ONLINE TERMS AND CONDITIONS OF SALE
`FULL THROTTLE(Full Throttle Trading CC)’
ONLINE TERMS AND CONDITIONS OFSALE
Unless otherwise expressly stated, or the context otherwise requires, the words and expressions listed below shall, when used in this Agreement, including this definitions clause, bear the meanings ascribed to them:
1.1. "Full Throttle" means Full Throttle Trading CC, a private company duly registered in accordance with the laws of the Republic of South Africa and with registration number(CK19986543323)
1.2. “Full Throttle Store” means the Full Throttle retail outlet situated at 123 Van Riebeeck Avenue, Edenvale, Johannesburg;
1.3. “Full Throttle On-Line Store” means the online retail store developed by Full Throttle and located at www.fullthrottle.co.za;
1.5. “Courier” means the third party courier contracted by Full Throttle on behalf of the Customer to deliver the Products purchased to the Customer;
1.6. "CPA" means the Consumer Protection Act 68 of 2008, as amended from time to time;
1.7. "Customer" means the person who purchases the Products from the Full Throttle On-Line Store and shall include any ultimate end user of the Products;
1.8. “ECT Act” means the Electronic Communications and Transactions Act 25 of 2002, as amended from time to time;
1.9. “EFT” means electronic funds transfer;
1.10. “Intellectual Property” means all copyright, trademarks, designs, patents and the like recognised as a class of intellectual property;
1.12. “Personal Information”means information about an identifiable individual as defined more fully in the Promotion of Access to Information Act 2 of 2000;
1.13. “Price” means the price quoted by Affliction on its Website which is payable by the Customer in return for the Products purchased by him/her from Affliction;
1.14. "Products" mean all items including services presently being sold or supplied online by Full Throttle including, but not limited to clothing, motorcyclewear, accessories and apparel, helmets, footwear, and other accessories aswell as tyres and spares.
1.15.“VAT” means Value-Added Tax payable in terms of the VAT Act;
1.16.“VAT Act” means the Value-Added Tax Act 1991, as amended;
1.17. “Website” means Full Throttle’swebsite located at http://www.fullthrottle.co.za.
2. SCOPE OF THE AGREEMENT AND APPOINTMENT
2.1. Full Throttle carries on business in, inter alia, the sale of the Products to customers throughout South Africa;
2.2. The Customer requires the Products and Full Throttle shall sell and supply the Products to the Customer in accordance with the terms and conditions contained in this Agreement.
3. PURCHASE AND SALE OF THE PRODUCTS
3.1. The Parties shall be bound by this Agreement in all transactions relating to the purchase and sale of the Products through the Full ThrottleOn-Line Store;
3.2. The Parties agree that:
3.2.1. Full Throttle shall only sell its Products to the Customer at the Customer’s specific instance and request; and
3.2.2. Full Throttle shall advise the Customer of the Price of the Products on its Website and shall issue the appropriate invoice in this regard once the Customer orders the Products.
4. CUSTOMER’S RIGHT TO CHOOSE OR EXAMINE PRODUCTS
4.1. The Customer agrees to purchase the Products solely on the basis of a photograph and description thereof, provided by Full Throttle. Full Throttle agrees that the Products delivered to the Customer must in all material respects and characteristics correspond to that which an ordinarily alert Customer would have been entitled to expect, based on the photograph and/or description of the Products on the Website, as the case may be;
4.2. Despite what is stated above the Customers acknowledges that:
4.2.1. All features, content, specifications, Products and Prices described or depicted on the Website are subject to change from time to time;
4.2.2. All measurements, weights, colours and similar descriptions are approximate and are provided for convenience purposes only;
4.2.3. While Full Throttle makes all reasonable efforts to accurately display the attributes of the Products, including the applicable colours, the colour which is displayed on the Customer’s computer monitor will depend on his/her computer system and Full Throttle cannot guarantee that the Customer’s computer shall accurately display such colours;
4.2.4. The inclusion of any Products or services on the Web Site at a particular time does not imply or warrant that these Products or services will be available at any time.
