ONLINE TERMS AND CONDITIONS For DEBORAH GARTH INTERIOR DESIGN
INTERNATIONAL (PTY) LIMITED
Registration Number: 2017/354168/07 (the “Company”)
1.1. These terms and conditions are applicable to goods and services provided, and/or carried out and/or sold by Deborah Garth Interior Design International (Pty) Limited to its clients and prospective clients (“User”) and the User’s use and access to www.deborahgarth.co.za (“Website”);
1.2. In this Agreement, the Company and the User, collectively or individually, as the context may require, shall be referred to as “a/the Party/ies”.
1.3. The User wishes to view, and purchase Products of the Company and the Company wishes to sell its Products to the User;
1.4. The Parties wish to reduce the terms applicable to the Products to be provided by the Company to the User to writing;
1.5. The User, by virtue of ticking the box “I accept terms and conditions” agrees to and has accepted to be bound by the provisions of this Agreement.
2. Definitions and Interpretation
2.1. In this Agreement, unless otherwise stated or inconsistent with the context, the following terms shall bear the meanings ascribed to them in this clause:
2.1.1. “Agreement” means these terms and conditions;
2.1.2. “Confidential Information” shall mean in relation to the Company, any 2 information or materials in any form disclosed (whether verbally or in writing) or made available by the Company to the User that the User knows or has reason to know (either because such information is marked or otherwise identified by the Company as confidential or proprietary, or information that the User should reasonably be aware that it is of a confidential nature, which has commercial value, or because it is not generally known in the relevant trade or industry), and shall include, but is not limited to:
(a) The current, future and proposed Products as well as financial, technical, research, operational, sales, know-how and marketing information related thereto, supplier identity and information;
(b) Intellectual Property Rights, trademarks, copyrights, ideas, inventions, data, software, technical information and works of authorship;
(c) Trade secrets, business operations, business plans, business forecasts, strategies, intentions, budgets, prices and costs, financial affairs and statements, research sales and distribution arrangements and the identity of its service providers and suppliers; and
(d) any information regarding the skills, compensation and identity of employees, contractors or service providers of the Company;
(e) any information as mentioned in items (a), (b), (c), and (d) above disclosed by the Company to the User prior to the Effective Date.
Confidential Information shall not include information that:
(a) Was in the public domain at the time it was disclosed such time through no fault of the User;
(b) Was in the User’s possession free of any obligation of confidence at the time of disclosure by the Company; or
(c) Was rightfully communicated to the User free of any obligations of confidence subsequent to the time of disclosure by the User;
2.1.3. “Effective Date” means the date upon which this Agreement comes into full force and effect on its terms which shall be the date on which the User accepts the terms of this Agreement on the Website by virtue of ticking the box “I accept terms and conditions”. The Parties record that the User would be unable to access the Website or place an order for Products in the event that these terms 3 and conditions are not agreed to;
2.1.4. “Fee” means the fee payable by the User to the Company for the Products provided by the Company, which Fee shall be detailed on the Website and payable by the User in advance and prior to delivery;
2.1.5. “Intellectual Property” means copyright and all other intellectual property (including without limitation, patents, trademarks, service marks, domain names, database rights, trade secrets, design rights, know-how, trade and business names, industrial rights and other similar protected rights in any country (whether registered or unregistered) owned by the Company, including such rights over the Service and the Products;
2.1.6. “Product/s” means all goods made available to be viewed and/or purchased by the User on the Website from time to time;
2.1.7. “Service” means the User’s use and access to the Website;
2.1.8. “Website” means the web page created by the Company accessed through the web address: www.deborahgarth.co.za, which will enable the user to view and purchase the Products.
2.2. General interpretation
2.2.1. words importing:
184.108.40.206 any one gender includes the other gender and the neuter;
220.127.116.11 the singular includes the plural and vice versa; and
18.104.22.168 natural persons include created entities (corporate or unincorporated) and vice versa;
2.2.2 Any reference in this Agreement to “date of signature hereof” shall be read as meaning a reference to the date of the last signature of this Agreement;
2.2.3 When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday;
2.2.4 Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail;
2.2.5 The expiry or termination of this Agreement shall not affect such of the provisions 4 of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;
2.2.6 The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of the Agreement, shall not apply;
3. TERMS OF THIS AGREEMENT
3.1. In consideration for any Product in terms of this Agreement, the User will pay to the Company the Fee.
3.2. The Fee payable by the User will be the Fee as detailed on the Website at the date of placing an order for any Product.
