Please read carefully through our Terms & Conditions
ONLINE TERMS AND CONDITIONS OF SALE
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:
1.2. “Courier” means the third party courier contracted by 413 Racing on behalf of the Customer to deliver the Products purchased to the Customer;
1.3. “CPA” means the Consumer Protection Act 68 of 2008, as amended from time to time;
1.4. “Customer” means the person who purchases the Products from the 413 Racing On-Line Store and shall include any ultimate end user of the Products;
1.5. “ECT Act” means the Electronic Communications and Transactions Act 25 of 2002, as amended from time to time;
1.6. “EFT” means electronic funds transfer;
1.7. “Intellectual Property” means all copyright, trademarks, designs, patents and the like recognized as a class of intellectual property;
1.8. “Parties” means Affliction and the Customer and “Party” shall mean either one of them as the context requires;
1.9. “Personal Information” means information about an identifiable individual as defined more fully in the Promotion of Access to Information Act 2 of 2000;
1.10. “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
1.11. “Products” mean all items including services presently being sold or supplied online by 413 Racing including, but not limited to clothing, motorcyclewear, accessories and apparel, helmets, footwear, and other accessories aswell as tyres and spares.
1.12. “VAT” means Value-Added Tax payable in terms of the VAT Act;
1.13. VAT Act” means the Value-Added Tax Act 1991, as amended;
1.14. “Website” means 413 Racing’s website located at http://www.413racing.co.za.
2. SCOPE OF THE AGREEMENT AND APPOINTMENT
2.1. 413 Racing carries on business in, inter alia, the sale of the Products to customers throughout South Africa;
2.2. The Customer requires the Products and 413 Racing 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 413 RacingOn-Line Store;
3.2. The Parties agree that:
3.2.1. 413 Racing shall only sell its Products to the Customer at the Customer’s specific instance and request; and
3.2.2. 413 Racing 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 413 Racing. 413 Racing 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 413 Racing 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 413 Racing 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. 413 Racing undertakes to advertise the quantities of Stock available for sale via its Website.
4. CUSTOMER’S RIGHT TO CANCEL AN ORDER
4.1. Subject to clauses 5.2 and 5.3 below, the Customer has the right to cancel any advance order for any Products;
4.2. If 413 Racing accepts an order to supply Products it may impose a reasonable charge for cancellation of the order, subject to clause 5.4 below.
4.3. For purposes of this clause, a charge is unreasonable if it exceeds a fair amount in the circumstances, having regard to:
4.3.1. The nature of the Products that were ordered; 4.3.2. The length of notice of cancellation provided by the Customer;
4.3.3. 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
4.3.4. The general practice of the industry.
4.4. 413 Racing accepts 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.
5. PRICES AND PAYMENT
5.1. All Prices quoted by 413 Racing on its Website include VAT and are subject to change, which changes shall be effected in 413 Racing’ sole discretion;
5.2. The Customer may effect payment in return for any Products purchased by him/her only by EFT.
5.3. The Products shall only be despatched for delivery to the Customer once 413 Racing has received proof of payment from the customer that the amount due has been paid and has been received into 413 Racing’s bank account;
6.1. 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 when placing the order;
6.2. The Products purchased shall be delivered within approximately 10 working days, depending on the location of the delivery address elected by the Customer;
6.3. The Courier shall at all times be and remain the Customer’s agent for purposes of this Agreement;
6.4. 413 Racing 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 clause 4 above;
6.5. The Customer shall be deemed to have accepted delivery of the Products on the earliest of the following circumstances:
6.5.1. When the Customer, or his or her representative expressly or implicitly communicates to 413 Racing that he/she has accepted delivery of such Products; or
6.5.2. When the Products have been delivered to the Customer, and:
18.104.22.168. The Customer does anything in relation to the Products that would be inconsistent with 413 Racing’s ownership of the Products; or
22.214.171.124. 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 clause 6.4 above.
6.6. Although reasonable care shall be taken, 413 Racing 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 413 Racing against any damage or loss occasioned by delivery to an unauthorised person;
6.7. In the event of short delivery the Customer shall forthwith upon delivery:
6.7.1. Endorse 413 Racing’s copy of the delivery note specifying details of the short delivery; and
6.7.2. Thereafter and within no more than 7 (seven) days after delivery of the Products, the Customer shall lodge a claim with 413 Racing in respect of the alleged short delivery.