4.3. Full Throttle undertakes to advertise the quantities of Stock available for sale via its Website.
5. CUSTOMER’S RIGHT TO CANCEL AN ORDER
5.1. Subject to clauses 5.2 and 5.3 below, the Customer has the right to cancel any advance order for any Products;
5.2. If Full Throttle accepts an order to supply Products it may impose a reasonable charge for cancellation of the order, subject to clause 5.4 below.
5.3. For purposes of this clause, a charge is unreasonable if it exceeds a fair amount in the circumstances, having regard to:
5.3.1. The nature of the Products that were ordered;
5.3.2. The length of notice of cancellation provided by the Customer;
5.3.3. The reasonable potential for Affliction, acting diligently, to find an alternative Customer between the time of receiving the cancellation notice and the time of the cancelled booking or order; and
5.3.4. The general practice of the industry.
5.4. Full Throttleaccepts that it may not impose any cancellation fee in respect of an order if the Customer is unable to honour the order because of the death or hospitalisation of the Customer.
6. PRICES AND PAYMENT
6.1. All Prices quoted by Full Throttleon its Website include VAT and are subject to change, which changes shall be effected in Full Throttle’ sole discretion;
6.2. The Customer may effect payment in return for any Products purchased by him/her only by EFT, or using a credit, cheque or debit card, or a gift certificate issued by Full Throttle;
6.3. The Products shall only be despatched for delivery to the Customer once Full Throttle has received confirmation from its clearing agent that the amount due has been paid and has been received into Full Throttle’s bank account;
6.4. Only in the event of the use of a gift certificate can more than 1 (one) payment type be used to complete an order and in this instance the Customer is entitled to top up the payment with a credit, cheque or debit card, or via EFT;
6.5. The following additional conditions apply to gift certificates:
6.5.1. The value thereof is redeemable for Products only and is not redeemable for cash;
6.5.2. The gift certificate shall not expire until the earlier of:
188.8.131.52. The date on which its full value has been redeemed in exchange for Products; or
184.108.40.206. 3 (three) years after the date on which the gift certificate was issued, or at the end of a longer or extended period agreed by Full Throttle at any time.
6.5.3. Full Throttleaccepts no responsibility in the event that due to an error or oversight on the part of the Customer, or for any other reason, the gift certificate is used by an unauthorised third party.
6.6. Full Throttle shall not extend any credit to the Customer;
6.7. The provisions contained in this clause 6 are subject to Full Throttle's agreements with its bankers and its outsourced financial transactions service provider.
7.1. Upon receipt of payment the Products purchased by the Customer shall be delivered by the Courier to the physical address elected by the Customer, which address shall be located within South Africa and shall be specified by the Customer hen placing the order;
7.2. The Products purchased shall be delivered within approximately 10 working days, depending on the location of the delivery address elected by the Customer;
7.3. The Courier shall at all times be and remain the Customer's agent for purposes of this Agreement;
7.4. Full Throttle shall, on request, allow the Customer a reasonable opportunity to examine the Products upon delivery, for the purpose of ascertaining whether the Customer is satisfied that the Products are of a type and quality reasonably contemplated and meet the tests set out in clause4 above;
7.5. The Customer shall be deemed to have accepted delivery of the Products on the earliest of the following circumstances:
7.5.1. When the Customer, or his or her representative expressly or implicitly communicates to Full Throttle that he/she has accepted delivery of such Products; or
7.5.2. When the Products have been delivered to the Customer, and:
220.127.116.11. The Customer does anything in relation to the Products that would be inconsistent with Full Throttle’s ownership of the Products; or
18.104.22.168. After the lapse of a reasonable time the Customer retains the Products without intimating to Affliction that the Customer has rejected delivery of them, subject to clause7.4 above.
7.6. Although reasonable care shall be taken, Full Throttle accepts no responsibility whatsoever for incorrect delivery details provided by the Customer or in the event that an unauthorised person accepts delivery of the Products at the physical address elected by the Customer and the Customer expressly indemnifies Full Throttle against any damage or loss occasioned by delivery to an unauthorised person;
7.7. In the event of short delivery the Customer shall forthwith upon delivery:
7.7.1. Endorse Full Throttle's copy of the delivery note specifying details of the short delivery; and
7.7.2. Thereafter and within no more than 7 (seven) days after delivery of the Products, the Customer shall lodge a claim with Full Throttle in respect of the alleged short delivery.
