CUSTOMER TERMS AND CONDITIONS CONTRACT FOR THE PURCHASE
AND
DELIVERY OF GOODS
1. Definitions
In these conditions, except where the
context otherwise requires:
Contract: The
Contract means the terms and conditions as agreed between the parties and
contained hereinafter;
Contract Data: Specific data,
which together with these General Conditions of Contract, collectively describe
the risks, liabilities and obligations of the contracting Parties and the
procedures for the administration of the contract, as referred to in Annexure “A”;
Customer: The
user of the mobile application to which the supplier sells goods and which are
delivered to the customer through the delivery agent;
Delivery Agent Means BAGit Deliveries (Pty) Ltd and
the proprietor and owner of the mobile Application. Any reference to “BAGit”
has a corresponding meaning. The delivery agent facilitates the delivery from
the supplier to the customer through the mobile application platform;
Goods: The
articles and items to be supplied by the supplier and that must be delivered to
a customer by the delivery agent in terms of this agreement;
Mobile Application: Means a computer program or
software application designed to run on a mobile device such as a phone,
tablet, or watch. The reference to Application and app in this agreement has a
corresponding meaning
Mobile App Agreement Means
an agreement, license or terms of use associated with the use of this app.
Parties: The
Delivery agent and the customer as referred to in the preamble;
Price: The
price that is agreed between the customer and the delivery agent for a delivery
to be undertaken on behalf of the supplier to the customer and contained in
Annexure “A”
Supplier: The shop and/or retailer from which the
customer orders a delivery through the BAGit mobile App and which delivery the delivery
agent facilitates.
Term: The
fixed terms agreed between the parties for the delivery services to be
undertaken by the delivery agent.
User The
customer who uses the mobile app. In these terms and conditions, the reference
to customer has a corresponding meaning.
2. Interpretation
2.1 Unless inconsistent with the context, an
expression which denotes:
(a) Any gender includes the other genders;
(b) A natural person includes a juristic
person and vice versa;
(c) The singular includes the plural and vice
versa.
2.2 The clause headings shall not limit,
alter or affect the meaning of the Contract.
3. General
3.1 Governing Law:
Law governing the Contract shall be the
law of the Republic of South Africa.
3.2 Language:
The language of the Contract and of all
communications between the Parties shall be English.
3.3 Notices:
3.3.1 Any notice, request, consent, or other
communication made between[IS1] the Parties pursuant to the Contract shall be made
through the application and/ or email and/ or WhatsApp Messenger will be deemed
to have been made when delivered in person to an authorized representative of
the Party to whom the communication is addressed
3.3.2 If the
sender requires evidence of receipt, he shall state such requirement in his
communication and, wherever there is deadline for the receipt of the communication,
he may demand evidence of receipt of his communication. In any event, the
sender shall take all the necessary measures to ensure receipt of
communications.
3.4 Confidentiality:
Both parties shall keep all
commercially sensitive information obtained by them in the context of the
Contract confidential and shall not divulge it without the written approval of
the other Party.
3.5 Sole agreement
3.5.1 The Contract constitutes the sole agreement between
the parties for the provision of goods and services and no representation not
contained therein shall be of any force or effect. No amendments will be of any
force or effect unless reduced to writing and signed by both parties.
3.5.2 No purported amendments to the terms and conditions
of the Contract included in delivery notes shall be of any force or effect.
3.6 Indemnification
3.6.1 The customer shall indemnify the delivery agent
against all actions, suits, claims, demands, costs, charges and expenses
arising in connection therewith from the negligence, infringement of
intellectual or legal rights or breach of statutory duty of the supplier, in
the executing the delivery services.
3.6.2 The delivery
agent does not guarantee delivery within any specified timeframe[IS2] , but will endeavour to effect
as near as possible to a time frame of 60 minutes. The customer understands
that they shall neither be entitled to repudiate nor withdraw from the sale/agreement
on the grounds of late or non-delivery, nor to place the supplier in mora in respect of the delivery and
hereby waives their rights to do so. The supplier shall not be liable for any
damages suffered by the customer in event of late delivery by the delivery
agent and the customer waives their right to claim in this regard.
