Wholesale – Terms & Conditions

FP – Terms and Conditions

INTERPRETATION
In this document, the following words shall have the meanings ascribed to them:
1.1. “Agreement” means the agreement contained in this document and displayed on the Website;
1.2. “Company” means Firla Perla (registration number: 2019 00000) t/a Firla Perla
1.3. “Customer(s)” means any person accessing the Website, whether such person purchases or makes use of Products or Services of the Company or not, and includes Wholesale Customers and Qualifying Wholesale Customers (where applicable);
1.4. “Personal Information” means the personal information of a Customer, including, but not limited to, his/her/its name, identity/registration number, address, email address and contact number;
1.5. “Product(s)” means, the products sold on the Website by the Company and includes, but is not limited to, candles, candle holders, accessories, wax melts, Home décor pieces.
1.6. “Services” means any services provided through the Website by the Company;
1.7. “Terms and Conditions” means the terms and conditions and policies set out in this Agreement, all as may be amended from time to time, governing the relationship between the Customer and the Company;
1.8. “Us” means the Company;
1.9. “Website” means www.firlaperla.com;
1.10. “Wholesale Customer(s)” means existing or future customers of the Company who purchase Products in wholesale/bulk; and
1.11. “You” means the Customer.

2. INTRODUCTION
2.1. The Website is owned by the Company and serves the purpose of promoting the sale of the Company’s Products and Services.
2.2. For the avoidance of doubt, this Agreement only applies to the Company’s website and apply’s to any transaction between the Customer and the Company whether in-store, telephonically or in any other manner other than through the Website.
2.3. By shopping or browsing on this Website, You:
2.3.1. warrant that you have read and understood these Terms and Conditions as well as the policies displayed on this Website;
2.3.2. irrevocably and unconditionally agree to the Company receiving any of your Personal Information (including its successors in title), which Personal Information shall be utilised, stored and protected in accordance with the South African data and personal information laws by the Company; and
2.3.3. agree to be bound by this Agreement.

3. INTELLECTUAL PROPERTY
3.1. All intellectual property rights, including copyright, in all materials, including trademarks, logos, photographs, images, text and other graphics which form part of the Website are owned by the Company, alternatively the Company is the lawful user thereof. Such rights are protected by both South African and international intellectual property laws. All data and information communicated to or from the Website and/or any Website information as well as the database is the sole property of the Company, and no rights in respect thereof shall accrue to You.
3.2. The Company grants you permission to view, electronically copy and print portions of the Website for the sole purpose of placing an order with the Company for any of the Products.
3.3. Any use of materials on the Website other than for the purpose noted above including, without limitation, the unauthorised submission, removal, modification, dissemination, copying or distribution of copyrighted or other proprietary content, without the prior written consent of the Company and/or the lawful trademark and/or copyright owner (if applicable), is prohibited and constitutes an unlawful infringement of the intellectual property rights of the Company and/or such trademark and/or copyright owner.

4. TRADEMARKS
The Company logo and all other marks, logos and trade names appearing on the Website are trademarks of the Company, its holding company or affiliates in the Republic of South Africa, or of third parties who have authorised the Company to display such trademarks on the Website. Nothing contained on this Website should be construed as granting, by implication or otherwise, any license or right to use by You (whether directly or indirectly) any of the trademarks displayed on this Website without the express prior written consent of the Company. Your use of any of the trademarks displayed on the Website or in any of its contents is strictly prohibited. You may not (whether directly or indirectly) copy, reproduce, publish, upload, post, transmit, distribute or modify any of the trademarks appearing on this Website. You further undertake, in any form, not to infringe any right of the Company or trademark owners in respect of such trademarks. The use of the trademarks on any other website or networked computer environment is prohibited.

5. UNLAWFUL USE
You shall not use this Website to send or post any message or material that is unlawful, harassing, defamatory, abusive, threatening, obscene, sexually orientated, racially offensive, profane or which violates any applicable law and you hereby indemnify the Company against any loss, liability, damage or expense of whatever nature which the Company or any third party may suffer and which is caused by or attributable to, whether directly or indirectly, your use of the Website.

6. LINKS
The Company may provide external hyperlinks on the Website which are beyond the Company’s control. You shall not interpret the provision of such hyperlinks as constituting any relationship between the Company and any linked third party, nor as an endorsement by the Company of such third party. Hyperlinks provided on this Website to other websites are provided ‘as is’ and the Company does not necessarily agree with, edit or sponsor the content of such Websites. The use of, or reliance placed by You on any external links provided on the Website is entirely at your own risk. Customers are obliged to inform themselves of the terms and conditions and privacy policies of these other websites.

7. COOKIES
The Website uses cookies to enhance Customers’ browsing experience, analyse site usage and assist in the Company’s marketing efforts. By clicking “Accept Cookies” on the bar displayed on the Website, You agree to receive all our cookies. You can change your cookie settings at any time.

