|
8. Placing an Order
|
| 8.1 |
The Customer may only place an Order if the Customer has a
Borntosend Account. In order to obtain a Borntosend Account, the
Customer must comply with the provisions of clause 2
.
|
| 8.2 |
After conducting a Search, the Customer may place an Order as
follows:
|
|
8.2.1 |
the Customer must choose the appropriate service or price
detailed in the Search Results by selecting the relevant icon on
the Search Results page of this Website or by informing the
representative of Borntosend of the Customer's choice (whichever
is applicable in the circumstances);
|
|
8.2.2 |
the Customer must then provide the Customer's e-mail address
and Borntosend password;
|
|
8.2.3 |
the Customer will thereafter be required to provide additional
information which the Company may deem necessary to complete the
Order including, but not limited, to payment details;
|
|
8.2.4 |
if the Customer conducted the Search on this Website, a
summary of the details of the Order will be displayed to the
Customer ("
Order Summary
") and the User will be required
to place the Order and accept the terms of the Order by selecting
the appropriate icon which appears below the Order Summary;
|
|
8.2.5 |
if the Customer conducted the Search telephonically, the
representative of the Company will repeat the details of the
Order to the Customer and the Customer will thereafter be
required to place the Order by providing its oral confirmation
and acceptance of the terms of Order.
|
| 8.3 |
By placing an Order, the Customer agrees to be bound by the
terms of the Order and warrants that all information provided by
the Customer when conducting the Search and placing the Order is
complete, true and correct in all respects.
|
| 8.4 |
After an Order is placed, the Company will process the Order
and provide the relevant courier with the details of the Order.
It will be the sole responsibility of such courier to provide the
services to which the Order relates.
|
|
9. Invoices and Payment
|
| 9.1 |
After the Customer has placed an Order, the Company will
transmit an invoice relating to that Order to the Customer by
electronic mail.
|
| 9.2 |
Subject to clause 9.4 below, all amounts detailed in an Order
will become due and payable immediately after the Company
transmits the invoice relating to that Order to the Customer in
accordance with the provisions of clause 9.1. The Company shall
be entitled and the Customer hereby authorises the Company to
withdraw the price detailed in such invoice from the Customer's
Credit Card account, the details of which will be required to be
provided by the Customer to the Company prior to placing the
relevant Order ("
the Credit Card Account
"). No Order will
be processed by the Company until such time as it has received
confirmation from its bankers, that payment in respect of that
Order has been received by the Company.
|
| 9.3 |
In the event that any information provided by the Customer
when conducting a Search or placing an Order is found to be
erroneous or inaccurate and such error or inaccuracy results in,
or necessitates an increase of, the price stipulated in that
Order or to the price detailed in an invoice relating to that
Order, the Customer shall be responsible for such increase in the
price, and the Company shall be entitled, in addition to it's
rights in clause 9.2, to issue an additional invoice to the
Customer and/or withdraw the amount by which the price has
increased from the Customer's Credit Card Account. The Customer
hereby authorises the Company to make such withdrawal.
|
| 9.4 |
Subject to applicable credit limits, in the event that the
Customer has credit facilities all amounts owing by the Customer
to the Company must be paid within 21 days of date of invoice
unless otherwise agreed by the parties.
|
| 9.5 |
The Company is entitled to the benefits of any discounts
obtained from a courier and to retain and be paid all brokerage,
commission, allowances and other remuneration of whatsoever
nature and shall not be obliged to disclose or account to the
Customer in respect of such discounts, brokerage, commission,
allowances or other remuneration.
|
|
10. Consent of the Customer to electronic notices, invoices
and statements
By registering with Borntosend and obtaining a Borntosend
Account, the Customer:
|
| 10.1 |
agrees to receive notices, invoices relating to Orders and
statements relating to the Borntosend Account by means of
electronic mail sent to the Customer's e-mail address;
|
| 10.2 |
undertakes to:
|
|
10.2.1 |
notify Borntosend of any failure by the Customer to receive
any notice, invoice and/or statement;
|
|
10.2.2 |
comply with any VAT and Income Tax requirements, rules,
legislation and regulations;
|
|
10.2.3 |
not to alter any notice, invoice or statement in any way;
|
|
10.2.4 |
store all notices, invoices and/or statements on an
appropriate medium without in any way altering or modifying the
invoice or statement; and
|
|
10.2.5 |
give Borntosend prior written notice of any change in the
Customer's e-mail address.
