You are reading a legal document which is the agreement between you, the user and us. These Terms are binding on all persons who access the Website without qualification or exception. By entering the Website or ordering products from Hermanos the User agrees to be bound by and shall be deemed to have accepted these Terms, which the User acknowledges to have read and understood. If the User does not agree to any of the Terms, the User should not enter, view or make use of the Website.
The headings to the clauses of these Terms are for reference purposes only and shall in no way govern nor affect the interpretation of nor modify nor amplify these Terms nor any clause hereof.
Unless the context dictates otherwise, the words and expressions set forth below shall bear the following meanings and cognate expressions shall bear corresponding meanings:
• “Hermanos” shall mean Aruzagraph (Pty) Ltd (Registration number 2014/113782/07) trading as Hermanos a private company incorporated in accordance with the laws of the Republic of South Africa, with a physical address of 174 Loop Street, Cape Town;
• “Business Day” shall mean any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa;
• “Intellectual Property” shall mean all intellectual property subsisting in, pertaining to or used on the Website including, without limitation, patents, inventions, copyright, trademarks, goodwill and/or trade secrets;
• “Parties” shall mean the User and Hermanos and “Party” shall, as the context requires, be a reference to any one of them;
• “Terms” shall mean these terms and conditions;
• “User” shall mean the user of the Website in terms of these Terms;
• “Website” or “site” shall mean the website located at www.hermanos.co.za and includes any part or element thereof;
Unless inconsistent with the context or save where the contrary is expressly indicated an expression which denotes:
• any one gender includes the other genders;
• a natural person includes an artificial person and vice versa; and
• the singular includes the plural and vice versa.
Where any term is defined within the context of any particular clause in these Terms, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the same meaning as ascribed to it for all purposes in terms of these Terms, notwithstanding that that term has not been defined in this clause.
The expiration or termination of these Terms shall not affect such of the provisions of these Terms as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
These Terms shall be binding on and enforceable by the estates, heirs, executors, administrators, trustees, permitted assigns or liquidators of the Parties as fully and effectually as if they had signed these Terms in the first instance and reference to any Party shall be deemed to include such Party’s estate, heirs, executors, administrators, trustees, permitted assigns or liquidators, as the case may be.
Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
This page (together with the documents referred to on it) tells you the terms and conditions on which we supply any of the products listed on our website to you. Please read these terms and conditions carefully before ordering any Products from our site. You should understand that by ordering any of our Products, you agree to be bound by these terms and conditions.
We reserve the right to amend these terms and conditions at any time. All amendments to these terms and conditions will be posted on-line. You may terminate this Agreement by written notice to us (by email to firstname.lastname@example.org) if you do not wish to be bound by such new terms and conditions. However, continued use of the Service or the Website will be deemed to constitute acceptance of the new terms and conditions. You should print a copy of these terms and conditions for future reference.
3. PLACING AN ORDER
Only persons aged 18 years and over, who are legally entitled to do so, are permitted to place orders on the Website.
Only persons resident in South Africa may place orders on the Website. Hermanos will not deliver goods to addresses outside South Africa.
• By placing an order, the User represents and warrants that:
• the User is legally capable of entering into binding contracts;
• the User is at least 18 years of age; and
• the User agrees to be bound by these Terms.
By doing so, the User accepts that Hermanos will rely on the User’s representation that the User has unfettered legal capacity to contract and that the user is over 18 years of age.
Before proceeding to finalise any order the User will be given an opportunity to review and, if required, correct the contents of the User’s order as well as any information or addresses provided.
After finalising this process you will receive an e-mail from us acknowledging that we have received your order. Please note that this does not mean that your order has been accepted. Your order constitutes an offer to us to buy a Product. All orders are subject to acceptance by us, and we will confirm such acceptance to you by sending you an e-mail that confirms that the Product has been dispatched. The contract between us will only be formed when we send you this confirmation.
Contract will relate only to those Products whose dispatch we have confirmed in e-mail. We will not be obliged to supply any other Products which may have been part of your order until the dispatch of such Products has been confirmed in a separate e-mail
Subject to clause above, the products and prices stated on the Website are only valid while stocks last.