3.3. The Company reserves the right to amend the Fee applicable to any Product from time to time in its sole discretion.
3.4. It is specifically agreed that all Products are subject to availability and the Company retains the right to reject any order made by a User.
3.5. The Company shall do all it reasonably can to ensure all Products are delivered to the User within a reasonable time but can in no way guarantee same. In this regard, the Company shall be entitled to reasonably extend the delivery period by advising the Client accordingly;
3.6. Delivery of Products will only take place once the Fee has been paid to the Company in full;
3.7. The User shall pay the Company by way of direct electronic transfer into the nominated bank account of the Company as detailed on the Website or as otherwise advised by the Company from time to time;
3.8. Once an order has been processed and paid for, the User may not cancel the order.
3.9. The User shall be required to return the Product to the Company within 7 (seven) calendar days from receipt of the Product in the event that the Customer believes a Defect exists.
3.10. The Company shall have the right to inspect any Product over a period of 3 (three) calendar days from the User returning the Product to ascertain whether a Defect exists. To this end, the Company shall, at its election, (i) inform the User that no Defect exists and oblige the User to collect same, or (ii)
reimburse the User the Fee, 5 or (iii) provide the User with a substitute Product.
3.11. The User specifically agrees that the delivery of Products is at the sole risk of the User and the Company is in no way liable for any loss or damage caused as a result of the acts or omissions on part of any contractors utilised to affect such delivery;
3.12. Pictures displayed on the Website are for illustrative purposes only and any specifics or dimensions should be queried with the Company;
3.13. The Company in its sole discretion, may amend any of these terms and conditions from time to time and the User agrees that it shall regularly inform themselves of such.
4. Obligations and Restrictions of the User
4.1. Shall make payment of the Fee without any deduction or set-off of any nature whatsoever, into such bank account as may be nominated by the Company in terms of this Agreement;
4.2. Agrees that it shall not utilise, copy, reproduce or pass off any Intellectual Property and that such action shall be deemed to be a material breach of this Agreement;
4.3. Agrees that no device, software or other instrument will be used to interfere or attempt to interfere with the working of the Website. In addition, the User agrees that the Website will not be used for any means involving the copying, distributing or modifying any Intellectual Property for personal gain or for the gain of another 3rd party;
4.4. Agrees that the contents of the Website, including any material, information, data, software, icons, text, graphics, lay-outs, images, sound clips, advertisements, video clips, trade names, logos, trade-marks, designs and service marks which are displayed on or incorporated in the Website are protected by law and are the property of the Company.
5. Confidentiality and intellectual property
5.1. The User acknowledges that the Confidential Information, Intellectual Property and all other content relevant to the Service and the Products shall be and remain the sole, exclusive property of the Company, and that the User has and shall obtain or 6 retain no right, title or interest therein in terms of this Agreement.
5.2. The purchase of any Product shall not transfer any Intellectual Property rights or license to the User will be and shall remain the exclusive property of the Company.
5.3. The User acknowledges and agrees:
5.3.1. That this confidentiality clause shall be binding upon it, all persons in possession of such as a result of the User;
5.3.2. Not to make use of the Confidential Information or Intellectual Property other than for the performance of its obligations in terms of this Agreement;
5.3.3 Not to use or exploit the Confidential Information or Intellectual Property for its commercial benefit or derive any financial benefit of the same or that of any 3rd party;
5.3.4 To release the Confidential Information or Intellectual Property only to those persons who are required to know same and not to release or disclose the Confidential Information to any other party other than contemplated in this Agreement;
5.3.5 That no copies or extracts, regardless of the format, manner or medium in which Confidential Information or Intellectual Property may be retained, stored or reproduced except to the extent required by law.
