placed on the Company by the Customer. The Customer hereby acknowledges that it is solely responsible for provision and on-going accuracy of all such information required during any transactions undertaken with the Company.
4.5. If, for any reason, delivery could not take place, the Company will attempt to contact the Customer using the contact information supplied and use its best endeavours to coordinate one additional attempt at delivery. If this attempt also fails, for any reason, the Company will cancel the order and repay any money paid by the Customer for that order.
5. GOODS LOST OR DAMAGED IN TRANSIT
5.1. The Company undertakes to ensure that all goods delivered are insured against loss or damage up until delivery to the Customer.
5.2. If the Customer believes that goods were either lost or damaged in transit, it must notify the Company no later than 5 working days of the goods being received or being perceived overdue.
5.3. In the case of damaged goods, the unused goods must be returned to the Company as soon as possible with all associated packaging and documentation, the reasonable costs of which will be born by the Company, provided the Customer’s claim is valid. The Company reserves the right, at its sole discretion, to reject such goods returned, if it is reasonable to believe they were not in fact damaged in transport.
5.4. In the event of such loss or damage, the Company undertakes to either refund to the Customer the full amount received from any such insurance claim, or re-supply the goods, as originally ordered, at its sole discretion.
5.5. On no account will the full extent of the Company’s liability to the Customer, in the event of lost or damaged goods, exceed the original order amount for those goods.
6. DISCLAIMER FOR LIABILITY
6.1. The Customer shall have no claim against the Company and the Customer hereby indemnifies and holds the Company harmless and free from liability in respect of any loss, damage or cost caused by or arising from:
6.1.1. any fact or circumstances beyond the reasonable control of the Company; specifically including, but not limited to, acts of God or Force Majeure or 6.1.2. any downtime, outage, interruption in or non-availability of any of the services of the Company Systems and infrastructure;
6.1.3. any infringement of the Customer’s rights of privacy, constitutional and/or any other like rights (including those of any other person or entity), arising from the supply of goods provided in terms of this agreement;
6.1.4. any breach of security by any third party or any breach of confidentiality by a third party or otherwise arising from any access howsoever obtained by a third party to the Customer’s information, data or content;
6.1.5. the damage, contamination or corruption of any kind of the Customer’s data, material, information and/or content howsoever occasioned;
6.1.6. without limiting the foregoing, any fact, cause or circumstances whatsoever and howsoever arising if the Company has substantially performed its obligations under this agreement.
6.1.7. any OEM product specifications or images that may have subsequently changed, or have been erroneously represented by the Company in any way; 6.1.8. the Customer following the advice offered by the Company with regard to the suitability of any product for any purpose. Such advice is offered as a guide only, and the Company does not warrant that any product sold is fit for any purpose whatsoever.
6.2. Notwithstanding anything to the contrary contained in this agreement or in any addendum or annexure to this agreement, the Customer shall have no claim against the Company and the Customer hereby indemnifies and holds the Company harmless and free from liability in respect of any loss, damage or cost which is indirect, consequential or incidental in nature.
6.3. the Company reserves the right to take whatever action it deems necessary at any time to preserve the security and reliable operation of the Company Systems and the Customer undertakes that it will not do or permit anything to be done which will compromise the security of the Company Systems.
6.4. Although the Company shall use reasonable endeavours to provide disaster recovery, the Company does not specify any recovery time, nor shall the Company be liable for any loss or damage of whatever nature incurred or suffered by the Customer from any cause whatsoever as a result of the Company’s failure to provide, or delay in providing, or providing only partial, disaster recovery. The Customer is accordingly advised to make back-ups of its transactional, or any other type of data. Nothing contained in this paragraph should be construed as a representation that any back-ups of data implemented by the Customer will be successful or in any way will avoid disaster.
6.5. Notwithstanding any of the provisions of this agreement, in the event of a claim or claims for liability, for any reason whatsoever, by the Customer on the Company, the Company’s total liability to the Customer shall not exceed the total payable amount by the Customer of any or all orders, placed by the Customer on the Company in a one month period immediately preceding the date of notification of the claimed liabilities, provided such orders have been explicitly accepted by the Company in that period.
6.6. The Customer and the Company both warrant that they have complied with all governmental, provincial and municipal statutory requirements promulgated in relation to its principal business activities and that such compliance will exist for the currency of this agreement. The Customer specifically agrees to indemnify and hold the Company harmless in the event that the Customer commits any transgression, and/or causes the Company to inadvertently commit any transgression of any such regulations during the course of any transactions with the Company.