|
| 10.3 |
understands and acknowledges that any notice, invoice or
statement will be deemed, unless the Customer can prove the
contrary, to have been received by the Customer on the date and
time that Borntosend despatches the electronic mail containing
such invoice or statement;
|
| 10.4 |
agrees that Borntosend may, at its discretion, discontinue or
suspend the practice of sending invoices or statements by
electronic mail and may thereafter deliver invoices and
statements by post.
|
|
11. Couriers
|
| 11.1 |
The Customer acknowledges that, to the extent that the Company
displays any information relating to any courier ("
the
Courier
"), the Courier is independent of the Company and the
Company shall not be held responsible for the actions or
omissions of the Courier.
|
| 11.2 |
It is recorded that the Courier is not an employee or
representative of the Company and is accordingly not authorised
to enter into any transactions, or to give any undertakings or
make any representations on behalf of the Company.
|
| 11.3 |
By signing any consignment note or documentation provided by a
courier, the Customer acknowledges that it will be personally
entering into an agreement with the courier. The Customer further
acknowledges that, in addition to the Trading Terms and
Conditions, it will personally be bound to any terms and
conditions, including, but not limited to, any conditions of
carriage, which may be contained in or incorporated by reference
on such consignment note or documentation. In this regard, the
Customer is advised and undertakes to familiarise himself with
such terms and conditions.
|
| 11.4 |
While the Company will use reasonable endeavours to transmit
the details of an Order to the relevant courier, the Company
shall not be responsible for the partial or total failure of any
courier or third party to provide the services to which the Order
relates.
|
| 11.5 |
The Customer will be able to obtain insurance for the delivery
of goods to which an Order relates from either the Company or the
relevant courier. Any insurance offered by the Company
is separate
from and independent of any insurance offered by a courier
("
courier insurance
"). It is not necessary to obtain
insurance from both the Company and the courier. Should the
Customer elect to obtain courier insurance, any costs relating to
courier insurance which are detailed or referred to in any
consignment note or documentation provided by the relevant
courier and signed by the Customer relating to an Order placed by
the Customer with the Company, must be paid by the Customer. If
the Customer elects to obtain courier insurance, the Company
shall be entitled to issue an additional invoice to the Customer
for such courier insurance costs and/or withdraw such courier
insurance costs from the Customer's Credit Card Account,
irrespective of whether the Customer has obtained insurance
offered by the Company. The Customer hereby authorises the
Company to make such withdrawal.
|
|
12. Borntosend Account Statements and Information
|
| 12.1 |
Provided that the Customer has a Borntosend Account, the
Customer shall:
|
|
12.1.1 |
be provided with a monthly statement detailing all debits and
credits made to the Borntosend Account during the month to which
the statement relates; and
|
|
12.1.2 |
be able to view certain information relating to the Customer's
Borntosend Account on this Website.
|
| 12.2 |
Unless the Customer notifies the Company within 30 days of
receipt of the Borntosend Account statement of an error in such
statement, the Customer shall be deemed to have accepted the
contents of such statement and such acceptance will be binding on
the Customer.
|
|
13. No Warranties
|
| 13.1 |
The Company gives no undertakings, nor makes any
representations, nor gives any warranty (whether express or
implied) that the Customer will have access to this Website.
|
| 13.2 |
The Company makes no warranties (whether express or implied),
representations, or guarantees as to accuracy, merchantability,
fitness for any particular purpose or otherwise with respect to
the electronic system used by the Company or made available to
the Customer through, inter alia, the Internet through which
Customer may receive information from the Company or send
information to the Company, or its content, or any documentation
or any hardware or software provided or used by the Company
('
the System
'). Technical difficulties could
be encountered in connection with the System. These difficulties
could involve, among others, failures, delays, malfunction,
software erosion or hardware damage, which difficulties could be
the result of hardware, software or communication link
inadequacies or other causes. Such difficulties could lead to
possible economic and/or data loss. In no event will the Company
or its affiliates or any of their employees be liable for any
possible loss (including loss of profit or revenue), cost or
damage including, without limitation, consequential,
unforeseeable, special or indirect damages or expense which might
occur as a result of or arising out of using, accessing,
installing, maintaining, modifying, deactivating or attempting to
access the System or this Website or otherwise.
