TERMS OF SALE
“Agreement” means the agreement between Seller and Buyer for the sale of Goods or the provision of Services, which shall be governed by these Terms of Sale. “Order” means the written, verbal or telephonic order for Goods or Services, which shall form part of the Agreement. “Buyer”, “Goods” and “Services” shall mean the buyer, goods and services as specified in the Order. “Seller” is Hands Down, a division of Emsa Distribution (Pty) Ltd (company number 2017/125387/07, VAT number 4370280465 and main address at 89 Garfield Road, Kenilworth 7700, Cape Town).
Application of these Terms of Sale
Each Order shall be deemed to be an offer by Buyer and shall become binding on the parties and be governed by these Terms of Sale only once accepted by Seller. Buyer should read these Terms of Sale carefully. Seller may revise these Terms of Sale from time to time.
Representations of Goods
The images of the Goods on Seller’s website or other sales literature are for illustrative purposes only. Seller cannot guarantee that the dimensions or colour or packaging of the Goods will be accurately reflected. We shall take all reasonable efforts to accurately reflect the Goods and the applicable purchase price and delivery charges on the website. However, should there be any errors of whatsoever nature on the website we shall not be liable to fulfil an Order based on any error.
Price and Payment
The price of the Goods or Services shall be the Seller’s list price from time to time. Unless otherwise agreed in writing by Seller, Buyer shall pay the purchase price in advance of delivery of the Goods or Services. Without prejudice to any other right or remedy, Seller reserves the right to set off any amount due, owing and payable at any time from Buyer to Seller against any amount due, owing and payable by Seller to Buyer. Buyer shall not be entitled to assert any credit, set-off, counterclaim or withholding against Seller, whether in whole or in part. The time for payment shall be of the essence and no payment shall be deemed to have been made until Seller has received payment in cleared funds. If Buyer fails to make payment on the due date, interest shall be payable on the overdue amount at the prime overdraft rate of The Standard Bank of South Africa as quoted from time to time plus 4% (four percentage points) per annum (or such lesser rate of interest as may be allowed under applicable law), calculated daily and compounded monthly.
Products purchased from us can be collected at our shops or delivered to the physical address registered against your account. We offer free delivery within South Africa for Orders of R450 (including VAT) or more and which do not include furniture items. For Orders below R450 (including VAT), a R75 delivery fee will be charged. For Orders which include furniture items, a R175 delivery fee will be charged for deliveries in the greater Cape Town area; for deliveries outside the greater Cape Town area we will need to quote separately for road freight. Orders will be processed and dispatched subject to receipt of payment or credit terms being agreed and delivery address details being correct. Delivery will be made between 8am and 5pm during weekdays only. No deliveries are made on weekends or public holidays. Please allow 1-5 working days for delivery. While we are firmly committed to arranging delivery within estimated delivery times, we are unable to guarantee that all Orders will be delivered within the stipulated time frame. You will be required to sign for delivery and you may be asked to provide a valid form of identification when your Order is delivered. For customers in the greater Cape Town area, if COD terms apply, the exact amount including change needs to be paid as our drivers are not able to provide change. If you provide us or the courier company with unique delivery instructions, for example, for your Order to be left with security at your building or or with a neighbour, this will be at your risk. If you are not available to take delivery of your Order or, if COD terms apply, you are unable to pay for your Order in full at the time of delivery, the Order will be returned to us and we will charge you a delivery fee of R75. A Customer Service Representative will call you to discuss the situation and you will then need to collect your Order or make payment in advance of any further delivery attempt, which will be in our sole and absolute discretion. If we are unable to contact you, despite all reasonable attempts to do so, we reserve the right to cancel your Order and refund to you the purchase price already paid less our reasonable administration charges including the costs incurred in attempting to deliver your Order or arranging for the return of your Order. Please note that it may not be possible for us to deliver to some locations. If this is the case, we will inform you using the contact details that you provide to us when you make your Order and will arrange for cancellation of the Order or delivery to a different delivery address. For remote areas or bulk shipments, deliveries will be handled by a road fright company arranged by us. All road freight fees will be charged at standard rates. Insurance of products delivered by road freight is your responsibility as goods are consigned at your risk.
