This is a legal document which is the agreement between you, the Customer (hereinafter referred to as “you”, “your” or the “Customer” in this Agreement) and Fog It (PTY) Ltd (a Private Company, duly registered as such in terms of the relevant laws of the Republic of South Africa and having Registration Number 2008/220466/23 with its principal place of business situated at Norwood, Johannesburg, South Africa.
Fog It (PTY) Ltd is an online portal that will allow access to trade.
These Terms and Conditions should be read carefully. By browsing, accessing or using this website or by using any facilities or services made available through it or by transacting through or on it, you acknowledge and confirm that you have read all of the terms of this Policy and our Website’s Terms and Conditions, and that you understand, accept and agree to be bound by all the provisions contained in this Policy and the Terms and Conditions as contained on our Website.
Our Terms and Conditions set forth the terms you are bound to when using/accessing our website, including but not limited to usage, information, transactions, purchase, delivery, cancellation, dispute resolution, and contact details.
These Terms and Conditions are reviewed from time to time and may be amended at our sole discretion, in whole or part, to ensure that it complies with Legislation enacted from time to time.
Therefore, by continuing to use or access our Website following any amendments that may have been implemented, it shall be deemed that you have agreed to such amendments. Accordingly, we recommend that you review this page frequently so that you are aware of any amendments. Should you wish not to be bound to the amended Terms and Conditions you may furnish us with written notice by fax or email to terminate this agreement.
Should we decide to amend our Terms and Conditions, we will post those amendments on this page and/or send an email notifying you of any changes (if we have your email address), and/or update the Terms and Conditions modification date on this page.
1.1 In this Agreement, unless inconsistent with or otherwise indicated by the context –
1.1.2 “Merchant” means a third party seller of goods and services who may from time to time supply us with goods and/or services that we may sell on this website.
1.1.3 “Business day” means a day which is not a Saturday, Sunday or official public holiday in the Republic of South Africa;
1.1.4 “Claim/s” means any claim of whatsoever nature;
1.1.5 “the Company” means Zenith Film Distributors CC t/a Fog It (PTY) Ltd (a Close Corporation, duly registered as such in terms of the relevant laws of the Republic of South Africa and having Registration Number 2008/220466/23 with its principal place of business situated at 110 Corner Kerk and Polly Street, Johannesburg CBD, 2000, Gauteng, South Africa);
1.1.6 “Law” means any law of general application and includes the The Constitution, The Common Law and any Statute (Legislation), Decree, Treaty, Regulation, Directive, Ordinance, By-law, Order or any other enactment or 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;
1.1.7 “Person” means any Person, Company, Close Corporation, Trust, Partnership or other entity whether or not having separate legal personality;
1.1.8 “Party/Parties” means Zenith Film Distributors CC t/a Fog It (PTY) Ltd and any other person/individual or entity that uses or accesses our Website and/or purchases goods and services from us.
1.1.9 “Products” means goods and/or services offered by a particular Merchant which are sold and displayed on our Website;
1.1.10 “Purchase” means the purchase of any item or service on/from our website;
1.1.11 “Purchaser/Consumer” means any person/individual or entity that uses or accesses our Website and utilises the services thereon;
1.1.12 “Register/Registration” means create an account on our Website/the action of creating an account on our Website;
1.1.13 “Service” means all or any of the services provided by Zenith Film Distributors CC t/a Fog It (PTY) Ltd via the Website or via other electronic or other communication from Zenith Film Distributors CC t/a Fog It (PTY) Ltd, including but not limited to the information services, content and transaction capabilities on the Website and the ability to make a Purchase;
1.1.14 “Website” means the Fog It (PTY) Ltd Website (www.redchillideals.co.za) and any auxiliary website supplementary to our main website.
1.1.15 any reference to –
126.96.36.199 the singular includes the plural and vice versa;
188.8.131.52 natural persons includes juristic persons and vice versa;
184.108.40.206 anyone sex or gender includes the other sexes or genders, as the case may be; and
220.127.116.11 any Law means the relevant enactment or legislative measure as at the signature date and as amended or re-enacted from time to time within the Republic of South Africa.
