1.1. In these Terms and Conditions, unless the context indicates otherwise –
1.1.1. “Business Day” means a day which is not a Saturday, Sunday or gazetted public holiday in South Africa;
1.1.2. “ECTA” means the Electronic Communications and Transactions Act, No 25 of 2002, as amended from time to time;
1.1.3. “Gardens & Roses” means Sebbag Longterm Investments CC trading as Gardens & Roses Inspirational Outdoor Furniture, registration number 2008/067556/23, a close corporation duly incorporated in terms of the laws of South Africa;
1.1.4. “Goods” means products to be sold to the Users from time to time in terms of these Terms and Conditions, including, but not limited to Special Order Goods;
1.1.5. “Parties” means Gardens & Roses and the User and “Party” shall mean any one of them as the context may indicate;
1.1.6. “Services” means the services provided by Gardens & Roses to Users, including but not limited to custom made furniture covers, masterguarding of cushion covers and/or interior design consulting services (if available);
1.1.7. “South Africa” means the Republic of South Africa;
1.1.8. “Special Conditions” means the terms and conditions provided in the product description of the Goods as indicated on the Website;
1.1.9. “Special Order Goods” means Goods as contemplated in paragraph 16 below;
1.1.10. “Terms and Conditions” means these terms and conditions together with any Special Conditions, which the Parties agree are expressly incorporated herein;
1.1.11. “User” means the every person that accesses or uses the Website, including without limitation each user who registers as contemplated below;
1.1.12. “VAT” means value-added tax in terms of the Value-Added Tax Act, No 89 of 1991, as amended from time to time; and
1.1.13. “Website” means the internet website located at www.gnrsa.co.za or any subsequent URL which may replace it.
1.2. Any reference to the singular includes the plural and vice versa.
1.3. Any law means the relevant law as at the date hereof and as judiciously interpreted, amended or re-enacted from time to time.
1.4. A Party shall include a reference to that Party’s successors in title and assigns allowed in law.
1.5. Where the signature of a Party is required in terms of these Terms and Conditions, such signature must be a handwritten signature although an electronic representation of such handwritten signature may also be used.2. IMPORTANT NOTICE
2.1. These Terms and Conditions apply to Users who are consumers for purposes of the Consumer Protection Act, No 68 of 2008 (“CPA”).
2.2. These Terms and Conditions contain provisions that appear in similar text and style to this clause and which –
2.2.1. may limit the risk or liability of Gardens & Roses; and/or
2.2.2. may create risk or liability for the Users; and/or
2.2.3. may compel the User to indemnify Gardens & Roses; and/or
2.2.4. serves as an acknowledgement, by the Users, of a fact.
2.3. Your attention is drawn to these Terms and Conditions because they are important and should be carefully noted.
2.4. If there is any provision in these Terms and Conditions that you do not understand, it is your responsibility to ask Gardens & Roses to explain it to you before you accept the Terms and Conditions or continue using the Website.
2.5. Nothing in these Terms and Conditions is intended or must be understood to unlawfully restrict, limit or avoid any right of obligation, as the case may be, created for either you or Gardens & Roses in terms of the CPA.
2.6. Gardens & Roses permits the use of the Website subject to the Terms and Conditions. By using the Website in any way, you shall be deemed to have accepted all the Terms and Conditions unconditionally. You must not use the Website if you do not agree to the Terms and Conditions.
2.7. These Terms and Conditions are divided into four sections, as follows:
2.7.1. Part A: Online Sales;
2.7.2. Part B: Instore Sales;
2.7.3. Part C: Provision of Services;
2.7.5. Part E: General Legal Terms.
PART A: ONLINE SALES
3. REGISTRATION AND USE OF THE WEBSITE
3.1. Only registered Users may order Goods on the Website. Upon registration, Users will be allocated an online shopping account.
3.2. To register as a User, you must provide your email address and password and provide certain information and personal details to Gardens & Roses. You will need to use your email address and password to access the Website in order to purchase Goods online.
3.3. You agree and warrant that your email address and password shall:
3.3.1. be used for personal use only; and
3.3.2. not be disclosed by you to any third party.
3.4. Gardens & Roses shall be entitled to monitor the User’s password and, at its sole discretion, require the User to change it and/or terminate such User’s account.
3.5. You agree to notify Gardens & Roses immediately upon becoming aware of or reasonably suspecting any unauthorised access to your online shopping account and to take the necessary steps to mitigate any loss or damage which you may suffer as a result of such unauthorised or fraudulent access of your online shopping account.
3.6. By using the Website you warrant that you are 18 (eighteen) years old or older and of full legal capacity. If you are under the age of 18 (eighteen) or if you are not legally permitted to enter into a binding agreement, then you may use the Website only with the involvement and supervision of your parents or legal guardian. If your parents or legal guardian supervises you and gives his/her consent, then such person agrees to be bound to these Terms and Conditions and to be liable and responsible for you and all your obligations under these Terms and Conditions.
