ChelinoBaby and the Purchaser agree that the ChelinoBaby will supply Goods and render Services to the Purchaser at the customary prices determined from time to time by ChelinoBaby, on the following provisions, Terms and Conditions.
Please read the following terms carefully as the sale of all Goods and the rendering of all Services will be subject to these Terms and Conditions.
IMPORTANT NOTICE:
a. These Terms and Conditions apply to Purchasers who may be consumers for purposes of the Consumer Protection Act, 68 of 2008 (“the CPA”), and to Purchasers who may not be consumers for the purposes of the CPA.
b. These Terms and Conditions contain provisions that appear in similar text and style to this clause and which:
i. May limit the risk or liability of ChelinoBaby or a third party; and/or
ii. May create risk or liability for the Purchaser; and/or
iii. May compel the Purchaser to indemnify ChelinoBaby or a third party; and/or
iv. Serves as an acknowledgement, by the Purchaser, of a fact.
c. Your attention as a consumer in terms of the CPA is specifically drawn to these Terms and Conditions because they are important and should be carefully noted.
d. Do not accept these Terms and Conditions if you do not agree with or understand the meaning of it or any portion thereof, it is untrue and/or you have not been given enough time to read and comprehend the meaning of the Terms and Conditions or any other provision, Term or Condition that may be contained in these Terms and Conditions. If there is any provision in these Terms and Conditions that you do not understand, it is your responsibility to ask ChelinoBaby to explain it to you before you accept the Terms and Conditions.
e. Nothing contained in these Terms and Conditions is intended or must be understood to unlawfully restrict, limit or avoid any right or obligation, as the case may be, created for either you or ChelinoBaby in terms of the CPA.
1. DEFINITIONS
1.1. In this Agreement:
1.1.1. “CPA” shall mean the Consumer Protection Act 68 of 2008, as amended from time to time, read with the Consumer Protection Regulations 2011, promulgated thereunder;
1.1.2. “ChelinoBaby” shall mean the Group, wholly or in part, and as the context may indicate.
1.1.3. “Companies Act” shall mean the Companies Act 71 of 2008, as amended from time to time, read with the Companies Regulations 2011, promulgated thereunder;
1.1.4. “DCB” shall mean DCB Logistics / couriers, an independent third party and courier service provider;
1.1.5. “Disclosing Purpose” shall mean disclosing Personal Information for the purpose of delivery of the Goods by ChelinoBaby to the Purchaser and/or to comply with legal and regulatory requirements or when it is otherwise necessary by law;
1.1.6. “Goods” shall mean any product sold by ChelinoBaby to the Purchaser indicated on any price lists, quotations, delivery notes, orders, invoices and receipts;
1.1.7. “Group / Group Company” means ChelinoBaby’s subsidiaries and/or its related entities and/or its affiliated retail stores as reflected on page 1.
1.1.8. “Order” shall mean an order for Goods placed on ChelinoBaby’s website by the Purchaser;
1.1.9. “Party” shall mean ChelinoBaby and/or the Purchaser. The term “Parties” shall have a corresponding meaning;
1.1.10. “Personal Information” shall mean name, surname, company name, company registration number, address, VAT number, telephone number, email address, contact person name and surname, credit history, banking details of the Purchaser and such other information as may be required for ChelinoBaby to courier the Goods to the Purchaser;
1.1.11. “Purchaser” shall mean the party purchasing Goods from ChelinoBaby either instore or online via ChelinoBaby’s website and includes the Purchaser’s successors and permitted assignees;
1.1.12. “Services” shall mean the rendering of services by ChelinoBaby to the Purchaser through the arrangement of delivery or courier of the Goods to the Purchaser;
1.1.13. “Terms and Conditions” shall mean all the terms and conditions governing the supply of Goods and the rendering of Services by ChelinoBaby to the Purchaser as stipulated in this Agreement;
1.1.14. “this Agreement” shall mean these Terms and Conditions and all annexures (if applicable).
2. INTERPRETATION
2.1. In this Agreement, unless the context otherwise requires:
2.1.1. if any provision in a definition is a substantive provision conferring rights or imposing obligations on a Party, notwithstanding that it is only in the interpretation clause, effect shall be given to it as if it were a substantive provision in the body of this Agreement;
2.1.2. in this Agreement a Party includes a reference to that Party’s successors in title and assigns allowed at law;
2.1.3. any reference in this Agreement to:
2.1.3.1. “business hours” shall be construed as being the hours between 08h00 and 17h00 on any business day or any other time at the discretion of the Group. Any reference to time shall be based upon South African Standard Time;
2.1.3.2. “days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “business day” will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;
2.1.3.3. “law” means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law within the Republic of South Africa;
2.1.3.4. “person” means any natural person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality;
2.1.3.5. “writing” means legible writing and in English and includes any form of electronic communication contemplated in the Electronic Communications and Transactions Act, No 25 of 2002.
