TERMS & CONDITIONS
WEBSITE TERMS AND CONDITIONS OF USE OF THIS WEBSITE AND/OR SALE OF GOODS
17 May 2020
Please read these terms and conditions of use (“Site Terms”) carefully. By accessing or using this Website (“tomu.co.za”), you agree to be bound by the Site Terms described herein and by all terms, policies and guidelines incorporated by reference. If you do not agree to all of these Site Terms, do not use this Site.
These Site Terms apply to your use of this Site and do not alter in any way the terms or conditions of any other agreement you may have with the Company (or “us”, “we”, “our”), its subsidiaries or affiliates and you represent and warrant that you are over the age of 18 and are lawfully able to accept these Site Terms. If you are using the Site on behalf of any entity, you further represent and warrant that you are authorised to accept these Site Terms on such entity’s behalf, and that such entity agrees to indemnify the Company for violations of these Site Terms.
A. GENERAL TERMS AND CONDITIONS OF USE
1.1 TOMU ONLINE T/A tomu.co.za is a registered private company, in accordance with the Company Laws of the Republic of South Africa. It is a provider of consumable goods in the Republic of South Africa.
1.2 The term “Client”, “you” or “your” are synonymous and refer to a person or an organisation who wishes to access the site for the purchase of any consumable goods for sale offered by the Company on the Site.
2.2 Should you not wish us to use your personal information, please send an e-mail to firstname.lastname@example.org.
3. Ownership of the Site and its Contents
3.1 You acknowledge that this Site is owned by, and all intellectual property rights herein vest in, the Company, our licensors, advertisers or third-party content providers (as applicable) and that any unauthorised use thereof is expressly prohibited. Unless otherwise indicated, all of the content featured or displayed on this Site, including, but not limited to, text, graphics, data, photographic images, moving images, sound, illustrations, software, and the selection and arrangement thereof (“Site Content”), is owned by the Company, our licensors, advertisers or third-party content providers (as applicable).
3.2 All elements of the Site, including the Site Content, are protected by copyright, trade dress, moral rights, trademark and other laws relating to the protection of intellectual property.
3.3 We reserve the right at any time to change or discontinue without notice, any aspect or feature of the Site.
3.4 You may view, electronically copy and print portions of the website for your personal use and for purposes of purchasing consumable goods. Any other use, including reproduction other than as aforesaid, amendment/modification, or distribution, without our prior written consent, is strictly prohibited and constitutes an unlawful infringement of our intellectual property rights.
4. Disclosures required by Section 43 of the Electronic Communications and Transactions Act, 25 of 2002
4.1 The required disclosures are displayed as a link from this website and are deemed to form part of these terms and conditions.
5. Application of these Website Terms and Conditions of Use
5.1 These Website Terms and Conditions of Use shall apply to all Clients and any member of the public wishing to interact with the Company through the Site, except where otherwise provided herein.
5.2 These Terms and Conditions shall be incorporated in and shall apply consistently to every electronic contract for the sale of consumable goods by means of the Site (“the Agreement”) entered into between the Company and Clients, regardless of whether such Agreement is concluded orally, in writing or by digital acceptance.
6. Use of the Site and Sale Transactions
6.1.1 This Site and the Site Content are intended for use by Clients solely to provide information about our consumable goods or assist in making legitimate sale of goods to Clients. Save as otherwise provided in any other Agreement, you may not use this Site or the Site Content for anything other than personal and non-commercial purposes. Save as otherwise provided in any other Agreement, you are specifically prohibited from: (a) printing, downloading, copying, adapting or re-transmitting any or all of the Site or the Site Content otherwise than through your bona fide, personal, non-commercial use of the Site without, or in violation of, a written license or agreement with us; (b) using any data mining, robots or similar data gathering or extraction methods; (c) manipulating or otherwise displaying the Site or the Site Content by using framing or similar navigational technology; (d) registering, subscribing, unsubscribing, or attempting to register, subscribe, or unsubscribe any party if you are not expressly authorised by such party to do so; and (e) using the Site or the Site Content other than for their intended purpose. Such unauthorised use may also violate applicable laws including, without limitation, copyright and trademark laws, the laws of privacy and publicity, and applicable communications legislation and regulations.
6.1.2 You represent and warrant that you will comply with all applicable laws and regulations, including, without limitation, those relating to the internet, data, electronic communications, privacy, and the transmission of data exported from the Republic of South Africa, or the country from which you export the data, the country where data is downloaded, or the country in which you reside.