3.7. The use or distribution of tools designed for compromising security (for example, password guessing programmes, hacking tools or network probing tools) is strictly prohibited.
3.8. Gardens & Roses reserves the right to investigate any suspected violation of these Terms and Conditions.
4. ORDERS AND STOCK AVAILABILITY
4.1. Registered Users may place orders for Goods, which Gardens & Roses may accept or reject, within its sole discretion. Whether or not Gardens & Roses accepts an order depends on the availability of Goods and receipt of payment or a payment authorisation by Gardens & Roses for the Goods.
4.2. An agreement of purchase and sale between the User and Gardens & Roses will only come into effect upon the receipt of payment or a payment authorisation by Gardens & Roses for the Goods.
4.3. You acknowledge that stock of all Goods on offer online is limited. Gardens & Roses will take all reasonable efforts to monitor stock levels and ensure that when stock is no longer available, that the Website indicates that such Goods are “out of stock”. Gardens & Roses provides no guarantees with regards to the availability of stock.
5. CANCELLATION OF ONLINE ORDERS
5.1. Users may cancel an online order at any time prior to the delivery of such Goods to the User. Gardens & Roses shall be entitled to require the User to pay a reasonable penalty fee in respect of such cancellation.
5.2. After delivery of the Goods to the address indicated by the User for such purpose, Users may only cancel the online order within 7 (seven) days of such delivery. Any costs incurred by the User in respect of the return of such Goods to Gardens & Roses, shall be for the Users’ own account.
5.3. In the event of the User having made payment for such Goods prior to the cancellation of the online order, Gardens & Roses shall refund the full purchase price to the User within 30 (thirty) days of the cancellation of the order.
6. DELIVERY OF ONLINE ORDERS
6.1. Gardens & Roses shall use its best endeavours to ensure that online orders are delivered within 30 (thirty) days after the payment for such order has cleared in Gardens & Roses banking account unless Gardens & Roses has indicated a specific delivery period to the User on the Website or such Goods are required to be imported into South Africa.
6.2. In the event that Gardens & Roses are unable to provide the User with the order on the grounds that the Goods ordered are unavailable, Gardens & Roses shall immediately notify the User of this fact and refund any payments received by it from the User within 30 (thirty) days after the date of such notice.
6.3. Users shall be entitled to track the delivery of their order by contacting Gardens & Roses on (021) 461 3091 or alternatively, via email on firstname.lastname@example.org.
PART B: INSTORE SALES
7. SALES TRANSACTIONS AND STOCK AVAILABILITY
7.1. Goods may be purchased directly from Gardens & Roses’ Woodstock showroom.
7.2. Users will be provided with a written quotation in respect of the Goods they wish to purchase. Such quotation shall be valid for a period of 10 (ten) days from the date indicated thereon. Thereafter the User shall be required to obtain another quotation from Gardens & Roses.
7.3. Users shall be required to indicate their acceptance of the quotation within the time period indicated in paragraph 7.2 above, by signing the form which accompanies the quotation and sending it to a representative or consultant of Gardens & Roses.
7.4. You acknowledge that stock of all Goods on offer instore is limited. Gardens & Roses will take all reasonable efforts to monitor stock levels and ensure that when stock is no longer available, that a representative or consultant of Gardens & Roses will inform you of such Goods being “out of stock”. Gardens & Roses provides no guarantees with regards to the availability of stock.
8. CANCELLATION OF INSTORE ORDERS
8.1. Users may cancel an instore order at any time prior to the delivery of such Goods to the User.
8.2. After delivery of the Goods to the address indicated by the User for such purpose, Users may only cancel the order within 10 (ten) Business Days of such delivery. Any costs incurred by the User in respect of the return of such Goods to Gardens & Roses, shall be for the Users’ own account.
8.3. Notwithstanding that actual delivery of the Goods has not taken place, the User acknowledges and agrees that in the event of he/she/it electing for Goods to be stored on Gardens & Roses premises for a certain period of time, such Goods shall be deemed to have been delivered by Gardens & Roses on the date on which an invoice for such Goods is issued to the User.
8.4. Gardens & Roses shall be entitled to charge the User a reasonable cancellation fee taking into consideration, amongst other things, the length of the notice of cancellation provided by the User and the general practice of the relevant industry. The aforesaid cancellation fee shall include a 10% (ten percent) handling and delivery fee of total invoice.
9. DELIVERY OF INSTORE ORDERS
9.1. Delivery of instore orders must be arranged with the warehouse manager of Gardens & Roses who will contact the User directly to schedule the delivery of instore orders.