2.1.4. the words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it;
2.1.5. the words “shall” and “will” and “must” used in the context of any obligation or restriction imposed on a Party have the same meaning;
2.1.6. words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement;
2.1.7. unless otherwise provided, defined terms appearing in this Agreement in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning;
2.1.8. a reference to any statutory enactment shall be construed as a reference to that enactment as at the commencement date of this Agreement and as amended or substituted from time to time;
2.1.9. unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day;
2.1.10. if the due date for performance of any obligation in terms of this Agreement is a day which is not a business day then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately succeeding business day;
2.1.11. where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention;
2.1.12. the rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply;
2.1.13. 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;
2.1.14. no provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a party to this Agreement;
2.1.15. any reference in this Agreement to “this agreement” or any other agreement or document shall be construed as a reference to this Agreement or, as the case may be, such other agreement or document, as amended, varied, novated or supplemented from time to time; and
2.1.16. in this Agreement the words “clause” or “clauses” and “annexure” or “annexures” and “schedule” or “schedules” refer to clauses and annexures or schedules to this Agreement.
3. ACCEPTANCE OF TERMS AND CONDITIONS AND AMENDMENTS
3.1. Each time the Purchaser uses or accesses ChelinoBaby’s website and/or purchases instore, the Purchaser agrees to be bound by the Terms and Conditions listed herein, as amended from time to time with or without notice. In addition, if the Purchaser is using a particular service on or through ChelinoBaby’s website, the Purchaser will be subject to any rules or guidelines applicable to those services and they shall be incorporated by reference into these Terms and Conditions. Please see ChelinoBaby’ privacy policy, which is incorporated into these Terms and Conditions.
4. TERMS AND CONDITIONS
4.1. These Terms and Conditions can be found on: https://chelino.co.za/terms-conditions-checkout/, and governs the purchase of the Goods by the Purchaser from ChelinoBaby and the rendering of Services by ChelinoBaby to the Purchaser.
4.2. The Purchaser, by purchasing instore, or placing any online Order, acknowledges that all Goods sold by ChelinoBaby and the rendering of Services to the Purchaser shall be subject to and governed by the Terms and Conditions contained in this Agreement, together with any other standard terms and conditions of ChelinoBaby including the terms and conditions set out on ChelinoBaby’s website.
5. PRICE
5.1. The price of any Goods sold or Services rendered shall be the customary price determined by ChelinoBaby from time to time or ChelinoBaby’s usual current price at the time of dispatch of the Goods from ChelinoBaby’s premises and/or the rendering of the Services, as the case may be.
5.2. Any advertisements placed by ChelinoBaby are for guideline purposes only and shall not be binding on ChelinoBaby. ChelinoBaby has the right, from time to time, for any reason and without notice to the Purchaser, to change the price of any Goods and/or Services.
5.3. Notwithstanding the placing of an Order by the Purchaser and the acceptance thereof by ChelinoBaby, ChelinoBaby shall be at liberty to revise prices with or without notice to the Purchaser, inter alia, in the event of an increase in the cost of production of the Goods and/or rendering of the Services or currency fluctuations which occurs after the date of placing the Order.
6. PAYMENT
6.1. ChelinoBaby will only dispatch Goods and/or render Services once the full payment is received from the Purchaser. ChelinoBaby does not offer Goods or Services on credit/lay-bye nor does ChelinoBaby allow purchasing on account.
6.2. All amounts due by the Purchaser to ChelinoBaby shall be made directly to ChelinoBaby. No payment made to ChelinoBaby’s agents or third parties shall be regarded as proper payment to ChelinoBaby until such time as the funds have been credited to the Purchaser’s account with ChelinoBaby as cleared funds.
6.3. Unless the Purchaser objects to the correctness of any entry on any instore receipt, statement, delivery note and/or invoice within 7 (seven) days of the date of dispatch of such receipt, statement and/or invoice, the Purchaser shall be deemed to have accepted that such entries are correct and that it does not dispute such entries.
7. ORDERS
7.1. All Orders for ChelinoBaby’s Goods and/or Services shall be made via ChelinoBaby’s website alternatively in writing and directed to the address as may be nominated by ChelinoBaby from time to time.
7.2. An Order placed with ChelinoBaby by the Purchaser shall constitute an irrevocable offer to purchase the Goods and/or the Services in question and shall be capable of acceptance by ChelinoBaby, at its sole discretion, which acceptance shall be evidenced by the delivery of the Goods and/or rendering of the Services, written acceptance and/or confirmation of the Order.
8. DELIVERY OF GOODS AND RENDERING OF SERVICES
8.1. ChelinoBaby offers 2 (two) methods of delivery of the Goods to the Purchaser, namely:
8.1.1. via courier; or
8.1.2. self-collection for online Orders.
8.2. ChelinoBaby will only dispatch Goods and/or render Services once the full payment is received from the Purchaser. ChelinoBaby does not offer Goods or Services on credit/lay-bye nor does ChelinoBaby allow purchasing on account.
8.3. ChelinoBaby’s delivery charges are subject to change at any time, without prior notice to the Purchaser. The applicable delivery charges will be reflected on the quotation that ChelinoBaby will provide to the Purchaser for the delivery of the Goods, alternatively the delivery charges will be reflected online on ChelinoBaby’s website.
8.4. Goods will only be dispatched once payment clears and reflects in ChelinoBaby’s bank account. This could take up to 3 (three) business days.
8.5. It is the responsibility of the Purchaser to ensure that any/all packages requested from any specific store are verified. ChelinoBaby assumes no responsibility for packages once they leave its premises.
8.6. Time shall not be of the essence and delivery dates shall be treated as approximate only. Under no circumstances shall the Purchaser be entitled to withdraw from or terminate an Order on account of any delay in delivery or have any claim of any nature whatsoever against ChelinoBaby arising from late delivery.
