Terms & Conditions
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS WEBSITE. BY USING THIS WEBSITE, BY USING ANY SERVICES MADE AVAILABLE ON OR THROUGH THIS WEBSITE OR BY
PURCHASING ANY PRODUCTS MADE AVAILABLE THROUGH THIS WEBSITE, YOU SIGNIFY YOUR ASSENT TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS WITHOUT MODIFICATION, YOU MAY NOT USE THIS WEBSITE OR THE AFOREMENTIONED SERVICES IN ANY MANNER WHATSOEVER.
These terms make reference to sections of the Electronic Communications and Transactions Act, 25 of 2002 (hereinafter “the ECT Act”), promulgated in the Republic of South Africa, a copy of which may be obtained at http://www.internet.org.za/ect_act.html.
1.1 The following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:
1.1.1 “intellectual property rights” means all intellectual property rights howsoever arising, whether or not registered, including (without limitation) copyright, database rights, patents, trade marks, registered designs, domain names, confidential information, business processes, trade secrets and any applications for the protection or registration of those rights and all renewals and extensions thereof throughout the world (if applicable);
1.1.2 “products” means any items that you purchase from us via this website or otherwise;
1.1.3 “terms and conditions” means these terms and conditions;
1.1.4 “this website” means the website at which these terms and conditions are made available, including all of its related web pages;
1.1.5 “user account” means the account you create with us for use of this website; and
1.1.6 “we/us” means the entity described in clause 22 below.
2 terms and conditions
2.1 Your use of this website shall at all times be subject to these terms and conditions, as may be amended from time to time. It is your responsibility to continually stay abreast of changes to these terms and conditions.
2.2 We reserve the right to amend these terms and conditions at any time, for any reason, and without notice. The amended terms and conditions shall enter into force on the date that they are published on this website.
2.3 A certificate signed by the administrator of this website shall be prima facie proof of the date of publication and contents of any version of these terms and conditions that may be applicable to a dispute or otherwise.
3 LIMITATION OF LIABILITY
3.1 Any information made available through this website or our products is intended for general information purposes only and is not intended to serve as any form of advice.
3.2 We may, at any time, and at our sole discretion, cease to offer or alter this website or any of our products offered on this website in any way, without notice to you and for any reason whatsoever.
3.3 You acknowledge that this website requires bandwidth and that it is your responsibility to monitor your bandwidth usage whilst using this website and to pay for the cost of same.
3.4 To the maximum extent possible under applicable law, WE disclaim liability for any claim, loss, injury, damage OR DEATH arising out of or in connection with the use of THIS WEBSITE AND/OR ANY OF OUR PRODUCTS, whether direct or indirect including, without limitation, any liability relating to any loss of use, interruption of business, lost profits or lost data, or incidental, special or consequential damages of any kind.
3.5 TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, OUR LIABILITY TO YOU FOR ANY BREACH OF THESE TERMS AND CONDITIONS AND/OR ANY WARRANY IMPLIED BY LAW OR OTHERWISE, IN RESPECT OF THE SUPPLY OF PRODUCTS, SHALL BE LIMITED TO THE PRICE OF THE RELEVANT PRODUCTS.
3.6 YOU UNDERTAKE TO INDEMNIFY US FROM ANY CLAIM, LOSS, EXPENSE, DAMAGE OR INJURY of whatsoever kind, INCLUDING LEGAL FEES, THAT MAY ARISE out of or in connection with YOUR use OF THIS WEBSITE OR YOUR PURCHASE, USE OR ON-SALE OF ANY OF OUR PRODUCTS OR FROM YOUR BREACH OF THESE TERMS AND CONDITIONS.
3.7 TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES WHATSOEVER RELATING TO THIS WEBSITE ARE EXCLUDED, INCLUDING BUT NOT LIMITED TO THE SECURITY, SPEED, UPTIME, FITNESS FOR PURPOSE, ACCURACY, SAFETY OR TIMELINESS OF THIS WEBSITE.
4 AUTHENTICATED services
4.1 You may only access those parts of this website requiring authentication with your own user account.
4.2 You may not register more than one user account.
4.3 You may not give your login credentials to any other person and you may not authorise any other person to use this website using your user account.
4.4 It is your responsibility to ensure the secrecy of your login credentials.
4.5 Any use of this website authenticated with your login credentials shall be deemed binding on and attributable to you.
4.6 Unless otherwise agreed in writing, we may suspend or terminate your use account without notice to you for any reason whatsoever.