7.8. In the event that the Products delivered are damaged or defective the Customer shall forthwith upon delivery:
7.8.1. Endorse Full Throttle's copy of the delivery note detailing the damage or defects to the Products; and
7.8.2. Thereafter and within no more than 7 (seven) days after delivery of the Products, the Customer shall notify Full Throttle of such damage or defects, following which the provisions of clause 9 below shall be followed if applicable.
7.9. On compliance by the Customer with the provisions of clauses 7.7 and 7.8 above, the provisions of clause 9 below shall become applicable;
7.10. In the event that the Courier fails to deliver the Products to the Customer’s duly elected physical address as a result of no fault of the Courier, after making 2 (two) separate attempts in this regard, the Products shall be returned to Full Throttle and the sale shall be cancelled, where after the provisions of clause 9 below shall apply;
7.11. For purposes of this clause, "Full Throttle" shall include the Courier as well as anyaffiliate, agent or independent contractor who may effect delivery of the Products on behalf of Full Throttle, or Full Throttle itself.A courier fee will be calculated based on both weight and size of the product as well as the final delivery address, and added to the order request before being sent to the customer for approval.
8. OWNERSHIP AND RISK
Ownership and risk in the Products shall only pass from Full Throttle to the Customer upon receipt of payment of the full purchase price by Full Throttle and upon delivery of the Products to the Customer.
9. RETURNS AND REFUNDS
9.1. This clause is in addition to and not in substitution for any other right in law between Full Throttle and the Customer to return the Products and receive a refund;
9.2. Subject to clauses 9.3 to 9.6 below, the Customer may return the Products to Full Throttle and receive a full refund of any consideration paid for the Products, if Full Throttle has delivered Products intended to satisfy a particular purpose communicated to Full Throttle and if within 10 (ten) Business Days after delivery to the Customer, the Products have been found to be unsuitable for that particular purpose;
9.3. Clause 9.2 above does not apply with respect to any Products, if after having been supplied to, or at the direction of the Customer:
9.3.1. For reasons of public health or otherwise, a public regulation prohibits the return of those Products to Full Throttle once they have been supplied to, or at the direction of, the Consumer; or
9.3.2. The Products have been worn, partially or entirely disassembled, physically altered, joined or added to, blended or combined with, or embedded within, other products or property.
9.4. Products returnable in terms of clause 9.2 abovemust be returned to Full Throttle at Full Throttle’s risk and expense, within 10 (ten) Business Days after delivery to the Customer;
9.5. Upon return of any Products in terms of this clause Full Throttle must refund to the Customer the Price paid for the Product, less any amount that may be charged in terms of clause 9.7 below, after having been afforded an opportunity to inspect the Products returned;
9.6. In determining the right of Full Throttle to impose a charge contemplated in clause 9.5 above, if any Products returned to Full Throttle in terms of this clause are:
9.6.1. In the original unopened packaging with all tags and labels attached, Full Throttle may not charge the Customer any amount in respect of the Products;
9.6.2. In their original condition and repackaged in their original packaging, Full Throttle may charge the Customer a reasonable amount for:
22.214.171.124. Use of the Products during the time they were in the Customer’s possession, unless they are Products that are ordinarily consumed or depleted by use, and no such consumption or depletion has occurred; or
126.96.36.199. Any consumption or depletion of the Product, unless that consumption or depletion is limited to a reasonable amount necessary to determine whether the Products were acceptable to the Customer; or
9.6.3. In any other case, Affliction may charge the Customer a reasonable amount:
188.8.131.52. As contemplated in clause 9.6.2 above; and
184.108.40.206. For necessary restoration costs to render the Products fit for re-sale, unless, having regard to the nature of the Products and the manner in which they were packaged, it was necessary for the Customer to destroy the packaging in order to determine whether the Product were fit for the intended purpose.
9.7. Products may be returned to Full Throttle in the following manner:
9.7.1. Directly to the Full Throttle Store by the Customer;alternatively
9.7.2. By delivery via Courier to the Full Throttle Store.
9.8. When returning products to the Full Throttle Store directly, the Customer shall follow the usual in-store return process applied by Full Throttle and the Customer will be required to:
9.8.1. Furnish proof of purchase (invoice or delivery note); and
9.8.2. Produce the card utilized (credit, cheque or debit card) to effect payment for the Products purchased.
9.9.1. First register a return on the Website. A reference number and a return address will be issued to the Customer;
9.9.2. Insert the Products into appropriate packaging to ensure that the Products are not damaged during transportation;
9.9.3. Make the duly packaged Products available for collection by the Courier in accordance with the instructions received from Full Throttle.