Hermanos will in no way be held liable to provide a product at an expired price or where the product concerned is no longer in stock or available.
The products described or graphically represented on the Website may differ in colour, shape, form, design, contents and appearance from the final product delivered.
Orders will only be shipped once Hermanos has received full payment of the full purchase price for the goods and all charges and costs relating to the products.
Unless otherwise agreed or stipulated in the User’s order or on the Website, the User’s order will be delivered by the courier company specified by Hermanos, to the address provided by the User during the order process. The User must ensure that someone will be available at the delivery address during Business Hours (between 08:00 and 17:00 on Business Days) in order to received delivery of the products. The User will be responsible for any additional fees that may be charged by the courier if no one was available to receive delivery of the order at the address specified by the User.
Hermanos will make an effort to ensure that delivery takes place within the time period specified on the Website in relation to the User’s order. However, the size and quantity of an order as well as the distance between Hermanos and the delivery address provided, amongst other circumstances, may require a longer period for delivery. The User will be notified from time to time of any anticipated delays with delivery and, in such circumstances, the updated delivery time will substitute and take preference over the delivery time stipulated in the confirmatory email or reflected on the Hermanos invoice.
The User acknowledges that Hermanos shall rely on the accuracy of the delivery address as provided by the User. Hermanos does not verify the accuracy of any particulars of a delivery address provided by the User. The User shall check the accuracy of the delivery address every time when placing an order. Hermanos shall not be liable for any costs, loss, damages or claims incurred by the User relating to an inaccurate or incorrect delivery address provided by the User. If goods are returned by courier after making attempts to contact and reach you, the product will be forfeited as cost will have been incurred by Hermanos.
Ownership of products ordered will pass to the User upon Hermanos receiving full payment for such products. Risk in respect of ordered products will pass to the User once they have been collected from Hermanos premises by the relevant courier. However, orders are covered by the courier’s insurance, subject to the terms and conditions of such insurance. If products are lost or damaged in transit, Hermanos will not be liable for such loss or damage and the User must contact the courier in such an event. Despite this, Hermanos may, in its discretion, choose to refund or replace lost or damaged goods. However, such refund or replacement will not cause Hermanos to be liable for the loss or damage or create any obligations for Hermanos in relation to the damage or loss.
5. PRICE AND PAYMENT
The price of the Products and our delivery charges will be as quoted on our site from time to time, except in cases of obvious error.
Product prices and delivery charges are liable to change at any time, but changes will not affect orders in respect of which we have already sent you a delivery confirmation e-mail.
Although every effort will be made to ensure that products are correctly priced on the Website, in the unlikely event that a product is incorrectly priced:
• where the incorrect price is lower than the correct price, Hermanos will not be bound to sell the product concerned at such a price and a representative of Hermanos will contact the User when the order is being processed in order to inform such User of the higher price to be paid for such product and will await instructions from the User as to whether the User still wishes to purchase the product concerned at the higher price or to cancel the order and receive a full refund; and
• if the incorrect price is higher than the correct price, a representative from Hermanos will advise the User of the lower price in the confirmatory e-mail but will proceed to process and confirm such order.
Visa and Mastercard (Cheque or Credit cards with CVV code) are the accepted payment methods by Hermanos.
Notwithstanding any other clause contained in these Terms, Hermanos shall have no duty to deliver any product until the User’s payment has been cleared by the relevant bank and has been credited and becomes available in Hermanos’ bank account.
The User’s Order will be cancelled immediately where payment by credit card is not processed by the relevant bank and credited to Hermanos’ bank account within 48 (forty eight) hours from the time of placement of such order.
6. CANCELLATION AND RETURNS
The User is entitled to cancel an order within 7 (seven) Business Days after receiving delivery thereof, provided that the product is unopened, in its original condition and any and all seals, packaging, labels, shrink-wrap and/or boxing remains intact.
Any product returned must be accompanied with the User’s proof of payment in respect of such product. The product must be returned via courier to Hermanos physical address at the users expense.
