(NOTICE TO CUSTOMERS: THIS IS AN IMPORTANT DOCUMENT WHICH LIMITS YOUR RIGHTS
– PLEASE READ IT CAREFULLY AND PAY CLOSE ATTENTION TO CLAUSES IN BOLD TEXT)
These terms and conditions shall apply to the sale of any products, or the delivery of any services, by Adstraction Proprietary Limited (a South African registered, limited liability company, with registration number 2018/510713/07)("Adstraction"), as reflected in the relevant order, and shall, together with such order, upon the placement by the customer reflected in such order (the "Customer"), constitute the agreement between Adstraction and the Customer (collectively the "Parties", each a "Party") for such products or services (the "Agreement").
WEBSITE USE TERMS
- These terms and conditions shall apply to all users of the Adstraction website, including, without limitation, users who are browsers, vendors, Customers, merchants or contributors of content.
- By accessing or using any part of the website, the user agrees to be bound by these terms and conditions.
- If the user does not agree to all the terms and conditions, the user may not access the website, place any order or receive any of the services.
- Any new features or tools which are added to the current store shall also be subject to these terms and conditions.
- Adstraction reserves the right to update, change or replace any part of these terms and conditions by posting updates and/or changes to the website. It is the user's responsibility to check this page periodically for changes. The user's continued use of, or access to, the website, following the posting of any changes, constitutes acceptance of those changes.
- Users may review the most current version of the terms and conditions, at any time, at https://www.adstraction.co.za/tandc/.
- By agreeing to these terms and conditions, the user represents that he/she is, at least, the age of majority in South Africa, mentally fit and the user has provided Adstraction with consent to allow any of the user's minor dependents to use this website. If this is not the case, the user shall notify Adstraction immediately if the user requires any assistance with the interpretation of these terms and conditions.
- The user may not use the Adstraction products for any illegal or unauthorised purpose, nor may the user, in the use of the services, violate any laws in any jurisdiction (including, but not limited to, copyright laws).
- The user should not transmit any worms or viruses or any code of a destructive nature.
- The user agrees that a breach or violation of any of the terms and conditions, by the user, will result in immediate termination of any services or order.
- Adstraction reserves the right to refuse services to anyone for any reason at any time.
- The user understands that the user's content (not including credit card information), may be transferred unencrypted and involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Adstraction confirms that credit card information is always encrypted during transfer over networks.
- The user agrees not to reproduce, duplicate, copy, sell, resell or exploit any portion of the services, use of the services, or access to the services or any contact on the website, through which the services are provided, without the express, prior, written permission of Adstraction.
- Adstraction is not responsible if information made available on the website is not accurate, complete or current. The material on the website is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on the website is at the user's own risk.
- The website may contain certain historical information. Historical information, necessarily, is not current and is provided for the user's information only.
- Adstraction reserves the right to modify the contents of the website at any time, however, Adstraction shall not have an obligation to update any information on the website. The user agrees that it is the user's responsibility to monitor changes to the website.
- In addition to other prohibitions as set forth in these terms and conditions, the user is prohibited from using the website or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws or local ordinances; (d) to infringe upon, or violate, Adstraction's Intellectual Property rights or the Intellectual Property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will, or may, be used in any manner that will affect the functionality or operation of the services or of any related website, other websites, or the internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with, or circumvent, the security features of the services or any related website, other websites, or the internet. Adstraction reserves the right to terminate the user's use of the services, or any related website, for committing any of the prohibited uses.
PRICING AND PAYMENTS
- The Customer shall pay for the products or services by EFT, by PayFast or any other payment instrument which Adstraction may offer on the website from time to time.
- Adstraction shall only process orders for products or provide customisation/design services upon receipt of the full purchase price or fee from the Customer and when such amounts have been confirmed as received by PayFast, or when such amounts have cleared into Adstraction's bank account.
- Adstraction reserves the right, but is not obligated, to limit the sales of the products or services to any person, geographic region or jurisdiction. Adstraction may exercise this right on a case-by-case basis. Adstraction reserves the right to limit the quantities of any products or services that Adstraction may offer. All descriptions of products or product pricing are subject to change at any time, without notice, at the sole discretion of Adstraction.
- Adstraction reserves the right to discontinue any product at any time. Any offer for any product or service made on the website is void, where prohibited.
- Adstraction reserves the right to refuse any order which the Customer may place on Adstraction. Adstraction may, in its sole discretion, limit or cancel quantities purchased per person, per household or per order.