9.10. [WU1] Refund of returned Products shall occur as follows:
9.10.1. EFT purchases shall be refunded in the form of a gift certificate or EFT at the sole election of Full Throttle;
9.10.2. Gift certificate purchases will be refunded by the issue of another gift certificate to the value of the credit available on the gift certificate at the time of purchase of the returned Products; and
9.10.3. Credit and debit card payments will be refunded to customer via EFT.
10 CUSTOMER’S RIGHTS TO SAFE, GOOD QUALITY PRODUCTS
10.1 The Parties agree in respect of the sale of all Products by Full Throttle, that the Customer:
10.1.1 Has been expressly informed that the particular Products were offered in a specific condition; and
10.1.2 Has expressly agreed to accept the Products in that condition, or knowingly acted in a manner consistent with accepting the Products in that condition.
11. IMPLIED WARRANTY OF QUALITY
11.1. The implied warranty contained in section 56 of the CPA shall not apply to the Products sold to the Customer due to the fact that Full Throttle is deemed to have clearly and expressly stated the condition in which the Products are sold to the Customer and the Customer is deemed to have indicated:
11.1.1. That he/she expressly agrees to the Products being sold in the aforesaid condition; and
11.1.2. That he/shehas not specifically informed Full Throttle of any particular purpose for which he/she wishes to acquire or use the Products.
12 LIABILITY FOR DAMAGE CAUSED BY GOODS
12.1 Except to the extent contemplated in clause 12.3 below, the producer, importer, distributor or retailer of the Products, including Full Throttle, are liable for any harm, caused wholly or partly as a consequence of:
12.1.1 Supplying any unsafe Products;
12.1.2 A Product failure, defect or hazard in any Product; or
12.1.3 Inadequate instructions or warnings provided to the Customer pertaining to any hazard arising from or associated with the use of the Products, irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor, or Full Throttle, as the case may be.
12.2 If, in a particular case, more than one person is liable in terms of this clause, their liability is joint and several;
12.3 Liability of Full Throttle in terms of this clause does not arise if:
12.3.1 The unsafe Product characteristic, failure, defect or hazard that results in harm is wholly attributable to compliance with any public regulation;
12.3.2 The alleged unsafe Product characteristic, failure, defect or hazard:
220.127.116.11 Did not exist in the Product at the time it was supplied by Full Throttle to the Customer; or
18.104.22.168 Was wholly attributable to non-compliance by the Customer with instructions provided byFull Throttle, in which case clause 22.214.171.124 does not apply.
12.3.3 It is unreasonable to expect Full Throttle to have discovered the unsafe Product characteristic, failure, defect or hazard, having regard to Full Throttle’s role in marketing and supplying the Product to the Customer; or
12.3.4 The Customer’s claim for damages is brought more than 3 (three) years after the:
126.96.36.199 Death or injury of a person;
188.8.131.52 Earliest time at which a person had knowledge of the material facts about an illness; or
184.108.40.206 Earliest time at which a person with an interest in the Product had knowledge of the material facts about the loss or damage to that Product; or
220.127.116.11 The latest date on which the Customer suffered any related economic loss.
12.4 The Customer acknowledges that Full Throttle shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise arising or resulting from:
12.4.1 Malfunction, failure or unavailability of the Products to the extent that Full Throttle has maintained industry accepted standards typically associated with the Products;
12.4.2 Errors in the functioning of the Products resulting from abuse, negligence, improper or inappropriate use of all or any part of the Products by the Customer;
12.4.3 A failure to supply the Products to the extent that such failure is due to any default, delay, act or omission of the Customer or as a result of the Customer’s third party dependencies beyond the control of Full Throttle.