8.7. ChelinoBaby delivers all parcels and/or Goods using a courier service (unless stated or arranged otherwise). Once the Goods are dispatched, the Purchaser will be notified with a tracking number. The Purchaser may request delivery status on its Goods from ChelinoBaby.
8.8. For deliveries within the Johannesburg region, it may take approximately 5 to 10 business days from the Purchaser’s Order, during the November, December and January peak period.
8.9. For deliveries to KwaZulu-Natal, Cape Town, Port Elizabeth, Bloemfontein and other main lying areas, it may take approximately 5 to 12 business days – via DCB or ChelinoBaby Couriers.
8.10. For outline areas – it may take approximately 20 to 30 business days – via DCB.
8.11. ChelinoBaby have an influx of orders for the November and December period every year, and delivery may take longer than usual. In which instance delivery may occur between 5 to 12 business days from the Purchaser’s order.
8.12. If the Purchaser’s parcel and/or Goods has/have not arrived within the specified time frame, the Purchaser is to contact ChelinoBaby via email: customerservice@chelino.co.za or call 011 835 2520.
DELIVERY IN SOUTH AFRICA
8.13. Delivery fees are calculated based on the weight and size of the Purchser’s parcel and the quantity of the Purchaser’s Order.
8.14. ChelinoBaby will only deliver Goods in South Africa. For Orders from other countries other than South Africa, the Purchaser must make arrangements for pick-up.
COLLECTIONS FOR ONLINE ORDERS
8.15. No Collections will be allowed from any ChelinoBaby stores.
8.16. All collections must be collected from the ChelinoBaby warehouse after 24 hours of purchase:
8.16.1. Address: Anchor International, 12 Kimberlite Road , Booysens Reserve , Johannesburg.
8.16.2. Tel: 011 835 2520
8.16.3. Monday to Thursday – 10h00 – 16h00 (closed daily between 13h00 – 14h00)
8.16.4. Friday – 10h00 – 16h00 (closed between 12h00 – 14h00)
8.16.5. Closed on Saturdays and Sundays.
8.17. ChelinoBaby’s obligation to deliver the Goods to the Purchaser is fulfilled when the courier delivers the goods to the physical address nominated by the Purchaser for delivery of the Order. The Purchaser’s signature or the signature by any of its representatives, employees or agents (whose authority the Purchaser shall not be entitled to deny or repudiate) of the courier’s official delivery note shall constitute prima facie proof of delivery of the Goods. ChelinoBaby is not responsible for any loss or unauthorised use of the Goods, after it has delivered the Goods to the physical address nominated by the Purchaser.
9. RETURNS POLICY
9.1. This policy specifically applies to Goods bought from ChelinoBaby retail stores and its online store.
9.2. The Purchaser is to read all instruction manuals properly while opening the Goods and before assembly of the Goods. If the Purchaser is unsatisfied with the purchase, the Purchaser is to disassemble it properly, re-pack it in the original packaging, and return it to the store it was purchased from with the original proof of purchase within 7 (seven) days.
9.3. All returns will be charged a 15% handling fee. This applies to all Goods purchased and returned in its original packaging.
9.4. The Purchaser is to contact info@chelino.co.za or call 011 835 2520 for the costs on returns beforehand.
9.5. If Goods have been removed from its original packaging and if the warranty cards have been removed, a further 30% will be deducted from the selling price. In total a 45% handling fee will be charged.
9.6. If Goods have been used, ChelinoBaby unfortunately cannot accept the return.
9.7. The Purchaser will not be liable for further fees if the Goods are damaged, faulty or missing any accessory or parts prior to usage. Factory faults or out of box damages will be assessed via stringent methods and outcomes would be at ChelinoBaby’s discretion.
9.8. To ensure that a request is processed as quickly as possible, the Purchaser is responsible for the following when returning Goods;
9.8.1. To package the Goods safely and securely for protection during transit;
9.8.2. To include the necessary paperwork with the Goods (contact ChelinoBaby to confirm paperwork as all return cases may differ); and
9.8.3. Include all accessories and parts that were sold with the Goods.
9.9. The Purchaser is to ensure that the Goods and the packaging of the Goods:
9.9.1. Is undamaged and unused, with the original labels and stickers still attached;
9.9.2. Has the original packaging, which must be undamaged and in its original condition with all seals still intact (if applicable).
9.9.3. Is not missing any accessories or parts;
9.10. Failure to adhere to any of these requirements could delay the processing of the Purchaser’s request or result in its decline altogether.
9.11. NB: There are no returns on discontinued items, end of range items, out of box items and demo Goods that are sold online or in-store.
9.12. All returns and cancellations of unwanted Goods will be charged a 15% handling fee.
9.13. Any returns must be logged by contacting info@chelino.co.za or 011 835 2520.
9.14. After 7 days, the Purchaser can only return Goods if it is defective as per heading “Defective Goods” below.
9.15. Once ChelinoBaby have inspected the Goods and validated the Purchaser’s return, ChelinoBaby will refund the Purchaser with the purchase price of the Goods within 10 (ten) days of the return.
GOODS DAMAGED ON DELIVERY
9.16. Should Goods be damaged or missing any parts or accessories at the time of delivery/collection and prior to usage, the Purchaser is to notify Chelino Baby by contacting info@chelino.co.za or 011 835 2520 within 7 (seven) days of such delivery/collection.