If a product is returned in terms of clause 6 to Hermanos address, Hermanos will, following receipt and examination of such product, reimburse the User with an in store credit to the value of the purchase price paid by the User for the product, excluding any applicable delivery costs and/or charges.
No provision stated in these Terms regarding Hermanos cancellation and returns policy will affect or be interpreted to deny the User any of his unalterable statutory rights.
If a User has cancelled an order, and the User wishes to revive such order, the User needs to place a new order for the products concerned.
7. PRODUCT WARRANTY AND LIABILITY
Except to the extent provided for by the CPA, Hermanos makes no warranties or representations in respect of products sold to Users.
Except to the extent that section 61 of the CPA applies, Hermanos shall not be liable for any damages, injury, loss, cost or expense suffered or incurred by Users as a result of products sold by Hermanos.
To the extent permitted by law, the User indemnifies and holds Hermanos, its officers, employees, agents and contractors harmless against all claims, liability, injury, losses, costs, expenses and penalties arising from or related to the products sold by Hermanos or the use of such products.
8. WRITTEN COMMUNICATIONS
You accept that communication with us will be mainly electronic. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
9. LIABILITIES REGARDING USE OF THE WEBSITE
The User makes use of this Website at his own risk.
The Website and all information, content, materials and services included or otherwise made available to the User therein are provided on an “as is” and an “as available” basis. Hermanos makes no warranties or representations of any kind, express or implied, as to the operation of this Website or the available information, content, materials or services included on or otherwise made available to the User.
To the extent permitted by law, the liability of Hermanos for losses suffered as a result of any breach of these Terms shall be strictly limited to the purchase price of the product or products purchased by any User.
Notwithstanding anything to the contrary contained in these Terms, Hermanos shall have no liability for any loss, damage, cost, claim or penalty of whatsoever nature including, but not limited to, indirect and consequential loss or damage and loss of profits, however arising out of or in connection with these Terms or the Website, whether caused by latent or patent defects in the Website, the use of the Website and/or information contained on the Website or otherwise.
The User assumes all responsibility and risk for the use of the Website. The User hereby indemnifies Hermanos and holds it harmless against any and all liability, loss, damage, penalty, cost or claim of any nature whatsoever suffered by him or any third party in relation to any act or omission by the User or, where applicable, the User’s shareholders, members, directors, officers, employees, representatives, agents or assigns or any third party in relation to the Website and the use thereof by the User, and/or arising from the provisions of these Terms.
Hermanos will not be held liable for any delay, failure, breach or non-compliance with its obligations under these Terms if such delay, failure, breach or non-compliance is beyond the reasonable control of Hermanos.
These Terms do not intend to, nor shall they be interpreted to, limit the liability of Hermanos in any way which would be illegal for Hermanos to exclude or attempt to exclude or where such exclusion is prohibited by the Consumer Protection Act, 2008 or the Electronic Communications and Transactions Act, 2002, or any other law in force from time to time in the Republic of South Africa.
10. WEBSITE USE
The User may not use, reproduce, adapt, distribute, publish or in any other way deal or interfere with the Website’s contents without the prior written consent of Hermanos. The User may download and print 1 (one) copy of the Website’s contents for personal, non-commercial and information purposes only.
Hermanos reserves the right to make any changes to the Website, its content and/or services offered through the Website at any time and without prior notice.
Content published on the Website reflects the views of the author and does not necessarily constitute the official opinion of Hermanos unless otherwise stated.
No content that is illegal, unlawful, obscene, defamatory, discriminatory, disparaging of others, derogatory, inflammatory, harassing, insulting, offensive or likely to promote violence or hatred against others or that contains abusive, offensive or profane language may be posted on the Website nor may such content be associated in linking to the Website.
Any material uploaded by the User to the Website will be deemed to be non-confidential and in uploading such material the User cedes and assigns all rights in such material to Hermanos. Hermanos shall be free to copy, adapt, distribute and disclose to third parties any such material for any purpose in any form throughout the world in perpetuity. The User waives any moral rights that it may have in such material.