5.4. Further, the User acknowledges and agrees that the disclosure of the Confidential Information to any unrelated third party shall be unlawful and in breach of this Agreement unless or until the User can reasonably demonstrate that the Confidential Information (or the relevant portion thereof):
5.4.1. Is already in the public domain through no fault of its own;
5.4.2. Has been lawfully obtained from any third party who/which was under no obligation to keep such communication, information or material confidential;
5.4.3. Is already lawfully known to it at the time that it receives such information (and the User is under no prior obligation to keep such information confidential); or
5.4.4. Is disclosed by it to satisfy the Order of a Court of competent jurisdiction or the demand or direction of a governmental or regulatory body, or to comply with the provisions of any law or regulation in force from time to time, provided that in these circumstances the User shall:
22.214.171.124. Disclose only that portion of the Confidential Information which it is 7 legally required to disclose;
126.96.36.199. Undertake to protect the confidentiality of such Confidential Information to the fullest extent practicable.
5.5 The User undertakes to indemnify and keep indemnified the Company (without limitation) all losses, damages, costs, expenses, claims, demands and other liabilities of whatsoever nature arising as a direct result of any use or disclosure of Confidential Information in breach of this Agreement.
5.6 The obligations contained in this clause shall endure, even after the termination of this Agreement for whatever reason.
6.1. Should the User (“Defaulting Party”) commit a material breach of any provision of this Agreement and fail to remedy such breach within 10 (ten) days after receiving written notice from the Company (“Aggrieved Party”) requiring the Defaulting Party to do so, then the Aggrieved Party shall, without prejudice to its other rights in law, be entitled to cancel this Agreement and claim damages from the Aggrieved Party.
6.2. The User acknowledges and agrees that in the event that the terms of this Agreement are breached by it, damages may be an inadequate remedy and other relief including interdicts and specific performance may be appropriate remedies for the enforcement of this Agreement.
6.3. Notwithstanding the provisions above, in the event of default of any term of this Agreement by the User, the Company shall retain the right (in its sole discretion) to suspend or restrict the access of the User to the Website.
7. Dispute Resolution
7.1 The Parties agree that they shall endeavor to resolve all disputes between them and if not resolved, the Parties agree that such dispute shall be resolved and determined by a single mediator appointed by The African Institute of Interior Design Professions in consideration of the Company’s membership of same;
7.2 Should mediation fail, any dispute arising from or in connection with this Agreement shall be finally resolved in accordance with the Arbitration Act 42 of 1965;
7.3 The arbitrator shall be appointed by the Parties and failing agreement on the 8 person of such arbitrator, within ten days (10) from the dispute being declared, the Legal Practice Council, Gauteng shall appoint such party on request of either Party;
7.4 The Parties agree that the arbitration shall be held in Johannesburg in terms of the procedure nominated by the appointed arbitrator with the view of same being concluded as soon as practically possible, with costs being awarded at the discretion of the arbitrator.
8. Force majeure
A Party shall not be liable for any loss suffered by any other Party arising out of delay in or prevention of performance of the Party’s obligations due to any cause as a result of force majeure, the adverse effects of which the Party could not and cannot reasonably and practicably avoid in the ordinary conduct of the Party’s business.
9. Limitation of Liability
9.1. The User indemnifies the Company for any third-party claims against it relating to any breach by the Customer of this Agreement;
9.2. The User understands that the Service is reliant on the network, the Company accepts no liability in the event that the Service is not operative as a result of the network;
9.3. The User shall have no claim, and hereby indemnifies the Company, its agents, contractors and employees from and against any and all claims, liability, damage, loss or expense, which may arise out of providing the Service;
9.4. The Company may not in any way be held liable for any loss or damage arising from any act or omission relating to the Products provided to the Client from the Company or its suppliers / contractors;
9.5. The Company may not be held liable for any patent or latent defects of goods or services supplied by any other suppliers or third-party contractors.
If any provision of this Agreement or the application of any provision of this Agreement to 9 either Party shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such provision shall be deemed severed here from and the remainder of this Agreement shall remain in full force and effect.
11. Waiver of remedies
No indulgence by any Party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that Party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for any Party be exclusive of any other right, power or remedy available to that Party and each such right, power or remedy shall be cumulative.
Save as expressly provided for in this Agreement, each Party acknowledges and accepts that the other Party may not assign or otherwise transfer this Agreement or any of its rights and obligations hereunder whether in whole or in part with the non-assigning Party’s prior written consent.
13. Entire agreement
This Agreement supersedes all prior agreements, arrangements and understandings between the Parties and constitutes the entire agreement between the Parties relating to the subject matter hereof. No addition to or modification of any provision of this Agreement shall be binding upon the Parties unless signed by a duly authorised representative of each of the Parties.