9.17. ChelinoBaby will arrange to collect the Goods. Once ChelinoBaby have inspected the Goods and validated the Purchaser’s return, ChelinoBaby will at your choice repair/replace the Goods as soon as possible (if such repair is possible/ we have the same Goods in stock to use as a replacement) or refund the Purchaser with the purchase price of the Goods.
DEFECTIVE GOODS
9.18. ChelinoBaby does its best to ensure that the Goods delivered to the Purchaser are of a high quality, and in good working order and without defects.
9.19. What is a defect? A defect is a material imperfection in the manufacture of Goods or any characteristic of Goods, which makes the Goods less acceptable than one would reasonably be entitled to expect in the circumstances.
9.20. The following will not be regarded as defects and will not entitle the Purchaser to a return or to repairs without costs:
9.20.1. Faults resulting from normal wear and tear;
9.20.2. Damage arising from negligence, user abuse or incorrect usage of the Goods;
9.20.3. Damage arising from a failure to adequately care for the Goods;
9.20.4. Damage arising from unauthorized alterations to the Goods;
9.20.5. Where the specifications of Goods, although accurately described on the website/user manual and generally fit for its intended purpose, do not suit you; and
9.20.6. Signs of excessive handling and/or repackaging.
REPAIRS POLICY
9.21. Subject to the provisions of clause 9.20 and its sub-clauses, the Goods sold by ChelinoBaby have a 6 (six) month manufacturing warranty to repair a faulty or broken part or accessory to the Goods.
9.22. In instances where the Purchaser requires repairs to the Goods purchased from ChelinoBaby pursuant to instances mentioned in clauses 9.20 and its sub-clauses, then ChelinoBaby shall be entitled to charge the cost of the part or accessory necessary to effect the repairs to the Goods and included in such cost is the cost of labour to effect such repairs. ChelinoBaby shall also be entitled to charge delivery or courier costs of the repaired Goods (if applicable).
10. STANDARD WARRANTY
10.1. If the Purchaser received Goods which turns out to be defective, the Purchaser is to notify ChelinoBaby as soon as reasonably possible after becoming aware of the defect, but in any event within 6 (six) months after delivery/collection of the Goods.
10.2. The Purchaser can do so by logging a return by contacting info@chelino.co.za or 011 835 2520. Once ChelinoBaby have inspected the Goods and validated the Purchaser’s return, ChelinoBaby will, at the Purchaser’s choice, repair/replace the Goods (if such repair/replacement is possible) or refund the Purchaser with the purchase price of the Goods within 10 (ten) days of the return.
10.3. To ensure that a request is processed as quickly as possible, the Purchaser is responsible for the following when returning Goods;
10.3.1. To package the Goods safely and securely for protection during transit;
10.3.2. To include the necessary paperwork with the Goods (contact ChelinoBaby to confirm paperwork as all return cases may differ); and
10.3.3. Include all accessories and parts that were sold with the Goods.
10.4. The Purchaser is to ensure that the Goods and the packaging of the Goods:
10.4.1. Is undamaged and unused, with the original labels and stickers still attached;
10.4.2. Has the original packaging, which must be undamaged and in its original condition with all seals still intact (if applicable).
10.4.3. Is not missing any accessories or parts.
11. CHELINOBABY’S SERVICE
11.1. ChelinoBaby’s website and services provided to the Purchaser on and through ChelinoBaby’s website is on an “as is” basis. The Purchaser agrees that the owners of ChelinoBaby’s website exclusively reserve the right and may, at any time and without notice and any liability to the Purchaser, modify or discontinue ChelinoBaby’s website and its services or delete the data the Purchaser provides, whether temporarily or permanently. ChelinoBaby shall have no responsibility or liability for the timeliness, deletion, failure to store, inaccuracy or improper delivery of any data or information.
12. THE PURCHASER’S RESPONSIBILITIES AND REGISTRATION OBLIGATIONS
12.1. In order to use ChelinoBaby’s website service, the Purchaser must register and agree to provide truthful information when requested. When registering, the Purchaser explicitly agrees to ChelinoBaby’s Terms and Conditions, which may be modified by ChelinoBaby from time to time and available here.
13. PRIVACY POLICY
13.1. Registration data and other personally identifiable information that ChelinoBaby may collect is subject to the terms of ChelinoBaby’s privacy policy.
13.2. ChelinoBaby may collect the Purchaser’s data for internal processing of information. All data collected is strictly confidential and only accessed by authorized personnel. ChelinoBaby may use the Purchaser’s data for research purposes and for promotional use if the Purchaser has subscribed to receive information via email about ChelinoBaby’s Goods, specials or services.
14. REGISTRATION AND PASSWORD
14.1. The Purchaser is responsible to maintain the confidentiality of his/her password and shall be responsible for all uses via the Purchaser’s registration and/or login, whether authorized or unauthorized by the Purchaser. The Purchaser agrees to immediately notify ChelinoBaby of any unauthorized use of his/her registration, user account or password.