9.2. In addition to the provisions of paragraph 9.1 above, the User may request that, in respect of Goods to be delivered in and around Cape Town, Western Cape, such Goods are delivered to the User already assembled. This assembly service is not applicable to Goods which are to be delivered outside of Cape Town, Western Cape.
9.3. Standard delivery times are as follow (unless otherwise stated):
9.3.1. Deliveries within a 80km radius of Cape Town, Western Cape – 3 (three) to 5 (five) Business Days; and
9.3.2. Deliveries outside of the territory indicated in paragraph 9.3.1 above – 7 (seven) to 10 (ten) Business Days
PART C: PROVISION OF SERVICES
10. PROVISION OF SERVICES
10.1. In addition to making available the Goods for sale, Gardens & Roses may also render the Services to Users who wish to make use of them.
10.2. In respect of custom made furniture covers, –
10.2.1. these may take between 14 (fourteen) to 21 (twenty one) Business Days to manufacture;
10.2.2. the Users may either provide Gardens & Roses with the measurements of their furniture or alternatively, in the event of the furniture still being in the possession of Gardens & Roses, they will take the necessary measurements; and
10.2.3. in the event of Users requesting covers to be made for their existing furniture, the Users are required to provide Gardens & Roses with a clear photo image of the furniture as well as the relevant dimensions thereof. Customer will be required to sign off on specifications before manufacturing will commence.
10.3. In respect of masterguarding of cushions, Gardens & Roses normally attends to this prior to the Goods being delivered to the Users as contemplated in these Terms and Conditions. Users wishing for their cushions to be masterguarded must make such specific arrangements with Gardens & Roses prior to delivery of the Goods.
10.4. In addition to the abovementioned Services, Gardens & Roses will also in the future offer interior design consulting services. Users wishing to make use of the aforesaid Service should contact Gardens & Roses to ascertain whether such Service is available and make the necessary arrangements pertaining to a meeting with the interior design consultant.
10.5. Gardens & Roses shall not be held liable for any loss or damages suffered by the Users as a result of such Users providing Gardens & Roses with the incorrect measurements.
11.1. Should you decide to register as a User on the Website or purchase Goods instore, we may require you to provide us with your personal information which includes, but is not limited to:
11.1.1. your name and surname;
11.1.2. your email address;
11.1.3. your physical address; and
11.1.4. your telephone number.
11.2. Gardens & Roses may, within its sole discretion, request Users to provide certain additional information which it requires.
11.3. You agree that any personal information provided to Gardens & Roses is accurate and current at the time of providing such personal information to Gardens & Roses and that such personal information may be processed by Gardens & Roses as contemplated in these Terms and Conditions. In the event of a change in the personal information provided, you agree to inform Gardens & Roses of such change as soon as reasonably possible.
11.4. Upon written request to Gardens & Roses, the User may request that its personal information which is incorrect or which has changed, be corrected or amended.
11.5. Users may be requested to confirm the correctness of certain personal information provided by them to Gardens & Roses, including but not limited to a User’s identity, physical address and/or contact information. Such confirmation is required for security and verification purposes and may result in a User providing Gardens & Roses with (but not limited to) copies of their identity document/passport, utility bills, licenses, rights to sell or distribute a particular item or product, legal or financial document or any other documentation related to the User’s use of Gardens & Roses’ online store or the purchase of Goods instore.
11.6. Gardens & Roses shall not process a User’s personal information without their express consent and any processing shall be limited to the purpose for which such personal information was collected from the User.
11.7. Gardens & Roses shall not disclose your personal information to any third party without your prior consent, other than:
11.7.1. to their employees and/or third party service providers in respect of the delivery or order of Goods or management of the Website, and as such need to know your personal information in order to communicate with you properly and efficiently; and
11.7.2. to their suppliers in order for them to liaise directly with Users in the event of the submission of a warranty claim regarding any Goods which Users have purchased and which may require such Users involvement.
11.8. Notwithstanding any provision in this paragraph 10, Gardens & Roses shall be entitled to use or disclose a Users personal information if such use or disclosure is required in order to comply with any applicable law, order of court or legal process served on them, or to protect and defend their rights or property.
11.9. Gardens & Roses will not, without a User’s consent, provide you with communications concerning its services and/or developments in its product offerings. A User may, however, at any time request Gardens & Roses to cease sending such information to them or deregister from the relevant social media platform, as the case may be.
11.10. Users may at any time request Gardens & Roses to provide them with a copy of such User’s personal information which is within their possession. The access to such personal information is governed by the Promotion of Access to Information Act, No 2 of 2000 as read with the Protection of Personal Information Act, No 4 of 2013.