4.7 You must notify us immediately in writing as soon as you become aware of any unauthorised access to your user account or other breach of security of this website.
4.8 In terms of section 86 of the ECT Act you are notified that it is a criminal offence to gain unauthorised access to any restricted areas of this website or to otherwise interfere with the proper functioning thereof and you agree not to do so.
5 INTELLECTUAL PROPERTY
5.1 All intellectual property rights in and to this website are proprietary to ourselves or provided under licence from third parties and we reserve all rights in and to such intellectual property rights and you are not granted any licence relating to same except as provided in these terms and conditions. Any use of the intellectual property rights in and to this website otherwise than expressly authorised in terms of these terms and conditions may be liable for criminal prosecution and/or civil liability.
5.2 Unless otherwise agreed in writing, you shall have no right to, and nothing in these terms and conditions shall give you the right to, use any of our trade names, trade marks, logos, domain names and other distinctive brand features, or confusingly similar forms thereof, despite the fact that such use may be permitted by trade mark or any other law.
6.1 Subject to the rights of any third parties therein, you are granted a royalty free, non-exclusive, non-transferable and revocable licence to access, display, use, download, print and otherwise reproduce this website, for private, personal, non-commercial purposes only.
6.2 The licence granted in terms of clause 6.1 above does not allow any derivative use of this website and you shall not delete, change or distort or otherwise modify this website in any manner that may be prejudicial to us or that may benefit another merchant.
6.3 You will not collect product or service listings, descriptions or other commercially valuable information displayed via this website for the benefit of any other merchant.
6.4 The licence granted in terms of clause 6.1 above may be terminated by us at any time, without notice and without giving reasons therefore.
6.5 Any actions contrary to these terms and conditions will immediately and automatically terminate the licence granted in clause 6.1 above.
6.6 You may not (and you may not permit anyone else to) distribute, sell, sublicense or grant any rights to any another person, nor render any services, in respect of this website.
6.7 We are under no obligation to release any updates, fixes or new versions of this website, or to provide any technical or other support in relation to this website.
7 Linking AND Framing
7.1 All hyperlinks to this website shall be directed at the home page of this website and shall not portray us or any part of this website in a false, misleading, derogatory or otherwise defamatory manner.
7.2 Hyperlinks to this website shall not imply any association with or any endorsement or sponsorship of any other products or services offered on the website or service that hyperlinks to this website.
7.3 Any part of this website to which hyperlinks are directed must be displayed without alteration of any kind. Specifically, you may not frame or utilise framing techniques to enclose any part or element of this website in any manner whatsoever, without our express written consent.
8.1 The caching of this website shall only be permitted if:
8.1.1 the purpose of the caching is to make the onward transmission of this website more efficient;
8.1.2 this website is not modified in any manner whatsoever;
8.1.3 the cached content is updated regularly and whenever we direct; and
8.1.4 the cached content is removed or updated when so required by us for any reason.
9 LINKING TO THIRD PARTY WEBSITES
We may, via this website, provide hyperlinks to websites or services not controlled by us. We do not editorially control the content of such websites or services and shall not be liable, in any manner whatsoever, for the access to, inability to access or content available on or through such websites or services and we make no warranties whatsoever about same, including but not limited to their information security or privacy practices, their safety for use or their fitness for purpose.
10 SUBMITTED CONTENT
10.1 You retain all intellectual property rights you may have in any information (including but not limited to data, text, software, audio, photographs, video or other images) which you submit to us or post, use or display on or through this website (“submitted content”).
10.2 Any submitted content will be displayed at our sole discretion and you shall have no right to claim that your submitted content be displayed at all, or that same should be displayed in any specific manner or form.
10.3 Subject to clause 11, by submitting, posting or displaying the submitted content, you extend to us a perpetual, royalty free, irrevocable, worldwide, non-exclusive licence to, at our sole discretion, reproduce, adapt, modify, translate, publish, publicly perform or display, and distribute the submitted content for any purpose, including commercial, whatsoever, and you waive any moral rights you may have in the submitted content in our favour, including your right to be accredited as the author of the submitted content and your right to object to any distortion, mutilation or other modification thereof that would be prejudicial to your reputation.
10.4 You warrant that all submitted content shall not infringe any third party’s rights or contravene any applicable law, and indemnify us against any claim, loss, expense, damage or injury of whatsoever kind, including legal fees, should this warranty turn out to be false.