1.2 If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definitive clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.
1.3 When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a 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; in which case the last day shall be the next day succeeding day which is not a Saturday, Sunday or Public Holiday.
1.4 Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause.
1.5 The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provided 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.
1.6 The rule of construction that the contract shall be interpreted against the party responsible for the drafting or preparation of the agreement, shall not apply.
1.7 The use of uppercase or lowercase shall not have any impact on the meaning ascribed to any term used in this Agreement, notwithstanding whether such term has or has not been defined in this interpretation clause.
2.1 Our website i.e. www.redchillideals.co.za is owned, operated and directed by Zenith Film Distributors CC t/a Fog It (PTY) Ltd (a Close Corporation, duly registered as such in terms of the relevant laws of the Republic of South Africa and having Registration Number 2008/220466/23 with its principal place of business situated at 110 Corner Kerk and Polly Street, Johannesburg CBD, 2000, Gauteng, South Africa).
2.2 We have referred to the aforementioned enterprise in this document as “Fog It (PTY) Ltd”, “us”, “we”, or “our”)
2.3 We are dedicated, devoted and committed to keeping you informed of your rights and obligations in respect of the usage of our website and when transacting with us and accordingly our legal team has developed these Terms & Conditions.
2.4 The terms and Conditions contained herein are in accordance with the Electronic Communications and Transactions Act No. 25 of 2002, the National Credit Act No. 34 of 2005, the Consumer Protection Act No. 68 of 2008, and all other applicable legislation enacted in South Africa from time to time.
3.TERMS AND CONDITIONS OF USE
3.1 ACCEPTANCE OF TERMS AND CONDITIONS
3.1.1 By browsing, accessing or using this website or by using any facilities or services made available through it or by transacting through or on it, you acknowledge and confirm that you have read all of the terms of this Policy and our Website’s Terms and Conditions and that you understand, accept and agree to be bound by all the provisions contained in this Policy and the Terms and Conditions as contained on our Website.
3.2.1 To purchase any products or services on our Website or to enter into any legally binding transaction in respect of our Website or related thereto you, must be at least 18 (Eighteen) years old.
3.2.2 By entering into any transaction with us you consent that you are at least 18 (Eigteen) years old.
3.2.3 Should you be under the age of 18 (Eighteen) it shall be deemed that your parent/s or legal guardian/s have provided you with consent to enter into any transaction on our website and accordingly we shall not be held liable for any claim arising should we be misled in this regard.
3.3.1 The Website and Services contained thereon including any Purchase is directed solely at those who access the Website from the Republic of South Africa.
3.3.2 We make no representation that the Service (or any goods or services) are available or otherwise suitable for use outside of the Republic of South Africa.
3.3.3 Should you choose to access the Website (or use the Service or make a Purchase) from locations outside the Republic of South Africa, you do so at your own initiative and are accordingly responsible for the consequences and for compliance with all applicable laws relating thereto.
3.4 PREVENTION ON USE
3.4.1 We reserve the right to prevent you from using our Website in its entirety and to prevent you from making any purchases or entering into any transactions.
3.4.2 Should we decide to enforce our rights in terms of clause 3.4.1 hereinabove, you may request reasons for preventing you from using our website in writing within 5 (Five) days after so being prevented, which reasons shall be furnished to you within 14 (Fourteen) days from the date upon which your request has been received.
3.5.1 The use of the Website, Services thereon, making any Purchase or entering into any transaction with us, does not include the provision of a computer or any other necessary equipment to access the Website, Service, making of any Purchase.
3.5.2 We shall not be liable for any telephone costs, telecommunications costs or other costs that you may incur when using our Website or Service or to make a Purchase and/or to transact with us.
4.1 We require you to register and create an account to purchase a product or service advertised on our website. Your account allows you to view your past purchases and your account settings, such as username, email address, and preferences.
4.2 It is not necessary to register in order to use much of the functionality of our Website. However, you are required to register in order to make a purchase from our Website. This allows us to provide you with easy access to print your orders, view your past purchases and modify your preferences.