3.6.3 In the event of any allegation that the goods
provided by the supplier are unsafe or defective, the delivery agent will not
be liable for any damage caused.
3.6.4 The customer further
indemnifies the delivery agent from:
3.6.4.1 Any negligent and/or
intentional act by the supplier or his/her employees or contractors with
reference to the goods or the use of the goods;
3.6.4.2 Any loss, damage (including consequential damage) or liability
caused by or resulting from, without limitation, the use, transport or storage
of the goods after delivery thereof to the customer;
3.6.4.3 Any loss, damage (including consequential damage), death
of or injury to third parties resulting from the supplier’s neglect to provide
such third parties with information with regard to, without limitation,
inherent dangers, correct usage, storage and disposal of the goods and/or the
supplier’s neglect to take all reasonable and necessary steps to avoid the occurrence
of such events during the use, storage and disposal of the goods by the
customer;
3.6.5 The customer renounces any claim for loss, damage
or liability that he/she may have against the delivery agent resulting from,
but not limited to, claims based on the fact that the goods are not suitable
for the user’s/customers purposes.
3.7 Title
and Risk
3.7.1 The ownership in and to the goods shall at
all times remain vested in the supplier and only pass to the customer upon
delivery by the delivery agent and the risk of loss and damage shall at all
relevant times vest in the supplier;
3.7.2 Risk of loss or damage to the goods shall remain with the supplier
and pass to the customer upon delivery. The delivery agent shall take all
reasonable precautions to ensure the safekeeping, safe storage and safe
handling of the goods.
3.8 Force Majeure
No failure by either party to perform in
accordance with any provision of this agreement shall constitute a breach of
this agreement if the failure arose from force majeure, including acts of God,
war, strike, sanctions, hijacking or changes in law, regulations, ordinance or
the like made by any competent authority, or other circumstances wholly outside
the control of the parties.
4. Main Responsibilities of the Parties
4.1 The delivery agent shall, within a reasonable time,
upon receipt of an instruction from a customer process the instruction through
the application and notify the supplier of the order. The delivery agent will
dispatch an agent to deliver the goods form the supplier to the customer
4.2 Goods shall be delivered within 60 minutes or as
soon as possible thereafter, to the customer at the nominated addresses of
customers as provided by the customers on the mobile application.
4.3 Delivery, unless otherwise agreed with
the supplier shall be effected within 60 minutes from receipt of the customer’s
order on the mobile application. Should the delivery agent have reason to
suspect delays in delivery, the delivery agent shall advise the supplier upon
receipt of an order in writing of any anticipated delays citing reasons
therefore and put forward a new anticipated delivery. The delivery agent may
then extend the delivery time if and as it seems fit. Unless and until the supplier
receives a notification of the new, extended delivery date, there shall be no
extension to the date.
5. Warranties
5.1 The delivery agent provides no warranties, whether
emphatic or implicit, in respect of the goods, including but not limited to,
any condition and/or guarantee, whether statutory, commonly or otherwise with
regards to the quality or suitability for a specific purpose and/or saleability,
except that the goods will be
of good quality and free from defects thereof.
5.2 The customer indemnifies and
holds harmless the delivery agent against all actions, legal proceedings,
claims, costs and expenses in any manner caused by, incidental to, connected
with or arising out of the use, on selling or handling of any of the goods to
any third parties, which was acquired by the customer from the supplier in
terms of this agreement.
5.3 The
delivery agent warrants that he/she has complied with all statutory
requirements and is in possession of the necessary permits, authorisations and
other official documents that are required for the handling, purchase, storage,
transport, treatment, use and/or disposal of the goods (if any).
6. Assignment and Subcontracting
6.1 The
customer does not assign or subcontract any part of this contract without the
written consent of the delivery agent.
6.2 The
delivery agent may assign or subcontract any part of this contract without the
written consent of the customer.
7. Termination
The delivery agent may terminate the contract
at any time, without prejudice to any right of action or remedy which has
accrued or thereafter accrues to the delivery agent, if the customer:
(a) Defaults
in due performance of the contract; or
(b) Becomes insolvent or otherwise is, in
the opinion of the delivery agent, in such financial circumstances as to
prejudice the proper performance of the contract.