8. DISCLAIMERS AND EXCLUSIONS OF LIABILITY
8.1. You expressly agree that use of the Website is entirely at your own risk. The Website and its contents are provided on an ‘as is’ and ‘as available’ basis and has not been compiled to meet individual requirements. It is your responsibility to satisfy yourself, prior to entering into this Agreement, that the service available from and through this Website meets your requirements.
8.2. The Company makes no representations nor gives warranties of any kind, whether express or implied including, without limitation, with respect to the Website, its contents, the accuracy thereof or any warranties or representations regarding the effectiveness of any security or encryption facilities or with regard to the availability of Products, Services and/or delivery arrangements and times.
8.3. The Company disclaims all representations and warranties including, but not limited to, warranties as to the availability, accuracy or content of information, Products or Services, and warranties of merchantability or fitness for a particular purpose of information, goods or services.
8.4. The Company does not warrant that the functions provided by the Website will be uninterrupted or error free, or that the Website or the server that makes it available are free from viruses or other harmful components. Save as expressly set out herein, the Company shall under no circumstances whatsoever be liable to You, including without limitation, as a result of or in connection with the Company’s negligent acts or omissions or those of their employees, agents, representatives, sub-contractors or other persons for whom in law they may be liable (in whose favour this constitutes a contract or undertaking for their benefit), for any direct, indirect, incidental, special or consequential loss or damage of any kind whatsoever or howsoever caused (and whether arising under contract, delict or otherwise), sustained by either You, the recipient of the Products or Services or any other person arising from or as a result of any sale concluded in terms of this Agreement, the delivery, non-delivery, incorrect, erroneous or late delivery, the use or possession of the Products or Services.
8.5. The Company, its directors, employees, sub-contractors, agents, representatives, affiliates and suppliers shall not be liable for any loss, damage (whether direct, indirect or consequential) or expense of any nature whatsoever which may be suffered as a result of or which may be attributable, directly or indirectly, to the use of or reliance upon the Website (including any information contained thereon) or the Internet. You hereby indemnify the Company from and against any loss or damage suffered or liability incurred including, without limitation, in respect of any claim or demand by any third party by reason of any act or omission on your part or that of any family member, agent or representative acting on your behalf in connection with transactions concluded on the Website and/or in terms of this Agreement and/or in relation to the receipt of Products or Services supplied by the Company pursuant to any such order.
8.6. Notwithstanding any other provisions contained herein, the Company’s liability whether in contract or delict arising from any breach of any obligation in terms of this Agreement, negligence or otherwise shall not exceed at any time the value of the Product(s) and/or Services in respect of which any such dispute or claim arises, any You expressly acknowledge and agree to this.
8.7. By accessing this Website you warrant and represent to the Company that you are legally entitled to purchase the Products and that all the details you have provided are true and complete.
8.8. Information, ideas and opinions expressed on this Website should not be regarded as professional advice or the official opinion of the Company. You should consult professional advice before taking any course of action related to information, ideas or opinions expressed on this Website.

9. SECURITY
9.1. The Company will take reasonable precautions to ensure that your Personal Information and/or credit/cheque card (e.g. a MasterCard or Visa card) (“Credit/Cheque Card“), or other card details are protected from unauthorized use and disclosure. Given the current state of Internet technology however, there is no guaranteed secure transmission of data over the Internet. Therefore, the Company cannot guarantee the absolute security of any information You transmit to Us or which the Company transmits to You. You agree that the Company shall be entitled, at all times, to take all reasonable steps to ensure the integrity and security of the Website, including associated applications.
9.2. The content contained on the Website may be used by You for your own personal shopping and information purposes only. In using the Website You warrant that You shall not infect it with any computer programming (such as a virus) that may damage, interfere with, delay or intercept any data or information on the Website and You hereby indemnify the Company for any damage caused by any act attributable to You. Any person that delivers or attempts to deliver any damaging code to this Website or attempts to gain unauthorised access to any page shall be prosecuted.

10. ELECTRONIC COMMUNICATIONS
When You use or visit the Website, or send electronic communications to the Website including, without limitation, e-mails or place orders for Products, You:
10.1. consent to receiving communications from the Company electronically;
10.2. agree that all notices, disclosures and other communications sent by the Company, including this Agreement, satisfies any legal requirements, including but not limited, to the requirement that such communications should be ‘in writing’;
10.3. agree that the Company may use your information to contact You about promotions and special offers if You have indicated when asked by the Company that You would like to receive such information. You are entitled, at any stage, to opt out of this service. The Company shall not sell or rent information about You including, without limitation, your Personal Information to any third parties, save as otherwise provided herein (for example see clause 18.4.5); and
10.4. agree that the Company may disclose your Personal Information in response to a specific request by a law enforcement agency, subpoena, court order, or as otherwise required by law, e.g. for accounting purposes.

11. ONLINE SITE TERMS
11.1. To buy Products on the Website you must be over the age of 18, be the holder of a valid Credit/Cheque Card or have access to electronic banking in order to make payment via Electronic Funds Transfer (“EFT”).
11.2. If you have any questions regarding our Website, the terms, Products or Services, please contact the Company on info@firlaperla.com

12. ONLINE REGISTRATION
12.1. All Customers will have the option to register with a username and password on the Company Website. Registration is not a requirement for purchasing Products on the Website.
12.2. Future Wholesale Customers, who have specifically approached/contacted the Company to enquire about purchasing Products in wholesale/bulk (“Qualifying Wholesale Customer”), will be required to complete an application form in order for the Company to approve such customer as a Wholesale Customer.
12.3. Once a Qualifying Wholesale Customer has been approved as a Wholesale Customer by the Company, such Wholesale Customer shall, in the sole and unfettered discretion of the Company, qualify for certain benefits and deductions due to it purchasing Products in bulk/wholesale from the Company.
12.4. The Company shall provide the Qualifying Wholesale Customer with a username and password to enable such customer to access their own account.
12.5. Qualifying Wholesale Customers acknowledge that their registration is subject to the Company’s approval, which approval may take up to 5 business days.
12.6. It is specifically recorded that existing Wholesale Customers of the Company will not be required to complete the application form contemplated in clause 12.2 above.
12.7. The Company shall offer its existing Wholesale Customers the option to access their own account on the Website by providing them with their own username and password. Existing Wholesale Customers who decline such offer by the Company initially shall not be precluded from requesting a username and password from the Company at a later stage.