Without derogating from the generality of any of the provisions of this Agreement, and subject to the provisions of the CPA, Full Throttle shall not at any time be liable for any claims of whatsoever nature and howsoever arising for direct or consequential loss or damage which may be sustained by the Customer in connection with the use of the Products and the Customer hereby indemnifies Full Throttle against all such claims, save for when the aforesaid claims arise from the grossly negligent conduct of Full Throttle.
If either Party breaches a term of this Agreement and fails to remedy that breach within 14 (fourteen) days of receipt of written notice from any other Party calling for the breach to be remedied, then that Party shall be entitled, without prejudice to any other rights that it may have, whether under this Agreement or in law, to cancel this Agreement without notice or to claim immediate specific performance of all the defaulting Party's obligations, whether or not due for performance, in either event without prejudice to the aggrieved Party’s right to claim damages.
15. NOTICES AND LEGAL PROCESS
15.1. Each Party chooses as its address for all purposes under this Agreement (“chosen address”), whether for serving any court process or documents, giving any notice, or making any other communications of whatsoever nature and for any other purpose arising from this Agreement (“notice”), as follows:
Physical Address: 123 Van Riebeeck Avenue,Edenvale, Johannesburg
Postal Address: P.O Box 2524 Edenvale
E-mail address: email@example.com
The Client As per the address and contact details provided by the Client via the Websitewhen placing his/her order.
15.3. Any Party may by notice to the other Party change its chosen address to another physical address in the Republic of South Africa and such change shall take effect on the seventh day after the date of receipt by the Party who last receives the notice;
15.4. Any notice to a Party contained in a correctly addressed envelope and delivered by hand to a responsible person during ordinary business hours at its chosen address, shall be deemed to have been received on the date of delivery;
15.5. Any notice to a Party contained in a correctly addressed envelope and delivered by registered post to a Party’s chosen address, shall be deemed to have been received on the seventh day after posting;
15.6. Notwithstanding anything to the contrary herein, a written notice actually received by a Party, including a notice sent by fax and e-mail, shall be an adequate notice to it notwithstanding that it was not sent or delivered to its chosen address.
16.3. When any number of days is prescribed such number shall exclude the first and include the last day unless the last day falls on a Saturday, Sunday, or a public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding business day;
16.6. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement;
16.7. The eiusdem generis rule shall not apply and accordingly, whenever a provision is followed by the word "including" and specific examples, such examples shall not be construed so as to limit the ambit of the provision concerned;
16.8. Where any term is defined within the context of any particular clause in this Agreement, then, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, the term so defined shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in the definition clause.
17. GENERAL PROVISIONS
17.1. SOLE RECORD OF THE AGREEMENT
This Agreement constitutes the sole record of the agreement between the Parties with regard to the subject matter hereof and supersedes any oral or written representations, understandings, agreements or communications between the Customer and Full Throttle concerning the subject matter hereof. Neither Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded in this Agreement.
No relaxation or indulgence, which either Party may grant to the other, shall constitute a waiver of the rights of that Party and shall not preclude that Party from exercising any rights which may have arisen in the past or which might arise in future.
The Customer warrants that he/she is over the age of 18 (eighteen) and that there is no legal impediment prohibiting him/her from entering into this Agreement.
This Agreement may not be assigned by the Customer or Full Throttle to any third party (save as provided herein) without the other Party’s prior written consent.
In the event that any provision of this Agreement should be found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The law governing this Agreement, including without limitation its interpretation and all disputes arising out of this Agreement, is the law of South Africa, the Parties submit to the exclusive jurisdiction of the South African courts in respect of any matter arising from or in connection with this Agreement, including its termination.
17.7.ACCEPTANCE OF AGREEMENT
The Customer acknowledges that he/she has been afforded a proper opportunity to read this Agreement and understand the terms and conditions contained herein and to obtain independent legal advice in this regard should he/she deem it necessary to do so;
The Customer agrees that he/she has independently evaluated the desirability of the Products and that he/she is not relying on any other representation, agreement, guarantee or statement other than as set forth in this Agreement.
In the event of a force majeure event, specifically circumstances beyond the control of the Parties/Party, including but not limited to: acts of God, war, civil war, sabotage, acts of terrorism, government sanction, import or export relation or order, labour disputes, failure in transportation equipment, machinery or personnel or in the provision of any utility including power, or communications service, neither Party shall be liable for any breach hereof.