(c)
Breaches any terms and conditions
of this agreement.
8. Price
and Payment
8.1 Amounts due to the delivery agent, arising from a
delivery made to a customer shall be paid by the customer immediately by means
of a credit or debit card or any other available means of payment;
8.2 The customer warrants that the information supplied
regarding the debit and credit card is correct and that the holder of the said
card has authorised the use thereof;
8.3 That by completing the fields and by accepting the
terms and conditions of the agreement, consent is furnished and authorization
is furnished to BAGit to effect payment for services rendered
8.4 This
authorization will remain in effect until
cancelled.
8.5 The customer warrants and agrees that the
credit and/or debit card information will be saved for future transactions;
8.6 If
not otherwise stated in the agreement, the pricing schedule shall consist of a pick
up fee and an additional charge per kilometre as applicable from time to time.
9. Breach
If
either party (“the defaulting party”) commits a breach of any of its
obligations in terms of this agreement and fails to remedy that breach within a
period of 7 (seven) days of being called upon to do so in writing by the other party,
then the other party may, at its discretion and without prejudice to any other
rights which it may have at law:
9.1 Sue for specific performance of the defaulting
party’s obligation under this Agreement and any damages which it may have
suffered as a result of that breach;
9.2 Sue
for damages in lieu of specific performance; or
9.3 Cancel this agreement and claim damages
if the breach is material and goes to the root of the agreement.
10. Resolution
of disputes
10.1 Settlement
10.1.1 The Parties shall negotiate in good faith with a
view to settling any dispute or claim arising out of or relating to the contract
and may not initiate any further proceedings until either party has, by written
notice to the other, declared that such negotiations have failed.
10.1.2 Any
dispute or claim arising out of or relating to the contract which cannot be
settled between the parties shall be referred by the parties in the first
instance to either mediation or adjudication as provided for in the contract data.
10.2 Mediation
10.2.1 If
the contract data does not provide for dispute resolution by adjudication, not
earlier than ten working days after having advised the other party, in terms of
Clause 10.1, that negotiations in regard to a dispute have failed, an aggrieved
party may require that the dispute be referred, without legal representation,
to mediation by a single mediator. The mediator shall be selected by agreement
between the parties, or, failing such agreement, by the person named for this
purpose in the contract data. The costs of the mediation shall be borne equally
by the parties.
10.2.2 The
mediator shall convene a hearing of the parties and may hold separate
discussions with any party and shall assist the parties in reaching a mutually
acceptable settlement of their differences through means of
reconciliation, interpretation, clarification, suggestion and advice. The parties
shall record such agreement in writing and thereafter they shall be bound by
such agreement.
10.2.3 The
mediator is authorised to end the mediation process whenever in his opinion
further efforts at mediation would not contribute to a resolution of the
dispute between the parties.
10.2.4 If
either party is dissatisfied with the opinion expressed by the mediator or
should the mediation fail, then such party may require that the dispute be
referred to arbitration or litigation in a competent civil court, as provided
for in the contract data, within three calendar months of the mediator’s
decision being issued or the mediator declaring the mediation to have ended, as
provided for in the contract data. Claims not brought within the time periods
set out herein will be deemed to be waived.
10.3 Adjudication
10.2.1 If the contract data does not provide for dispute
resolution by mediation, an aggrieved party may refer the dispute to
adjudication. Adjudication shall be in accordance with the latest edition of
the separately published CIDB Adjudication Procedures.
10.3.2 The
adjudicator shall be any person agreed to by the parties or, failing such
agreement, shall be nominated by the person named in the contract data. The adjudicator
shall be appointed in accordance with the Adjudicator’s Agreement contained in the
CIDB Adjudication Procedure.
10.3.3 If
a party is dissatisfied with the decision of the adjudicator, the party may
give the other party notice of dissatisfaction within 28 days of the receipt of
that decision and refer the dispute to arbitration or litigation in a competent
civil court as provided for in the contract data. If no notice of
dissatisfaction is given within the specified time, the decision shall be final
and binding on the parties.