6.8. In the event that the Products delivered are damaged or defective the Customer shall forthwith upon delivery:
6.8.1. Endorse 413 Racing’s copy of the delivery note detailing the damage or defects to the Products; and
6.8.2. Thereafter and within no more than 7 (seven) days after delivery of the Products, the Customer shall notify 413 Racing of such damage or defects, following which the provisions of clause 8 below shall be followed if applicable.
6.9. On compliance by the Customer with the provisions of clauses 6.7 and 6.8 above, the provisions of clause 8 below shall become applicable;
6.10. 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 413 Racing and the sale shall be cancelled, where after the provisions of clause 8 below shall apply;
6.11. For purposes of this clause, “413 Racing” shall include the Courier as well as any affiliate, agent or independent contractor who may effect delivery of the Products on behalf of 413 Racing, or 413 Racing 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.
7. OWNERSHIP AND RISK
Ownership and risk in the Products shall only pass from 413 Racing to the Customer upon receipt of payment of the full purchase price by 413 Racing and upon delivery of the Products to the Customer.
8. RETURNS AND REFUNDS
8.1. This clause is in addition to and not in substitution for any other right in law between 413 Racing and the Customer to return the Products and receive a refund;
8.2. Subject to clauses 8.3 to 8.6 below, the Customer may return the Products to 413 Racing and receive a full refund of any consideration paid for the Products, if 413 Racing has delivered Products intended to satisfy a particular purpose communicated to 413 Racing and if within 7 (seven) Business Days after delivery to the Customer, the Products have been found to be unsuitable for that particular purpose;
8.3. Clause 8.2 above does not apply with respect to any Products, if after having been supplied to, or at the direction of the Customer:
8.3.1. For reasons of public health or otherwise, a public regulation prohibits the return of those Products to 413 Racing once they have been supplied to, or at the direction of, the Consumer; or
8.3.2. 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.
8.4. Products returnable in terms of clause 8.2 above must be returned to 413 Racing at 413 Racing’s risk and expense, within 7 (seven) Business Days after delivery to the Customer;
8.5. Upon return of any Products in terms of this clause 413 Racing must refund to the Customer the Price paid for the Product, less any amount that may be charged in terms of clause 8.7 below, after having been afforded an opportunity to inspect the Products returned;
8.6. In determining the right of 413 Racing to impose a charge contemplated in clause 8.5 above, if any Products returned to 413 Racing in terms of this clause are:
8.6.1. In the original unopened packaging with all tags and labels attached, 413 Racing may not charge the Customer any amount in respect of the Products;
8.6.2. In their original condition and repackaged in their original packaging, 413 Racing may charge the Customer a reasonable amount for:
126.96.36.199. 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
188.8.131.52. 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
8.6.3. In any other case, Affliction may charge the Customer a reasonable amount:
184.108.40.206. As contemplated in clause 8.6.2 above; and
220.127.116.11. 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.
8.7. Products may be returned to 413 Racing in the following manner:
8.7.1. Directly to the 413 Racing Store by the Customer; alternatively
8.7.2. By delivery via Courier to the 413 Racing Store.
8.8. When returning products to the 413 Racing Store directly, the Customer shall follow the usual in-store return process applied by 413 Racing and the Customer will be required to:
8.8.1. Furnish proof of purchase (invoice or delivery note); and
8.8.2. Produce the card (proof of payment) utilized (credit, cheque or debit card) to effect payment for the Products purchased.
8.9. When returning products via the Courier, the Customer will be required to:
8.9.1. Supply a reference number from the courier company
8.9.2. Insert the Products into appropriate packaging to ensure that the Products are not damaged during transportation;
8.9.3. Make the duly packaged Products available for collection by the Courier in accordance with the instructions received from 413 Racing. 8.10. Refund of returned Products shall occur as follows:
8.10.1. EFT payments will be refunded to customer via EFT.
9. CUSTOMER’S RIGHTS TO SAFE, GOOD QUALITY PRODUCTS
9.1 The Parties agree in respect of the sale of all Products by 413 Racing, that the Customer:
9.1.1 Has been expressly informed that the particular Products were offered in a specific condition; and
9.1.2 Has expressly agreed to accept the Products in that condition, or knowingly acted in a manner consistent with accepting the Products in that condition.