Wholesale order
12.8. Registration and/or use of the Company online site constitutes acceptance of this Agreement by You, and shall accordingly apply as between the Company and yourself.
12.9. Registration on our Website is free and does not oblige You to purchase anything.
12.10. Upon registration, You, save for Qualifying Wholesale Customers, will be required to choose a password. Customers are requested to keep their passwords secret. The Company accepts no liability for any damages suffered or losses incurred as a result of the misuse or loss of account passwords.
12.11. Upon acceptance of your registration, a registration confirmation email will automatically be sent to the email address You provided when registering. Transmission times depend on your internet service provider, but it typically takes less than 10 (ten) minutes to receive the confirmation email. If You do not receive the confirmation email please contact the Company as soon as possible on the email address provided in clause 11.2 above. This clause does not apply to Qualifying Wholesale Customers who are provided with a username and password by the Company.
12.12. You will be required to login with your username and password each time You want to access your account. You can access your account by clicking on “My Account” on the top right of any page on the Website.

Wholesale Orders and returns

Due to the nature of the agreement, custom made products and quantities a wholesale order may not be returned.

When can a consumer return goods under the Consumer Protection Act (CPA) in South Africa? In this article, we look at when a consumer can return goods and explain how we can help suppliers of goods or services (for example retailers and online shops).

We can’t help consumers

Unfortunately, we can’t help you if you are a consumer in need of protection. We’re not able to consult with you personally and provide you with a cost-effective solution. But we can point you in the right direction to enable you to resolve your complaint.

How we can help suppliers

If you are a supplier of goods or services, we can provide you with a returns policy that is in line with the CPA. Or we can review your existing returns policy to make sure that it is in line with the CPA.
If you are an online store or retailer, we can provide you with legal notices. We also provide free website terms that are suitable for some online stores.
If you are a supplier, we can help you comply with the Consumer Protection Act in South Africa.

There is no general right of return

There are a number of sections in the Consumer Protection Act that allow goods to be returned, but it is important to note that there is no general right of return. For example, when a consumer buys an item from a store and the next day regret spending so much money, or simply does not like the item, the consumer cannot return the item simply because they have had a change of heart. Some retailers do allow consumers to do this, but it is not a consumer’s legal right to do so. A change of heart is not a legal reason to return an item.

There are very limited circumstances (which we discuss below) where a consumer can return an item. However in these cases, even if the law is on the consumer’s side, the supplier can simply refuse to give you your money back, leaving you arguing with a brick wall.

When a consumer can return goods under the CPA

Generally speaking, there are only four instances when a consumer can return goods under the CPA.

1) The direct marketing “cooling-off” period

In terms of s16 of the CPA, if a consumer has bought goods as a result of direct marketing, then for a period of 5 days after receiving the goods, the consumer can:

return the goods,
cancel the entire contract without penalty, and
receive a full refund.

The consumer will have to pay the costs to return the goods.

2) Goods which have not been seen before purchase

In terms of s20 (read with s19) of the CPA, if a consumer has not had the opportunity to examine or inspect the actual goods received before purchase, they are entitled to inspect the goods on delivery. If on this initial inspection they find that:

the goods do not meet the ‘type’ or ‘quality’ they could reasonably expect from the agreement; or
if the goods were made in terms of a special or ‘custom’ order, and the goods do not reasonably conform to the specifications of the order,

then:

the consumer can refuse delivery,
receive a full refund, and
the consumer can cancel without penalty.

The supplier will have to pay the costs to return the goods.

3) Goods do not meet a particular purpose

In terms of s55(3) (read with s20) of the CPA, if a consumer informs a supplier that the goods are being bought to fulfill a particular purpose, and the supplier advises that the goods will meet this particular purpose then:

10 days after receiving the goods,
the consumer can return the goods if it is not suitable for the particular purpose, and
the consumer can cancel without penalty.

The supplier will have to pay the costs to return the goods.

It is important to note that despite the above, the consumer is not entitled to return goods for any of the above reasons (1)-(3) if:

regulation prohibits the return of those goods to a supplier once they have been supplied to a consumer (for reasons of public health or public), or
after having been supplied to a consumer, the goods have been partially or entirely disassembled, altered, added or combined with other goods or property.

4) Implied warranty of quality

In terms of s56 (read with s55) of the CPA, all goods sold to a consumer are sold with an implied warranty of quality, that cannot be contracted out of or revoked. The warranty gives the consumer the right to receive goods that:

are reasonably suitable for the purpose that they are intended to be used for,
are of good quality, free of defects, and in good working order, and
will be durable and usable for a reasonable period of time.

If goods are found not to comply with these requirements then, for up to 6 months after receiving the goods, the consumer can:

return the goods, or
get the goods replaced, or
get the goods repaired.

The consumer can do any of these things without penalty and at the suppliers’ cost. A general ‘voetstoots‘ clause will be insufficient.

However, a consumer will not be able to return the goods because it was defective or not suitable for the purpose if:

the consumer was made aware of the specific defects, and
the consumer agreed to receive the goods in that condition.

A general ‘voetstoots’ clause will be insufficient to get out of the s56 warranty because you have to mention the specific defects.

A word on ‘refunds’

In-store vouchers or credits are not illegal per se

Wherever the CPA entitles a consumer to a refund, it must be interpreted to mean that the consumer has the election on how to receive the refund. This means that while refunds as in-store vouchers or credits are not illegal per se, if the consumer demands a cash refund the supplier must give it to them. Also in terms of s56, the consumer (not the supplier) can decide whether to choose the refund, replacement or repair.