10.4 Arbitration
10.4.1 Arbitration,
where provided for in the contract data, shall be by a single arbitrator in
accordance with the provisions of the Arbitration Act of 1965 as amended and
shall be conducted in accordance with such procedure as may be agreed between
the parties or, failing such agreement, in accordance with the Rules for the
Conduct of Arbitrations published by the Association of Arbitrators current at
the date the arbitrator is appointed.
10.4.2 The
arbitrator shall be mutually agreed upon or, failing agreement, to be nominated
by the person named in the contract data.
11. General
11.1 The
validity of this agreement, its interpretation, the respective rights and
obligations of the parties and all other matters arising in any way out of it
or its expiration or earlier termination for any reason shall be determined in
accordance with the laws of South Africa.
11.2 This agreement
contains the entire agreement between the parties with regards to the subject
matter thereof. No party shall be bound by or have any claim or right of action
arising from any express or implied term, undertaking, representation,
warranty, promise or the like not included or recorded in this agreement
whether it induced the contract and/or whether it was negligent or not.
11.3 No
variation, amendment, or consensual cancellation of this agreement or any
provision or term hereof shall be binding or have any force or effect unless
reduced to writing and signed by or on behalf of the parties.
11.4 No
extension of time or wavier or relaxation of any of the provisions or terms of
this agreement (or any agreement or other document issued or executed pursuant
to or in terms of this agreement) shall operate as an estoppel against any party
in respect of any of its rights in terms of this agreement.
11.5 No
failure by any party to enforce any provision of this agreement shall
constitute a waiver of such provisions or affect in any way such party’s rights
to require the performance of such provision at any time in the future, nor
shall a waiver of a subsequent breach nullify the effectiveness of the
provision itself.
11.6 Save as
otherwise expressly provided in this agreement, none of the parties may cede or
delegate (or otherwise transfer or alienate) their rights and/or obligations in
terms of and/or arising from this agreement or any of its rights and
obligations under it without the prior written consent of the others.
11.7 If any
provision of this agreement, which is not material to its efficacy as a whole,
is rendered void, illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby and the parties shall endeavour in good
faith to agree an alternative provision to the void, illegal or unenforceable
provision.
11.8 Termination
of this agreement for any cause shall not release a party from any liability
which at the time of termination has already accrued to such party or which
thereafter may accrue in respect of any act or omission prior to such
termination. Similarly, the expiration or termination of this agreement shall
not affect such of the provisions of this agreement 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.
11.9 This agreement
shall be binding on and shall endure for the benefit of the successors and
permitted assigns and personal representatives (as the case may be) of each of
the parties.
11.10 All
notices, demands and other oral or written communications given or made by or
on behalf of any party to the other parties or any of them shall be in English
or accompanied by a certified translation into English.
11.11 This agreement
may be signed in any number of counterparts, all of which taken together shall
constitute one and the same instrument. Any party may enter into this agreement
by signing any such counterpart.
12. Cession
The supplier may not,
except with the prior written consent of the delivery agent; cede or assign
(give away) all or any of its rights and obligations under this agreement;
13. Signature
in Counterparts and Warranties by Signatories
13.1 This agreement may be signed in any number of counterparts, all
of which taken together shall constitute one and the same instrument. Any party may enter into this agreement by
signing any such counterpart.
13.2 The signatory, who signs on behalf of the supplier,
personally warrants that:
13.2.1 The conclusion of this contract by the supplier is
within the scope of its powers, objects and authority;
13.2.2 No impediments exist which preclude him/her from
binding the supplier to the purchaser upon the terms and conditions of this contract.
14.1 Each
party agrees and undertakes that it will not take any steps aimed at avoiding
or circumventing the provisions of this agreement.
14.2 Neither
party will, whether directly, or indirectly as an agent, principal, partner,
shareholder, advisor, financier or in any other manner, circumvent or attempt
to circumvent this agreement.
15. POPIA (Protection of Personal Information
Act) and Declaration
A POPIA
consent and declaration is annexed hereto as Annexure “B” and is
specifically incorporated herein.
16. General Application Conditions
16.1 This
document sets out the terms and conditions pertaining to the access and use of
the information, products, services and functions provided on https://bagitdeliveries.co.za.
