Entered into by and between:
MyPartySupplies.co.za – a division of Hassle Free Kids Party (Pty) Ltd a company duly registered and incorporated in accordance with the laws of the Republic of South Africa. Registration No. 2013/093303/07
Hereinafter “The Company” or "MyPartySupplies" or “MPS” or “Us” or “We”
Suite 7 Denavo House
15 York Street
Kensington B, Randburg
(Domcillium Citandi et Executandi)
Hereinafter “The Customer” or “You” or “Your”
My Party Supplies is an online-only store selling party décor, themed or plain party tableware including, but without limiting the generality thereof, plates, cups, paper serviettes, party hats, tablecloths, candles, latex balloons, foil balloons, balloon weights, ribbon, disposable helium canisters, candles, party boxes, party “loot” bags, party buckets and other items of a decorative nature and other fun / entertainment items and their accessories.
The Customer wishes to engage with The Company and to purchase the Goods subject to the following terms:
Clause headings in this Agreement are for convenience purposes only and shall not be used in its interpretation.
In this Agreement, unless the context clearly indicates a contrary intention reference to:-
1.1 The singular shall include the plural and vice versa;
1.2 Any one gender shall include a reference to the other two genders;
1.3 Natural persons shall include a reference to juristic persons, corporate and unincorporated.
1.4 The following words and expressions shall, bear the following meanings assigned to each of them respectively;
1.5 “Cookie” - also known as an HTTP cookie, web cookie, or browser cookie, is a small piece of data sent from The Company’s website(s) and stored in your web browser while you are browsing The Company’s website(s). Every time you load the website your browser sends the cookie back to The Company’s server to notify our website(s) of your previous activity.
1.6 “Documentation” – The user guides and manuals for the installation and use of The Goods, where applicable.
1.7 “Goods” – includes, but is not limited to party décor, themed or plain party tableware including, but without limiting the generality thereof, plates, cups, paper serviettes, party hats, tablecloths, candles, latex balloons, foil balloons, balloon weights, ribbon, disposable helium canisters, candles, party boxes, party “loot” bags, party buckets and other items of a decorative nature and other fun / entertainment items and their accessories.
1.8 “Payment Processor” - a company (often a third party) appointed by The Company to handle payment transactions (typically Credit or Debit Card) on behalf of The Company.
1.9 “RMA” or “RMA process” - return merchandise authorization (RMA) is the process of returning Goods to The Company in order to receive a refund, replacement, or repair during the Goods’ warranty period. The Customer must contact the Company to obtain prior authorization to return the Gods. The Company will issue an RMA number which must be displayed on or included in the returned Goods packaging; no returns are accepted without this number.
1.10 “Website” – the web properties owned and operated by The Company from time to time including but not limited to: www.mypartysupplies.co.za, www.hasslefreekidsparty.co.za, www.kidspartythemes.co.za .
1.11 If any provision in the aforesaid definitions is or contains a substantive provision imposing rights and/or obligations on a party/ies, effect shall be given to such provision as if it were a substantive provision in the body of this Agreement;
1.12 Unless the context clearly indicates a contrary intention, when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day other than a business day, in which case the last day shall be the next succeeding day which is not a business day;
1.13 The term “business day” shall mean any day other than a Saturday, Sunday or public holiday as published by the Government of South Africa from time to time;
1.14 Any reference to any statute shall be a reference to that statute as at the signature date, and as amended or re-enacted from time to time.
1.15 Any word or phrase defined in the body of this Agreement as opposed to in 1.1 shall have the meaning assigned to it in such definition throughout this Agreement.
1.16 The use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s;
1.17 The terms of this Agreement having been negotiated, the contra proferentem rule shall not be applied in the interpretation thereof.
2. SALE OF GOODS
2.1 By accepting these terms and conditions, customer agrees and is hereby bound to all the terms and conditions of this agreement.
2.2 The customer acknowledges that:
2.2.1 That failure to comply with the safety guidelines provided with the Goods, where applicable, may expose persons using the Goods to risk of injury and/or damage.
2.2.1 Use of the Goods shall at all times be under parental supervision and guidance, where applicable.
2.2.3 The customer indemnifies The Company against all and any claims from whatsoever source and of whatsoever nature arising from the use/misuse of the Goods by the customer and/or the customer agents, servants and invitees.
