FYN AND BOS (PTY) LTD (REG. NO. 2016/333236/07): TERMS AND CONDITIONS
· “Fyn & Bos” – Fyn and Bos (Pty) Ltd, registration number 2016/333236/07, a private company with limited liability registered in terms of the company laws of South Africa;
· “Customer” – an entrant, viewer, user of this Website and/or purchaser of the Products on offer in terms of this Website. The use of the second person singular “you” or possessive pronoun “your” shall be interpreted to be a reference to the Customer, unless the context expressly or implicitly provides otherwise;
· “Website” – this website and/or any component thereof, including aspects and functionalities of this website that are provided by external services providers: provided that Fyn & Bos is not in any way liable for the views, security, functionality, downtime, further links provided on such other websites;
· “Product” – any item that is displayed for purchase and includes the following categories:
- In Stock; and
- Made to Order.
· “In Stock” – any Product item that is displayed on the Website as being available for purchase;
· “Made to Order” – any Product item that is identified on the Website as being made to order;
· “CPA” – the Consumer Protection Act 68 of 2008, as amended from time to time including the regulations flowing therefrom;
· “ECTRA” – the Electronic Communications and Transactions Act 25 of 2002 as amended from time to time;
· “Trade Marks Act” – the Trade Marks Act 194 of 1993 as amended from time to time;
· “Designs Act” – the Designs Act 195 of 1993 as amended from time to time;
· “Copyright Act” – the Copyright Act 98 of 1978 as amended from time to time;
· “Payment Portal” – PayFast payment portal available on this Website allowing for real time payment for Products items purchased on this Website, which can be effected either by credit card, debit card or ‘Payfast Instant EFT’ functionality;
· “EFT” – electronic funds transfer, not effected through the Payment Portal, which payment method can only be used to purchase those Products specifically identified as capable of being purchased through normal EFT – either on this Website or upon contacting Fyn & Bos and indicated by them in writing;
· “Courier” – Fyn & Bos courier of choice from time to time or their designated agents, or such courier as the Customer appoints;
· “Disclaimer – Fyn & Bos’s disclaimer and limitation of liability which is provided on this Website as a link at the foot of each page of this Website. The terms and conditions contained in this Website also provide for specific or general disclaimers, which are not necessarily all contained in the Disclaimer link;
· “Wish List” – this is available to members that login and sign up as Fyn & Bos members, and who wish to purchase a certain Product that is currently out of stock. Should Fyn & Bos receive sufficient requests on the Wish List for the Product item, Fyn & Bos will contact all Customers that requested the Product item to find out if they intend to purchase still, and if sufficient Customers are still willing to proceed and purchase, to proceed with the manufacture of the Products confirmed by purchase;
· “Parties” – the Customer and Fyn & Bos collectively.
3. You enter and continue the use of this Website and any of its service providers at your sole risk, and the entering and use of this Website shall be subject to, without limiting the generality hereof, the Disclaimer and limitation of liability clause contained in these terms and conditions.
4. Should you not agree to any of the envisaged terms and conditions of this Website, please exit this Website immediately.
5. Product ordering parameters
5.1 All Products are manufactured using several manufacturers to achieve the aesthetic and finish that Fyn & Bos strives to achieve with its Products for its Customers.
5.2 Products will be identified on the Website as either being In Stock or Made to Order. Made to Order Product items shall be considered ‘special-order goods’ as defined in the CPA and ‘made to consumer specifications’ per ECTRA.
5.3 For the purposes of 5.2 (and throughout this Agreement), all In Stock Products that are displayed as out of stock items, are still available for purchase, except they will have to be purchased via the quote process, and will be deemed to be Made to Order Product items. Please refer to Made to Order for the terms and process to follow in these instances.
5.4 In the event that you order more of a particular Product item than the amount that is In Stock, you will be given the choice of either ordering less (the number In Stock will be disclosed at this time) of that In Stock product item, or by placing an order via the quote process for the number of Product items that you wish: such Products ordered via the quote process will also be deemed to be Made to Order – please refer to clause 7.2 for terms and process applicable to Made to Order items.
6. Sale: offer and acceptance & courier costs
6.1 Various Products displayed are available and on offer for purchase by you on the terms and conditions stipulated in this Website.
6.2 All transactions (constituting the Agreement) concluded by means of or by utilising this Website, are concluded at the time when and at the place where, your acceptance of Fyn & Bos’s offer is received by Fyn & Bos.