- These restrictions may include orders placed by, or under, the same Customer account, the same credit card and/or orders that use the same billing and/or shipping address. In the event that Adstraction makes a change to, or cancels, an order, Adstraction may attempt to notify the Customer by contacting the e-mail and/or billing address/phone number provided at the time when the order was placed. Adstraction reserves the right to limit or prohibit orders that, in Adstraction's sole judgment, appear to be placed by dealers, resellers or distributors.
- The Customer agrees to provide current, complete and accurate purchase and account information for all purchases made on the website. The Customer agrees to promptly update the Customer's account and other information, including email addresses, credit card numbers and expiration dates, to enable Adstraction to complete transactions and contact the Customer, if required.
- The Customer may not deduct, withhold, bank exchange, commission or set-off any amounts from amounts which are owed to Adstraction, without Adstraction's prior written consent.
- Any amount not paid by the Customer on the due date shall bear interest at the prime interest rate of ABSA Bank Limited, plus 2% (two percent) per annum. Such interest shall be calculated from the due date of payment to the date of actual payment, both days inclusive, compounded monthly in arrears.
- All payments received shall firstly be utilised in payment of interest and costs and thereafter towards payment of capital.
- If any amount owed by the Customer is not paid on the due date, then without prejudice to any other rights it may have, Adstraction may immediately suspend the performance of any of its then uncompleted obligations or orders until the relevant payment has been received in full.
- Any costs incurred by a Party arising from the breach by the other Party of any of the provisions of this Agreement shall be borne by the Party in breach on an attorney-and-own-client scale.
DELIVERY, CANCELLATION AND RETURN OF PRODUCTS
- Unless arrangements are made to the contrary, delivery shall be made by courier to the Customer at the Customer's premises reflected in the relevant order.
- Adstraction shall not be liable to the Customer, or any third party, for any stock shortages or the unavailability of clearance items.
- The Parties record that the courier is a third party contractor and that Adstraction shall not be responsible for the management, actions or conduct of the third party courier.
- The Customer shall track the status of his/her delivery and shall liaise directly with the courier for queries or complaints regarding a delivery.
- Adstraction shall not be liable for any delays in deliveries, non-delivery, damages, losses or short deliveries caused by the courier, or for any incorrect deliveries which may have been caused by incorrect or inaccurate information provided by the Customer or on the Customer's behalf.
- The Customer agrees that the products are provided on the basis of an estimated time of arrival as provided, and as amended, by Adstraction, the courier, supplier or distributor for whom Adstraction shall not be liable.
- The Customer must examine all products on delivery and Adstraction shall not be liable for any external damages, incorrect deliveries or incomplete deliveries if the proof of delivery was signed by the Customer, or on the Customer's behalf, or if the Customer ordered the incorrect product.
- The Customer shall notify Adstraction within 24 (twenty-four) hours from receipt of the delivery of any incomplete, defective or damaged products. Failure to provide the necessary notification to Adstraction shall result in rejection of the Customer's claim. Adstraction shall investigate the matter and the Customer shall provide reasonable proof of the incomplete or damaged products or such other information as Adstraction may request from the Customer.
- If products are delivered incorrectly due to the actions or omissions of the Customer, the Customer shall accept such products in good order.
- If products are delivered incorrectly due to an action or omission on the part of Adstraction, Adstraction shall facilitate the collection and replacement of the products at its own expense.
- The Customer agrees that, due to the personal nature of the products, it shall be impractical to expect any exchange or refund of the products, except if such exchange or refund is as a result of Adstraction's gross negligence.
- If the products are defective in its operation, Adstraction shall process a return merchandise authorisation after approval has been received from the relevant manufacturer, distributor or reseller. The Customer agrees that Adstraction shall be reliant on the relevant manufacturer, distributor or reseller's process and warranty conditions, however, Adstraction shall keep the Customer updated of all developments in the process.
- Adstraction shall only credit the Customer's account after authorisation has been received from the relevant manufacturer, distributor or reseller.
- If the Customer wishes to cancel an order before it has been shipped, a refund cannot be provided if the item was acquired by Adstraction from an external provider. A refund shall only be provided for stock which is already on hand, when cancellation is requested, prior to shipment and shall not apply to products which have been branded specifically for the Customer. Any cancellation request may be considered at Adstraction's sole discretion and within the parameters as set out in Adstraction's Return and Exchange Policy.
- The Customer shall not have any right to cancel an order after the relevant order has been shipped to the Customer.
- Adstraction shall not consider any return, even if authorised, unless the products are returned in their original packaging, which shall be of good quality and materially intact.