|
| 13.3 |
The Company further makes no warranty or representation
(whether express or implied) that the contents of this Website
or of any electronic mail transmitted to the Customer, are free
of viruses, destructive materials or any other data or code which
is able to corrupt or jeopardise the operation or content of a
computer system, network or your hardware or software.
|
|
14. Status Representation and Warranties
|
| 14.1 |
Unless the Company has agreed otherwise in writing, the
Customer shall be directly and personally responsible for
performing its obligations relating to every Search, Order and/or
agreement between a courier and the Customer. The Customer shall
indemnify the Company in respect of all liabilities, losses or
costs of any kind or nature whatsoever which may be incurred by
the Company as a direct or indirect result of any failure by the
Customer to perform any of such obligations.
|
| 14.2 |
Any change to the details supplied by the Customer on the
Registration Form or the Credit Application, must be immediately
notified to the Company in writing and will only take effect once
the Company has received and processed such notification.
|
| 14.3 |
The Customer represents and warrants to the Company, and
agrees that each of the following representations and warranties
shall be deemed to be repeated each time the Customer places an
Order with the Company:
|
|
14.3.1 |
the information the Customer provided to the Company in the
Registration Form, the Credit Application, the Order and/or the
Search relating to such Order and at any time thereafter, is true
and accurate in all material respects;
|
|
14.3.2 |
the Customer is over 18 years old and is duly authorised to
agree to these Trading Terms and Conditions, to place an Order
with the Company and to perform its obligations hereunder and
thereunder;
|
|
14.3.3 |
the Customer has obtained all necessary authorisations to
place any Order or to perform any obligations relating to such
Order (including any necessary governmental authorisations);
|
|
14.3.4 |
the agreement to these Trading Terms and Conditions, the
placement of an Order or performance of any obligation hereunder
will not violate any law, ordinance, charter, by-law, regulation
or articles or memorandum of association relevant to the
Customer;
|
|
14.3.5 |
the Customer acts as principal and any person representing the
Customer in placing an Order will have been, and (if Customer is
not an individual) the person completing the Registration Form or
Credit Application on its behalf is, duly authorised to do so on the
Customer's behalf; and
|
|
14.3.6 |
the Customer's actions are lawful under applicable laws of any
jurisdiction to which the Customer may be subject.
|
|
15. Liability
|
| 15.1 |
Without derogating from the provisions of this clause 15, the
Company shall in no circumstances, except fraud on the part of
the Company, be liable to the Customer for any loss, cost, claim,
demand or expense the Customer may suffer (including any indirect
or consequential losses) resulting from a Manifest Error, any
partial or total failure of a courier to perform the services
detailed in an Order and/or any delay in the performance by a
courier of the services to which an Order relates.
|
| 15.2 |
The Company shall have no liability whatsoever to the Customer
for any loss or damage the Customer may suffer, unless as a
direct result of wilful default or gross negligence by the
Company.
|
| 15.3 |
Nothing in these Trading Terms and Conditions shall exclude or
restrict any duty or liability owed by the Customer to the
Company.
|
| 15.4 |
The Customer hereby indemnifies the Company and undertakes to
keep the Company indemnified on demand in respect of all
liabilities, costs, claims, demands and expenses of any nature
whatsoever which the Company may suffer, or incur as a direct or
indirect result of the Customer using this Website or of any
failure by the Customer to perform any of the Customer's
obligations under these Trading Terms and Conditions.
|
|
16. Decisions and Information
|
| 16.1 |
All decisions made by the Customer are done so in reliance on
its own judgment only and at the Customer's own risk.
|
| 16.2 |
The Company will not advise the Customer about the merits or
reliability or suitability for the Customer of any service
offered by a courier or of any particular Order, but the Company
may at its discretion give statements regarding procedures, risks
attaching to certain services offered by couriers, ways of
minimising risks and factual information relating to services
offered by couriers.
|
| 16.3 |
Any information provided by the Company is offered in good
faith and without any warranty or representation that such
information is correct, accurate or suitable for any particular
purpose. The Company will not be responsible for the accuracy or
otherwise of such information. The Customer must rely solely on
its own judgment and information before placing an Order. It is
the Customer's responsibility to be aware of all terms,
conditions, rules and regulations that relate to an Order or the
services of a courier before the Customer enters into any Trade
or Order.
|
| 16.4 |
While reasonable efforts will be made to ensure the accuracy
of Search Results and information relating to the services or
prices of couriers, because of changes in prices, markets,
products and services, such Search Results and information should
be considered as an indication only.