Liability for Delivery
We are not liable for any incorrect Order or delivery where you make an error in the information that you provide to us (for example, if you provide the incorrect delivery address or submit an incorrect Order). While we try to ensure a smooth delivery process, if we are unable to meet the estimated delivery timeframes, you accept and agree that we will not be liable for any losses, liabilities, costs, damages, charges or expenses arising out of the late delivery of your Order. All risk in the products will pass to you upon delivery. From the time when the risk passes to you, we will not be liable for any loss or destruction of the products.
Seller warrants that (a) the Goods shall be free from material defects at the time of delivery; and (b) any Services will be rendered to the highest standards of quality and workmanship. All other warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose (whether statutory or otherwise) other than those expressly set out in the Agreement are excluded from the Agreement to the fullest extent permitted by law. The warranty given by Seller does not apply to damage or defects arising from fair wear and tear, wilful damage, abnormal storage conditions or accident or negligence by Buyer or any third party.
Warranty on Electrical Items
All of our electrical items come with our 6 (six) month repair warranty or a longer warranty from the product manufacturer. While we can repair certain electrical items, other items may need to be sent back to the manufacturer and in some cases you may need to deal directly with the manufacturer. For replacements or repairs after the 6 (six) month period, please contact the product manufacturer directly to take advantage of any extended warranty that may apply.
When you receive your Order, it is important that you check to make sure that the items you have purchased are not damaged or defective and are in good condition. You should let us know immediately if there is a problem with your Order. If you are not satisfied with any item you have purchased, for any reason, you may return it to us within 10 (ten) business days and we will either exchange or replace it or provide a full refund. Exchanges and replacements are provided subject to stock availability. Refunds are issued to the credit card used for the original purchase as a credit against your customer account or are made in cash.
Items Purchased In-Store
For items purchased in-store, please return the product to the store of purchase within 10 (ten) business days of purchase. You will need to present your invoice/till slip in-store.
Items Purchased via Telephone, Email or our Website
For items purchased via telephone, email or our website, please contact a Customer Service Representative without delay to arrange the return. Please provide as much information as you can about the problem, including your invoice number and details of the affected products. If the product is being returned because it was damaged or defective on delivery or it does not match the Order, we will arrange to collect the item and deliver the correct item as soon as possible. This will be at no cost to you. To be eligible you must notify us of the issue within 10 (ten) business days of delivery and the item must meet the eligibility criteria set out below. After 10 (ten) business days, we will only accept returns for damaged or defective products if the damage or defect can be conclusively shown to have existed at the time of delivery. If the product is being returned for any other reason, you may return the product within 10 (ten) business days of delivery but you will need to cover the cost of return delivery yourself. If you would like us to collect the product from you we will charge an admin/collection fee. The amount of the fee will depend on the area of collection and we will advise you of the exact amount at the time of arranging the collection. To be eligible you must notify us of the return within 10 (ten) business days of delivery and the item must meet the eligibility criteria set out below.
To be eligible for a return a product must be unopened, unused, in its original packaging and in a condition suitable for resale. Please note that we cannot accept returns of the following products (unless they are defective or do not match your Order):
- Any product without its original packaging or which has been opened or had its security seal (if any) broken.
- Any product which has been used or damaged such that it is unsaleable.
- Cosmetics, body jewellery, earrings, piercing tools, manicure and pedicure tools.
- Hair extensions, hair pieces, hair brushes and combs, clipper and other blades and scissors.
Where an item was purchased as part of a promotion together with other qualifying products, the promotional item must be returned with the merchandise it was offered with in order for an exchange, replacement or refund to be processed. As such, this type of promotional item is not returnable by itself.