RISK AND OWNERSHIP
- The risk in respect of any products shall pass to the Customer immediately when the products are delivered to the courier, the Customer or the authorised agent of the Customer, whichever occurs first in time.
- Ownership in the products, notwithstanding delivery thereof and/or the granting of credit to the Customer, shall remain vested in Adstraction until the purchase price has been paid in full.
DESIGN AND BRANDING
- Against the payment of the Adstraction fees for design, printing, embroidery and customisation, Adstraction shall implement the design, embroidery, branding or customisation on the products, as approved by the Customer.
- Adstraction shall not have any liability to the Customer, or any third party, for the implementation of the aforementioned on any products, including, without limitation colours and sizes, if such implementation/customisation has been approved by the Customer.
- The Customer agrees that customisation and design services are provided on the basis of an estimated time of completion and may be amended by Adstraction, the courier, supplier or distributor.
- The Customer indemnifies Adstraction, its directors, employees, staff, agents, contractors and representatives from, and against, any losses, damages, costs or expenses arising from, or caused by, the implementation of the Customer's design materials, including, but not limited to, claims based on the infringement of the Intellectual Property of a third party.
WARRANTIES AND GUARANTEES
- Adstraction has made every effort to display, as accurately as possible, the colours and images of the products that appear on the website. Adstraction cannot guarantee that the Customer's computer monitor’s display of any colour will be accurate.
- Adstraction does not warrant that the quality of any products, services, information or other material purchased or obtained by the Customer will meet the Customer’s expectations.
- Adstraction does not guarantee, represent or warrant that the Customer's use of the website will be uninterrupted, timely, secure or error-free.
- The Customer confirms that he/she/it is aware that Adstraction is only a distributor of the products and was not involved in the manufacturing or quality control processes of the products. Consequently, the Customer agrees that all legal warranties and guarantees are expressly excluded and that the products are supplied on the basis of the warranties and guarantees as provided by the original manufacturer of the products, supplier, reseller or distributor and the Customer shall not have any claim against Adstraction on the basis of warranty or guarantee. Where Adstraction manufactured any particular product, the then-current Adstraction warranty provisions shall apply to such product.
- For the purposes of this Agreement, "Intellectual Property" shall mean any rights to know-how (not in the public domain), invention (whether or not patented), design, trade mark, copyright material or plant breeder's rights, whether registered or not, anywhere in the world.
- The Parties agree that the Intellectual Property of the other shall remain that Party's exclusive property and that nothing in this Agreement shall constitute an assignment or license of the other Party's Intellectual Property.
- The Intellectual Property rights of deliverables provided by Adstraction, as part of any design service, shall exclusively vest in the Customer, however, the application of this clause 8.3 shall be suspended until the Customer has paid, in full, all the amounts owing to Adstraction for any services or products provided to the Customer.
- The liability of Adstraction in respect of any claims arising from, or in connection with, this Agreement, whether founded in contract or delict or otherwise in law, shall be limited to the direct losses or direct damages suffered and shall not include any liability for any indirect damages or losses of production or loss of profit, or any other consequential damages or losses.
- The liability of Adstraction hereto in respect of any claims arising from, or in connection with, this Agreement, whether founded in contract or delict or otherwise in law, shall be limited to the direct losses or direct damages suffered and shall be limited to the value of the transaction as reflected in the relevant order.
- Nothing contained herein shall limit Adstraction's liability for gross negligence or fraud.
- For purposes of this Agreement, "Confidential Information" means any confidential and/or proprietary information of the Disclosing Party to which the Receiving Party has, or obtains, access to in the course of, or arising from, this Agreement.
- Notwithstanding the cancellation or termination of this Agreement, for any reason whatsoever, the Parties (each a "Receiving Party") shall not, at any time after the conclusion of this Agreement, and without the prior written consent of the other Party (the "Disclosing Party"), disclose to any person or use in any manner whatsoever the Disclosing Party's Confidential Information, provided that the Receiving Party may disclose the Disclosing Party's Confidential Information: (a) to the extent required by law (other than in terms of a contractual obligation of the Disclosing Party), however, only after notice to the Disclosing Party, if permitted to do so; (b) to, and permit the use thereof by, its directors, employees, staff, agent, representatives, contractors, subcontractors, couriers and professional advisers to the extent strictly necessary for the purposes of implementing or enforcing this Agreement or obtaining professional advice, it being specifically agreed that any disclosure, or use, by any such director, employee, staff, agent, representative, contractor, subcontractor, courier or professional adviser of such Confidential Information, for any other purpose, shall constitute a breach of this clause 10 by the Receiving Party; (c) the provisions of this clause 10 shall cease to apply to any Confidential Information of a Party which: (i) is, or becomes, generally available to the public other than as a result of a breach by the Receiving Party of its obligations in terms of this clause 10; or (ii) is received by the Receiving Party from a third party who did not acquire such Confidential Information subject to any duty of confidentiality in favour of the Disclosing Party.