11 PERSONAL INFORMATION
11.1 You consent to the collection, processing and storage of the following information when using this website:
11.1.1 any information which you actively submit to us via this website, including but not limited to contact, delivery and payment information;
11.1.2 your internet protocol address (“IP address”);
11.1.3 your history of use of this website, including transaction records; and
11.1.4 aggregate and personally non-identifiable information including, but not limited to, your browser type, access times, websites from which you were referred to this website and your activities whilst using this website.
11.2 The information mentioned in clause 11.1.1 above is required for the purpose for which it is submitted, as stated at the time of collection, including but not limited to the conclusion of a sale transaction between you and us. The submission of such information is entirely voluntary, however some such information is required to enable us to conclude and sale transaction with you and to deliver any products that you may order via this website. Should you refuse to submit such information, or should such information be deleted or modified at your request in terms of clause 11.12 below, we may be unable to conclude any such sale transaction or delivery.
11.3 Should the information mentioned in clause 11.1.1 include any of your contact details, including but not limited to your cellular telephone number or your email address, you consent to receive direct marketing, including surveys, from us and our partners, affiliates and contractors, at the contact details provided. You are, however, entitled to opt-out of receiving any such direct marketing by sending an email to the email address provided in clause 22 below.
11.4 The information mentioned in clause 11.1.2 and 11.1.3 is required for the purpose of tracking your activities in using our site with a view to maintaining and improving the security of our systems and our users, as well as the improvement of this website. Transaction records are required for the purpose of tracking and executing any orders you may place via this website.
11.5 The information mentioned in clause 11.1.4 above is required for market research and the improvement of this website.
11.6 You acknowledge that the collection of the information mentioned in clause 11.1 above is adequate, relevant, not excessive and reasonable in respect of the purposes for which it is collected, as specified above.
11.7 You acknowledge that we may operate servers in various countries outside South Africa and as such, the information mentioned in clause 11.1 above may be transferred beyond the borders of South Africa and into countries that may not uphold reasonable information processing principles, and we shall have no obligation to ensure, contractually or otherwise, that the operators of such servers adhere to any such principles, and you consent to the transmission to, the processing by and the storage on such servers of the information mentioned in clause 11.1.
11.8 You further acknowledge that the processing of online payments via this website is outsourced by us to a secure third party payment gateway provider and you consent to the automatic disclosure of the information mentioned in clause 11.1 to such third party and to the processing thereof by such third party for the purpose of processing your payment. Should you wish that any identifying information disclosed to such third party be delete or modified, you must submit such a request to such third party. The details of such third party shall be made available to you prior to the processing of your payment. We shall not be responsible for the deletion or modification of any such information transmitted to such third party.
11.9 You consent to the retention of the information mentioned in clause 11.1 above by us until such time as you request that such information be deleted in terms of clause 11.12 below, provided that should such information be anonymised we shall be entitled to retain same indefinitely.
11.10 Subject to clause 11.7 and 11.8 above, we will not disclose any information mentioned in clause 11.1 to any third parties without your prior consent. We will however be entitled to disclose such information:
11.10.1 if it has been anonymised;
11.10.2 if we are compelled to do so by a court order or any law or regulatory requirement;
11.10.3 if it is necessary to protect our rights; and
11.10.4 to any other person under a duty of confidentiality to us, including but not limited to our business partners, other companies in our group of companies and marketing agents.
11.11 Should you wish to know the details of any information mentioned in clause 11.1 above which we hold concerning yourself and to whom, if anyone, such information has been disclosed, such a request must be submitted to the email address provided in clause 22. Upon receipt of such request we will promptly attend thereto, subject to our right to charge any prescribed fee and provided you have identified yourself to our satisfaction.
11.12 Should you wish that any information mentioned in clause 11.1 above which we hold concerning yourself be deleted or modified, you must submit a request to the email address provided in clause 22. We will promptly consider all such requests and, if they are reasonable at our sole discretion, we will promptly attend to them. If we consider such requests not to be reasonable, we will nonetheless mark the relevant information to reflect the fact that you have made such a request.
12 automated access and resale
12.1 Other than bona fide public search engines, you may not access this website using a computer program or an electronic or other automated means used independently to initiate an action or respond to data messages or performances in whole or in part, including, without limitation, any web spiders, crawlers, or similar technologies.
12.2 You may not in any manner resell the services offered through this website, unless expressly authorised to do so in writing.