2.2.4 Should the customer fail to report to The Company any defect in the Goods prior to the use thereof by the customer or by The Customer’s agents then and in that event the customer shall be deemed to have acknowledged that the Goods are acceptable to the customer.
3. PUBLISHED PRICES
The price of The Company’s products are VAT exclusive (MPS is not a registered VAT Vendor) and do not include the cost of shipping/courier/delivery. The courier fee, as amended from time to time at The Company’s sole discretion and without prior notice to you, will be added onto the final purchase consideration in respect of the Goods and calculated in accordance with the size, weight and nature of the Goods ordered by you and the address You provided on Account Registration / Checkout / Order. The 2 (two) costs when added together make up the final invoice amount (Total amount payable by You to The Company).
The Company reserves the right at its sole discretion and without notice to The Customer to amend the prices displayed on the website or to add new products or discontinue/remove products for any reason whatsoever.
4.1 Your goods will only be dispatched on receipt of your payment, in full, to The Company’s nominated banking account. Payment will only be deemed to have been received once it reflects as cleared on The Company’s banking account or that of its nominated Payment Processing provider as the case may be.
4.2 We reserve the right to refuse delivery should payment not be made or should circumstances prevail which are beyond The Company’s control (Force Majeure).
4.3 Prior to completing your purchase you are provided with an opportunity—
to review the entire electronic transaction; and
to correct any mistakes; and
to withdraw from the transaction, should you so choose, before finalizing any order.
5.1 In the event that The Customer cancels any order, refunds shall be made strictly in accordance with the formula below:
5.2 If cancelled with 7 (Seven) calendar days after the date on which the Goods have been received by the customer:-
5.2.1 In full, subject to the deduction of any bona-fide expenses already incurred by The Company which may include but is not limited to:
a. Costs of transport to return the Goods to the offices of The Company
b. Payments / Deposits made to third-party contractors.
5.3 If cancelled more than 7 (seven) days after receipt of the Goods by The Customer:
5.3.1 No refund shall be given.
If payment for the Goods or services has been effected prior to The Customer exercising a right referred to in 5.2 above the Customer is entitled to a full refund of such payment, which refund will be made within 30 days of the date of cancellation, provided that the Goods have been returned to The Company at The Customers expense, undamaged and in its original packaging and in good order and condition.
For the avoidance of doubt no refund (or part thereof) shall be refunded to the Customer until such time as the Goods have been received and inspected by The Company at The Company’s offices.
Goods may only be returned by The Customer to The Company after following the “RMA” process available to The Customer in The Customer’s Profile Page.
6.1 Should the customer fail to report to The Company any defect in the Goods prior to the use thereof the customer indemnifies The Company against any and all claims of whatsoever nature and from whatsoever cause arising in the use thereof.
6.2 Should the customer make a report to The Company as is envisaged in XXX above then and in that event the customer shall ensure that no person shall use the defective.
7. LIMITATION OF LIABILITY:
The Company’s total, cumulative liability to The Customer at all times shall be limited to the Fees paid for the Goods regardless of the nature of the liability or the nature or number of claims giving rise to the liability. The Company will not under any circumstance be liable to The Customer for any loss/damage in excess of the fees paid for the sale of the Goods.
The customer and The Company hereby consent to the jurisdiction of the Magistrate’s Court in terms of Section 45 of the Magistrate’s Court Act 32 of 1944 for all/any disputes arising out of this agreement.
9.1 In the event of either party breaching any term in this agreement and fails to remedy such breach within 7 (seven) days after receiving written notice from the innocent party requesting the defaulting to remedy such breach, then and in that event the innocent party may:
9.1.1 Insist upon specific performance; and/or
9.1.2 Cancel this agreement.
In either event but subject to the limitation of liability referred to above, the innocent party may claim such damages as they are able to prove in law.
10.2 DATA SECURITY
We have implemented technical measures to protect the personal data that we have under our control from unauthorised access, improper use and disclosure, unauthorised destruction or accidental loss.
10.3 PAYMENT SECURITY
The Company utilises a third-party Payment Processor that is purported by the Payment Processor to be sufficiently secure with reference to accepted technological standards at the time of the transaction and the type of transaction concerned. For the avoidance of doubt The Company does not retain or process any of your credit or debit card details.
