These Terms are binding on all persons who access the Website without qualification or exception. By entering the Website or ordering products from the Merchant, the User agrees to be bound by and shall be deemed to have accepted these Terms, which the User acknowledges to have read and understood. If the User does not agree to any of the Terms, the User should not enter, view or make use of the Website.
2.1 Unless the context indicates otherwise, the words and expressions below shall bear the following meanings and similar expressions shall bear corresponding meanings:
2.1.1 “Business Day” shall mean any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa;
2.1.2 “Intellectual Property” shall mean all intellectual property subsisting in, pertaining to or used on the Website including, without limitation, patents, inventions, copyright, trademarks, goodwill and/or trade secrets;
2.1.3 “Merchant” shall mean the close corporation (Registration number: 2008/18076/23) trading as MaXhosa by Laduma a close corporation incorporated in accordance with the laws of the Republic of South Africa
2.1.4 “Parties” shall mean the User and the Merchant and “Party” shall, as the context requires, be a reference to any one of them;
2.1.5 “Terms” shall mean these terms and conditions;
2.1.6 “User” shall mean the user of the Website in terms of these Terms;
2.1.7 “VAT” shall mean value added tax imposed in terms of the Value Added Tax Act, 1991, including any similar tax which may be imposed in place thereof from time to time; and
2.1.8 “Website” shall mean the website located at www.maxhosa.co.za and includes any part or element thereof.
The Merchant discloses the following information:
3.1 Full name and legal status: Shugaz Fashion and Textile CC is a close corporation with limited liability duly incorporated under the laws of the Republic of South Africa.
3.2 Physical address: 4 Mdubi Street, Kwadwesi, Port Elizabeth, 6201
3.3 Postal address: 4 Mdubi Street, Kwadwesi, Port Elizabeth, 6201 Telephone number: +27114921532
3.4 Website address: www.maxhosa.africa
3.5 E-mail address: info@maxhosa.africa
3.6 Physical address where the Merchant will receive legal service of documents: Physical address as per clause 3.2 above.
3.7 Registration number: 2008/180976/23.
3.8 Vat number: 4720263831
3.9 Place of registration: Republic of South Africa.
3.10 Registration date: 21 August 2008.
3.11 Names of office bearers: Laduma Ngxokolo.
3.12 Main description of products sold: Knitwear and clothing.
4.1 Only persons aged 18 years and over, who are legally entitled to do so, are permitted to place orders on the Website.
4.2 Before proceeding to finalise any order the User will be given an opportunity to review and, if required, correct the contents of the User’s order as well as any information or addresses provided. Upon finalising this process, notification thereof will be sent to the Merchant and the User’s order will only be deemed to be accepted once the Merchant has processed such order and sent the User a confirmatory email.
4.3 The products described or graphically represented on the Website may differ in colour, shape, form, design, contents and appearance from the final product delivered.
5.1 Orders will only be shipped once the Merchant has received full payment of the full, cleared purchase price for the goods and all charges and costs relating to the products.
5.2 Unless otherwise agreed or stipulated in the User’s order or on the Website, the User’s order will be delivered by the courier company specified by the Merchant, to the address provided by the User during the order process. The User must ensure that someone will be available at the delivery address during Business Hours (between 08:00 and 17:00 on Business Days) in order to received delivery of the products. The User will be responsible for any additional fees that may be charged by the courier if no one was available to receive delivery of the order at the address specified by the User.
5.3 The Merchant will make an effort to ensure that delivery takes place within the time period specified on the Website in relation to the User’s order. However, the size and quantity of an order as well as the distance between the Merchant and the delivery address provided, amongst other circumstances, may require a longer period for delivery. The User will be notified from time to time of any anticipated delays with delivery and, in such circumstances, the updated delivery time will substitute and take preference over the delivery time stipulated in the confirmatory email or reflected on the Merchant’ invoice.
5.4 The User acknowledges that the Merchant shall rely on the accuracy of the delivery address as provided by the User. The Merchant does not verify the accuracy of any particulars of a delivery address provided by the User. The User shall check the accuracy of the delivery address every time when placing an order. The Merchant shall not be liable for any costs, loss, damages or claims incurred by the User relating to an inaccurate or incorrect delivery address provided by the User.
5.5 Ownership of products ordered will pass to the User upon the Merchant receiving full payment for such products. Risk in respect of ordered products will pass to the User once they have been collected from the Merchant’s premises by the relevant courier. However, orders are covered by the courier’s insurance, subject to the terms and conditions of such insurance.
6.1 The User is entitled to cancel an order within 7 (seven) Business Days after receiving delivery thereof, provided that the product is in its original condition and any and all packaging, labels, shrink-wrap and/or boxing remains intact.
6.2 Any product returned must be accompanied with the User’s proof of payment in respect of such product. The product must be returned via courier to the Merchant’s physical address specified in clause 3.2 above.
6.3 If a product is returned in terms of clause 6 to the address stipulated in clause 6.2 the Merchant will, following receipt and examination of such product, reimburse the User with the purchase price paid by the User for the product, excluding any applicable delivery costs and/or charges.