|
|
17. Manifest Errors
|
| 17.1 |
A 'Manifest Error' means a manifest or obvious
misquote by the Company having regard to the current prices or
services offered by couriers at the time an Order is placed by
the Customer. The Company, for this purpose, may take into
account all information in its possession including without
limitation information concerning all relevant prices or services
then currently offered by couriers and any error in, or lack of
clarity of, any information source, commentator, official,
official result or pronunciation.
|
| 17.2 |
The Company will, when making a determination as to whether a
situation amounts to a Manifest Error, act fairly towards the
Customer but the fact that Customer may have entered into, or
refrained from entering into, a corresponding transaction or
contract in reliance on an Order placed with the Company (or that
Customer has suffered or may suffer any consequential or indirect
loss) shall not be taken into account by the Company in
determining whether there has been a Manifest Error.
|
| 17.3 |
The Company reserves the right to declare any Order involving
or deriving from a Manifest Error as being null and void or to
amend the details of such Order to reflect what the Company
considers in its sole discretion, acting in good faith, to be the
correct or fair details of such Order absent such Manifest
Error/s.
|
|
18. Termination
Subject to the provisions of clause the further provisions of
the Trading Terms and Conditions and the Acceptance Notice,
either party may terminate these Terms and Conditions on written
notice to the other, without prejudice to accrued rights and
remedies and the existence and enforceability of the Trading
Terms and Conditions to any outstanding Orders, which shall
continue until processed by the Company.
|
|
19.Waiver
The Company is entitled to waive or relax any of these Trading
Terms and Conditions from time to time with or without notice to
the Customer. No failure or delay or relaxation by the Company of
these Trading Terms and Conditions shall operate as a general
waiver of the relevant term, condition, right or power and no
partial or single exercise of any term, condition, right or power
shall preclude any other or further exercise of some or any of
the Company's other rights and remedies against the
Customer. In particular, not without limitation, where these
Trading Terms and Conditions specify certain limits or parameters
relating to the Customer's trading activities or margin
requirements, the Company shall be entitled from time to time and
with or without notice to the Customer, to allow the Customer to
breach such limits.
|
|
20.Entire Agreement
The Trading Terms and Conditions set out herein (and in any
other document referred to or incorporated by reference) shall
constitute the whole agreement between the parties save as
otherwise expressly agreed in writing.
|
|
21.Variation
The Company reserves the right to alter the Trading Terms and
Conditions . Any changes in the Trading Terms and Conditions will
be communicated to the Customer by electronic mail and the
Customer will thereafter be bound by such changes. All actions
taken by the Customer after the revised Trading Terms and
Conditions are received by the Customer, will be subject to such
revised Terms and Conditions. For the avoidance of doubt, unless
the Customer can prove the contrary, an electronic mail
communicating any changes to the Trading Terms and Conditions
will be deemed to have been received by the Customer on despatch
of the electronic mail by the Company.
|
|
22.Evidence
The Customer hereby agrees that, notwithstanding any relevant
law or legislation, in any dispute, legal proceedings or dispute
resolution procedure involving the Customer and the Company, any
reproduction, copy or computer print-out, which is produced by
the Company, of any information generated, displayed, sent,
received or stored by electronic, optical or similar means,
including, but not limited to, any text or graphics displayed on
this Website and any electronic mail , will constitute
prima
facie
proof of the contents thereof, unless the Customer can
prove to the contrary.
|
|
23.Notices
|
| 23.1 |
Any notice from the Company (including without limitation any
demand or statement or electronic confirmation) under or in
connection with these Trading Terms and Conditions may be oral or
in writing.
|
| 23.2 |
Notices, including legal notices and legal process, or other
communications to the Customer may be made to the
Customer's last known home address, place of work,
telephone number (including a telephone answering machine), fax
number, e-mail address or other contact details.
|
| 23.3 |
Any notice from the Customer to the Company for all purposes
hereunder must be delivered to either of the following addresses
("
the Company's domicilium citandi et executandi
"):
|
|
23.3.1 |
Physical address:
1st Floor, West Wing
158 Jan Smuts Avenue
Rosebank
Johannesburg
Postal address:
P.O. Box 125
Parklands
Johannesburg
2121
or such other addresses as the Company may at any time advise
the Customer.
|
| 23.4 |
Any notice from the Customer to the Company must be
in writing and any notices of a legal nature from the Customer to
the Company must to be delivered to the Company's physical
address.