11.11. Gardens & Roses hereby undertakes to –
11.11.1. treat a User’s personal information as strictly confidential;
11.11.2. take appropriate measures to ensure that a User’s personal information is kept secure and is protected against unauthorised or unlawful processing, accidental loss, destruction or damage, alteration, disclosure or access;
11.11.3. promptly notify a User if it becomes aware of any unauthorised use, disclosure or processing of the User’s personal information;
11.11.5. upon a User’s request, promptly return or destroy any and all of such User’s personal information within its possession or control; and
11.11.6. not to retain a User’s personal information longer than the period for which it was originally needed, unless it is required or authorised by law to do so, or a User has provided consent to it retaining such information for a longer period.
11.12. Gardens & Roses undertakes never to sell or make a User’s personal information available to any third party other than as provided for in this policy, unless it is compelled to do so by law. In particular, in the event of any fraudulent payment, Gardens & Roses reserves the right to disclose relevant personal information for criminal investigation purposes or in line with any other legal obligation for disclosure of the personal information which may be required of it.
11.13. Whilst Gardens & Roses reasonably takes the necessary precautions to protect a User’s rights of privacy, it cannot guarantee or accept any liability whatsoever for unauthorised or unlawful disclosures of such User’s personal information, whilst in its possession, made by third parties who are not subject to their control, unless such disclosures are as a result of Gardens & Roses’ gross negligence or wilful misconduct.
PART E: GENERAL LEGAL TERMS
12. PRICES AND PAYMENT
12.1. All prices displayed on the Website or instore are in South African Rands and include VAT, unless indicated otherwise and exclude delivery charges, import duties and other taxes (if applicable).
12.2. Payments for orders via the Website shall proceed through the Nedbank Payment Gateway and accordingly, shall be subject to the aforesaid entity’s terms and conditions.
12.3. In addition to paragraph 11.2, payments may be made:
12.3.1. via electronic transfer of funds (“EFT”) into Gardens & Roses banking account with the following details:
Account Name: Sebbag Longterm Investments CC
Bank Name: Nedbank Limited
Account Number: 1536011045
Branch Code: 153614
Reference: Order Number
12.3.2. via credit card. The full payment for the Goods including the applicable delivery charges shall be deducted from the User’s credit card upon placing the order. Delivery will be authorised once the payment has been processed and/or validated. Gardens & Roses accept payment via Visa or MasterCard. The User’s credit card details are processed using at least SSL 128 bit encryption and are not stored by Gardens & Roses.
12.4. Transactions of a large quantity as contemplated in paragraph 13 below may involve additional screening, which will result in Gardens & Roses requiring confirmation of certain key details before proceeding to fulfil such order. In such instances, Gardens & Roses shall contact the User directly. However, this may result in a delay in the delivery of the order.
13. DELIVERY CHARGES
13.1. Gardens & Roses offers free delivery on online purchases over R1,000, subject to the condition that all Goods shall be delivered either to the User’s doorstep directly or to major centres within South Africa. Online purchases of less than R1,000 shall be charged a delivery fee of R250.00, irrespective of where such Goods are to be delivered. In the event of the User electing to collect the Goods directly from Gardens & Roses, no delivery fee shall be payable by such User. In addition, deliveries to regional, outlying or remote areas shall carry a delivery fee of 6% of the value of the User’s cart as indicated on the Website.
13.2. Online sale items shall incur a standard delivery fee of R700.00.
13.3. Gardens & Roses reserves the right to provide Users with amended quotes taking into consideration the delivery charges contemplated in this paragraph 12. Gardens & Roses hereby brings to the User’s attention that its online system is not able to take the aforesaid delivery charges into consideration during checkout, and as such, the full amount to be deducted from the Users credit card may not be reflected at checkout.
13.4. In the event of Gardens & Roses determining that an order placed by a User is subject to extra delivery charges after checkout, it shall promptly inform the User of such additional delivery charge. Gardens & Roses shall provide the User with an opportunity to either pay the difference owed to it or to cancel the order, which if paid for already will entitle the User to either elect a credit on its account or elect to be refunded in full.
13.5. In the event of a refund in respect of an EFT payment, the funds may only reflect in the User’s account 2 (two) or 3 (three) Business Days after the actual refund has taken place. In the event of a refund in respect of a credit card payment, the funds may take up to 3 (three) Business Days after the actual refund has taken place to reflect in the User’s account.
13.6. The delivery charges contemplated in this paragraph 12 do not include the service of assembling the Goods (where assembly is required) and the User shall be required to make its/his/her own arrangements in this regard. All furniture items are sold with an assembly manual indicated on the box in which it is delivered.
13.7. Gardens & Roses makes use of reputable couriers to attend to its deliveries. As such, the delivery of Goods by the aforesaid couriers shall be subject to the couriers terms and conditions. A copy of such terms and conditions may be obtained from the couriers directly.