16.2 Should
any person that accesses the application disagree with any of the terms, such
person must refrain from accessing the application and/or using our services.
16.3 If you
are under the age of 18, you must obtain your parents’ or legal guardians’
advance authorization, permission and consent to be bound by these terms before
purchasing any products or services.
16.4 Service
Provider reserves the right, in its sole discretion, to amend and/or replace
any of, or the whole of, the terms. Such amendments shall supersede and replace
any previous terms and shall be made available on the application. Each time a
user accesses the application and/or uses the services, the user shall be
deemed to have consented, by such access and/or use, to the terms, as amended
and/or replaced by the Service Provider from time to time. If you are not
satisfied with the amended terms, you should refrain from using the application.
16.5 We will
however give you prior notice where we have collected personal information from
you and the purpose for which we collected that information, if same is
affected by the intended amendment.
16.6 If there
is anything in these terms that you do not understand then please contact us as
soon as possible – see clause below for contact details. Please note that
calls to us are charged at national rates and may be monitored for training,
security and quality assurance purposes.
17. Content of the Application
17.1 Service
Provider reserves the right to make improvements, to change or to discontinue,
without notice, any aspect or feature of the application and any information or
content on the application.
17.2 Service
Provider reserves the right to change and amend the products, prices and rates
quoted on this application from time to time without notice.
17.3 Service
Provider may use the services of third parties to provide information on the application.
Service Provider has no control over this information and makes no
representations or warranties of any nature as to its accuracy, appropriateness
or correctness. The user agrees that such information is provided “as is” and
that Service Provider and its online partners shall not be liable for any
losses or damages that may arise from the user’s reliance on it, howsoever
these may arise.
17.4 Service
Provider makes no representations or warranties, whether express or implied, as
to the accuracy, completeness or reliability of any information, data and/or
content on the application, including without limitation:
17.4.1 Service
Provider does not warrant that the application or information or downloads
shall be error-free or that they shall meet any particular criteria of
performance or quality. Service Provider expressly disclaims all implied
warranties, including without limitation, warranties of merchantability,
fitness for a particular purpose, non-infringement, compatibility, security and
accuracy;
17.4.2 whilst
Service Provider has taken reasonable measures to ensure the integrity of the application
and its contents, no warranty, whether express or implied, is given that any
files, downloads or applications available via this application are free of
viruses, or any other data or code which has the ability to corrupt, damage or
affect the operation of the user’s system; and
17.4.3 Service
Provider disclaims any responsibility for the verification of any claims.
Information published on this application may be done so in the format in which
Service Provider receives it and statements from external parties are accepted
as fact.
18. Linked
Third-Party Applications and Third-Party Content
18.1 Service
Provider may provide links to third party applications on the application.
These links are provided to the user for convenience purposes only and Service
Provider does not endorse, nor does the inclusion of any link imply Service
Provider’s endorsement of such applications, their owners, licensees or
administrators or such applications’ content or security practices and
operations.
18.2 While
Service Provider tries to provide links only to reputable applications or
online partners, Service Provider cannot accept responsibility or liability for
the information provided on other applications. Linked applications or pages
are not under, nor subject to, the control of Service Provider. Service
Provider is not responsible for and gives no warranties or makes any
representations in respect of the privacy policies or practices of linked or
any third-party or advertised applications on the application.
18.3 You
agree that Service Provider shall not be held liable, directly or indirectly,
in any way for the content, the use or inability to use or access any linked application
or any link(s) contained in a linked application, nor for any loss or damage of
any sort incurred as a result of any dealings with, or as the result of the
presence of such third party linked applications on the application. Any
dealings that you may have with any linked applications, including advertisers,
found on the application, are solely between you and the third-party application.