15. THE PURCHASER’S CONDUCT
15.1. The Purchaser agrees that ChelinoBaby’s website may expose the Purchaser to content that may have information on Goods and pricing. ChelinoBaby shall not be responsible to the Purchaser in any way for the content that appears on ChelinoBaby’s website nor for any error or omission. The Purchaser explicitly agrees, in using ChelinoBaby’s website or any service provided, that the Purchaser shall not:
15.1.1. Provide any content through various platforms or perform any conduct that may be unlawful, illegal, threatening, harmful, abusive, harassing, stalking, tortious, defamatory, libelous, vulgar, obscene, offensive, objectionable, designed to or does interfere or interrupt ChelinoBaby’s 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;
15.1.2. Impersonate or misrepresent his/her association with any person or entity, or forge or otherwise seek to conceal or misrepresent the origin of any content and information provided by the Purchaser;
15.1.3. Provide or use this website and any content in a manner that would involve junk mail, spam, chain letters, pyramid schemes, or any other form of unauthorized advertising without ChelinoBaby’s prior written consent;
15.1.4. Share any content that may give rise to ChelinoBaby’s 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;
15.1.5. Infringe on any copyrights or intellectual property rights;
15.1.6. Log in, or attempt to log in, to a profile which is not maintained by the yourself.
16. THIRD-PARTY SERVICES
16.1. Goods and services of third parties may be made available on or through ChelinoBaby’s website. Representations made regarding goods and services provided by third parties are governed by the policies and representations made by those third parties. ChelinoBaby shall not be liable for or responsible in any manner for any of the Purchaser’s dealings or interaction with third parties. ChelinoBaby’s third party payment gateway solutions provider www.payfast.co.za, shall provide a safe and secure environment for conducting online payments for customers.
16.2. ChelinoBaby’s third party delivery provider will be used with the involvement of ChelinoBaby.
17. INDEMNIFICATION
17.1. The Purchaser shall remain solely liable for the content of any messages or other information that the Purchaser uploads or transmits to ChelinoBaby. The Purchaser agrees to indemnify and hold harmless ChelinoBaby from any claim, action, demand, loss or damages (including attorneys’ fees) made or incurred by any third party arising out of or relating to the Purchaser’s conduct, the Purchaser’s violation of this end-user Agreement, or the Purchaser’s violation of any rights of a third party.
18. DISCLAIMER OF WARRANTIES
18.1. The Purchaser understands and agrees that his/her use of this website and any services or content provided is made available and provided to the Purchaser at his/her own risk. It is provided to the Purchaser “as is” and ChelinoBaby expressly disclaim all warranties of any kind, implied or expressed, including but not limited to the warranties of merchantability, fitness for a particular purpose, and non-infringement. Some jurisdictions may not allow disclaimers of implied warranties and the above disclaimer may not apply to the Purchaser only as it relates to implied warranties.
19. LIMITATION OF LIABILITY
19.1. ChelinoBaby shall have no liability of any nature whatsoever arising out of or about any defect in any Goods unless ChelinoBaby has been called upon by the Purchaser, in writing, to rectify the defect within seven (7) days of delivery of the Goods. ChelinoBaby shall only be obliged to rectify such defects if no person not authorized by ChelinoBaby has modified, altered, or attempted to repair the Goods and/or that the Goods have only been used for the purpose for which they were designed or intended.
19.2. The Purchaser expressly understands and agrees that ChelinoBaby shall not be liable for any direct, indirect, special, incidental, consequential or exemplary damages, including but not limited to, damages for merchandise, goodwill, data or other intangible loss (even if ChelinoBaby have been advised of the possibility of such damages), resulting from or arising out of, the use of or the inability to use the service via ChelinoBaby’s website, the cost to obtain substitute Goods and/or Services resulting from any transaction entered into on or through the service on ChelinoBaby’s website, unauthorized access to or alteration of your data transmissions, statements of conduct of any third party on ChelinoBaby’s service, or any other matter relating to ChelinoBaby’s service that may be deemed as fraudulent. In no event shall ChelinoBaby be liable for any act or omission of any third party.
20. RESERVATION OF RIGHTS
20.1. ChelinoBaby reserves all of its rights, including but not limited to any and all copyrights, trademarks, patents, trade secrets, and any other proprietary right that it may have within the Group and within its retail stores, on its website, its content, and the Goods and Services that may be provided.
20.2. The use of ChelinoBaby’s rights and property requires its prior written consent. Chelinobaby are not providing the Purchaser with any implied or express licenses or rights by making services available to the Purchaser and the Purchaser will have no rights to make any commercial uses of ChelinoBaby’s website or service without ChelinoBaby’s prior written consent.
21. NOTIFICATION OF COPYRIGHT INFRINGEMENT
21.1. If the Purchaser believes that the Purchaser’s property has been used in any way that would be considered copyright infringement or a violation of the Purchaser’s intellectual property rights, please report it to ChelinoBaby immediately.
22. CONSENT
22.1. By continuing to browse or otherwise accessing ChelinoBaby’s website or any of its retail stores, you signal acceptance of these Terms and Conditions and disclaimer set out above. If you do not accept any of these Terms and Conditions, leave ChelinoBaby’s website now. By logging into the ChelinoBaby website or using any ChelinoBaby website you signal that you accept these Terms and Conditions in full.
23. OWNERSHIP AND RISK
23.1. Ownership in any Goods sold by ChelinoBaby to the Purchaser shall remain vested in ChelinoBaby until paid for in full. However, risk in and to the Goods will transfer to the Purchaser upon delivery of the Goods to the Purchaser.