The ECT Act and returns

The ECT Act has its own consumer protection provisions, some of which will trump the CPA

If you sell or buy goods online, there are some extra things to consider. Most importantly the Electronic Communications and Transactions Act (ECT Act) will apply to the transaction. The ECT Act has its own consumer protection provisions, some of which will trump the CPA. Specifically, the reasons (1)-(3) for returns listed above do not apply if the ECT Act’s provisions apply to the transaction. Instead of these rights of return, consumers have;

a general right to return (a “cooling off period”);
for seven days after delivery;
for any reason;
without penalty; but
the consumer must pay the costs to return the goods.

Since the ECT Act has been around since 2002, if you have an online store, your returns policies should already be in line with these provisions.

Refund Policies

If you are a supplier of goods, one of the most important things you can do is make sure that your returns or refund policy is in line with the CPA. A good returns policy coupled with excellent customer service will be essential to avoid complaints to the National Consumer Commissioner. The ECT Act (or Electronic Communications and Transactions Act 25 of 2002 or ECTA) became law in South Africa on Friday, 30 August 2002 and we summarise it for you. This marked the end of a process initiated by the South African Government in 1999 to establish a formal structure to define, develop, regulate and govern e-commerce in South Africa. The word cloud on the right provides an overview of the ECT Act and which words or concepts appear most prominently throughout.

The ECT Act is one of many sources of law which impact on electronic communications and transactions and must not be read in isolation of relevant statutory and common law. It applies to any form of communication by e-mail, the Internet, SMS etc except for possibly voice communications between 2 people. The ECT Act is also “an enabling” piece of legislation in that it provides functional equivalents for paper-based concepts (including writing, original and signature), some of which were encountered in over 300 pieces of legislation identified by the Department of Communications in 1999 as not being suitable to the information age as they all had paper-based concepts within them.

The ECT Act is also a very wide piece of legislation and also deals with issues which are not related to electronic communications and transactions (such as cyber inspectors, liability of service providers and domain names). It also attempts to provide legal certainty in areas of law where there was legal uncertainty prior to August 2002 (e.g. the formation of contracts and the status of so-called “click wrap” agreements).

Chapter I of the ECT Act: Interpretation, Objects and Application

This part of the Act defines critical words and phrases and sets out the main objects of the Act.

Chapter II of the ECTA: Maximising Benefits and Policy Framework

The objective is to maximise the benefits the Internet offers by promoting universal access in under serviced areas and ensuring that the special needs of particular communities, areas and the disabled are duly taken into account. The ECT Act required the Minister to develop a 3-year national e-strategy for the Republic by no later than 30 August 2004. This was to, then, be submitted to the Cabinet for approval, which, on acceptance, would declare the implementation of the national e-strategy as a national priority. The national e-strategy was required to set out:

the electronic transactions strategy of the Republic,
programmes and means to achieve universal access,
human resource development and development of SMMEs,
ways to promote the Republic as a preferred provider and user of electronic transactions in the international market,
the utilising of existing Government initiatives in attaining the objectives of the e-strategy,
the role expected to be performed by the private sector in the implementation of the new national strategy,
the objectives, timeframes and resources required to achieve the objectives provided for in the national e-strategy.

Chapter III of the ECT Act: Facilitating Electronic Transactions

This Chapter deals with the removal of legal barriers to electronic transacting and comprises 2 parts.

Part 1 provides for the legal requirements of data messages (a form of electronic communication). Various sections are drafted from the perspective of where a requirement is prescribed by “law”. It also attempts to create technology neutrality in respect of the legal treatment of data messages.

Part I gives legal recognition to electronic documents and recognises that electronic documents and signatures can serve as the electronic functional equivalent of their paper-based counterparts. Provision is made for the legal recognition of electronic signatures and the ECT Act does not prescribe what type of technology must be used. Examples of electronic signatures include:

your typed name at the end of your e-mail,
a scanned image of your handwritten signature embedded into a Word document and
a so-called digital signature.

The ECT Act also creates special type of electronic signature, known as an “advanced electronic signature” (AES), which is a particularly reliable form of signature. Where a law (such as the Credit Agreements Act) requires a signature, only an AES will be valid.

Provision is made for the legal recognition of the electronic version of paper-based concepts and electronic data will, subject to certain conditions, be regarded as “writing” and constituting a “original”. The Act permits the keeping of records in electronic form. However, the ECT Act states the general legal principle but does not provide details or guidelines on what organisations should implement in practice.

Provision is also made for integrity being key to ensuring proper evidentiary weight of electronic evidence and the ability to notarise, acknowledge or certify electronic documents.

The Part also permits one to send a document by e-registered post through the South African Post Office.

Part 1 also recognises that information can be incorporated into a document through the use of hyperlinks and that contracts can be performed by machines functioning as electronic agents for parties to an electronic transaction.

Part 2 creates certain presumptions as to the time when and place where you are deemed to have received information. Part 2 also provides legal certainty as to the status of so-called “click wrap” (mouse-click-on-icon) and “web wrap” agreements. It also covers situations where data messages are deemed to have been sent by someone. The Part also provides for the acknowledgement of receipt of a data message, although there is not a legal requirement to do so.

Chapter IV: Government

This Chapter facilitates electronic access to government services, such as e-filing. It lists the requirements for the production of electronic documents and the integrity of information. Provision is made for any public body to accept and transmit documents in the form of data messages, and to issue permits or licenses in the form of data messages or make or receive payment in electronic form or by electronic means. The public body may specify any requirements (such as security and authentication) in the Government Gazette.