The Website may contain links to other websites. Hermanos has no control over such websites, does not review their content and will not be liable for their content or accuracy. The User accesses such websites at the User’s own risk and discretion.
The User may link to this Website, provided that the User will not replicate any particular page, including the homepage. When linking to this Website, the User confirms and agrees that it will comply and ensure compliance with the requirements of this clause 11.
Although every effort will be made to have this Website available at all times, the Website may become unavailable due to maintenance or repairs, loss of connectivity or some other form of interruption. Hermanos does not warrant against nor will it be held liable for such downtime and is hereby indemnified from any loss, damage, claims, costs or penalties incurred as a result of such unavailability.
If the User chooses or is provided with identification codes, usernames, passwords or any similar form of identification information as part of the Website’s security systems, such User must keep this information secret and confidential and must not permit anyone else to use it. The User shall be responsible for all access to the Website with the User’s username and password. When the User’s username and password have been used in order to gain access to the Website, Hermanos shall be entitled to assume that such use and all related communications emanate from the User. Hermanos shall not be liable for any loss or damage arising from unauthorised use of the User’s identification information.
In the event that the User becomes aware of a breach of the confidentiality of the User’s username and password, the User must immediately communicate this to Hermanos with subsequent confirmation in writing. The compromised username and password will be deactivated as soon as reasonably possible and a new username and password will be issued to the User. Hermanos may, in its sole and absolute discretion and for any reason whatsoever, require the User to change his username and password at any time.
If the User commits any breach of these Terms or in any other way interacts with or uses the Website in an unlawful or unauthorised manner, Hermanos shall be entitled, in its sole and absolute discretion, to terminate the User’s access to the Website immediately, without prior notice, without any liability on Hermanos part and without prejudice to Hermanos rights in terms of these Terms or at law. Following such termination, the User will forfeit the right to link to this Website as described in these Terms.
By accessing the Website the User represents and warrants that he owns and/or otherwise controls all of the rights to the content that he posts and/or uploads. Furthermore, the User represents and warrants that the content submitted to the Website is:
• usable; and
• will not cause injury, defame any person or breach any clause of these Terms or any law.
Hermanos is hereby indemnified from and against any and all loss by any person which results from a breach of these representations or warranties.
All notices given by you to us must be given to Hermanos at email@example.com. We may give notice to you at either the e-mail or postal address you provide to us when placing an order, or in any of the ways electronic format. Notice will be deemed received and properly served immediately when posted on our website and 24 hours after an e-mail is sent. In proving the service of any notice, it will be sufficient to prove, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
12. PERSONAL INFORMATION
Hermanos may from time to time process information about the User. The User acknowledges that by using the Website and placing any orders, the User consents to any processing or storage of such information and warrants that any and all data provided is up-to-date and accurate.
The User consents to Hermanos processing and using the User’s Information in order for Hermanos to send communications to the User, including newsletters, marketing material and information about Hermanos products and promotions.
13. EVENTS OUTSIDE OUR CONTROL
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by events outside our reasonable control (Force Majeure Event).
A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
• strikes, lock-outs or other industrial action;
• civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
• fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster
• impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
• impossibility of the use of public or private telecommunications networks; and
• the acts, decrees, legislation, regulations or restrictions of any government.
Our performance under any Contract is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.
If we fail, at any time during the term of a Contract, to insist upon strict performance of any of your obligations under the Contract or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this will not constitute a waiver of such rights or remedies and will not relieve you from compliance with such obligations.
A waiver by us of any default will not constitute a waiver of any subsequent default.
No waiver by us of any of these terms and conditions will be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with clause 12 above.
If any of these terms and Conditions or any provisions of a Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
Any commentary, advice, information, suggestions, opinions, answers or any other information posted on the Website is not intended to nor shall it be interpreted to amount to advice on which reliance should be placed and are posted merely for guidance purposes only. The User makes use of any such information at his own risk and in his own discretion and disclaims and indemnifies Hermanos from and against any and all liability and responsibility arising from any reliance placed on such information whether posted on the Website or by any other person visiting the Website.