6.1.3 You agree that you may not upload any data which is malicious, false, misleading, fraudulent or offensive in content. Any breach of this term constitutes a material offence and may result in the removal of such information and/or refusal by the Company to allow any further dealings with the Client concerned, and/or possible prosecution with the relevant authorities. In such event, you shall have no claim or claims of whatsoever nature or kind against the Company arising out of such cancellation.
6.1.4 Neither the Company, nor any person for whom it is vicariously liable at law, will be responsible for consequences of any nature which may arise from force majeure incidents, being those beyond its control; and specifically, not limited to, any misuse of an Client’s personal data that results from the abuse or sharing of a Client’s access codes, if applicable. On the rare occasion that this may occur, the Company will provide a record to indicate which Clients have had access to the information.
6.1.5 The Company is committed to secure and encrypted storage of the personal information of Clients. The nature of its business is to have this information accessible to its Clients. Under no circumstances will the Company give or sell any information relating to Clients to third parties, or organisations it deems not to be in the business of the manufacture or supply of the consumable goods for sale on the Site, or where it deems abuse of this access will occur.
6.1.6 Abuse of the Site may result in you being denied access to such facilities, at the sole discretion of the Company.
6.2 Sale Transactions
6.2.2 A payment gateway, Peach Payment is operational on this Site. Therefore, any credit card details supplied will be charged instantly, should the transaction be successful the sale will be confirmed via Peach Payment and the payment posted onto your order.
6.2.3 All forms of payment accepted by Peach Payment will be an acceptable form of payment for the purchase of goods under this Site.
6.2.4 Charges and refunds will always be processed in South African Rands.
6.2.5 Comments and queries with regard to payments should be e-mailed with full detail including the reference number with to Peach Payment or to the Company on email@example.com.
6.2.6 You agree that this transaction constitutes an electronic transaction as defined in the Electronic Communications and Transactions Act 2002 (as amended) and that a binding agreement has been concluded between the Company and you in terms of which you authorise the Company to deduct from, or to debit, the credit card the amount owing for goods purchased and that your written signature shall not be required for authorisation purposes.
6.2.7 By clicking the “Payment” button, you signify that all your payment information provided is correct and accurately inputted and that you accept all terms and conditions contained in this Site.
6.2.8 If a transaction is authorised by the bank you will receive on screen confirmation of your purchase.
6.2.9 Should the transaction be declined by the bank, you will receive notification of this on screen and no purchase shall be made.
6.2.10 We are not able to check the customer name against any card details inputted into the Peach Payment system and accordingly you indemnify us against any claims howsoever arising from incorrect card details or the use of your card by persons who have no authority to do so.
6.2.11 On confirmation of a purchase an e-mail and SMS (providing you have supplied a cellular number) will be generated and dispatched to you. The e-mail address provided by you will be used to send the receipt. Only South African mobile phone numbers will be sent the confirmation by SMS. It is advised that you print the confirmatory e-mail receipt for your record purposes.
6.3 Returns and Refunds:
Returns and refunds are dealt with in terms of the returns and refunds policy on this website.
6.4.1 You agree to abide by these terms and conditions in respect of any reservations or other services for which fees may be charged and that you are responsible for all charges, fees, duties and taxes arising out of the use of the Site (as well as for any use of your account by others, including any person under the age of 18 years).
6.4.2 The Company shall use reasonable endeavours to keep the system available and maintain full system functionality at all times. You agree that the Company shall not be liable to you or any other person in respect of any loss or damage arising from the unavailability of, or interruption in, the service.
6.4.3 You must sign out of the Site once you have finished using the Company Site. If you do not do this, unauthorised transactions may result, for which we will not be liable.
7.1 Our logos and any other product or service name or slogan contained in the Site are registered or unregistered trademarks of the Company and our suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of the Company or the applicable trademark holder. You may not use metatags or any other HTML tags, comments or hidden text utilising tomu/tomu.co.za “The Company” or any other name, trademark or product or service name of the Company without our prior written permission. In addition, the look and feel of the Site (including, without limitation, all page headers, custom graphics, button icons and scripts) is the service mark, trademark and/or trade dress of the Company and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
8.1 You may not use the Company logo or other proprietary graphic of the Company to link to this Site (or any other site) without our express written permission. Further, you may not frame any of our trademarks, logos or other proprietary information, including the Site Content, without our express written consent.