Chapter V: Cryptography Providers

The Internet presents security challenges which, without an effective regulatory framework, would pose a threat to the security of consumers and the State. This Chapter requires that suppliers (not users) of “cryptography” services or products to register their names and addresses, the names of their products with a brief description in a register maintained by the Department of Communications. Unless the (local or foreign) supplier has registered, they cannot provide their services or products in South Africa.

Registration will allow investigative authorities such as the SAPS, to identify which organisation provide the encryption technologies intercepted by them in terms of our monitoring and interception laws. This will enable the investigative authorities to approach these service providers to assist with deciphering the encrypted messages. In June 2007, the Department of Communications licensed approximately 16 cryptography service providers.

Chapter VI: Authentication Service Providers

Identification and authentication of the parties in cyberspace remains a challenge and poses threats to consumers and businesses. The ECT Act seeks to provide for the establishment of an Accreditation Authority within the Department, allowing voluntary accreditation of electronic signature technologies in accordance with minimum standards. Once accredited, these Government endorsed “advanced” electronic signatures can be used by parties who have to sign by means of an “advanced” electronic signature where required “by law”. In addition, the legislature has created a presumption of integrity where “advanced” electronic signatures are used – i.e. they will allow a party to place reliance on its authenticity by shifting the burden of proof onto the signatory to disprove its authenticity. It has also created a benefit in favour of those processes which have been accredited, that are recognised as particularly reliable. The Regulations governing accreditation were published on Wednesday, 20 June 2007 (in Government Gazette No. 8701, No. 29995, Vol. 504).

Chapter VII: Consumer Protection

Website categories of information

Suppliers of goods or services must provide consumers with a minimum set of information, including:

the price of the product or service,
the name, contact details, and a brief description of the business, and
the right to withdraw from an electronic transaction before its completion.

A consumer is defined as a natural person acting as end-user of the goods or services. Consumers are also entitled, under certain circumstances, to a “cooling off” period within which they may cancel certain types of transactions concluded electronically without incurring any penalty.

Spam

Consumers also have the right not to be bound to unsolicited communications (spam) offering goods or services and the sender of the unsolicited communication must at the request of the consumer provide the identifying particulars of the source from which it obtained the consumers personal information. A person who continues to send unsolicited communications to a consumer after having been advised that the unsolicited communications are not welcome, commits an offence.

The ECT Act also seeks to place the responsibility on businesses trading online to make use of sufficiently secure payment systems. If a payment system is breached as a result of the system not being sufficiently secure, the supplier must reimburse the consumer for any loss suffered.

Chapter VIII: Personal Information and Privacy Protection

This Chapter establishes a voluntary regime for protection of personal information. Personal information includes any information capable of identifying an individual. Collectors of personal information (data collectors) may subscribe to a set of universally accepted data protection principles. It is envisaged that consumers will prefer to deal with only those data collectors that have subscribed to the recorded data protection principles. The sanction for breach of these provisions is left to the parties themselves to agree on. Subscription to these principles is voluntary due to the fact that the South African Law Commission’s investigation into privacy in South Africa. An Issue Paper was released in October 2003 which is accessible from Privacy Law. Following an evaluation of Submissions on the Issue Paper which had to be submitted by 01 December 2003, the Law Commission may publish a Discussion Paper on privacy containing draft legislation sometime in 2008.

Chapter IX: Protection of Critical Data

In terms of its definition, critical data is information which, if compromised, may pose a risk to the national security of the Republic or to the economic or social well being of its citizens. The Minister may prescribe matters relating to the registration of critical databases and require certain procedures and technological methods to be used in their storage and archiving. In November 2003 the Minister of Communications awarded a tender to a consortium of Consultants to undertake an inventory of all major databases in South Africa. The purpose of this according to the press release is to assist the Minister to (i) put in place regulations, with respect to the development, maintenance, validity, integrity and security of these databases and related systems, (ii) review progress and compliance on an ongoing basis, (iii) refine policy, legislative and regulatory requirements where appropriate and (iv) ensure that databases and data, in the Republic of South Africa, that could negatively impact on companies and citizens, are developed, maintained and secured to meet appropriate standards.

Chapter X: Domain Name Authority and Administration

The ECT Act has established a Domain Name Authority (the .sea Domain Name Authority (Zadna)) to assume responsibility for the .za domain name space. All citizens and permanent residents of the Republic are eligible for membership of the Authority and must be registered as members upon application and on payment of a nominal fee. The Act provides for certain issues that have to be provided for in the Memorandum and Articles of Association of the Authority, which will be managed and controlled by a board of directors consisting of 9 directors (see the Minister’s Parliamentary Briefing on 12 September 2003). The directors are broadly representative of the demographics of the country and include stakeholders from the existing Domain Name Authority, academic and legal sectors, science, technology and engineering sectors, labour, business and the private section, culture and language, public sector and the Internet user community. The functions of the Authority are provided for in the Act. Provision is made for finances and reporting and for disputes involving Domain Names to be settled by means of alternate disputes resolution methods. In August 2007, Zadna published new policies and procedures for its members. The regulations state inter alia that domain names are to be allocated on a first come, first serve basis, with dispute resolution processes to be utilised if needs be to protect the rightful owners of domain names.

Chapter XI Limitation of Liability of Service Providers

Chapter XI deals with the limitation of the liability of service providers or socalled “intermediaries” in cases where they may otherwise have been liable for third party data hosted on their servers. It creates a safe harbour for service providers who were previously exposed to a wide variety of potential liability by virtue of merely fulfilling their basic technical functions. The service providers may seek to limit their liability where they have acted as mere conduits for the transmission of data messages. In each situation, the ECT Act seeks to provide for specific requirements that the actions of the service providers must meet before the clause may be invoked to limit his or her liability.