13 responsible use of SERVICES
13.1 You may not use this website or any related infrastructure to:
13.1.1 send or post unsolicited commercial communications;
13.1.2 publish information or material that:
220.127.116.11 contains a visual presentation of explicit violent sexual conduct, bestiality, incest or rape or extreme violence which constitutes incitement to cause harm;
18.104.22.168 results in any invasion of privacy;
22.214.171.124 induces an unacceptable sense of fear or anxiety;
126.96.36.199 encourages or incites any person to engage in dangerous practices or to use harmful substances;
188.8.131.52 induces or promote racial disharmony;
184.108.40.206 causes grave or widespread offence;
220.127.116.11 debases, degrade or demeans; or
18.104.22.168 is unacceptable in our view.
14 ELECTRONIC communications
14.1 Electronic communications transmitted by you to us shall only be deemed to have been received if and when responded to by us.
14.2 Electronic communications transmitted by us to you shall be deemed to have been received immediately after sending, unless the contrary is proved.
14.3 Electronic communications, including all attachments thereto, transmitted to you by us are subject to the following specific terms:-
14.3.1 Information contained in electronic communications must be regarded as confidential and intended solely for the use of the intended recipient. Any unauthorised disclosure, copying, distribution or action in reliance upon the contents of this electronic communication is strictly prohibited and unlawful.
14.3.2 Whilst we employ virus filtering, we provide no guarantees or warranties that electronic communication will be virus-free and accept no liability for any damage caused by the receipt, opening or utilisation of our communications. You are accordingly advised to employ your own virus scanning tools.
14.3.3 The views expressed in any electronic communications transmitted are those of the individual sender, unless the context clearly provides otherwise.
14.4 Electronic communications transmitted by you to us shall be deemed to have been sent by you from within the geographical boundaries of the Republic of South Africa.
14.5 Electronic signatures, encryption and/or authentication are not required for valid electronic communications between you and us.
14.6 You warrant that electronic communications that are sent to us from a computer, IP address or mobile device normally used by or owned by you were sent and/or authorised by you personally.
15.1 Nothing made available through this website, besides these terms and conditions, shall be construed as an offer which, if accepted, would lead to the creation of a legally binding agreement.
15.2 Any order for products placed by you via this website shall constitute an offer by you to us which can be accepted or rejected by us without prejudice. You will receive email confirmation of the acceptance or rejection of your offer within a reasonable time after the completion of your order on this website.
15.3 Despite the acceptance of your offer, we may, at any time prior to dispatch of the relevant products and for any reason, cancel your order via notification to you, whereafter we shall refund any payments received by us in respect of such products within 30 days from the date of said notification. We will not however be liable for any claim, loss, injury, expense or damage of whatsoever nature incurred by you arising directly or indirectly out of any such cancellation.
15.4 You may cancel any order for products for any reason up to the point such products are dispatched, whereafter any payments made by you to us in respect of such products shall be refunded to you within 30 days of receipt of your cancellation notice less any bank charges incurred by us in refunding such payments.
15.5 You are notified that in terms of s 44(1) of the ECT Act, you are entitled to cancel, without reason and without penalty, any transaction with us for the supply of products, within 7 days after receipt of such products. If you choose to so cancel any such transaction, we will refund your payment, less bank charges, in respect of such transaction within 30 days of receipt of your cancellation notice, but not before you have returned the relevant products to us at your own cost and your own risk.
15.6 Cancellation notices in terms of clause 15.4 and 15.5 hereof must be sent to the email address listed in clause 22 below or may be sent using any function expressly designed for this purpose available on this website.
15.7 Should you detect any defect in any products, you shall return such products to us within 6 months from the date of delivery of such products. If such products are defective, except to the extent that such products have been altered after leaving our control or contrary to our instructions, then you will be entitled, at our sole discretion, to a full refund or a replacement (including delivery costs) plus the reasonable postage costs of returning the defective goods to us.
15.8 For the purposes of clause 15.6 above, and in addition to the requirements of clause 15.6 above, you shall only be entitled to a refund or replacement if:
15.8.1 the relevant products to be returned are actually received by us, proof of which shall be solely your responsibility, at the following address:
Att: Otto Baby (Pty) Ltd
PO Box 61330
Pierre van Ryneveld
15.8.2 and the relevant products to be returned are accompanied by our original order number assigned by us to the relevant transaction.
15.9 Except as otherwise provided in this clause 15, under no circumstances will we accept returns or exchanges of any products or entertain such requests.
16.1 The prices of products displayed on this website are inclusive of Value Added Tax (“VAT”) but exclusive of any delivery charges. The total price, including VAT and delivery charges, will be displayed and confirmed prior to the completion of your order.