19. Usage
Restrictions
The user hereby
agrees that it shall not itself, nor through a third party:
19.1 copy
(other than for backup, archival or disaster recovery purposes), reproduce,
translate, adapt, vary, modify, lease, licence, sub-licence, encumber or in any
other way deal with any part of the application for any reason and in any
manner, unless it is consistent with the intent and purpose of these terms;
19.2 decompile,
disassemble or reverse engineer any portion of the application;
19.3 write
and/or develop any derivative of the application or any other software program
based on the application;
19.4 modify
or enhance the application. In the event of a user effecting any modifications
or enhancements to the application in breach of this clause, such modifications
and enhancements shall be the property of Service Provider;
19.5 without
Service Provider’s prior written consent, provide, disclose, divulge or make
available to or permit the use of or give access to the application by persons
other than the user;
19.6 remove
any identification, trademark, copyright or other notices from the application;
19.7 post or
transmit, by means of reviews, comments, suggestions, ideas, questions or other
information through the application, any content which is unlawful, harmful,
threatening, abusive, harassing, defamatory, vulgar, obscene,
sexually-explicit, profane or hateful, or racially, ethnically or otherwise
objectionable content of any kind; and/or
19.8 notwithstanding
anything contained to the contrary in these terms, use the application for any
purpose other than personal, non-commercial and information purposes.
20. Security
20.1 In order
to ensure the security and reliable operation of the services to all Service
Provider’s users, Service Provider hereby reserves the right to take whatever
action it may deem necessary to preserve the security, integrity and
reliability of its network and back-office applications.
20.2 You may
not utilise the application in any manner which may compromise the security of
Service Provider’s networks or tamper with the application in any manner
whatsoever, which shall include without limitation, gaining or attempting to
gain unauthorised access to the application, or delivering or attempting to
deliver any unauthorised, damaging or malicious code to the application, all of
which is expressly prohibited. Any person or entity which does so, or attempts
to do so, shall be held criminally liable. Further, should Service Provider
suffer any damage or loss, civil damages shall be claimed by Service Provider
against the user.
20.3 Any user
who commits any of the offences detailed in Chapter 13 of the Electronic
Communications and Transactions Act 25 of 2002 (“ECTA”)
(specifically sections 85 to 88 (inclusive)) shall, notwithstanding
criminal prosecution, be liable for all resulting liability, loss or damages
suffered and/or incurred by Service Provider and its affiliates, agents and/or
partners.
21. Intellectual
Property Rights
21.1 For the
purpose of this clause, the following words shall have the following meanings
ascribed to them:
21.1.1 “Intellectual
Property Rights” means all and any of the rights in and to intellectual
property of any nature whatsoever owned and/or controlled directly or under
licence by Service Provider, now or in the future, including without
limitation, Service Provider’s rights, title and interest in and to all
technology, source code/s, trade secrets, logos, systems, methods, trademarks,
trade names, styles, insignia, designs, patents and copyright, and all similar
proprietary rights which may subsist in any part of the world, whether
registered or not.
21.2 All
copyright and other intellectual property rights in all content, trademarks,
software, data, material, including logos, databases, text, graphics, icons,
hyperlinks, confidential information, designs, agreements, and multimedia
works, published on or via the application (“proprietary material”), are the
property of, or are licensed to, Service Provider and as such are protected
from infringement by local and international legislation and treaties.
21.3 By submitting
reviews, comments and/or any other content (other than your personal
information) to Service Provider for posting on the application, you
automatically grant Service Provider and its affiliates a non-exclusive,
royalty-free, perpetual, irrevocable right and licence to use, reproduce,
publish, translate, sub-license, copy and distribute such content in whole or
in part worldwide, and to incorporate it in other works in any form, media, or
technology now known or hereinafter developed, for the full term of any
copyright that may exist in such content. Subject to this licence, you retain
any and all rights that may exist in such content.
21.4 All
rights not expressly granted are reserved and no right, title or interest in
any proprietary material or information contained in this application is
granted to you.
21.5 Except
with Service Provider’s express written permission, no proprietary material
from this application may be copied or retransmitted.
21.6 Irrespective
of the existence of copyright, the user acknowledges that Service Provider is
the proprietor of all material on the application (except where a third party
is indicated as the proprietor), whether it constitutes confidential
information or not, and that the user has no right, title or interest in any
such material.
21.7 Service
Provider authorises you only to view, copy, temporarily download to a local
drive and to print the content of this application, or any part thereof,
provided that such content is used for personal purposes and for information
purposes only, and such content is used for non-commercial purposes.