24. WARRANTIES, REPRESENTATIONS AND INDEMNITIES BY CHELINOBABY
24.1. ChelinoBaby, its employees and/or agents give no warranties or guarantees, whether express, implied or tacit, to the Purchaser other than those which ChelinoBaby is obliged to give in law, such as:
24.1.1. that the Goods are reasonably suitable for the purpose for which they are generally intended;
24.1.2. that the Goods are of good quality and in good working order;
24.1.3. that the Goods will be usable and durable for a reasonable period of time, having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply; and
24.1.4. comply with any applicable standards set under the Standards Act No. 8 of 2008 or any other applicable public regulation.
24.1.5. ChelinoBaby, its employees and/or agents shall not be liable (to the fullest extent permissible by law), whether in contract or delict or otherwise, for any defect in the Goods delivered or Services rendered, for any injury (unless as a result of gross negligence, wilful default by ChelinoBaby or for any damage or loss resulting from such defect or any work done in connection therewith, whether through the negligence (excluding gross negligence) or otherwise of ChelinoBaby.
24.1.6. ChelinoBaby, its employees and/or agents shall not be liable (to the fullest extent permissible in law) for any loss or damage of whatsoever nature sustained by the Purchaser or any other person, nor shall ChelinoBaby be liable for delictual, special, direct, indirect, general and/or consequential damages, including (but not limited to) loss of profits, business, revenue, goodwill or anticipated savings.
24.1.7. In the event that ChelinoBaby, its employees and/or agents is found to be liable for damages in terms of this Agreement, the extent of ChelinoBaby’s liability shall not exceed (to the extent permissible in law) the value of the Goods sold and delivered and/or Services rendered.
24.1.8. ChelinoBaby does not accept any responsibility whatsoever for the correctness of instructions which appear on the Goods not manufactured by ChelinoBaby.
25. WARRANTIES, REPRESENTATIONS AND INDEMNITIES BY THE PURCHASER
25.1. The Purchaser makes the representations and warranties set out in this clause as at the acceptance date of this Agreement and for the duration of this Agreement and acknowledges that ChelinoBaby has entered into this Agreement in reliance on these representations and warranties, each of which is material and a material representation inducing ChelinoBaby to enter into this Agreement.
25.2. The Purchaser has the power to execute and deliver in terms of this Agreement and to perform all its obligations thereunder (including, without limitation, the payment of all amounts) and all corporate and other action required to authorise its execution and its performance of such obligations, have been duly taken.
25.3. The Purchaser is not prohibited in terms of its constitutional documents, or otherwise, from entering into this Agreement or transactions contemplated by it to which it is a party.
25.4. All information (as supplemented from time to time) that has been or will hereafter be made available to ChelinoBaby by the Purchaser or any of its representatives in connection with the transactions contemplated herein is and will at all times be complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements were or are made.
25.5. The Purchaser agrees to supplement such information from time to time so that the same remains correct and acknowledges that ChelinoBaby is acting in reliance on the accuracy of information supplied to it without independent verification.
25.6. The Purchaser hereby warrants, represents and undertakes that:
25.6.1. the Purchaser is not carrying on business recklessly, with gross negligence, with intent to defraud or fraudulent purposes;
25.6.2. the Purchaser is not carrying on business or trading under insolvent circumstances;
25.6.3. that no application to court for an administration order has been made in respect of the Purchaser;
25.6.4. the Purchaser will advise ChelinoBaby immediately of any facts or circumstances which cause or which are reasonably likely to cause any representation or warranty to be false or misleading in any material respect; and
25.6.5. the Purchaser is in full compliance with all applicable laws, regulations and standard industry practices.
25.7. The Purchaser undertakes that it shall not:
25.7.1. Provide any content through various platforms or perform any conduct that may be unlawful, illegal, threatening, harmful, abusive, harassing, stalking, tortious, defamatory, libelous, vulgar, obscene, offensive, objectionable, designed to or does interfere or interrupt ChelinoBaby’s website or any service provided, infected with a virus or other destructive or deleterious programming routine, that gives rise to civil or criminal liability, or which may violate an applicable local, national or international law;
25.7.2. Impersonate or misrepresent its association with any person or entity, or forge or otherwise seek to conceal or misrepresent the origin of any content and information provided by the Purchaser;
25.7.3. Provide or use ChelinoBaby’s website and any content in a manner that would involve junk mail, spam, chain letters, pyramid schemes, or any other form of unauthorized advertising without our prior written consent;
25.7.4. Share any content that may give rise to ChelinoBaby’s 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;
25.7.5. Infringe on any copyrights or intellectual property rights;
25.7.6. Log in, or attempt to log in, to a profile on ChelinoBaby’s website which is not maintained by the Purchaser.
25.8. The Purchaser shall at all times whether during or after termination or expiry of this Agreement indemnify and keep ChelinoBaby indemnified against all losses, claims, damages, liabilities and expenses (including all reasonable legal fees) which may arise in respect of a breach of, or a failure to meet any of the aforesaid representations, warranties and/or undertakings.
25.9. The Purchaser hereby declares that the Purchaser has not specifically informed ChelinoBaby of any particular purpose for which the Purchaser wishes to buy/acquire/use the Goods.
25.10. The Purchaser shall at all times whether during or after termination or expiry of this Agreement indemnify and keep ChelinoBaby indemnified against all losses, claims, damages, liabilities and expenses (including all reasonable legal fees) resulting from any advice given, recommendations made, Goods sold or used or arising from any cause whatsoever as envisaged in the preceding paragraphs and hereby waives any such claim.