All goods are provided with the OEM manufacturer’s warranty only. In the event that the Customer believes that the goods may be defective and qualify for a claim against the OEM manufacturer’s warranty, such goods may be returned to the Company, all costs of such return to the Company to be born by the Customer. If, at the sole discretion of the Company, the goods do indeed qualify for a claim against the OEM manufacturer’s warranty, the Company undertakes to forward the goods to the OEM manufacturer for repair, solely in terms of that warranty, and to return the goods back to the Customer once repaired. All associated costs of transport to and from the OEM Manufacturer to be born by the Company, provided such claim proves to be valid. In the event that the OEM manufacturer rejects such claim, all associated costs of repair, transport, insurance, customs duty and any other costs will be born by the Customer.
8. MAINTENANCE AND REPAIR OF COMPANY SYSTEMS
The Company may temporarily suspend its obligations in terms of this agreement in order to service, repair, maintain, upgrade, modify, alter, replace or improve any of the Company’s services. Where the circumstances permit, the Company shall use its best endeavours to provide prior notice of any such suspension to the Customer. The Customer shall not be entitled to any setoff, discount, refund or other credit in respect of any such suspension of service nor in respect of any suspension that is beyond the Company’s control.
9. INTELLECTUAL PROPERTY
9.1. All intellectual property rights vested in or owned by a party or held by a party under any licensing agreement with any independent third party shall be and remain the sole property of such party and the relevant licensor’s respectively.
9.2. The Customer shall not be entitled to use any of the images, content, trademarks, logos, brand names, domain names or other marks (collectively referred to herein as "marks") of the Company or any of its associates, or any of the product OEM manufacturers, without the prior written approval of the Company or the OEM manufacturers respectively.
10. CESSION, DELEGATION OR ASSIGNMENT
The Company shall be entitled to cede, assign, transfer or delegate all or any of its rights or obligations under this agreement to an affiliate of the Company or to any third party.
11.1. The parties choose domicilium citandi et executandi ("domicilium") for the purposes of giving any notice, the payment of any sum, the service of any process and for any other purpose arising from the agreement at the addresses specified, in the case of the Customer, the physical address given by the Customer’s registration information, in the case of the Company, by the physical address given in the "Contact Us" page of the Website.
11.2. Any notice required or permitted to be given in terms of this agreement shall be valid and effective only if in writing.
11.3. Any notice given and any payment made by one party to the other ("the addressee") which: -
11.3.1. is delivered by hand during the normal business hours of the addressee at the addressee’s domicilium for the time being shall be presumed, until the contrary is proved, to have been received by the addressee at the time of delivery;
11.3.2. is posted by prepaid registered post from an address within South Africa to the addressee at the addressee’s domicilium for the time being, shall be presumed, until the contrary is proved, to have been received by the addressee on the 7th (seventh) day after the date of posting;
11.3.3. is transmitted by telefax or e-mail shall be deemed (in the absence of proof to the contrary) to have been received within 1 (one) hour of transmission where it is transmitted during normal business hours and within 2 (two) hours of the commencement of the following business day where it is transmitted outside those business hours.
12. APPLICABLE LAW
12.1. The Customer hereby specifically agrees, during the course of this agreement, to be bound by the laws of the Republic of South Africa only, and that they hereby further specifically agree to waive and relinquish all rights enjoyed under the laws of any other country that contradict, or are not granted, or recognised by the laws of the Republic of South Africa.
12.2. All Internet or electronic transactions are deemed to have taken place in Johannesburg, South Africa, at the time implied by the Company System records.
12.3. All amounts will be paid in South African Rand.
13.1. This document constitutes the sole record of the agreement between the parties and no addition, variation or agreed cancellation of this agreement shall be of any force or effect unless in writing and signed by or on behalf of the parties. If there is any provision in any addendum which conflicts with any provision in the standard terms and conditions of sale, the latter shall prevail.
13.2. No party shall be bound by any express or implied term, representation, warranty or the like which is not recorded in this agreement.
13.3. No extension of time or indulgence which one party (the grantor) may grant to the other (the grantee) shall constitute a waiver of any of the rights of the grantor who shall not be precluded from exercising any past or future rights against the grantee.
13.4. All terms inferring gender will apply to both male and female equally. All persons or entities who are referred to in the singular or plural, will apply to both the singular or plural interchangeably. All clause headings are intended for legibility only, and no meaning whatsoever can be derived from, or associated with those headings with respect to the following clause wording.