Chapter XII: Cyber Inspectors

Chapter XII of the ECT Act seeks to provide for the Department of Communications to appoint cyber inspectors. The cyber inspectors may monitor Internet websites in the public domain and investigate whether cryptography service providers and authentication service providers comply with the relevant provisions. The inspectors are granted powers of search and seizure, subject to obtaining a warrant. Inspectors can also assist the police or other investigative bodies, on request.

Chapter XIII Cyber Crime

Chapter XIII of the ECT Act seeks to make the first statutory provisions on cyber crime in South African jurisprudence. The Act seeks to introduce statutory criminal offences relating to the following:

unauthorised access to data (e.g. so-called “hacking” and trading in passwords used to commit an offence);
interception with data (e.g. tapping into data flows or denial of service attacks);
interference with data (e.g. viruses and denial of service attacks);
computer related extortion, fraud and forgery (e.g. where someone gains financially by undertaking to cease or desist from doing something using a computer).

Any person aiding or abetting another in the performance of any of these crimes will be guilty as an accessory. The ECT Act prescribes the penalties for those convicted of offences which render a person liable to a fine or imprisonment for periods not exceeding 12 months in certain circumstances or five years in certain circumstances.

Chapter XIV: General Provisions

Chapter XIV contains certain “long arm” provisions which give a Court in the Republic jurisdiction to try an offence which was committed in the Republic, or where any active preparation towards the offence was committed in the Republic, where the offence was committed by a South African citizen or a permanent resident in the Republic or by a person carrying on business in the Republic, or was committed onboard any ship or aircraft registered in the Republic or on an aeroplane to or from the Republic at the time the offence was committed.

ECTA repeals the Computer Evidence Act of 1983 and limits the liability of the State, the Minister of Communications and any employee of the State for any act or omission carried out by a person in good faith and without gross negligence.

You can access the full document on the South African Government website.

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By Michalsons|September 25th, 2008|Categories: IT Law|Tags: ECATA, ecommerce law, ECT Act, ecta, electronic communications and transactions act, ICT law, legal guidance, legal guide

13. PLACING AN ORDER ONLINE
13.1. When placing an order online for Products and to purchase Products online Customers will be required to provide the following personal information including but not limited to:
13.1.1. Name and Surname or Company name;
13.1.2. Email address;
13.1.3. Contact number;
13.1.4. Payment details;
13.1.5. Delivery address; and
13.1.6. Billing address.
13.2. Enquiries about the progress of your order can be made to info@thecandlemerchant.co.za. Customers’ delivery address and contact details are required to facilitate the delivery of an order.

14. PRODUCT AVAILABILITY & PRICING
14.1. The Products displayed on this Website are subject to availability and will be delivered only within the Republic of South Africa, within the defined areas as determined by the Company.
14.2. All prices displayed on the Website are quoted in South Africa Rand (ZAR) and include VAT at the rate of 15%. These are valid and effective only in the Republic of South Africa, and you acknowledge that VAT may increase from time to time and You shall be bound by such increase.
14.3. The Company reserves the right, without prior notice, to discontinue or change pricing or specifications on Products and Services offered on the Website without incurring any liability whatsoever.
14.4. Subject to availability, the price You pay for Products will be the price shown on the Company Online Website on the date that You pay for such Products.
14.5. Time-based pricing is only available during the times and dates stipulated on the Website.
14.6. In the event of a Product being on sale, the sale price will be displayed on the Website. On occasion prices seen online may only be valid on the Website and not in the Company stores.
14.7. The Company in no way guarantees availability of stock, but will endeavour to source stock where possible to fulfil a Customer order.
14.8. Stocks of all Products on offer are limited. The Company shall use its reasonable efforts to discontinue the offer as soon as stock is no longer available.
14.9. If the Company is unable to supply each and every item ordered or in the quantities ordered and cannot contact the Customer, the Company reserves the right to cancel the order until such time as it is able to get hold of the Customer.

15. DELIVERY OF PRODUCTS
15.1. All Products purchased online through the Website will be delivered to the address provided by the Customer. Products will not be available at any of the Company’s stores for collection by the Customer.
15.2. All deliveries are outsourced and will be made through The Courier Guy.
15.3. Delivery of Products by The Courier Guy will be subject to an extra delivery fee. The delivery fee will be added to the final bill which Customers are required to pay at checkout. Delivery fees are dependent on, among other things, the size and weight of the Product and the delivery address of the Customer.
15.4. The Company shall provide the Customer with a Waybill number in order for the Customer to track the purchased Product’s movement on The Courier Guy’s website (http://www.thecourierguy.co.za/tracking_home.php). Please allow between 36hrs – 72hrs turnaround time to receive your order during business hours.
15.5. Customers are required to ensure that a responsible person (whether it be the Customer him/herself or an authorised representative of the Customer) is available to accept the purchased Product at the delivery address and that appropriate access will be made available to the courier. On delivery of the Product, Customers will be required to sign and print their name on a duplicate copy of the delivery note, to confirm receipt of the Product.
15.6. It shall be presumed that any person other than the Customer him/herself who receives the Products at the delivery address is authorized to accept delivery on behalf of the Customer. Should no-one be available at the delivery address specified by the Customer at the time of delivery, the courier will return the Products to the Company. The Courier Guy will attempt to make contact with the Customer to make new arrangements for redelivery. Should the Customer remain unavailable, the Company reserves the right to charge an additional delivery fee for re-delivery of the Product on a subsequent day should it be required under the circumstances.