6.3 Acceptance of Fyn & Bos’s sale offer, shall be constituted by payment of either the full purchase price for In Stock or Made Order items that require full purchase price, or by the payment of the relevant deposit in the case of certain Made to Order Product items that are identified on the Website as requiring a deposit first: only upon receipt of the purchase price or deposit (as the Product item may require) into the bank account of Fyn & Bos, will acceptance by you be completed and constituted.
6.4 All Product prices are displayed next to the Product item in question with taxes if applicable. Because of the nature of Made to Order Product items, prices displayed with these Products are merely a guide (as explained further in 7.2.5), as they are dependent on the particular specifications you request in your quote request.
6.5 No manufacture of any Product items that are not In Stock will commence until the full purchase price or the relevant deposit has been paid.
6.6 Delivery charges will be determined and displayed after you have added the Product or Products to your virtual shopping cart. The process will be as follows:
· After you have added your Product or Products to your virtual shopping card and click “Proceed to Check Out” you will be prompted with a dropdown box that asks whether you are in any of the towns or centres that Fyn & Bos already automatically calculates your courier costs.
· If you fall within one of the towns or centres that Fyn & Bos can automatically calculate your courier cost, your courier cost will be determined real time and added to the total purchase price of the Product/s you are purchasing. Should you agree to the courier costs, you may then proceed to check out and pay for the Product items.
· Should you not fall in one of the predetermined towns or centres that Fyn & Bos caters for by automatic courier cost calculation, you will be diverted to a quote process, and we will revert to with a quote for the Product plus the courier costs for your specific destination. The price of the In Stock item itself (at the time that you send us a request for a quote), will not change on the quote.
· You always have the alternative of choosing your own courier, but for this you need to follow the quote process.
7. Procedure to purchase Products
7.1 In Stock
7.1.1 Products that are In Stock may be ordered by selecting one or more of that Product item and adding it to the virtual shopping cart provided.
7.1.2 When proceeding to check out, certain details necessary for the processing of your order by Fyn & Bos (and its service providers) will be requested.
7.1.3 The next step to complete the purchase is to utilise the Payment Portal provided to effect payment of the full purchase price.
7.1.4 The Payment Portal, will prompt you to follow the necessary steps to complete your purchase.
7.1.5 Upon receipt by Fyn & Bos of payment of the full purchase price of the Product/s you have selected:
188.8.131.52 a notification will be sent to the Fyn & Bos domicile address of your purchase;
184.108.40.206 you will receive an order confirmation e-mail confirming your order and a further e-mail with a pro forma invoice reflecting your purchase; and
220.127.116.11 the original invoice for the products will be couriered to you together with the Product/s you purchased.
7.1.6 All In Stock Products that are displayed as out of stock items, are still available for purchase, except they need to be purchased via the quote process, and will be deemed to be Made to Order Product items. Please refer to Made to Order process to follow and Made to Order terms in these instances.
7.1.7 In the event that you order more of a particular Product item than the amount that is In Stock, you will be given the choice of either ordering less (the number In Stock will be disclosed at this time) of that In Stock product item, or by placing an order via the quote process for the number of Product items that you wish: such Products ordered via the quote process will also be deemed to be Made to Order – please refer to clause 7.2 for terms and process applicable to Made to Order items.
7.2 Made to Order
7.2.1 Made to Order Products will be identified as such on the Website. These Products require more time to complete and deliver from the date that they are ordered (being the date of acceptance per 6.3), as they have several design possibilities which need to be selected by you from the available options displayed on the Website – as such, Fyn & Bos does not hold stock of such Products.
7.2.2 Lead and delivery times are affected by several factors including (without limitation) several manufacturers being involved in the creation of Fyn & Bos Products, the high-end quality Fyn & Bos aims to achieve for its Customers, and the availability and capacity that Fyn & Bos and its manufacturers have at the time of your order.
7.2.3 Fyn & Bos will advise you during the quote process of the estimated period that Made to Order items take to complete and then to deliver. You will also be advised by Fyn & Bos what the estimated period for completion and delivery will for Made to Order items that were initially In Stock items that have become out of stock (per clause 5.3) or where the Customer orders more items than are In Stock (per clause or 5.4). Fyn & Bos may in its sole discretion advise you (or state this on the Website) that the out of stock Product items anticipated in 5.3 and 5.4 will either require you to make a minimum order quantity of that particular Product item for them to be prepared to proceed with the order, alternatively that you need to sign up as a member and add the Product item to your Wish List.