22. Risk, Limitation of Liability and Indemnity
22.1 The
user’s use of this application and the information contained on the application
is entirely at the user’s own risk and the user assumes full responsibility and
risk of loss resulting from the use thereof.
22.2 The
transmission of information via the internet, including without limitation
e-mail, is susceptible to monitoring and interception. The user bears all risk
of transmitting information in this manner. Under no circumstances shall
service provider be liable for any loss, harm, or damage suffered by the user
as a result thereof. Service provider reserves the right to request independent
verification of any information transmitted via e-mail and the user consents to
such verification should service provider deem it necessary.
22.3 To the
extent permissible by law:
22.3.1 Neither Service
Provider, its affiliates, shareholders, agents, consultants or employees shall
be liable for any damages whatsoever, including without limitation any direct,
indirect, special, incidental, consequential or punitive damages, howsoever
arising (whether in an action arising out of contract, statute, delict or
otherwise) related to the use of, or the inability to access or use the content
of the application or any functionality thereof, or the information contained
on the application, or of any linked application, even if service provider
knows or should reasonably have known or is expressly advised thereof.
22.3.2 The
liability of Service Provider for faulty execution of the application as well
as all damages suffered by the user, whether direct or indirect, as a result of
the malfunctioning of the application shall be limited to Service Provider
rectifying the malfunction, within a reasonable time and free of charge,
provided that service provider is notified immediately of the damage or faulty
execution of the application. This liability shall fall away and be expressly
excluded if the user attempts to correct or allows third parties to correct or
attempt to correct the application without the prior written approval of Service
Provider. However, in no event shall Service Provider be liable to the user for
loss of profits or for special, incidental, consequential or punitive losses or
damages arising out of or in connection with the application or its use or the
delivery, installation, servicing, performance or use of it in combination with
other computer software.
22.3.3 You
hereby unconditionally and irrevocably indemnify Service Provider and agree to
hold Service Provider free from all loss, damages, claims and/or costs, of
whatsoever nature suffered or incurred by Service Provider or instituted against
Service Provider as a direct or indirect result of:
22.3.3.1 your use
of the application;
22.3.3.2 software,
programs and support services supplied by, obtained by or modified by you or
any third party without the consent or knowledge of Service Provider;
22.3.3.3 your
failure to comply with any of the terms or any other requirements which Service
Provider may impose from time to time;
22.3.3.4 the
actions or requirements of any telecommunications authority or a supplier of
telecommunications services or software; or
22.3.3.5 any
unavailability of, or interruption in, the service which is beyond the control
of Service Provider.
22.4 Service
Provider makes no warranty or representation as to the availability, accuracy
or completeness of the content of the application. You expressly waive and
renounce all your rights of whatever nature that you may have against service
provider for any loss suffered by you, as a result of information supplied by Service
Provider being incorrect, incomplete or inaccurate.
23. Service
Provider - Privacy and Cookie Policy
23.1 This
clause provides details about our Privacy and Cookie Policy, which policy
forms part of these terms. Service Provider takes your privacy seriously and is
committed to protecting your personal information. We use the personal
information that we collect from you in accordance with this Privacy and Cookie
Policy.
23.2 Personal
information when used in this policy means information that can identify you as
an individual or is capable of identifying you. By personal information we
don’t mean general, statistical, aggregated or anonymised information.
23.3 Your use
of our services signifies your consent to us collecting and using your personal
information as specified below.
23.4 How we
collect information about you:
23.4.1 personal
information such as your name, surname, email address and cell number are
required when registering.
23.4.2 if you
enter a competition or participate in a promotion, we may ask for your name,
address and e-mail address and any other relevant information about you.
23.4.3 your
physical address is required for delivery.
23.4.4 any
other form of communication in which you provide your personal information.
23.5 How we
use your information:
23.5.1 We may
use your information to confirm that your orders have been received; to
validate you as a customer when using our services and calling our help desk;
to prevent and detect criminal activity, fraud and misuse of or damage to our
services or networks; to prosecute those responsible and to contact you to
invite you to form part of our consumer panel or various research groups, etc[IS3] .
23.6 How long
do we keep your information for?