The Company’s nominate Payment Processor (as amended from time to time at The Company’s sole discretion and without prior notice to The Customer) deals will all aspects of the actual monetary transaction, including the input of banking details and payments. When clients pay via a Payment Processor they are directed away from The Company’s website to the Payment Processor’s secure website to complete the process. Use thereof by The Customer shall be subject to that Payment Processor’s published terms and conditions, as amended from time to time.
10.5 OUR SERVICE.
Our website and services are provided on an "AS IS" basis. You agree that the Company exclusively reserves the right, at any time and without prior notice and any liability to you, to modify or discontinue this website and its services or delete the data you provide, whether temporarily or permanently. We shall have no responsibility or liability for the timeliness, deletion, failure to store, inaccuracy, or improper delivery of any data or information.
10.6 YOUR RESPONSIBILITIES AND REGISTRATION OBLIGATIONS.
10.7 REGISTRATION AND PASSWORD.
You are responsible for maintaining the confidentiality of your username and password and shall be responsible for all uses via your registration and/or login, whether authorized or unauthorized by you. You agree to immediately notify us of any unauthorized use of your registration, user account or password.
10.8 YOUR CONDUCT.
You explicitly agree, in using this website or any service provided, that you shall not:
10.8.1 provide any Content or perform any conduct that may be unlawful, illegal, threatening, harmful, abusive, harassing, stalking, tortious, defamatory, libellous, vulgar, obscene, offensive, objectionable, pornographic, designed to or does interfere or interrupt this website or any service provided, infected with a virus or other destructive or deleterious programming routine, give rise to civil or criminal liability, or which may violate an applicable local, national or international law;
10.8.2 Impersonate or misrepresent your association with any person or entity, or forge or otherwise seek to conceal or misrepresent the origin of any information provided by you;
10.8.3 Collect or harvest (or attempt to collect or harvest) any data about other users;
10.8.4 provide or use this website and any Content or service in any commercial manner or in any manner that would involve junk mail, spam, chain letters, pyramid schemes, or any other form of unauthorized advertising without our prior written consent;
10.8.5 Provide any content or information that may give rise to our civil or criminal liability or which may constitute or be considered a violation of any local, national or international law, including but not limited to laws relating to copyright, trademark, patent, or trade secrets.
10.9. THIRD PARTY SERVICES.
Goods and services of third parties may be advertised and/or made available on or through this website. Representations made regarding products and services provided by third parties are governed by the policies, terms and representations made by these third parties. The Company shall not be liable or responsible in any manner for any of your dealings or interaction with third parties.
10.10 RETURNS, SHIPPING AND EXCHANGE
Please refer to The Company’s Returns, Shipping and Exchange Policy/ies.
All trademarks are the property of their respective owners and may be registered in certain parts of the world.
11. WHOLE AGREEMENT
Whole Agreement – This agreement constitutes the entire agreement between the parties and no representation by either of the parties or their agents, whether made prior or subsequent to the acceptance of this agreement, shall be binding on either of the parties unless in writing and signed by all the parties hereto.
12. NON WAIVER:
12.1 This agreement constitutes the whole agreement between the parties relating to the subject matter hereof.
12.2 No amendment or consensual cancellation of this agreement or any provision or term thereof or of any agreement or other document issued or executed pursuant to or in terms of this agreement and no settlement of any disputes arising under this agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this agreement or of any agreement or other document issued pursuant to or in terms of this agreement shall be binding unless recorded in a written document signed by the parties. Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
12.3 No extension of time or waiver 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 either party in respect of its rights under this agreement, nor shall it operate so as to preclude such party thereafter from exercising its rights strictly in accordance with this agreement.
13. DOMICILLIUM CITANDI ET EXECUTANDI:
13.1 The parties choose domicilium citandi et executandi for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purpose arising from this agreement, as recorded on in this agreement and the Customer (as provided by The Customer during Account Registration or Guest Checkout, as the case may be.
13.2 Each of the parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address within the Republic of South Africa which is not a post office box or post restante.
13.3 Any notice given and any payment made by any party to another (“the addressee”) which:-
13.3.1 Is delivered by hand during normal business hours on a business day at the addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery.
14. LEGAL PROCEEDINGS:
Should either party take legal proceedings against the other arising from this agreement or the cancellation thereof, the successful party shall be entitled to recover costs calculated on the attorney and client scale from the other party.
Published: 06 September 2014.