4.3 We reserve the right to decline a new registration or to cancel any account at any time.
4.4 Upon completion of registration we will allocate a password to so that you may access your account. This password should be kept confidential and you should immediately notify us if any unauthorized third party becomes aware of your password or if there is any unauthorized use of your email address or any breach of security known to you.
4.5 You agree that any person to whom your user name or password is disclosed is authorized to act as your agent for the purposes of using (and/or transacting via) the Service and our Website. Please note that you are entirely responsible if you do not maintain the confidentiality of your password.
4.6 All accounts must be registered with a valid email address that you access regularly, so that, among other things, moderation emails can be sent to you.
4.7 Any account which has been registered with someone else’s email address or with a temporary email address may be closed without any further notice. We may require users to re-validate their accounts if we believe they have been using an invalid email address.
4.8 We reserve the right to cancel or close any account of any user at any given time at our sole discretion.
5.PURCHASE AND PAYMENT
5.1 The price of the product or service advertised is inclusive of VAT but it excludes delivery charges.
5.2 When you place an order to purchase a product or service on our website, we will send you an email confirming that we have received your order.
5.3 Once we have received confirmation of payment from your bank (you must request this), the order will be reflected on your account and will be processed.
5.4 All payments must be made as follows:
5.4.1 Either by a Visa or Master debit/credit card
5.4.2 Or EFT
5.5 If in any event that your credit card or debit card has been charged over the amount that had to be paid, please note that this is not in our control and we will pass on a credit for the amount that has been overcharged to your red chili account. If the credit amount is over R100 worth of value because of the overcharge accumulative we will then make a payment of the amount of the credit owing by you providing us with your banking details.
6.1 In order to ensure delivery of the products that you have ordered, you must ensure that you furnish us with the correct delivery address. Your order will be forwarded to our courier service who will be responsible to ensure that your product reaches you. Should you furnish us with the incorrect details, we will not be held responsible for you not receiving your order timeously or at all.
6.2 In most instances and generally, orders placed shall be delivered within 14 days from the date that such an order has been placed.
6.3 However, we cannot guarantee that your order will reach you within 14 days from the date of being placed since it is subject to availability and hence an order may take slightly longer than 14 days to reach you.
6.4 Should your items not reach you within 30 days after your order has been placed, we will gladly refund you should you request a refund.
7.RETURN AND/OR CANCELLATION POLICY & PROCEDURE
7.1 You are entitled to cancel any purchase of any product or service within 7 days from which they were delivered. Once the 7 day period has expired you will not be entitled to cancel any purchase.
7.2 Should you elect to cancel any transaction as described in clause 7.1. hereinabove, you shall be held liable for a 10% handling fee as well as other related costs such as courier cost.
8.1 We are not the supplier of the product or service advertised on our website and therefore we cannot take any responsibility for any harm which you may suffer (such as injury, illness, damage or loss of your property or any consequential or other loss) due to the use of the product or service.
8.2 You indemnify us against any loss, liability or cost incurred by you arising out of any claims or legal proceedings which are brought or threatened against us by any person arising from your use of the Service or Website, the use of the Service or Website through your password and/or any breach of this Agreement by you.
9.1 Neither party hereto shall be responsible for any losses or damages to the other occasioned by delays in the performance or non-performance of any of said party’s obligations when caused by Acts of God, strike, acts of war, inability of supplies or material or labour or any other cause whatsoever beyond the reasonable control of the said party.
10. CESSION OF RIGHTS
10.1 Subject to the provisions of this Agreement, the Consumer shall not be entitled to pledge, cede, makeover or assign his/her rights and/or obligations in terms hereof without the prior written consent of the Company.
11.1 We implement a variety of security measures to maintain the safety of your personal information when you place an order or enter, submit, or access your personal information.
11.2 We offer the use of a secure server. All supplied sensitive/credit information is transmitted via Secure Socket Layer (SSL) technology and then encrypted into our Payment gateway providers database only to be accessible by those authorized with special access rights to such systems, and are required to keep any information contained therein confidential.