7.2.4 Products that are Made to Order may be ordered by selecting the Product item, as well as ticking off the specifications you require, and placing an order via the quote button in order for you to place that order. Each Product item will have its own specifications, such as fabric type, foam type, design type, colour type and even wood type.
7.2.5 Prices that are displayed with the Made to Order Product item on the Website, are merely a guide as to what that Product costs – exact prices and are dependent on the customisation that you choose for your Made to Order Product (as well as your location for delivery), and will be confirmed in our quote, which shall constitute our offer open for acceptance by you.
7.2.6 This Website will prompt you to supply:
18.104.22.168 certain of your details necessary for the processing of your order by Fyn & Bos (and its service providers);
22.214.171.124 request the design, colour, fabric, wood and/or other material specification/s of the Made to Order Product; and
126.96.36.199 the quantity of the Made to Order Product item that you wish to purchase.
7.2.7 On receipt of your order Fyn & Bos will draw up a quote for the Made to Order Product item/s you require to be made, which quote shall then constitute an offer, open for you to accept on the terms of the quote. This quote will be sent to the e-mail address you supply us with.
7.2.8 Should you wish to accept the offer in our quote, the next step to complete the purchase is to utilise the Payment Portal provided to effect payment of the relevant purchase price or deposit. Payment may also be effected for Made to Order Products by making an EFT payment into Fyn & Bos’s bank account as reflected on the written quote. It is imperative that you use the reference that Fyn & Bos provides you in the quote in order that we can identify your payment.
7.2.9 Upon receipt by Fyn & Bos of payment via Payment Portal of the deposit or full purchase price (depending on the Product) reflected in the quote for the Product/s you have selected:
188.8.131.52 a notification will be sent to Fyn & Bos domicile address of your purchase if you have made payment using the Payment Portal; and
184.108.40.206 you will receive an e-mail confirming your order and an invoice reflecting that you have paid the deposit.
7.2.10 Should you pay via EFT please use the reference we supply in the quote in the payment and send us the proof of payment of the deposit or full purchase price (depending on the Product) to the e-mail address (Fyn & Bos domicile) stated on the quote, and upon receipt of the deposit by Fyn & Bos, you will receive an e-mail confirming your order and an invoice reflecting that you have paid the deposit.
7.2.11 Should Fyn & Bos indicate that they are waiting for sufficient demand of a particular Product before they proceed to manufacture, we invite you to join as a Fyn & Bos member and add the product you want to your Wish List. We will let you know when we intend to run with an order of the Product you wished for.
7.2.12 The quote referred to in this Agreement or its terms and conditions forms part of your this Agreement. Should the terms of the quote in any way contradict the terms of this Agreement, then the terms of the quote will prevail; the remaining terms of this Agreement insofar as they apply to quote orders will continue to apply.
7.2.13 Fyn & Bos reserves the right to cancel any order (In Stock, Made to Order or deemed Made to Order) in the event that the order cannot be made due to unavailability of the product due to capacity or other reasons of unavailability. Fyn & Bos will notify and refund the Customer within 30 (Thirty) days of the date of such notification.
8. Sale on first-come-first-serve basis
8.1 As this is an e-commerce Website which allows the retail of Fyn & Bos Products to any number of Customers at point in time, the Website operates and Products are sold on a first-come-first-serve basis.
8.2 For Product items that are In Stock items, your selection of one or more of these items by adding it to the e-commerce cart, will not result in the number of available In Stock items reducing in real time on the Website. In Stock items will only reduce in number in the event that you confirm your intention by adding the Product item to your virtual shopping cart, when you proceed to Check Out and actually purchase the item.
8.3 Please note that we cannot guarantee that another Customer will not be ordering and purchasing the same Product that you are ordering and purchasing at the same time. As such you acknowledge that Products are sold on a ‘first-come-first-serve’ basis – until such time as you actually purchase a Product or Products, some or all may still be purchased by another Customer visiting our Website even though they are in your virtual shopping cart. We will contact you to inform you in the event that this occurs and establish whether you wish a refund or whether you are prepared to wait for some or all of the Products you added to your cart to be manufactured as Made to Order Product items. Any arrangement agreed upon will be confirmed in writing and form part of this Agreement.