26. EVENTS OF DEFAULT
26.1. Without derogating from the rights of ChelinoBaby in law or otherwise, an event of default shall occur should:
26.1.1. the Purchaser fails to pay any amount to ChelinoBaby on the due date thereof;
26.1.2. the Purchaser fails to comply with any Term or Condition of this Agreement and fails to remedy that breach, if capable of remedy, within 7 (seven) days after being called to do so;
26.1.3. any warranty or representation made by the Purchaser, which was taken into consideration, and was materially relied upon by ChelinoBaby in accepting an Order from the Purchaser as set out hereunder, be found to be untrue or incorrect in any material respect;
26.2. if any of the following occurs in relation to the Purchaser:
26.2.1. the Purchaser carries on business either recklessly, with gross negligence, with the intent to defraud or for fraudulent purposes;
26.2.2. the Purchaser carries on business or trades under insolvent circumstances.
26.3. If the Purchaser fails to remedy such event of default (where capable of remedy) within the applicable grace period calling upon the Purchaser to do so, or if the event is not capable of remedy and ChelinoBaby gives notice that such event has occurred and ChelinoBaby is exercising its rights pursuant hereto, then:
26.3.1. ChelinoBaby may refuse to supply further Goods and/or render Services to the Purchaser, including any Goods and /or Services subject to an Order accepted by the ChelinoBaby but not delivered prior to the date of exercising such discretion and further, that ChelinoBaby shall not be held liable to the Purchaser for any loss or damage which the Purchaser may sustain as a result of ChelinoBaby cancelling this Agreement or refusing to supply Goods and/or rendering Services.
27. DISPUTE RESOLUTION
27.1. Should any dispute, disagreement or claim arise between the Parties (“the Dispute”) concerning this Agreement (including its terms and/or the rectification hereof, its termination and/or cancellation) and such dispute cannot be resolved between the Parties within 15 (fifteen) days after the dispute arose, then the dispute shall be submitted to arbitration for resolution in accordance with the rules of the Arbitration Foundation of South Africa (“AFSA”) by an arbitrator or arbitrators appointed by AFSA and utilising such expedited proceedings as may be available in terms of such rules.
27.2. The Parties hereby irrevocably agrees that the decision of the arbitrator in the arbitration proceedings shall be final and binding on the Parties and will be carried into effect.
27.3. Unless otherwise agreed in writing by the Parties, any arbitration in terms of this clause 27 shall be held in Johannesburg.
27.4. Nothing in this clause 27 shall prevent any Party from seeking relief on an urgent or interlocutory basis with any competent court having jurisdiction.
27.5. For the purposes of this clause 27 and for the purposes of having any award made by the arbitrator/s being made an order of court, the Parties hereby consent to the jurisdiction of the Gauteng Local Division, Johannesburg.
27.6. Notwithstanding anything to the contrary contained in this Agreement and/or in law and/or in the AFSA rules, the powers of the arbitrator(s) referred to in this clause 27 shall include the power to amend the provisions of this Agreement and to impose contractual terms on the Parties in relation to the dispute in circumstances where this Agreement specifically makes provision for such amendment or imposition and such relief is requested by a Party, if any.
28. NOTICES
28.1. Any notice or other document to be served under this Agreement to a Party may be to be served at its nominated address (domicilium citandi et executandi address).
28.2. The nominated address of the Purchaser shall be the address of the Purchaser specified in the Order.
28.3. For ChelinoBaby, the nominated address shall be as follows:
No. 12 Kimberlite Road, Theta Ext 5, Booysens Reserve, Johannesburg
Email: info@chelino.co.za
28.4. A Party shall be entitled from time to time, by written notice to the other, to vary its domicilium address to any other address within the Republic of South Africa, which is not a post office box.
28.5. All notices given in terms of this Agreement shall be in writing and any notice given by one Party to the other (the addressee) which:
28.6. is delivered by hand during the normal business hours at the addressee’s domicilium shall be deemed to have been received by the addressee at the time of delivery; or
28.7. is sent by email to the addressee’s email address shall be deemed to have been received by the addressee on the 1st (first) business day after the date of transmission thereof, unless the contrary can be proven.
28.8. Is sent by registered mail to the addressee’s domicilium shall be deemed to have been received by the addressee on the 7th (seventh) business day after the date of postage thereof, unless the contrary can be proven.
28.9. Notwithstanding anything to the contrary contained or implied in this Agreement, a written notice or communication actually received by one of the Parties from the other including by way of email transmission shall be adequate written notice or communication to such Party.
29. CONFIDENTIALITY
29.1. To the full extent reasonably possible, each Party agrees and undertakes to and in favour of the other:
29.1.1. not to disclose any of the Terms and Conditions contained in this Agreement to any third party; and
29.1.2. not to utilise or disclose to any third party any trade secrets or confidential information of the other of them, which trade secrets or confidential information is not in the public domain, disclosed or made available to it under and by virtue of this Agreement and/or during the course of the implementation thereof, other than as may be necessary for the fulfilment of its duties, functions and obligations under this Agreement.
30. PROTECTION OF PERSONAL INFORMATION
30.1. The Purchaser hereby gives ChelinoBaby permission to collect and process Personal Information and acknowledge that it understands the purpose for which it is required and for which it will be used.
30.2. ChelinoBaby undertakes and agrees that the Purchaser’s Personal Information will only be processed by ChelinoBaby to give effect to the Disclosing Purpose.