11.3 After a transaction has been concluded, your private information (credit cards, financials, etc.) will be kept on file or stored on our database for a period not exceeding 3 (Three) years after it is last accessed or used by us.
11.4 Data transmission over the internet can never be warranted to be entirely secure. Whilst we may take all reasonable steps and precautionary measures to safeguard your personal information, we may be unable to prevent unauthorized access to such information by third parties or inadvertent disclosure of such information during transit and we are not responsible for any actions taken by such third parties. You acknowledge and accept taking this risk when communicating with and transacting on our Website.
13.INTELLECTUAL PROPERTY RIGHTS
13.1 All intellectual property rights (including all copyright, patents, trademarks, service marks, trade names, designs (including the “look and feel” and other visual or non-literal elements)) whether registered or unregistered) in the Website and Service, information content on the Website or accessed as part of the Service, any database operated by us and all the website design, text and graphics, software, photos, video, music, sound, and their selection and arrangement, and all software compilations, underlying source code, and software shall remain our property or that of our licensors.
13.2 You shall not attempt to, obtain any title to any such intellectual property rights. All rights are reserved
13.3 None of the material listed may be reproduced or redistributed or copied, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, sold, rented or sub-licensed, used to create derivative works, or in any way exploited without our prior express written permission.
13.4 You may, however, retrieve and display the content of the Website on a computer screen, store such content in electronic form on disk (but not on any server or other storage device connected to a network) or print one copy of such content for your own personal, non-commercial use, provided you keep intact all and any copyright and proprietary notices.
13.5 You may not otherwise reproduce, modify, copy or distribute or use for commercial purposes any of the materials or content on the Website without our written permission.
13.6 All rights (including goodwill and, where relevant, trade marks) in Zenith Film Distributors CC t/a Fog It (PTY) Ltd is owned by us (or our licensors).
13.7 Other products and company names mentioned on the Website are the trademarks or registered trademarks of their respective owners.
13.8 Title, ownership rights and intellectual property rights in and to the content accessed using the Service is the property of the applicable content owner or Merchant and may be protected by applicable copyright or other law. The Agreement gives you no rights to such content.
13.9 The authors of the literary and artistic works in the pages in the Website have asserted their moral rights to be identified as the author of those works.
13.10 Any material you transmit or post or submit to the Website (or otherwise to us) shall be considered (and we may treat it as) non-confidential and non-proprietary, subject to our obligations under data protection legislation.
13.11 If for any reason, any part of that statement does not work as a matter of law, then for anything which you supply to us from whatever source (i.e. via email, the Website or otherwise) you grant us a royalty-free, perpetual, irrevocable, non-exclusive right to use, copy, modify, adapt, translate, publish and distribute world-wide any such material.
13.12 All comments, suggestions, ideas, notes, drawings, concepts or other information: (i) disclosed or offered to us by you; or (ii) in response to solicitations by us regarding the Service or the Website; (in each foregoing case, these are called “Ideas”) shall be deemed to be and shall remain our property and you hereby assign by way of present and future assignment all intellectual property rights in Ideas, to us. You understand and acknowledge that we have both internal resources and other external resources which may have developed or may in the future develop ideas identical to or similar to Ideas and that we are only willing to consider Ideas on these terms. In any event, any Ideas are not submitted in confidence and we assume no obligation, express or implied by considering it. Without limitation, we shall exclusively own all now known or hereafter existing rights to the Ideas of every kind and nature throughout the world and shall be entitled to unrestricted use of the Ideas for any purpose whatsoever, commercial or otherwise without compensation to the provider of the Ideas
14.THIRD PARTY LINKS & ADVERTISEMENTS
14.1 Occasionally, at our discretion, we may include or offer third party products or services on our website. These third party sites have separate and independent privacy policies. We, therefore, take no responsibility or liability for the content and activities of these linked sites. Nonetheless, we seek to protect the integrity of our site and welcome any feedback about these sites.