8.4 Fyn & Bos shall not be liable for any damages, claims and/or loss (of whatsoever nature) and whether actual, contingent or consequential, direct or indirect in nature, and arising from the fact that a potential purchase or purchases by you was not confirmed by payment, allowing another Customer to purchase the items that you may have added to your virtual shopping cart as provided for in this clause 8.
9.1 We want you, our Consumer, to receive a high-end quality product within a reasonable time of you placing an order. However, delivery of Product items is firstly dependent on whether that item is an In Stock item at the time you order it (on the one hand), or whether it constitutes a Made to Order item or is deemed a Made to Order item (on the other hand) – see 5.3 and 5.4 in this regard.
9.2 Delivery times for all Products are also affected by the following factors including (without limitation):
· availability of Product items;
· the hand-made components of all Product items;
· lead times and capacity of Fyn & Bos and Fyn & Bos’s contracted manufacturers;
· Fyn & Bos puts through orders for certain Made to Order items only when there is sufficient demand therefor in terms of the Wish List;
· involvement of more than one manufacturer on all Product items; and
· the courier service provider’s delivery ability.
9.3 Made to Order and deemed Made to Order items will require more time to complete and deliver to you, as we have to make these Product items from inception when you order them.
9.4 For In Stock items the e-mail sent to you confirming your order will give an estimated period within which you will receive the Product. Generally the estimated period for delivery of In Stock items (excluding deemed Made to Order items) is 7 (Seven) to 10 (Ten) working days from the date that payment is confirmed by Fyn & Bos. In order to prevent delays you must ensure you use the reference number we provide you with on the quote in order for us to identify your payment via the Payment Portal or normal EFT. Orders are only processed during week days, so please exclude Saturdays, Sundays or public holidays from your computation of the estimated period of delivery.
9.5 The estimated period for Made to Order Product items or deemed Made to Order Product items will be stipulated in the quote Fyn & Bos will send to you per 7.2.7.
9.6 Fyn & Bos only delivers within the borders of the Republic of South Africa. Should you wish to purchase from outside the borders of South Africa, please contact Fyn & Bos on the e-mail email@example.com and how your requirements can be met can be considered.
9.7 Risk in and to all In Stock Product item, Made to Order Product item (where full purchase price payment is required), as well as deemed Made to Order Product item purchases, pass to you upon payment of the purchase price, except for Made to Order items where deposits are specified as an option, in which case risk passes on payment of the relevant deposit.
9.8 Ownership and benefit in and to all Products purchased shall pass to you upon the Product item purchased being delivered to your chosen address. Ownership shall not pass in any Product item purchased irrespective of delivery to the Customer, in the event that the full purchase price and courier costs have not been paid.
9.9 The Customer confirms that they will either be available to take delivery at the address they specify when completing their delivery address details, alternatively that any responsible person found at that address at a time when they are not present or available to sign for receipt, may sign receipt in the Customer’s absence. If nobody is found by Fyn & Bos’s Courier at the delivery address specified by the Customer for receipt of the Product or Products, the Customer will be responsible for the extra delivery charges occasioned by a further delivery attempt.
10. Refund & returns policy
10.1 For Product items that are not defective, Fyn & Bos’s return and refund policy only applies in respect of In Stock items.
10.2 Made to Order Product items, or deemed Made to Order Product items (that is items that are either out of stock or where an order exceeds the amount In Stock – see clauses 5.3 and 5.4 respectively) are all either made to the Consumer’s specifications, or they are created or altered to specifically satisfy a Customer’s requirements: as such these Product categories are not covered by our return and refunds policy (insofar as they are not defective).
10.3 You are entitled to return any order for In Stock Product items purchased within 7 days after receipt of that In Stock item.
10.4 We require that when you return the Product item:
10.4.1 you notify us on firstname.lastname@example.org of your request to return the Product item as well as supply us with your written bank account details, specifying your bank, bank account number, branch code and type of account;
10.4.2 you use Fyn & Bos’s Courier (or its designated agents for your area);
10.4.3 you make payment for the courier costs for the return of the Product item in full to Fyn & Bos, before Fyn & Bos will dispatch their Courier to collect the Product item – upon notification in 10.4.1, we will send you our bank account details; and
10.4.4 that the Product item be returned either in its unopened packaging, or – if the Product item original packaging has been opened – then the Courier will inspect and repackage the Product item prior to leaving you.