30.3. The Purchaser and/or its duly authorised representative warrants that it is duly authorised to disclose the Personal Information to ChelinoBaby.
30.4. Only the Personal Information provided directly by the Purchaser to ChelinoBaby will be collected and processed to give effect to the Disclosing Purpose.
30.5. ChelinoBaby may disclose the Personal Information to its service providers and shall ensure that it has agreements in place with such service providers to ensure that they comply with the privacy requirements set out hereunder and as required by the Protection of Personal Information Act, No 4 of 2013.
30.6. ChelinoBaby will store the Personal Information securely, electronically and in a centralised data base, which, for operational reasons, will be accessible to all within the organisation of ChelinoBaby on a need to know and business basis, save that where appropriate, some of the Personal Information may be retained in hard copy.
30.7. Once the Personal Information of the Purchaser is no longer required due to the fact that the purpose for which the Personal Information was held has come to an end and has expired, such Personal Information will be safely and securely archived for such periods as may be required by any law applicable in South Africa. Thereafter, ChelinoBaby will ensure that such Personal Information is permanently destroyed.
30.8. ChelinoBaby shall be obliged to provide adequate protection for the Personal Information it holds and to stop unauthorized access and use of the Personal Information in its possession. ChelinoBaby will, on an on-going basis, continue to review its security controls and related processes to ensure that the Personal Information remains secure.
30.9. The Purchaser has the right to ask the ChelinoBaby to update, correct or delete Personal Information provided to the ChelinoBaby.
30.10. The provisions of this clause 30 shall survive the termination of this Agreement, regardless of cause, in perpetuity.
31. CESSION AND ASSIGNMENT
31.1. A Party shall not be entitled to assign, cede or delegate any of its rights and/or obligations in terms of this Agreement to any other person without the prior written consent of the other Party being obtained, provided that such consent shall not be unreasonably withheld or delayed in the event that such assignment, cession and delegation is to an affiliate of a Party.
32. LEGAL PROCEEDINGS
32.1. The Purchaser agrees and accepts that ChelinoBaby shall be entitled, in its sole discretion, but not compelled or obliged to institute any legal proceedings, which may arise from or in connection with this Agreement. All costs and disbursements incurred by ChelinoBaby, including legal costs on an attorney and own client basis, shall be for the account of the Purchaser.
32.2. The Purchaser’s address stated in clause 28.2 above, shall be recognised as the Purchaser’s domicilium citandi et executandi for the service of any court documents resulting from this Agreement.
32.3. The Purchaser’s physical, email and/or postal addresses as per this Agreement will be deemed to be the Purchaser’s service addresses for all other documents resulting from or in terms of this Agreement.
32.4. Termination of this Agreement for any cause whatsoever shall not release a Party from any liability which at the time of termination has already accrued to the other Party or which thereafter may accrue in respect of any act or omission prior to such termination.
32.5. Except as expressly provided for in this Agreement, the rights and remedies contained herein are cumulative and are not exclusive of any other rights or remedies provided in law or otherwise.
33. CONFLICT OF INTEREST
33.1. Neither of the Parties nor any of their respective representatives, employees, agents or subcontractors shall give to, or receive from the other, any of its affiliates or any representatives, employees, agents or subcontractors of the other any benefit, commission, fee, rebate, or any gift or entertainment of value in connection with this Agreement.
34. SUBCONTRACTING
34.1. ChelinoBaby may subcontract any of its obligations under this Agreement to any third party, provided that in doing so it shall not in any way be relieved of any of its obligations in terms of this Agreement and shall not be entitled to any greater protection in law than it otherwise would have been entitled to have such subcontracting not been affected.
35. NON-PARTNERSHIP
35.1. Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the Parties or as constituting neither Parties as the agent of the other for any purpose whatsoever. Neither of the Parties shall have the authority to bind the other or to contract in the name of or create a liability against the other in any way or for any purpose.
36. WHOLE AGREEMENT
36.1. This Agreement constitutes the whole agreement between the Parties as to its subject matter and no agreement, representations or warranties between the Parties other than those set out herein are binding on the Parties.
37. VARIATION
37.1. No addition to or variation, consensual cancellation or novation of this Agreement and no waiver of any right arising from this Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by all the Parties or their duly authorised representatives.
38. SEVERABILITY OF INVALID PROVISIONS
38.1. If any provision of this Agreement is declared to be invalid, the other provisions shall not thereby be affected or impaired and shall continue to be of full force and effect. In such event, the Parties shall seek in good faith to negotiate valid substitute provisions for the provision so declared to be invalid that will as nearly as possible preserve the commercial balance between them.
39. RELAXATION
39.1. No relaxation, latitude, lenience, extension of time or other indulgence which may be given or allowed by a Party to the other in respect of the performance of any obligation hereunder or enforcement of any right arising from this Agreement or in law and no single or partial exercise of any right by a Party shall under any circumstances be construed to be an implied consent by such Party or operate as a waiver or a novation of, or otherwise affect any of that Party’s rights in terms of or arising from this Agreement or in law or estop such Party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
40. RIGHTS OF THIRD PARTIES
40.1. The provisions of this Agreement are intended solely for the benefit of the Parties and their respective successors and it is not the intention of the Parties to confer any rights upon third parties.
41. JURISDICTION
41.1. This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa and shall be subject to the exclusive jurisdiction of the Courts of the Republic of South Africa.
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For any further information, please contact customerservice@chelino.co.za