13.8. Users are advised that Gardens & Roses shall not take out insurance in respect of the delivery of the Goods to the Users. Users are entitled to arrange such insurance directly with the courier company used by Gardens & Roses for such delivery to the User or to arrange their own insurance.
13.9. The User hereby indemnifies Gardens & Roses against any loss or damage which may arise as a result of the delivery or transportation of the Goods to the User or any claim which may be instituted against the User by the abovementioned courier or such couriers insurance company.
14. LARGE QUANTITY ORDERS
14.1. Orders for Goods which need to be transported in a minimum 20 foot container will be considered large quantity orders and will be subject to the provisions of this paragraph 13 in addition to the other provisions of these Terms and Conditions.
14.2. Large quantity orders cannot be ordered online via the Website. However, Gardens & Roses may be contacted directly to provide a quote and estimated delivery time for such Goods. The estimated delivery time period of large quantity orders ranges between 45 (forty five) and 90 (ninety) calendar days.
14.3. In the event of large quantity orders being required to be imported into South Africa, the User will be required to pay a 50% (fifty percent) deposit in order to secure the order.
14.4. The balance of the purchase price of the large quantity order shall be paid by the User when such Goods are ready to be delivered by Gardens & Roses to the User and Gardens & Roses has informed the User of the aforesaid. No large quantity order will be delivered without payment of the outstanding amount having been received by Gardens & Roses.
14.5. In the event of the cancellation of a large quantity order, Gardens & Roses reserves its rights to require the User to pay a reasonable cancellation fee in respect of such order, provided that Gardens & Roses shall not impose a cancellation fee where the User is unable to honour the order as a result of death or hospitalisation of the person for whom, or for whose benefit the order was made.
15. CHANGE OR CANCELLATION OF ANY ORDER
15.1. Gardens & Roses has a 7-day money back guarantee for Users within South Africa. As such, Users are entitled to return the Goods purchased by them within 7 (seven) days of delivery thereof and obtain a full refund and/or credit on their account with Gardens & Roses.
15.2. Such Goods must be returned in their entirety and in the same condition as when they were delivered. The Goods must not have been installed, removed and then returned and must be in their original, undamaged packaging.
15.3. Gardens & Roses shall be entitled to inspect the Goods prior to the return thereof in order to determine whether such Goods are in a resalable condition. An inspection report shall be prepared by Gardens & Roses in this regard.
15.4. Gardens & Roses will process all refunds within 7 (seven) to 10 (ten) Business Days from date of final inspection report contemplated in paragraph 15.3 above.
15.5. A 10% handling fee may be charged by Gardens & Roses in respect of cancelled orders, irrespective of whether such Goods have been delivered or not. The aforesaid handling fee shall not be charged in respect of Goods which have been returned as a result of such Goods being defective, damaged or the Goods delivered to the User being not the same as that ordered by the User.
15.6. The guarantee contemplated in paragraph 14.1 above does not apply to any custom made, special order and/or sale Goods.
15.7. In the event of a User wishing to change or cancel an order, such User must contact Gardens & Roses on (021) 461 3091 between 09h00 and 16h00 Monday to Friday. The invoice number and date of purchase must be provided to Gardens & Roses upon change or cancellation of the order. Returns shall be delivered to Gardens & Roses Warehouse situated at 88 Newmarket Street, Woodstock. The aforesaid warehouse is open from Monday to Friday, 09h00 to 16h00.
15.8. Gardens & Roses will not accept returns of any Goods to its warehouse without prior authorisation and before a returned merchandise number issued to a User.
15.9. Notwithstanding the provisions of this paragraph 14, nothing in these Terms and Conditions shall detract from the provisions of the CPA pertaining, in particular, to the implied warranty contemplated in section 56.
16. PRODUCT DESCRIPTIONS ON WEBSITE
16.1. The Goods purchased by Users are subject to these Terms and Conditions as well as to the specific conditions indicated within the product description of such Goods and includes, but is not limited to, provisions pertaining to delivery dates and times, warranties, after-sales service and guarantees.
16.2. Gardens & Roses will take all reasonable steps to ensure that the details and product descriptions appearing on the Website are correct at the time when the relevant information was entered onto the system.
16.3. Gardens & Roses reserves the right to amend such information appearing on the Website from time to time.
17. SPECIAL ORDER GOODS
17.1. In the event of the User requiring Goods to be made or procured according to the User’s specifications and/or requirements and accordingly, to be specially procured by Gardens & Roses for the User, the User shall be required to indicate such specifications upon placing its order. The User shall not be entitled to refuse to accept, for whatsoever reason, delivery of the Special Order Goods to the User, save in instances where such Special Order Goods are defective or damaged as contemplated in these Terms and Conditions.