6.4 No provision stated in these Terms regarding the Merchant’s cancellation and returns policy will affect or be interpreted to deny the User any of his unalterable statutory rights.
7.1 The products and prices stated on the Website are only valid while stocks last. All prices shall only apply during the validity period stated on the Website. The Merchant will in no way be held liable to provide a product at an expired price or where the product concerned is no longer in stock or available.
7.2 All prices quoted on the Website are listed in South African Rands (ZAR) and, unless otherwise stated, will be exclusive of VAT, any other applicable taxes and delivery charges.
7.3 Delivery charges, fees and other related costs will be quoted and added to the total amount owing during the order process.
7.4 Under no circumstances will the Merchant be held liable to provide a product which is out of stock or at an outdated or expired price.
8.1 Credit card transactions will be acquired for the Merchant via PayGate (Pty) Ltd who are the approved payment gateway for Standard Bank of South Africa. PayGate uses the strictest form of encryption, namely Secure Socket Layer 3 (SSL3) and no credit card details are stored on the website. Users may go to www.paygate.co.za to view their security certificate and security policy. Electronic funds transfer (EFT) may be made into MaXhosa by Laduma’s bank account, the details of which will be provided on request. User’s details separate from card details Customer details will be stored by the Merchant separately from card details which are entered by the client on PayGate’s secure site. For more detail on PayGate refer to www.paygate.co.za.
8.2 To the extent permitted by law, the Merchant shall not be liable to the User for damage or loss suffered or incurred by the User relating to the actions or omissions of third party payment gateways.
8.3 Notwithstanding any other clause contained in these Terms, the Merchant shall have no duty to deliver any product until the User’s payment has been cleared by the relevant bank and has been credit and becomes available in the Merchant’s bank account.
8.4 The User’s Order will be cancelled immediately where payment by credit card is not processed by the relevant bank and credited to the Merchant’ bank account within 48 (forty eight) hours of the time of placement of such order. The Merchant shall send a notification of such cancellation to the User via email to the address provided by the User when the User registered on the Website.
9.1 Except to the extent provided for by the CPA, the Merchant makes no warranties or representations in respect of products sold to Users.
9.2 Except to the extent that section 61 of the CPA applies, the Merchant shall not be liable for any damages, injury, loss, cost or expense suffered or incurred by Users as a result of products sold by the Merchant.
9.3 To the extent permitted by law, the User indemnifies and holds the Merchant, its officers, employees, agents and contractors harmless against all claims, liability, injury, losses, costs, expenses and penalties arising from or related to the products sold by the Merchant or the use of such products.
10.1 The User makes use of this Website at his own risk.
10.2 The Website and all information, content, materials and services included or otherwise made available to the User therein are provided on an “as is” and an “as available” basis. the Merchant makes no warranties or representations of any kind, express or implied, as to the operation of this Website or the available information, content, materials or services included on or otherwise made available to the User.
10.3 To the extent permitted by law, the liability of the Merchant for losses suffered as a result of any breach of these Terms shall be strictly limited to the purchase price of the product or products purchased by any User.
10.4 Notwithstanding anything to the contrary contained in these Terms, the Merchant shall have no liability for any loss, damage, cost, claim or penalty of whatsoever nature including, but not limited to, indirect and consequential loss or damage and loss of profits, however arising out of or in connection with these Terms or the Website, whether caused by latent or patent defects in the Website, the use of the Website and/or information contained on the Website or otherwise.
10.5 The User assumes all responsibility and risk for the use of the Website. The User hereby indemnifies the Merchant and holds it harmless against any and all liability, loss, damage, penalty, cost or claim of any nature whatsoever suffered by him or any third party in relation to any act or omission by the User or, where applicable, the User’s shareholders, members, directors, officers, employees, representatives, agents or assigns or any third party in relation to the Website and the use thereof by the User, and/or arising from the provisions of these Terms.
10.6 The Merchant will not be held liable for any delay, failure, breach or non-compliance with its obligations under these Terms if such delay, failure, breach or non-compliance is beyond the reasonable control of the Merchant.
10.7 These Terms do not intend to, nor shall they be interpreted to, limit the liability of the Merchant in any way which would be illegal for the Merchant to exclude or attempt to exclude or where such exclusion is prohibited by the Consumer Protection Act, 2008 or the Electronic Communications and Transactions Act, 2002, or any other law in force from time to time in the Republic of South Africa.
11.1 The User may not use, reproduce, adapt, distribute, publish or in any other way deal or interfere with the Website’s contents without the prior written consent of the Merchant.
11.2 The Merchant reserves the right to make any changes to the Website, its content and/or services offered through the Website at any time and without prior notice.
11.3 Content published on the Website reflects the views of the author and does not necessarily constitute the official opinion of the Merchant unless otherwise stated.
11.4 The Website may contain links to other websites. the Merchant has no control over such websites, does not review their content and will not be liable for their content or accuracy. The User accesses such websites at the User’s own risk and discretion.