17. PROPRIETARY RIGHTS
The Website is owned by Hermanos and the User acknowledges that Hermanos and/or its licensors are the proprietors of any and all Intellectual Property associated with, related to or appearing on the Website.
The content of the Website, including but not limited to any pictures, photos, text, presentations, names, titles, brands, drawings, models and associated software are protected by South African and international law. The owners of such content reserve all such rights therein unless provided otherwise in these Terms.
The User undertakes:
• not to use or register any trademarks, trade names or other devices which are or incorporate marks which are the same as or confusingly similar to the Trademarks or which marks are likely to be associated with the Trademarks or where such use would take unfair advantage of or be detrimental to the distinctive character or the repute of the Trademarks;
• not at any time to do or cause to be done any act or thing in any way impairing or tending to impair any part of Hermanos rights, title and interest in and to the Intellectual Property; and
• not in any way to make unauthorised use of the Intellectual Property or to represent that he has any rights of any nature in the Intellectual Property or any registrations thereof.
Without limiting the generality of the provisions of clause 14.3, the User undertakes not to make any unauthorised use, reproductions or copies of any work or material displayed or made available on the Website and agrees to adhere to and comply with all policies, conditions of use and rules that may apply to the use of such work or material.
Hermanos graphics, logos, page headers, button icons, scripts and service names are the trademarks or trade dress of Hermanos. Hermanos Trademarks and trade dress may not be used in connection with any product or service that is not conducted by Hermanos or in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Hermanos. The User may not use any of the Intellectual Property without Hermanos prior written consent. All other trademarks not owned by Hermanos that appear on the Website are the property of their respective owners who may or may not be affiliated with, connected to, or sponsored by us. The User may not use such trademarks without prior written consent from the relevant owners.
18. MALICIOUS SOFTWARE AND OFFENSES
The user will not use the Website in any way that causes, or is likely to cause, the Website and access to the Website to be interrupted, damaged or impaired in any manner;
No form of virus, Trojans, worms, logic bombs, or other malicious coding, virus or software will be introduced onto the Website or into Hermanos system which may cause any form of technological harm or any other form of harm in any manner or respect;
The user will not attempt to gain unauthorised access to the Website, including through the theft of any third party’s username and password; and
The user will not attempt to gain unauthorised access to the Website’s server, databases, computers or any other device associated with the Website and will not attack the Website through a denial-of-service attack or a distributed denial-of-service attack.
Any breach of these Terms regarding malicious software and offenses will be reported to the relevant law enforcement agencies and Hermanos will co-operate in all respects with those law enforcement agencies, including by way of disclosure of the identity and identification information of the User.
Although Hermanos and its representatives will use reasonable efforts to ensure that no malicious content can be received from the Website, Hermanos does not warrant that the Website is free of malicious content or viruses and Hermanos will not be held liable for any loss resulting from a distributed denial-of-service attack, or any malicious content as described in this clause which may infect any User’s computer or device, computer equipment, data or any other propriety material where such loss is or may be attributed to the User’s use of the Website or downloads received from the Website.
The User warrants that he will not use the Website in any manner that will break any law enforceable in South Africa or cause any annoyance, unnecessary anxiety or inconvenience to any person.
19. ENTIRE AGREEMENT
These terms and conditions and any document expressly referred to in them constitute the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to the subject matter of any Contract.
We each acknowledge that, in entering into a Contract, neither of us relies on any representation or warranty (whether made innocently or negligently) that is not set out in these terms and conditions or the documents referred to in them.
Each of us agrees that our only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) will be for breach of contract. Nothing in this clause limits or excludes any liability for fraud.
If at any time there is a failure by Hermanos to insist on strict performance of any of the User’s obligations under these Terms and related contracts, this shall not be construed to be a waiver of such rights and shall not relieve the User from compliance with such obligations. A waiver of any one default is not to be interpreted as a condonation of any other or further defaults.
Any and all communications between the Parties, whether legal or merely for notification purposes, correspondence or for any other reason will only satisfy any legal requirement if it is reduced to writing whether electronic or otherwise.