8.2 We make no claim or representation regarding, and accept no responsibility for, directly or indirectly, the quality, content, nature or reliability of third-party Websites accessible by hyperlink from the Site, or Websites linking to the Site. Such sites are not under our control and we are not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. We provide such links (if any) to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by us of any site or any information contained therein. When you leave the Site, you should be aware that the Company’s terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.
8.3 Your participation, correspondence or business dealings with any third-party found on or through the Site, regarding the payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third-party . You agree that we will not be responsible or liable for any loss, damage or other matters of any sort incurred as the result of any such dealings.
9.1 It is our intention to only send you e-mail communications that will be useful to you and that you want to receive. When you create a personal account, or purchase goods and provide your e-mail address, we will periodically contact you via e-mail and provide information about special offers and promotions that may be of interest to you. These communications will relate to the Company offers which may also include the promotions of select, reputable third parties with whom the Company has a strategic marketing relationship because they offer products or services that we believe would be of interest to you. When we make use of third-party e-mail service providers to send the aforesaid e-mails, these service providers are prohibited from using your e-mail address for any purpose other than to send the Company related e-mail.
9.2 Should you not wish to receive these e-mail communications, please send an e-mail to firstname.lastname@example.org or click the unsubscribe button on such email.
10.1 You acknowledge and agree that the Company shall be entitled to establish the authenticity of any communication transmitted to it by way of the Internet which purports to emanate from you. You agree that all instructions, consents, commitments, reservations and any other communications which are sent to the Company by way of the Internet and which may (as a result of, inter alia, interception, equipment malfunction, the distortion of communication links or any other reason whatsoever) be different from the details actually sent or given, or may not have been given by you at all, shall be deemed to have been given by you in the form actually received by the Company and you will be bound by such details with no liability whatsoever attached to the Company in regard thereto.
10.2 You waive any rights you may have or obtain against the Company arising directly or indirectly from any loss or damage of whatsoever nature which you may suffer as a result of the fact that the Company acts on your instructions or instructions purported to emanate from you. You agree to and hereby indemnify the Company against all and any claims, liabilities, losses, costs, fines, damages and expenses incurred (whether directly or indirectly) by you, arising as a result of the fact that the Company has acted on your instructions or instructions which purport to emanate from you.
11. Warranties and Undertakings
11.1 You undertake to conduct all dealings with The Company and other users of the Site with the utmost good faith and in accordance with all applicable laws.
11.2 You warrant that every instruction and all information given by you to the Company shall be accurate, true and correct.
11.3 The Company makes no warranties, representations, statements or guarantees (whether express, implied in law or residual) regarding, without limitation, the Site, its content and/or accuracy thereof, any goods sold via this Site or the suitability of any of the goods for a particular purpose or the effectiveness of any security or encryption facilities. The Company does not manufacture any goods sold on the Site and accordingly the only warranty given in respect of any goods sold on this Site are the original equipment manufacturer warranties which the Company hereby cedes, assigns and delegates to the Client in respect of the specific goods purchased.
11.4 The Company does not warrant that the functions provided by the Site will be uninterrupted or error free, or that the Site or the server that makes it available are free from viruses or other harmful components.
11.5 The Company, its directors, employees, agents or representatives shall not be responsible for any loss, liability, damage (whether direct, indirect or consequential) or expense of any nature whatsoever which may be suffered by you, the recipient of any goods sold or any third-party arising from or as a result of the conclusion of any Agreement for the sale of goods, or as a result of or which may be attributable (directly or indirectly) to your use of or reliance on the Site, including any information provided thereon, services provided via this Site; any viruses that may infect your computer or other property on account of your access to and/or use of the Site; the efficacy of any security or encryption facilities; or the Internet and you indemnify and hold the Company harmless in respect of any loss, liability, damage (whether direct, indirect or consequential) or expense of any nature whatsoever, which may be suffered by you or any third-party as a result of or which may be attributable, directly or indirectly, to any of the aforesaid.
11.6 You agree that you will not, in using the Site, infect it with any computer programming, including but not limited to a virus, that may damage, interfere with, delay or intercept data or information on the Site and you indemnify and hold the Company harmless for any damage or loss caused by any such act.
12.1 You agree to defend, indemnify and hold us harmless, as well as our subsidiaries, affiliates, licensors, employees, agents, sponsors, third-party information providers and independent contractors, against any and all claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to your use of the Site (including, without limitation, any information you disclose in any dealings you have with any other user of the Site), your conduct, your use of or inability to use the Site, your breach or alleged breach of the Site Terms or of any representation or warranty contained herein, your unauthorised use of the Site Content, or your violation of any rights of another.