15.1 The Agreement/terms and conditions and/or any dispute arising therefrom shall be governed by the Laws of the Republic of South Africa.
15.2 The Parties shall, in the event that a dispute arises firstly attend to resolve the dispute through mediation by contacting our legal team, the details of which are provided for hereunder in clause 22, to arrange for such mediation, failing which the matter shall be resolved in accordance with clause 24 hereinbelow.
16.1 The email address/es which you provide for order processing and/or registration, may be used for one or more of the following purposes:
16.1.1 To send you information and updates pertaining to your order or use of our service;
16.1.2 To send you information pertaining to your account details and/or status;
16.1.3 To send you occasional news, updates, related to our Website;
16.1.4 To send you promotional emails;
16.1.5 To offer you additional services related to Zenith Film Distributors CC
16.1.6 To remind you of the services we offer.
16.2 Kindly note that If at any time you would like to unsubscribe from receiving future emails, we include detailed unsubscribe instructions at the bottom of each email as well as an account review in which you may specifically indicate as to which communications you would like to receive and those which you would elect to exclude.
17.DISCLAIMER OF WARRANTIES & LIMITATION ON LIABILITY
17.1 Each party warrants and represents that it has the full right and authority to enter into this agreement and that it is not aware of any impediment which would inhibit its ability to perform the terms and conditions imposed on him/her/it.
18.1 No waiver of any of the terms and conditions contained on this website will be binding for any purpose unless expressed in writing on this website and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either Party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege
18.2 The failure of either party to comply with any non-material provision of this agreement/terms and conditions shall not excuse the other party from performing the latter’s obligations hereunder fully and timeously.
20.1 In the event that any of the clauses of this agreement/terms and conditions are found to be invalid, unlawful or unenforceable, such clause(s) will be severable from the remaining clauses of this agreement/terms and conditions, which will continue to be valid and enforceable. If any invalid clause is capable of amendment to render it valid and enforceable to achieve the same objective as the invalid clause, the Parties agree to negotiate an amendment to remove the invalidity.
21.NOTICES & DOMICILIA
21.1 The seller hereby selects its domiciliary candy et executed for the purpose of legal proceedings and for the purposes of giving or sending any notice provided for or necessary in terms of these terms and conditions, the following address–
21.1.1 The seller: t/a FOG IT (PTY) LTD
Postal address: .PO Box 2502 Lenasia 1820
Email address: email@example.com
or such other address or telefax number as may be substituted by notice given on the website as required. The seller will be entitled from time to time to vary its domicilium by written notice on the website to any other address within the Republic of South Africa which is not a post office box or poste restante.
21.2 Any notice addressed to ________ at its physical or postal address will be sent by prepaid registered post and delivered by hand, telefax or electronic mail
21.3 A notice will be presumed, unless the contrary is proved, to have been given –
21.3.1 if posted by prepaid registered post, 5 (five) days after the date of posting thereof;
21.3.2 if hand delivered during business hours on a business day, on the day of delivery.
21.3.3 if sent by telefax, on the first business day following the date of sending of such telefax; and
21.3.4 if sent by Electronic mail, on the first business day following the date of sending of such Electronic mail.
22.ARBITRATION AND JURISDICTION
22.1 Save where otherwise provided in this agreement, should any dispute arise between the Parties in connection with:-
22.1.1 the formation or existence of;
22.1.2 the implementation of;
22.1.3 the interpretation or application of the provisions of;
22.1.4 the Parties’ respective rights and obligations in terms of or arising out of this agreement or the breach or termination of;
22.1.5 the validity, enforceability, rectification, termination or cancellation, whether in whole or in part of;
22.1.6 any documents furnished by the parties pursuant to the provisions of clause 20 of this agreement of which relate in any way to any matter affecting the interests of the parties in terms of this agreement, that dispute shall unless resolved amongst the parties to the dispute, be referred to and be determined by mediation failing which arbitration shall be deducted in terms of this clause.