17.2. Where Special Order Goods have already been delivered and the User provides Gardens & Roses with written notification that it/he/she, for whatsoever reason, no longer requires the Special Order Goods, Gardens & Roses shall be entitled to refuse to accept the return of such Special Order Goods and accordingly not refund the User any payments made by it in respect of the Special Order Goods, provided that the provisions of this paragraph 16.2 shall not apply in instances where the Special Order Goods are defective.
17.3. In the case of Special Order Goods, Gardens & Roses shall use its reasonable endeavours to ensure that the Special Order Goods meet the specifications and/or requirements of the User as expressed to Gardens & Roses, it being understood that since Gardens & Roses is not the manufacturer of the Special Order Goods, this cannot be guaranteed by Gardens & Roses to the User.
18. PROMOTIONAL OFFERS
18.1. Gardens & Roses may make promotional offers available to Users through various outlets and media formats. Each outlet and/or media format will be subject to its own specific terms and conditions as stipulated by Gardens & Roses.
18.2. Such promotional offers may be terminated by Gardens & Roses at any time without advance notice having been provided. If terminated, a promotional offer will continue to apply to Goods which were ordered prior to the termination thereof, but which Goods will only be delivered after the aforesaid termination.
19. DAMAGED, INCORRECT OR MISSING GOODS
19.1. Users are to contact Gardens & Roses within 10 days of delivery of goods of any damages or incorrect products delivered. Such damaged or incorrect Goods are not to be installed as this may void a warranty or damage claim.
19.2. If Goods have been damaged during shipping or are missing, Gardens & Roses will, within it sole discretion, replace the Goods or refund the monetary value. The decision to replace or refund will be made upon consultation with the User as to which solution is acceptable for both parties.
20. FORCE MAJEURE
Gardens & Roses shall not be responsible for any failure to fulfil its obligations under these Terms and Conditions if fulfilment has been delayed, hindered, interfered with, curtailed or prevented by –
20.1. any circumstances beyond its reasonable control including but not limited to insurrection, war, terrorism, an explosion, bombing, revolution, riot, civil commotion, legal and illegal strikes, lock-outs, an inability to obtain labour or materials, fire, flood, storm or other acts or elements of God, accident, government restrictions or appropriation or other causes whether like or unlike the a foregoing;
20.2. any shortage, curtailment, failure or cessation of supply of any Goods;
20.3. compliance with any order, demand or request of any international, national, port, transportation, local or other authority or agency or any body or person purporting to be or to act for such authority or agency; or
20.4. any strike, lock-out, stayaway, go-slow or labour dispute, whether or not Gardens & Roses is a party thereto or would be able to influence or procure the settlement thereof and whether or not alternative labour is provided or could have been provided, or the cause is only partial.
21. CHANGES TO THESE TERMS AND CONDITIONS
21.1. Gardens & Roses may, in its sole discretion, change these Terms and Conditions at any time. It is the Users responsibility to regularly check these Terms and Conditions and to make sure that it/he/she is satisfied with the changes. Should the User not be satisfied, it/he/she must not place any further orders on, or in any other way use the Website.
21.2. Any such change will only apply to the User’s use of the Website after the change is displayed on the Website. If the User uses the Website after such amended Terms and Conditions have been displayed on the Website, the User will be deemed to have accepted such changes.
22. OWNERSHIP AND COPYRIGHT
22.1. The Website is operated by Gardens & Roses.
22.2. The copyright to all information, material and logos vesting in Gardens & Roses and appearing on the Website shall continue to vest in Gardens & Roses.
22.3. No right, title or interest in any proprietary material or information contained on the Website is granted to the User hereunder.
22.4. The material and content accessible from the Website (“Website Content”) and any other internet site owned, operated, licensed or controlled by Gardens & Roses is their proprietary information and Gardens & Roses retains all right, title and interest in and to the Website Content.
22.5. As such the Website Content may not be copied, distributed, republished, uploaded, posted or transmitted in any way without the prior written consent of Gardens & Roses or unless authorised in writing elsewhere on the Website, provided that the User may print out a copy of the Website Content solely for personal use. In doing so, the User may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark or any other proprietary notice or legend appearing on any of the Website Content.
22.6. Modifications or use of the Website Content otherwise than as expressly provided for in these Terms and Conditions violates Gardens & Roses intellectual property rights.
22.7. Neither title in or to the intellectual property rights are transferred to the User by its use of the Website.
23. RESTRICTIONS OF USE OF WEBSITE
23.1. The User may use the Website for purposes expressly permitted thereon and only in terms of these Terms and conditions.
23.2. The User may not use the Website for any other purpose, including any commercial purpose, without the prior written consent of Gardens & Roses. For example, the User may not (and may not authorise any other party to) (i) co-brand the Website; or (ii) frame the Website; or (iii) hyperlink the Website, without the prior written consent of an authorised representative of Gardens & Roses.