|
| 23.5 |
Subject to the provisions of clause 23.3,any notice shall be
deemed to have been duly given when received or given as follows,
whichever is the earlier.
|
|
23.5.1 |
if delivered by hand, on the date of delivery;
|
|
23.5.2 |
when left at Customer's last known home or work
address
|
|
23.5.3 |
if given by leaving a telephone answering machine message or
voice mail message, one hour after the message being left on the
relevant medium;
|
|
23.5.4 |
if sent by registered mail, on the fifth day after posting
(excluding Sundays and public holidays);
|
|
23.5.5 |
if sent by electronic mail on the date and time of despatch of
the electronic mail by Borntosend.
|
|
24. Assignment
|
| 23.4 |
The Customer shall not be entitled to cede or assign the
Trading Terms and Conditions without the prior written consent of
the Company. No assignment of the Trading Terms and Conditions or
any rights hereunder shall relieve the Customer of any of its
obligations or liabilities hereunder.
|
| 24.2 |
The Company may without notice assign any part of its rights
or obligations under the Trading Terms and Conditions to any
current or future affiliate or cause such entity to perform
hereunder. For the purpose of the Trading Terms and Conditions
'affiliate' shall mean any company or partnership
controlled by, or controlling, or in common control with the
Company. A person, company or partnership shall be deemed to
control another person, company or partnership if the former
person, company or partnership possesses, directly or indirectly,
the power to direct, or cause the direction of, the management
and policies of the other person, company or partnership whether
through the ownership of voting securities or partnership
interests, representation on its board of directors or similar
governing body, by contract or otherwise.
|
|
25. Severability
If any provision of the Trading Terms and Conditions is or
becomes illegal, invalid or unenforceable, such provision shall
be severed and the remaining provisions shall continue
unaffected.
|
|
26. Force majeure
|
| 26.1 |
Either party shall be relieved of liability for the
non-performance or defective performance of any of its
obligations under the Trading Terms and Conditions caused by any
act of force majeure, including but not limited to storms,
floods, fires, earthquakes, other natural disasters, power
failures, unavailability of equipment, strikes, lockouts,
boycotts, and actions of the civil and military authorities,
changes in laws, rules, regulations or orders which relate to the
control or export or re-export of commodities or technical
data.
|
| 26.2 |
A party subject to force majeure shall as soon as possible
notify the other party in writing of the circumstances amounting
to force majeure and shall provide an estimate (which shall be
updated in writing from time to time) of when those circumstances
are expected to cease to apply.
|
| 26.3 |
In conditions of force majeure, each party shall take all
reasonable steps by whatever lawful means are available to resume
all performance of the obligations of the party subject to force
majeure, under these Trading Terms and Conditions, as soon as
reasonably possible and shall discuss with the other party ways
and means to overcome such conditions.
|
| 26.4 |
If conditions of force majeure persist continuously in respect
of a party for a period in excess of 60 days and have a material
adverse effect on the other party, and the parties are within
such period unable to reach written agreement on amendments to
the relevant provisions of the Trading Terms and Conditions to
take into account such conditions, the other party may terminate
the Trading Terms and Conditions with immediate effect on written
notice.
|
|
27. Interpretation
|
| 27.1 |
In these Trading Terms and Conditions, unless the context
clearly indicates the contrary intention:
|
|
27.1.1 |
words and expressions which have been defined will have the
meanings assigned to them and cognate expressions shall have
corresponding meanings;
|
|
27.1.2 |
words importing:
|
|
|
27.1.2.1 |
any one gender includes the other two genders;
|
|
|
27.1.2.2 |
the singular includes the plural and vice versa, and
|
|
27.1.3 |
clause headings shall not be used in the interpretation of
these Trading Terms and Conditions;
|
|
27.1.4 |
where any number of days are prescribed in the Trading Terms
and Conditions, same shall be reckoned exclusively of the first
and inclusively of the last day unless the last day falls on a
Saturday, Sunday, or Public Holiday, in which case the last day
shall be the next succeeding day which is not a Saturday, Sunday
or Public Holiday.
|
|
28. Governing Law
These Trading Terms and Conditions and all business transacted
between the Company and Customer shall be governed by, and shall
be construed in accordance with, the laws of the Republic of
South Africa and the parties submit to the exclusive jurisdiction
of the courts of the Republic of South Africa.
|