- The confidential undertakings contained in this clause 10 shall survive the termination of this Agreement and endure for a period of 5 (five) years thereafter.
- This Agreement, or the relevant order, may be terminated by: (a) the non-breaching Party 14 (fourteen) days from the other Party's receipt of a written notice from the non-breaching Party of any failure to perform, when due, any term or condition of this Agreement, unless such failure or performance is corrected to the reasonable satisfaction of the non-breaching Party within such period; or (b) the other Party upon the occurrence of the other Party's bankruptcy, liquidation or if placed under business rescue proceedings, whether voluntarily or by creditors, provisionally or finally.
- The Customer agrees that irreparable damage would occur if any of the undertakings recorded in this Agreement were not fully complied with or breached. The Customer, accordingly, agrees that Adstraction will be entitled to apply for, and be granted, an order for specific performance, in addition to any other remedy to which Adstraction may be entitled to in terms of applicable law including, without limitation, a claim for damages.
- Upon termination of this Agreement, for whatsoever reason, the Parties shall return to each other all copies of their respective Confidential Information, Intellectual Property or real property in their possession.
- Each Party shall be excused from performance in terms of this Agreement for any period, and to the extent, that it is prevented from performing any obligations pursuant to this Agreement, in whole or in part, as a result of a Force Majeure Event (as defined in clause 12.2). If either Party is prevented from, or delayed in, performing any of its obligations in terms of this Agreement by a Force Majeure Event, it shall promptly notify the other Party by telephone (to be confirmed in writing within 5 (five) days from the inception of the delay) of the occurrence of a Force Majeure Event and describe, in reasonable detail, the circumstances constituting the Force Majeure Event and of the obligations which are thereby delayed or prevented. Such Party shall also use commercially reasonable efforts to recommence performance whenever, and to whatever extent, possible without delay.
- Neither Party shall be liable for any default or delay in the performance of its obligations in terms of this Agreement if, and to the extent that: (a) such default or delay is caused, directly or indirectly, by fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, rebellions or revolutions in any country, strikes, labour action or unrest, pandemic, virus outbreak, government regulation or intervention, or any other cause beyond the reasonable control of such Party; (b) the non-performing Party is without fault in causing such default or delay; (c) such default or delay could not have been prevented by reasonable precautions; and (d) such default or delay cannot reasonably be circumvented by the non-performing Party through the use of alternate sources, workaround plans or other means. The obligations of the other non-affected Party shall also be suspended while the affected Party's obligations are subject to a Force Majeure Event.
- Should the Force Majeure Event exceed 30 (thirty) days, either of the Parties shall have the right to terminate this Agreement with immediate effect.
- Should any dispute, disagreement or claim arise between the Parties (the "Dispute") in connection with any matter relating to this Agreement, or which relates in any manner to any matter affecting the interests of the Parties in terms of this Agreement, its formulation or in connection with any further agreement resulting therefrom, the Parties shall provide written notice to the other Party of the Dispute. The Parties shall endeavour to resolve the Dispute amicably by referring the Dispute to the Senior Management of the Parties (the "Management Representatives") for negotiation and resolution. If negotiation fails and the Dispute is not resolved by the Management Representatives within 10 (ten) days from the aforementioned written notice, the Parties shall refer the Dispute for resolution by mediation under the rules of the Arbitration Foundation of Southern Africa or its successor organisation ("AFSA"). If mediation fails, the Parties shall refer the Dispute within 15 (fifteen) days for resolution by 1 (one) arbitrator, appointed by agreement between the Parties, as an expedited arbitration in Pretoria under the then current rules for expedited arbitration of AFSA. If the Parties are unable to agree on the arbitrator within a period of 10 (ten) days from the referral, the arbitrator will be appointed by the Secretariat of AFSA. Any decision resulting from such an arbitration shall be final and binding on the Parties and shall not be appealable, save in the event of manifest error. Nothing in this Agreement shall preclude any Party from seeking urgent, interim relief from any competent court pending the finalisation of the resolution process as set out in this clause 13. Notwithstanding the aforementioned, should the Dispute relate to fees incurred by a Party, either of the Parties may revert to any competent court for recovery of such fees without following the processes as stated in this clause 13. The undertakings contained in this clause 13 shall be severable from the remainder of the Agreement and shall survive the termination of the Agreement.