23.3. For purposes of these Terms and Conditions, “co-brand” means to display a name, logo, trademark, or other means of attribution or identification of any party in such a manner as is reasonably likely to give a user thereof the impression that such other party has the right to display, publish, or distribute the Website or content accessible within the Website.
23.4. The User agrees to provide its co-operation in assisting Gardens & Roses with preventing any unauthorised co-branding, framing or hyperlinking.
23.5. The Website Content is provided as is and without warranties of any kind, whether expressed or implied.
23.6. Gardens & Roses does not warrant that the functions or that access to the Website Content will be uninterrupted or error free or that the Website or the server that makes the Website available to the public is virus (or other harmful components) free.
23.7. Gardens & Roses does not warrant or make any representation regarding use, or the results of use of the Website Content in terms of accuracy, reliability or otherwise.
24. LINKED THIRD PARTY WEBSITES
24.1. The Website may contain hyperlinks or references to other internet sites which are not maintained, owned or related to Gardens & Roses. These Terms and Conditions do not apply to those third party internet sites.
24.2. Gardens & Roses has not reviewed any or all such internet sites and is not responsible for the content of such internet sites. As such, hyperlinks are to be accessed at the User’s own risk and Gardens & Roses makes no representations or warranties regarding the content, completeness or accuracy of such hyperlinks or the internet sites linked to such hyperlinks.
24.3. The inclusion of any hyperlink to a third party internet site does not necessarily imply endorsement by Gardens & Roses of such internet site.
25.1. In the event of either of the Parties (“Defaulting Party”) committing a breach of any of the terms of these Terms and Conditions and failing to remedy such breach within a period of 10 (ten) Business Days after receipt of a written notice from the other Party (“Aggrieved Party”) calling upon the Defaulting Party so to remedy, then the Aggrieved Party shall be entitled, at its sole discretion and without prejudice to any of its other rights in law, either to claim specific performance of the provisions of these Terms and Conditions or to cancel the order forthwith and without further notice, and in either case to claim and recover damages form the Defaulting Party.
25.2. The Parties agree that any costs awarded will be recoverable on an attorney-and-own-client scale unless the Court specifically determines that such scale shall not apply, in which event the costs will be recoverable in accordance with the High Court tariff, determined on an attorney-and-client scale.
26.1. The use of the Website is entirely at the User’s own risk and the User assumes full responsibility for any risk or loss resulting from use of the Website or reliance on any information on the Website.
26.2. Whilst Gardens & Roses takes reasonable measures to ensure that the content of the Website is accurate and complete, it makes no representations or warranties whether express or implied, as to the accuracy, completeness or reliability of any information on the Website.
26.3. Gardens & Roses shall not be held liable for any damage, loss or liability, whether direct, indirect or consequential in nature, arising out of or in connection with the User’s access to or use of the Website and/or any content therein unless otherwise provided by law.
26.4. Any views or statements made or expressed on the Website are not necessarily the view of Gardens & Roses, its members, directors, employees, contractors and/or agents.
26.5. In addition to the disclaimers contained elsewhere in these Terms and Conditions, Gardens & Roses makes no warranty or representation, whether express or implied, that the information or files available on the Website are free of viruses, spyware, malware, Trojans, destructive materials or any other data or code which is able to corrupt, destroy, compromise, disrupt, disable, harm, jeopardise or otherwise impede in any manner the operation, stability, security functionality or content of the User’s computer system, computer network, hardware or software in any way.
26.6. The User accepts all risk associated with the existence of such viruses, destructive materials or any other data or code which is able to corrupt, destroy, compromise, jeopardise, disrupt, disable, harm or otherwise impede in any manner the operation or content of a computer system, computer network, any handset or mobile device, or a User’s hardware or software, save where such risks arise due to the gross negligence or wilful misconduct of Gardens & Roses, its members, directors, employees, contractors, agents or authorised representatives. Gardens & Roses thus disclaims all liability for any damage, loss or liability of any nature whatsoever arising out of or in connection with the User’s access to or use of the Website.
27. LIMITATION OF LIABILITY
27.1. Gardens & Roses cannot be held liable for any inaccurate information published on the Website and/or any incorrect prices displayed on the Website, save where such liability arises from the gross negligence or wilful misconduct of Gardens & Roses, its directors, employees, contractors, agents or authorised representatives.
27.2. Gardens & Roses makes no warranties or representations of any kind, whether express or implied, in relation to the Website or transaction that may be conducted on or through the Website.
27.3. Gardens & Roses shall not be liable for any direct, indirect, incidental, special or consequential loss or damages which may arise from a User’s use of, or reliance upon, the Website or the content contained in the Website, or a User’s inability to use the Website and/or unlawful activity on the Website and/or any linked third party internet site.