23.6.1 the time
periods for which we keep your information may vary according to the use or
purpose attached to the information. Unless there is a specific legal
requirement requiring us to keep your information, however, we will not keep it
for longer than necessary for the purpose for which the information was
collected or for which it is to be processed[IS4] .
23.7 Disclosing
your information to third parties:
23.7.1 we may
provide aggregate statistics about our sales, customers, traffic patterns and
other Application information to third parties, but these statistics will not
include any information that could identify you[IS5] .
23.8 When and
where do we use cookies?
23.8.1 we
allocate cookies during the registration process for our services. These
cookies will hold information collected during your registration and will allow
us to recognise you as a customer and provide you with the services you require[IS6] .
23.9 How can
you refuse or opt out of cookies?
23.9.1 most
browsers are set by default to accept cookies automatically, but usually you
can alter the settings of your browser to prevent automatic acceptance and to
prompt you every time a cookie is sent to you or to allow you to choose not to
receive cookies at all[IS7] .
23.10 How
can you manage your privacy preferences?
23.10.1 if you’d
like us to stop processing your information for marketing purposes, please
write to us at the address set out in clause 26 below[IS8] .
24. Confidentiality
24.1 By
subscribing as a user, you agree that you shall hold in the strictest
confidence and not disclose to any third-party information acquired in
connection with any aspect of the products and/or services offered by Service
Provider. You shall notify Service Provider should you discover any loss or
unauthorised disclosure of the information.
24.2 Any
information or material sent to Service Provider will be deemed not to be
confidential, unless otherwise agreed in writing by the user and Service
Provider.
25. Compliance
with Section 43(1) of ECT Act
In compliance with
section 43(1) of the ECT Act, the following is noted:
(Insert all of the
relevant information set out below)
25.1 Full
name: BAGit (Pty) Ltd.
25.2 Registration
number: 2020 / 050879 / 07
25.3 Physical
address: 22 Wahlberg Eagle Street, Amberfield Crest. Centurion, 0149.
25.4 Fax
number: N/A
25.5 Telephone
number: 061 676 5134
25.6 Application
address: https://bagitdeliveries.co.za/
25.7 E-mail
address: info@bagitdeliveries.co.za
25.8 Names of
office bearers: Ryan Buckley
25.9 Registered
at: CIPC Pretoria
26. Compliance
with Laws
You shall comply
with all applicable laws, statues, ordinances and regulations pertaining to
your use of and access to this Application.
27. General
Clauses
27.1 These
Terms shall be governed in all respects by the laws of the Republic of South
Africa as such laws are applied to agreements entered into and to be performed
within South Africa.
27.2 This
Application is controlled, operated and administered by Service Provider from
its offices within the Republic of South Africa. Service Provider makes no
representation that the content of the application is appropriate or available
for use outside of South Africa. Access to the application from territories or
countries where the content of the application is illegal is prohibited. Users
may not use this application in violation of South African export laws and
regulations. If the user accesses this application from locations outside of
South Africa, that user is responsible for compliance with all local laws.
27.3 Service
Provider does not guarantee continuous, uninterrupted or secure access to our
services, as operation of our application may be interfered with as a result of
a number of factors which are outside of our control.
27.4 If any
provision of these terms is held to be illegal, invalid or unenforceable for
any reason, such provision shall be struck out from these terms and the
remaining provisions shall be enforced to the full extent of the law.
27.5 Service
Provider’s failure to act with respect to a breach by you or others does not
constitute a waiver of our right to act with respect to subsequent or similar
breaches.
27.6 You
shall not be entitled to cede your rights or assign your rights or delegate your
obligations in terms of these Terms to any third party without the prior
written consent of Service Provider.
27.7 No party
shall be bound by any express or implied term, representation, warranty,
promise or the like not recorded herein, whether it induced the contract and/or
whether it was negligent or not.
27.8 The head
notes to the paragraphs to these terms are inserted for reference purposes only
and shall not affect the interpretation of any of the provisions to which they
relate.
27.9 Words importing
the singular shall include the plural and vice versa, and words
importing the masculine gender shall include females and words importing
persons shall include partnerships and corporate and unincorporated entities.
27.10 These
terms set forth the entire understanding and agreement between Service Provider
and you with respect to the subject matter hereof.