15.7. The Company shall in no way be liable for any damage or destruction caused to the Products while in the possession of The Courier Guy.

16. OBVIOUS ERRORS
16.1. Whilst all precautions are taken by the Company to provide the correct information on the Website, in the event that an inadvertent and obvious error in the price, Product or Service description, images and any other relevant content, is identified by the Company, the Company is not obliged to provide the Customer with the affected Product or Service.
16.2. The Company will make every effort to alert Customers of the error. In such circumstances, Customers are entitled to cancel the purchase and the Company will provide a full refund for the amount paid.

17. COLOURS & IMAGES
17.1. Every effort is made by the Company to display as accurately as possible the colours of the Products that appear on the Website.
17.2. Colours displayed on the Website are subject to the monitor settings on computers, and the Company cannot guarantee that the monitor’s display of any colour will be completely accurate.
17.3. By accessing, browsing and using the Website, the Customer understands and agrees that the Company cannot be held responsible for any errors that might be a result of incorrect images displayed.
17.4. The Company will endeavour to remove and replace any images that are incorrect as quickly as possible.

18. METHODS OF PAYMENT
18.1. Prior to delivery of the Product, the Company shall be entitled to debit the Credit/Cheque Card or bank account supplied by the Customer on acceptance of the order should the Customer be paying with a Credit/Cheque Card or instant EFT.
18.2. All Credit/Cheque Card payments are made through PayFast and are subject to 3D Secure verification in order to protect Customers from fraudulent use of their bank cards by unauthorised individuals. If a Customer’s issuing bank supports 3D Secure but the Customer has not activated it, the Customer will be redirected during the payment process to set it up.
18.3. Should Customers pay for the Products via manual EFT, the order will only be processed once the Company has received successful confirmation of payment that has cleared in the Company’s bank account, and is reflected as a payment on the Company’s bank statement within 5 working days of date of the placement of the order.
18.4. By submitting an order to buy Products, the Customer:
18.4.1. represents and warrants that he/she is over the age of 18;
18.4.2. represents and warrants that he/she is authorised to make payment with a Credit/Cheque Card if paying via this mechanism;
18.4.3. represents and warrants that he/she is authorised to make payment using the specified bank account if paying via instant EFT;
18.4.4. represents and warrants that there are sufficient funds available to pay for the order; and
18.4.5. consents to the Company providing Personal Information to its third party payment provider, which is necessary to enable the Company to perform its obligations in terms of this Agreement.
18.5. In order to protect the Company’s and Customer’s interests, the Company may scrutinize transactions to prevent attempted fraud. A transaction may be refused if the Company is not satisfied that it is legitimate.
18.6. No other method of payment will be accepted by the Company in respect of the purchase of Products on the Company Website.

19. CONFIRMATION OF ORDERS
19.1. Orders placed on the Website constitute an offer to purchase the Products subject to this Agreement. An offer is deemed to have been received by the Company when payment is received from the issuing bank in the case of payment via Credit/Cheque Card or instant EFT, or when the payment reflects on the Company’s bank statement in the case of payment via manual EFT.
19.2. On receipt of a Customer’s order, the Company will send an email to the Customer describing the Products and Services so ordered. These communications are merely a confirmation that the Company has received the Customer’s order, and do not represent any acceptance by the Company of the offer by the Customer to purchase the Products or Services from the Company.
19.3. The Company is in no way legally obliged to provide the Products and Services to the Customer during the offer process.
19.4. Failure by the Company to formally confirm or notify acceptance shall not affect the validity of the sale or the enforceability thereof.

20. AGREEMENT OF SALE
20.1. An agreement of sale in respect of a Product between the Company and the Customer shall only come into effect when payment has been made and the Products have been delivered at the Customer’s chosen delivery address. In this regard, the word “payment” means a Credit/Cheque Card authorisation is received by the Company from the issuing bank or when the Company’s bank statement reflects the payment via EFT, and the order has been invoiced. The word “delivery” means the transportation and the handover of the Product to the Customer.
20.2. The Company shall only be liable to refund monies already paid by the Customer. Unless otherwise stated, a delivery fee will be charged each time the Customer purchases a Product online for delivery.

21. DELIVERY CONFIRMATION
21.1. The contract between the Company and the Customer will only be completed upon delivery of the Products to the Customer. Any Products or Services on the same order which have not been dispatched/delivered to the Customer do not form part of that contract.
21.2. The Company will send a confirmation email to the Customer confirming delivery of the Product by The Courier Guy at the address chosen by the Customer.
21.3. Delivery dates are estimates only, and the Company will take all reasonable steps to inform the Customer if any Products or Services ordered are unavailable or delayed for any reason.

22. RISK AND OWNERSHIP
Risk in the Products shall pass to the Customer upon delivery of the Products at the delivery address chosen by the Customer. Until payment is received in full for any Products sold, ownership in the Products shall remain with the Company and such Products shall be returned and/or surrendered forthwith by the Customer to the Company following receipt of a default notice from the Company.