27.4. Users hereby indemnify Gardens & Roses against any loss, claim or damage which may be suffered by such Users or any third party arising in any way from the User’s use of the Website and/or any linked third party internet site.
28. WARRANTY ON GOODS
28.1. All Goods sold by Gardens & Roses are sold with a 2 (two) year warranty against manufacturing defects. This warranty only applies to the normal usage of Goods.
28.2. Gardens & Roses does not guarantee products against any adverse weather conditions, in particular Goods damaged as a result of wind and rain.
28.3. Users are advised to provide some form of covering for the Goods purchased from Gardens & Roses and not for the Goods to remain exposed throughout the year.
28.4. Gardens & Roses can provide Users with advice on how to efficiently use and protect their Goods against harsh weather conditions.
28.5. A Users attention is drawn to the Care & Maintenance Instructions on the Website.
29. AVAILABILITY AND TERMINATION
29.1. Gardens & Roses reserves the right to discontinue the provision of the Website or any part thereof with or without notice to Users.
29.2. Gardens & Roses may, in its sole discretion, terminate, suspend and/or modify the Website.
29.3. Gardens & Roses will not be held liable for any damage or loss incurred by a User as a result of it electing to terminate, suspend and/or modify the Website.
30. GOVERNING LAW AND JURISDICTION
30.1. These Terms and Conditions and/or any dispute arising from or in connection with these Terms and Conditions shall be governed by and interpreted in accordance with the laws of South Africa. A Users use of the Website constitutes its consent and submission to the jurisdiction of the South African courts regarding all proceedings, transactions, applications or the like instituted by either party against the other, arising from any of these Terms and Conditions.
30.2. In the event of any dispute arising between the User and Gardens & Roses, you hereby consent to the non-exclusive jurisdiction of the High Court of the Republic of South Africa (Western Cape Division, Cape Town) notwithstanding that the quantum in the action or proceedings may otherwise fall below the monetary jurisdiction of that court.
30.3. Nothing in this paragraph 29 or these Terms and Conditions shall limit a User’s rights to approach any court, tribunal or forum of competent jurisdiction in terms of the CPA.
31.1. Gardens & Roses hereby elects 88 Newmarket Street, Woodstock, 7915 as its address for the service of all formal notices and legal processes in connection with these Terms and Conditions. Gardens & Roses may change the aforesaid address from time to time by updating these Terms and Conditions.
31.2. The User elects the address indicated on the Goods order form as its nominated address for the service of all formal notices and legal processes in connection with these Terms and Conditions. The User may change its address to any other physical address by giving Gardens & Roses 5 (five) Business Days written notice thereof.
31.3. Notices may be sent either by hand, registered post or via email and must be in English. All notices sent –
31.3.1. by hand, will be deemed to have been received on the date of delivery;
31.3.2. by registered post, will be deemed to have been received within 10 (ten) days after the date of posting; and
31.3.3. by email before 17h00 on a Business Day will be deemed to have been received on the date on which the email is successfully transmitted. All emails sent after 17h00 shall be deemed to have been received on the following business day.
32. GARDENS & ROSES INFORMATION
For the purposes of compliance with the provisions of ECTA, Gardens & Roses information is as follows:
32.1. Full name: Sebbag Longterm Investments CC trading as Gardens & Roses Inspirational Outdoor Furniture, registration number 2008/067556/23;
32.2. Main business: Retailer of outdoor furniture;
32.3. Physical Address for receipt of legal service (also postal and street address): 88 Newmarket Street, Woodstock, Cape Town;
32.4. Office bearers: Yaniv Sebbag, Heather Olivier
32.5. Phone number: 021 461 3091; and
32.6. Official email address: email@example.com.
33.1. A User may not cede, assign or otherwise transfer its rights, title and obligations in terms of these Terms and Conditions to any third party.
33.2. Any failure on the part of a User or Gardens & Roses to enforce any right in terms of these Terms and Conditions shall not constitute a waiver of that right.
33.3. If any provision of these Terms and Conditions are declared invalid, the remaining provisions will remain in full force and effect.
33.4. No variation, addition, deletion or agreed cancellation of these Terms and Conditions will be of any force or effect unless it is in writing and accepted by or on behalf of the parties thereto.
33.5. No indulgence, extension of time, relaxation or latitude which any party may show, grant or allow to the other party shall constitute a waiver by the grantor of any of the grantor’s rights and the grantor shall not thereby be prejudiced or stopped from exercising any of its rights against the grantee which may have arisen in the past or which might arise in the future.
33.6. These Terms and Conditions contain the whole agreement between the User and Gardens & Roses and no other warranty or undertaking is valid, unless contained in this document between the parties.