11.5 The User may not link to this Website without the Merchant’s prior consent.
11.6 If the User commits any breach of these Terms or in any other way interacts with or uses the Website in an unlawful or unauthorised manner, the Merchant shall be entitled, in its sole and absolute discretion, to terminate the User’s access to the Website immediately, without prior notice, without any liability on the Merchant’s part and without prejudice to the Merchant’s rights in terms of these Terms or at law. Following such termination, the User will forfeit the right to link to this Website as described in clause 11.7.
11.7 The Merchant is hereby indemnified from and against any and all loss by any person, which results from a breach of these representations or warranties.
12.1 The Merchant may from time to time process information about the User. The User acknowledges that by using the Website and placing any orders, the User consents to any processing or storage of such information and warrants that any and all data provided is up-to-date and accurate.
12.2 The User consents to the Merchant processing and using the User’s Information in order for the Merchant to send communications to the User, including newsletters, marketing material and information about the Merchant’s products and promotions.
13.1 If the User chooses or is provided with identification codes, usernames, passwords or any similar form of identification information as part of the Website’s security systems, such User must keep this information secret and confidential and must not permit anyone else to use it. The User shall be responsible for all access to the Website with the User’s username and password. When the User’s username and password have been used in order to gain access to the Website, the Merchant shall be entitled to assume that such use and all related communications emanate from the User. The Merchant shall not be liable for any loss or damage arising from unauthorised use of the User’s identification information.
13.2 In the event that the User becomes aware of a breach of the confidentiality of the User’s username and password, the User must immediately communicate this to the Merchant with subsequent confirmation in writing. The compromised username and password will be deactivated as soon as reasonably possible and a new username and password will be issued to the User. the Merchant may, in its sole and absolute discretion and for any reason whatsoever, require the User to change his username and password at any time.
14.1 Any commentary, advice, information, suggestions, opinions, answers or any other information posted on the Website is not intended to nor shall it be interpreted to amount to advice on which reliance should be placed and are posted merely for guidance purposes only. The User makes use of any such information at his own risk and in his own discretion and disclaims and indemnifies the Merchant from and against any and all liability and responsibility arising from any reliance placed on such information whether posted on the Website or by any other person visiting the Website.
14.2 Although every effort will be made to have this Website available at all times, the Website may become unavailable due to maintenance or repairs, loss of connectivity or some other form of interruption. The Merchant does not warrant against nor will it be held liable for such downtime and is hereby indemnified from any loss, damage, claims, costs or penalties incurred as a result of such unavailability.
15.1 The Website is owned by the Merchant and the User acknowledges that the Merchant and/or its licensors are the proprietors of any and all Intellectual Property associated with, related to or appearing on the Website.
15.2 The content of the Website is protected by South African and international law. The owners of such content reserve all such rights therein unless provided otherwise in these Terms.
15.3 The User may not use or copy any of the Intellectual Property or any other intellectual property, content or material on the Website without the Merchant’s prior written consent.
16.1 The User shall not infect the Website with viruses, worms, trojan horses or any other code that has malicious, contaminating or destructive properties nor shall the User damage, interfere with or intercept any data or information contained on the Website.
16.2 Although the Merchant and its representatives will use reasonable efforts to ensure that no malicious content can be received from the Website, the Merchant does not warrant that the Website is free of malicious content or viruses and the Merchant will not be held liable for any loss resulting from a distributed denial-of-service attack, or any malicious content which may infect any User’s computer or device, computer equipment, data or any other propriety material where such loss is or may be attributed to the User’s use of the Website or downloads received from the Website.
16.3 The User warrants that he will not use the Website in any manner that will break any law or cause any annoyance, unnecessary anxiety or inconvenience to any person.
17.1 Each Party chooses the addresses set out opposite its name below as its addresses to which all notices and other communications must be delivered for the purposes of these Terms and its domicilium citandi et executandi (“Domicilium”) at which all documents in legal proceedings in connection with this Agreement must be served:
17.1.1 The Merchant: As per clause 3:
17.1.2 The User: As per the address supplied when the User registered as a user of the Website.
17.2 Any Party may by written notice to the other Parties, change its chosen address, telefax number or e-mail address to another address, telefax number or e-mail address.
18.1 If at any time there is a failure by the Merchant to insist on strict performance of any of the User’s obligations under these Terms and related contracts, this shall not be construed to be a waiver of such rights and shall not relieve the User from compliance with such obligations. A waiver of any one default is not to be interpreted as a condemnation of any other or further defaults.
18.2 The Merchant reserves the right to amend or delete any part of the Website, the related Terms and/or Privacy Policy at any time and without prior notice. The User warrants that he will review the Terms on a continual basis and remain up-to-date in respect of any changes.
18.3 Any and all communications between the Parties, whether legal or merely for notification purposes, correspondence or for any other reason will only satisfy any legal requirement if it is reduced to writing whether electronic or otherwise.