Limitation of Liability
In no circumstances whatsoever shall the liability of Seller under the Agreement exceed the purchase price of the Goods to which the claim relates. Seller shall not be liable for any indirect, special or consequential loss or damage, any loss of equipment or property, economic loss or damage, loss or damage of any nature whatsoever suffered by third parties (including in each case incidental and punitive damages) or any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill, even if Seller is advised in advance of the possibility of any such losses or damages.
Buyer’s sole remedy for Seller’s breach of the Agreement or of any express or implied warranty in relation to the Goods or Services shall be replacement or repair, credit or a full refund.
Buyer hereby indemnifies Seller, its affiliates and its and their directors, officers, employees, agents and contractors in full against all claims, losses, liabilities, damages and expenses (including legal and other professional fees and expenses) arising as a result of or in connection with Buyer’s purchase, use or resale of the Goods.
Seller shall have the right at any time to terminate an Order and/or the Agreement by giving written notice to the Buyer forthwith for any reason whatsoever including without limitation (a) if Buyer commits a material breach of the Agreement; or (b) if Buyer becomes insolvent or bankrupt or enters into liquidation or any order or decision or proceeding to that effect is made or taken or commenced; or (c) if Buyer makes an arrangement or composition with its creditors; or (d) if Buyer has a receiver or manager, administrator or administrative receiver appointed in respect of its undertaking or any part thereof; or (e) due to stock unavailability. Termination shall be without prejudice to any rights or remedies of the parties accrued prior to termination.
The intellectual property rights in the Goods are Seller’s (or its licensor’s) property. Nothing in the Agreement shall be construed as conferring any license or granting any rights in favour of Buyer in relation to such intellectual property rights. Any reputation in any trade marks affixed or applied to the Goods shall accrue to the sole benefit of Seller or any other owner of the trade marks from time to time. Buyer shall not remove any copyright notices, confidential or proprietary legends or identification from the Goods. Buyer shall not use or seek to register any trade mark or trade name (including any company name) which is identical to, confusingly similar to or incorporates any trade mark or trade name which the Seller or any associated company of Seller owns or claims rights in anywhere in the world.
Buyer shall keep in strict confidence and shall not disclose to any third party the terms of the Agreement including the purchase price of the Goods.
Seller will use Buyer’s personal information to provide Goods and/or Services, to process payment for Goods and/or Services and to inform Buyer about similar goods or services sold by Seller (Buyer may contact Seller at any time to opt out of these communications). Buyer agrees that Seller may pass its personal information to credit reference agencies and may keep a record of any search results. Seller will not give Buyer’s personal data to any other third party.
Delay in Seller’s performance or failure of Seller to perform hereunder shall be excused to the extent caused by circumstances beyond its reasonable control (including without limitation acts of God, lock-outs, strikes or other labour disputes, fire, explosion, flood, epidemic, governmental actions or war) provided that such circumstances are not the result of Seller’s failure to exercise due diligence.
Whole Agreement; No Amendment
The Agreement (and any document referred to herein) shall constitute the whole agreement between the parties relating to the subject matter thereof to the exclusion of all other terms and conditions issued by either party. No variation of the Agreement shall be effective unless it is in writing and signed by or on behalf of the parties.
Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
Provisions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination of the Agreement for any reason.
Rights of Third Parties
A person who is not a party to the Agreement shall not have any rights under or in connection with it.
Buyer shall not, without the prior written consent of Seller, assign, transfer or delegate any of its rights or obligations under the Agreement or purport to do any of the same.
Governing Law and Jurisdiction
The Agreement and all disputes and matters arising from or relating thereto shall be governed by South African law and the parties irrevocably submit to the exclusive jurisdiction of the High Court of South Africa. Notwithstanding the aforesaid, the Seller shall be entitled to take proceedings in any other court of competent jurisdiction.
A waiver of any right or remedy under the Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its registered office or other address as that party may have specified in writing in accordance with this clause, and shall be delivered personally or sent by pre-paid first-class post, recorded delivery or commercial courier. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to above; if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting; or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
If any court or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part thereof shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Agreement shall not be affected. If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.