JURISDICTION AND GOVERNING LAW
- Subject to clause 13, the Parties irrevocably submit to the exclusive jurisdiction of the Pretoria Magistrate's Court. The Parties further agree that the Agreement will, exclusively, be governed by the laws of the Republic of South Africa.
DOMICILIA AND NOTICES
- The Parties choose as their domicilium citandi et executandi their respective addresses as set out in this clause 15 for all purposes arising from, or in connection with, this Agreement at which addresses all processes and notices arising from, or in connection with, this Agreement may validly be served upon or delivered to the Parties as follows: Adstraction at: 103 Reddersburg Street, Rooihuiskraal North, Centurion, 0157, South Africa; and the Customer: the address as reflected in the relevant order or such other address of which the Party concerned may notify the other Party in writing, provided that no street address mentioned in this clause 15 shall be amended to a post office box or poste restante.
- Any notice served in terms of this Agreement shall be in writing and shall, if delivered by hand, be deemed to have been duly received by the addressee on the date of delivery; or (b) if transmitted by email, be deemed to have been received by the addressee on the Business Day, defined as Monday to Friday in the Republic of South Africa, excluding any official South African public holidays, following the date of dispatch, unless the contrary is proven.
- Notwithstanding anything to the contrary contained or implied in this Agreement, a written notice or communication actually received by a Party from the other shall be adequate written notice or communication to such Party.
- In this Agreement, unless clearly inconsistent with, or indicated otherwise by, the context: (a) any reference to the singular includes the plural and vice versa; (b) any reference to natural persons include legal persons and vice versa; and (c) any reference to a gender includes the other genders.
- Clause headings in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of, nor modify nor amplify, its terms, nor any of its clauses. Any substantive provision in any definition in this Agreement which confers rights or imposes obligations on a Party shall, notwithstanding that it is only contained in a definition, be given effect to as if it were a substantive provision in the body of the Agreement. When a number of days are prescribed in this Agreement, they shall be calculated exclusively of the first and inclusively of the last day, unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next succeeding Business Day. Reference to days, months or years in this Agreement shall be construed as Gregorian calendar days, months or years. Where figures are referred to in numerals and in words, if there is any conflict between the two, the Parties agree that the words shall prevail. Any term defined within the context of any particular clause in this Agreement shall, unless otherwise determined by the context, bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that such term is not defined in the definition clause. Expiration or termination of this Agreement shall not affect such of its provisions as expressly provide that they shall continue to operate thereafter or which, of necessity, must continue to have effect thereafter, notwithstanding that the clauses themselves do not expressly provide for such continuation. In this Agreement, the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply. Any reference in this Agreement to a Party shall, if such a Party is liquidated, sequestrated or placed under business rescue proceedings, be applicable to, and binding upon, that Party's liquidator, trustee or business rescue practitioner, as the case may be. In this Agreement, the words "include", "including" and "in particular" shall be construed as being by way of example or emphasis only and shall not be construed, nor shall they take effect, as limiting the generality of any preceding words.
- Neither of the Parties shall cede, delegate, subcontract or assign, nor in any other manner, dispose of any of its rights or obligations arising from this Agreement, without the prior written approval of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the aforementioned, Adstraction may subcontract any of its obligations to third parties without notice or consent from the Customer. The Parties herewith give reciprocal undertakings to each other to act in good faith, to protect each other’s interests and to refrain from any statements or actions that may damage or bring into disrepute the good name or public image of the other Party. The Parties shall be deemed to be independent contractors and the personnel of a Party shall not be deemed to be personnel of the other Party. Subject to the limited mandate contained herein, neither of the Parties shall act as the agent of the other, and shall not have the authority, or represent that it has the authority, to bind the other Party or incur credit on its behalf. Nothing contained in this Agreement shall be interpreted as establishing a joint venture or partnership between the Parties. This Agreement contains the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements between the Parties, whether written or verbal, with respect to the subject matter of this Agreement. A failure to enforce or to require the performance, at any time, of any of the provisions of this Agreement shall not be construed to be a waiver of such provision and shall not affect either the validity of this Agreement, or any part hereof, or the right of any Party to enforce the provisions of this Agreement. No amendment, interpretation or waiver of any of the provisions of this Agreement shall be effective unless reduced to writing and signed by, or on behalf of, the Parties. Any provision of this Agreement which is, or becomes, unenforceable, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatsoever, shall, only to the extent that it is so unenforceable, be treated as pro non scripto (as if it has not been written) and the remaining provisions of this Agreement shall remain in full force and effect.