23. CANCELLATION
23.1. Customers may cancel an order and request a refund for any reason whatsoever, save for where Products are damaged as a result of the Customer’s actions, within 7 calendar days from the date on which the Products are delivered to the Customer.
23.2. Customers may cancel an order by contacting a Company representative on info@firlaperla.com
23.3. No penalty charges will be levied against cancelled orders prior to expiry of the aforementioned 7 calendar day cut-off time.
23.4. Cancellations and refunds are subject to the following conditions:
23.4.1. Customers must return the Product within 7 calendar days from delivery of the Product to the Customer, to the head office of the Company (The Candle Merchant, Unit 2, Clover Leaf Industrial Park, 79, 8th Avenue, Kensington, Maitland, Cape Town) or select a date within the aforementioned 7 calendar day period on which the Company can arrange collection at the Customer’s address provided.
23.4.2. The return of the Product will be at the Customer’s own expense, and collections of the Product from the Customer’s address will be subject to a collection fee;
23.4.3. Products must be returned in their original packaging with all manuals (if any);
23.4.4. Products with seals on them will not be accepted back if the seal is broken. This will be regarded as a used Product;
23.4.5. Products which are not returned in their original packaging may be subject to a 10% repackaging fee on the purchase price;
23.4.6. All returned Products are subject to inspection by the Company to ensure the Products are suitable for a refund; and
23.4.7. No Customer shall be entitled to cancel an order and request a refund on Products which are damaged as a result of the Customer’s own conduct.
23.5. Refunds shall only be processed onto the payment method that was used when the order was created, and into the account from which payment was made (e.g. Credit/Cheque Card or EFT).
23.6. A refund may take up to 14 business days to reflect in the account of the Customer, and EFT refunds are subject to verification of the Customer’s banking details.
23.7. Customers who cancel their order after the expiry of the 7 calendar day period mentioned in 23.1 may be charged a 7% fee on the refund amount.
23.8. Customers requiring more information on cancellations may contact a Company representative on the email address provided in clause 23.2 above.

24. DAMAGED/INCORRECT PRODUCTS
24.1. Should the Company supply an incorrect, damaged or faulty Product (“Defective Product”), Customers are required to notify the Company within 7 calendar days of receipt of the Defective Product on info@thecandlemerchant.co.za.
24.2. Customers who claim that the Products received are damaged will be required to provide the following information to the Company at info@thecandlemerchant.co.za in order for the Company to assess where in the delivery process the damage occurred:
24.2.1. a photograph of the outer box (including whether a “Fragile” sticker was placed thereon;
24.2.2. a photograph of the inside of the box, including the inner packaging; and
24.2.3. a photograph of the damaged Product.
24.3. The aforementioned information must be sent within the period specified in 24.1 above.
24.4. Customers may request the Company to:
24.4.1. replace the Product (subject to availability thereof);
24.4.2. repair the Product; or
24.4.3. issue a refund to the bank account from which the Product was purchased.
24.5. The Company shall as soon as reasonably possible after notification by the Customer contemplated in 24.1 replace or repair the Product or issue a refund, provided the conditions set out in 24.7 below are met.
24.6. Replacement Products shall be delivered to the Customer at the address provided by the Customer, at the Company’s expense.
24.7. Replacements and refunds by the Company are subject to the following conditions:
24.7.1. Customers must return the Defective Product to the head office of the Company (The Candle Merchant, Maitland, Cape Town) within 7 calendar days of receipt of the damaged/incorrect Product or select a date within the aforementioned 7 calendar day period on which the Company can arrange collection at the Customer’s address (at the Company’s cost);
24.7.2. Defective Products must be returned in their original packaging with all manuals (if any) and accessories;
24.7.3. Defective Products with seals on them will not be accepted back if the seal is broken. This will be regarded as a used Product;
24.7.4. Defective Products which are not returned in its original packaging may be subject to a 10% repackaging fee on the purchase price; and
24.7.5. The Company will not issue a refund or replace a Product where further damage is caused to the Defective Product by the Customer after receipt thereof by the Customer and prior to the return thereof by the Customer.
24.8. Refunds will only be processed onto the payment method that was used when the order was created, and into the account it was paid from e.g. Credit/Cheque Card or EFT.
24.9. A refund can take up to 14 business days to reflect in the account of the Customer, and EFT refunds are subject to verification of the Customer’s banking details.

25. WARRANTIES
The Company provides no warranties in respect of its Products and Services.

26. DOMICILIUM OF COMPANY
The Company chooses its domicilium citandi et executandi for all purposes under this Agreement, whether in respect of court process, notice, or other documents at Unit 2, Clover Leaf Industrial Park, 79, 8th Ave, Kensington, Maitland, Cape Town, Western Cape, South Africa.

27. GENERAL TERMS
27.1. The Website is registered and managed in the Republic of South Africa and accordingly, this Agreement shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa.
27.2. The Company may, in its sole discretion, suspend or terminate the operation of the Website at any time without prior notice to You and without the need to give You reasons for such termination or suspension.
27.3. The Company may change the terms of this Agreement from time to time without notice to You. Any amendments will take effect immediately on posting of the amendments on the Website. You shall be deemed to have accepted any changed terms should you continue to use the Website. You shall at all times be responsible for ensuring that You have received the most recent version of this Agreement. In the event that the Company makes material changes and/or amendments to this Agreement, the Company will place a prominent notice on its Website to advise the Customers to inspect and inform themselves on the updated Terms and Conditions.
27.4. This Agreement constitutes the whole agreement between the Us and You relating to the subject matter hereof. Any indulgence of extension of time granted by the Company to You shall not be construed as a waiver or variation of any of our rights or remedies.
27.5. Any dispute of any nature whatsoever arising between Us and You on any matter provided for in, or arising out of this Agreement, may be submitted to confidential arbitration in Cape Town, South Africa in terms of the expedited rules of the Arbitration Foundation of Southern Africa. Notwithstanding either the Company or the Customer’s right of arbitration, either of the Company or the Customer may elect to refer the dispute to any Court with competent jurisdiction.
27.6. This document contains the entire agreement between us and neither of us shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
27.7. This Agreement cancels and supersedes all prior negotiations and agreements entered into between us relating to the matters set forth in this Agreement.
27.8. Any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction shall, with respect to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

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