22.2 Save as provided in clause 21.13 none of the parties shall be entitled to institute any legal proceedings against the/any other in connection with any dispute referred in clause 21.1 above unless and until such dispute has been submitted to mediation and arbitration as provided for herein and such mediation and arbitration has been concluded, and then only to the extent that such legal proceedings are not otherwise prohibited in accordance with the provisions of this clause.
22.3 Any party to this agreement may demand that a dispute be determined in terms of this clause by written notice given to the other party.
22.4 The mediation and arbitration shall be held:
22.4.1 at Johannesburg;
22.4.2 on the basis that the proper Law of the agreement contained in this clause and the terms and conditions/contract in which this clause is contained shall be governed by the Law of the Republic of South Africa unless provided and expressly stipulated otherwise;
22.4.3 with only the legal and other representatives of the parties to the dispute present thereat;
22.4.4 In terms of the Arbitration Act, No 42 of 1965 (as amended) except as otherwise provided in this sub-clause 21.4.4 and in sub-clause 21.8 below, it being the intention that the arbitration shall be held and completed as soon as reasonably possible should the parties fail to mediate the matter successfully
22.5 The mediator/arbitrator shall be, if the matter in dispute is principally:
22.5.1 a legal matter, a practicing Advocate or Attorney of Johannesburg (of our choice) and of at least 3 (three) years’ standing;
22.5.2 an Accounting matter, a practicing Chartered Accountant of Johannesburg (of our choice) and of at least 3 (years) years’ standing;
22.5.3 any other matter, an independent person, agreed upon between the parties to the dispute.
22.6 Should the parties to the dispute fail to agree whether the dispute is principally legal, accounting or other any matter within 7 (seven) days after mediation was demanded, the matter shall be deemed to be a legal matter.
22.7 The Arbitrator shall have the power to fix all procedural rules for the holding of the arbitration, including discretionary powers to make orders as to any matter which he may consider proper in the circumstances of the case with regard to submissions, pleadings, discovery, inspection of documents, examination of witnesses and any other matter relating to the conduct of the arbitration. The arbitrator may receive and act on all such evidence, whether oral or written, strictly admissible or not, as he in his discretion may deem fit. Unless the arbitrator otherwise expressly direct, the arbitration shall be conducted according to the procedures laid down by the Uniform Rules of the High Court of South Africa as amended and adopted by any special rules or practices applicable in the North Gauteng High Court of South Africa.
22.8 The award of the arbitrator shall be final and binding upon all the parties to the dispute (who hereby agree to carry out the award). The parties hereby exclude all rights of appeal that might otherwise be conferred on them by law.
22.9 The arbitrator’s award may be made an order of any court of competent jurisdiction including, for the avoidance of doubt, any court which is authorized to make such an order by virtue of any treaty or legislation to the reciprocal enforcement of foreign arbitrable awards or judgments
22.10 The parties hereby consent to the non-exclusive jurisdiction of the South Gauteng High Court of South Africa in respect of the proceeding referred to in clause 24.2 and clause 24.5 hereinabove.
22.11 The parties agree to keep the mediation/arbitration including the subject matter of the arbitration and the evidence heard during the arbitration confidential and not disclose the same to anyone except for the purposes of the mediation/arbitration proceedings in terms of this clause, any review thereof and obtaining an order in terms of clause 24.10 hereinabove.
22.12 Nothing contained in this clause (24) shall prevent any party from seeking an interdict from any court of competent Jurisdiction, in circumstances justified by Law
22.13 The provisions of this clause:
22.13.1 constitute an irrevocable consent by the parties to any proceedings in terms hereof and no party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions;
22.13.2 constitute a separate agreement, severable from the rest of this agreement and shall remain in effect despite the determination of or invalidity for any reason of this agreement.
23.CONTACT DETAILS AND LOCATION
ZENITH FILM DISTRIBUTORS CC T/A FOG IT (PTY) LTD
Registration Number 2008/220466/23
Address: 110 Corner Kerk and Polly Street
Tel: (011) 337 – 5581 (T)//
Fax: (011) 337 – 3913 (F) or by
P.O. Box 8112