16.2 Prices displayed on this website are not guaranteed and we reserve the right to change the prices at any time.
17 DELIVERY, RISK AND TITLE
17.1 Payment of the total price including VAT and delivery charges must be made in full before any products will be dispatched.
17.2 Products will ordinarily be delivered within the timeframes detailed on this website in the course of concluding any transaction. We will use our best endeavours to adhere to such timeframes, however time shall not be of the essence and we shall not liable for any claim, loss, injury, expense or damage of whatsoever nature incurred by you arising directly or indirectly out of any failure to meet the aforementioned timeframes.
17.3 In terms of section 46(1) of the ECT Act, you agree that the time period for execution of any order set in that section shall not be applicable to any products ordered via this website.
17.4 We will arrange delivery of any products ordered via this website to you at the address provided by you via this website. If delivery is attempted at the aforementioned address and fails for any reason, notification to this effect will be given to you. It shall then be your responsibility to arrange a suitable date and time for delivery and any additional costs associated therewith shall be for your account.
17.5 YOU AGREE THAT THE RISK OF DAMAGE TO OR DEPRECIATION, LOSS OR DESTRUCTION OF ANY PRODUCTS OFFERED VIA THIS WEBSITE SHALL PASS TO YOU AS SOON AS THE RELEVANT PRODUCTS HAVE BEEN DELIVERED TO YOU, OR, WHERE DELIVERY WAS ATTEMPTED, AT THE TIME DELIVERY WAS ATTEMPTED.
17.6 Ownership of any products ordered via this website shall only pass to you upon delivery and only if payment of the full price, including VAT and delivery charges, has been received by us.
18 GOVERNING LAW AND JUrisdiction
18.1 Subject to clause 18.2 below, these terms and conditions shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa.
18.2 For the purpose of all proceedings hereunder the parties hereto consent to the jurisdiction of the Magistrates’ Court having territorial jurisdiction, notwithstanding that such proceedings are otherwise beyond its jurisdiction. This clause shall be deemed to constitute the required written consent conferring upon the said court pursuant to section 45 of the Magistrates’ Court Act, 1994, provided, nevertheless, that any party shall have the right at its sole option and discretion to institute proceedings in any other competent court.
19 legal costs
Should we instruct legal representatives to take any steps to enforce any rights in terms of these terms and conditions arising from a breach thereof, then you will be liable for all legal and incidental costs, including legal fees on the attorney and own client scale, collection commission and tracing charges.
20.1 You warrant your legal capacity and authority to accept these terms and conditions.
20.2 No omission by us to timeously or diligently enforce any right under these terms and conditions shall operate as an estoppel against us or be deemed to amount to a waiver of that or any other right.
20.3 Each provision of these terms and conditions shall be severable from the other provisions. Should any provision be found by any competent court of or authority to be illegal, invalid or unenforceable for any reason, the remaining provisions of these terms and conditions shall nevertheless remain binding and continue with full force and effect. If any provision or part of these terms and conditions is found by any competent court or authority to be illegal, invalid or unenforceable for any reason, the parties hereto agree that they shall substitute terms in a form as similar to the offending terms as is possible without thereby rendering it illegal, invalid or unenforceable.
20.4 These terms and conditions constitute the whole agreement between you and us relating to the matters dealt with herein and, save to the extent otherwise provided herein or as agreed upon in writing, no undertaking, representation, term or condition relating to the subject matter of these terms and conditions not incorporated in these terms and conditions shall be binding on any of the parties hereto.
20.5 You agree that for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from these terms and conditions, your chosen domicilium address shall be deemed to be any of the physical, postal or email addresses or the cellular telephone number submitted to us by you via this website.
20.6 We choose the addresses set out in clause 22 below as our domicilium address for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purposes arising from these terms and conditions.
21 PROMOTION OF ACCESS TO INFORMATION ACT
In terms of s 51 of the Promotion of Access to Information Act 2 of 2000 (“PAIA”), our information manual can be found HERE.
22 Information disclosure
The following information is disclosed in terms of section 43 of the ECT Act and section 51 of the Companies Act 61 of 1973:
Full name and legal status
Otto Baby (Pty) Ltd
Names of office bearers
Place of registration
Zwartkops Golf Estate
No. 1 Snead Manor
+27 (0) 71 692 4241
The physical address where we will receive legal service of documents
Zwartkops Golf Estate
No. 1 Snead Manor