10. IMPLIED WARRANTY OF QUALITY
10.1. 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 413 Racing 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:
10.1.1. That he/she expressly agrees to the Products being sold in the aforesaid condition; and has not specifically informed 413 Racing of any particular purpose for which he/she wishes to acquire or use the Products.
11. LIABILITY FOR DAMAGE CAUSED BY GOODS
11.1 Except to the extent contemplated in clause 11.3 below, the producer, importer, distributor or retailer of the Products, including 413 Racing, are liable for any harm, caused wholly or partly as a consequence of:
11.1.1 Supplying any unsafe Products;
11.1.2 A Product failure, defect or hazard in any Product; or
11.1.3 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 413 Racing, as the case may be.
11.2 If, in a particular case, more than one person is liable in terms of this clause, their liability is joint and several;
11.3 Liability of 413 Racing in terms of this clause does not arise if:
11.3.1 The unsafe Product characteristic, failure, defect or hazard that results in harm is wholly attributable to compliance with any public regulation;
11.3.2 The alleged unsafe Product characteristic, failure, defect or hazard:
18.104.22.168 Did not exist in the Product at the time it was supplied by 413 Racing to the Customer; or
22.214.171.124 Was wholly attributable to non-compliance by the Customer with instructions provided by 413 Racing, in which case clause 126.96.36.199 does not apply.
11.3.3 It is unreasonable to expect 413 Racing to have discovered the unsafe Product characteristic, failure, defect or hazard, having regard to 413 Racing’s role in marketing and supplying the Product to the Customer; or
11.3.4 The Customer’s claim for damages is brought more than 3 (three) years after the:
188.8.131.52 Death or injury of a person;
184.108.40.206 Earliest time at which a person had knowledge of the material facts about an illness; or
220.127.116.11 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
18.104.22.168 The latest date on which the Customer suffered any related economic loss.
11.4 The Customer acknowledges that 413 Racing shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise arising or resulting from:
11.4.1 Malfunction, failure or unavailability of the Products to the extent that 413 Racing has maintained industry accepted standards typically associated with the Products;
11.4.2 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;
11.4.3 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 413 Racing.
Without derogating from the generality of any of the provisions of this Agreement, and subject to the provisions of the CPA, 413 Racing 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 413 Racing against all such claims, save for when the aforesaid claims arise from the grossly negligent conduct of 413 Racing.
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.
14. NOTICES AND LEGAL PROCESS
14.1 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: 413 RACING Physical Address: 34 van Rooyen Street, Utrecht, KZN Postal Address: P.O Box 327, Utrecht, 2980 Fax: 034 331 3021 Telephone: 034 331 3021 E-mail address: email@example.com The Client As per the address and contact details provided by the Client via the Website when placing his/her order.
14.2. Any notice required or permitted under this Agreement shall be valid and effective only if in writing;
14.3. 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;
14.4. 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;
14.5. 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;
14.6. 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.
15.1 Clause and paragraph headings are for purposes of reference only and shall not be used in interpretation;
15.2. Unless the context clearly indicates a contrary intention, any word connoting:
15.2.1. Any gender includes the other two genders;
15.2.2. The singular includes the plural and vice versa;
15.2.3. Natural persons includes artificial persons and vice versa;
15.2.4. Insolvency includes provisional or final sequestration, liquidation or judicial management.
15.3. 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;
15.4. A reference to an enactment is a reference to that enactment as at the date of signature hereof and as amended or re-enacted from time to time;
15.5. The rule of interpretation that a written agreement shall be interpreted against the Party responsible for the drafting or preparation of that agreement shall not apply;
15.6. 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;
15.7. 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;
15.8. 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.
16. GENERAL PROVISIONS
16.1. 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 413 Racing 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 413 Racing 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.
16.6. GOVERNING LAW
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.
16.6. 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.
16.7. FORCE MAJEURE
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.