13.1 This Site and the Site Content are provided “as is” and we and our directors, members, employees, content providers, agents and affiliates exclude, to the fullest extent permitted by applicable law, any warranty, express or implied, including, without limitation, any implied warranties of merchantability, satisfactory quality or fitness for a particular purpose. We will not be liable for any damages of any kind arising from the use of this Site or the Site Content, or the unavailability of the same, including, but not limited to, business interruption, loss of business information, loss of data, loss of profits and any direct, indirect, incidental, punitive, special or consequential damages. The functions embodied on or in the materials of this Site are not warranted to be uninterrupted or without error. You, not us, assume the entire cost of all necessary servicing, repair or correction due to your use of this Site or the Site Content. We make no warranty that the Site or the Site Content are free from infection by viruses or anything else that has contaminating or destructive properties.
13.2 We use reasonable efforts to ensure the accuracy, correctness and reliability of the Site Content, but we make no representations or warranties as to the Site Content’s accuracy, correctness or reliability.
13.3 We do not have direct control over all of the Site Content, make no representations or warranties whatsoever in respect thereof and expressly disclaim any liability in connection therewith. If you find the Site Content, or any part thereof, offensive or believe that any of the Site Content infringes upon any copyright that you own or control, you may file a notification of such complaint or infringement as set forth in clause 14 below.
14. Limitation of Liability
14.1 In no event shall we, our directors, members, employees or agents be liable for any direct, special, indirect or consequential damages, or any other damages of any kind, including, but not limited to, loss of use, loss of profits or loss of data, whether in an action in contract, delict (including, but not limited to, negligence) or otherwise, arising out of or in any way connected with the use of the Site, the Site Content or the materials or services contained in or accessed through the Site, including, without limitation, any damages caused by or resulting from your reliance on any information obtained from us, or that result from mistakes, omissions, interruptions, deletion of files or e-mail, errors, defects, viruses, delays in operation or transmission or any failure of performance, whether or not resulting from acts of God, communications failure, theft, destruction or unauthorised access to The Company’s records, programs or services. In no event shall our aggregate liability, whether in contract, warranty, delict (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of the Site exceed any compensation you pay, if any, to us for access to or use of the Site.
15. Governing Law
15.1 These Site Terms are governed by and will be interpreted according to the laws of South Africa and all disputes, claims and other matters in connection with these Site Terms will be determined in accordance with such laws and in the Courts of South Africa who have jurisdiction to hear the matter.
16.1 Notwithstanding any of these Site Terms, we reserve the right, without notice and in our sole discretion, to terminate your account and/or to restrict or block your use of the Site.
17. Miscellaneous Provisions
17.1 These Site Terms (as varied from time to time in accordance with clause 15 below) constitute the sole record of the agreement between you and us in relation to your use of the Site. Neither you nor us will be bound by any express, tacit or implied representation, warranty, promise or the like not recorded herein. Unless otherwise specifically stated these Site Terms supersede and replace all prior commitments, undertakings or representations, whether written or oral, between you and us in respect of your use of the Site. Notwithstanding the foregoing, our licensors, advertisers or third-party content providers may be granted access to the Site by virtue of a separate written agreement with The Company. If this applies to you, these Site Terms must be read in conjunction with such agreement which takes precedence over these Site Terms in the event of any conflict.
17.2 Failure or neglect by us to enforce at any time any of the provisions of the Site Terms will not be construed as a waiver of our rights. Any waiver of any provision of the Site Terms will be effective only if in writing and signed by us.
17.3 If any clause in these Site Terms is found to be unenforceable, wherever possible this will not affect any other clause and each will remain in full force and effect.
17.4 Any rights not expressly granted herein are reserved.
18. Changes to Site Terms
18.1 The Company reserves the right to change any of the terms and conditions contained in the Site Terms or any policy or guideline of the Site, at any time and in our sole discretion. When we make changes, we will revise the “Last Updated” date at the top of these Site Terms. Any changes will be effective immediately upon posting on the Site. Your continued use of the Site following the posting of changes will constitute your acceptance of such changes. We encourage you to review the Site Terms whenever you visit this Site.
19. Contact Information
19.1 Questions or comments about the Site or Site Terms may be directed to email@example.com or +27 73 810 4504.