10.5 Upon return of the undamaged Product item, we will make a refund into the bank account specified by you in your e-mail in 10.4.1, which refund will not be more than 30 days after the date of cancellation, provided we have received the Product item back and it is in an undamaged state.
10.6 Fyn & Bos does not provide for exchanges of any Product items, that are not defective.
10.7 In the event any Product you purchase from Fyn & Bos is defective (or does not meet the standards set in section 55 of the CPA) you are entitled – within 6 (Six) months of the delivery of the Product to you – to return such Product at Fyn & Bos’s expense, and request either a refund, that the item be replaced, or that the item be repaired. Clauses 10.7 to 10.9 do not apply in the event you are not protected by the CPA – refer to clause 13.4 in this regard. Our warranty for defective Products does not extend beyond this 6 (Six) month period, and no other warranty is made either expressly (written or verbal), tacitly or implied.
10.8 All Fyn & Bos’s Products have colour variances from time to time. Fyn & Bos does not view such colour variances as defects, but rather a natural consequence of the processes required to create them, and gives each Product its unique look and feel: as such Fyn & Bos will not accept the return, refund or repair where the basis therefor is colour variances. There may also be small variances in sizes of Products: these are also a consequence of the process required to create them, and as such Fyn & Bos will not accept the return, refund or repair where the basis therefor is negligible size variances.
10.9 For Product items anticipated in 10.7, please adhere to the following procedure when returning the Product item, in order for Fyn & Bos to assist you:
10.9.1 you notify us on email@example.com of your request to return the Product item and indicate whether you wish a refund, a replacement Product item, or the Product item to be repaired. In the event you wish a refund, you will be prompted to supply us with your written bank account details, specifying your bank, bank account number, branch code and type of account;
10.9.2 you must use Fyn & Bos’s Courier (or its designated agents for your area), who will contact you to arrange for the Product to be collected; and
10.9.3 that the Product item be returned either in its unopened packaging, or – if the Product item original packaging has been opened – then the Courier will inspect and repackage the Product item prior to leaving you.
10.10 In the event that Fyn & Bos is unable to perform in terms of an Agreement reached with you arising by means of or as a result of this Website, on the grounds that the Products (or services) ordered are unavailable, Fyn & Bos will notify you of that fact and refund you any payment you may have made at that point within 30 (Thirty) days after the date of such notification – any Agreement reached at that stage shall be deemed cancelled upon such notification. The provisions of clause 13.5 shall apply mutatis mutandis (subject to the necessary changes) in the circumstances of this clause.
11. Made to Order deposit
11.1 Made to Order Product items involve several manufacturers and are made to your specifications of the options on offer. Due to this a deposit will be required in order for Fyn & Bos to be able to cover the expenses of engaging the services of our contractors and Fyn & Bos expenses in manufacturing this type of Product.
11.2 Our manufacturers require deposit payments before they will commence with any Product order, and therefore such deposits are the general practice of the industry Fyn & Bos operates within. These deposits are used to cover their expenses in manufacturing the Product.
11.3 Should you therefore be unable to pay the balance of the purchase price for your order for the Made to Order Product item, Fyn & Bos shall be entitled to follow the breach procedure and cancel the Agreement in question (that is the transaction); in such an event, such deposit will be forfeited as a reasonable penalty for expenses incurred by Fyn & Bos as identified 11.1 and 11.2: provided further that Fyn & Bos reserves the right to elect to rather recover damages in lieu of the said penalty. You agree that you shall have no claim to reimbursement to the deposit or to the Made to Order Product of whatsoever nature, all of which are waived.
12. Cancellation of order for In Stock Product items
12.1 As Made to Order, and deemed Made to Order Product items are all special order goods, the CPA does not apply to cancellation of orders of Products to be supplied to you.
12.2 The CPA does apply to In Stock Product items that you order. Should you order an In Stock Product item and you wish to cancel your order, you may contact Fyn & Bos on firstname.lastname@example.org to cancel your order, subject to the following:
12.2.1 the Product item has not yet been supplied to you, in that you have not taken delivery of the item; and
12.2.2 you pay a reasonable cancellation fee.
12.3 For the purposes of 12.2, should Fyn & Bos receive notification at the time that or after the Courier has arrived at your selected delivery address, the Product item shall be considered supplied and you will not be entitled to cancel the advance order for the Product, irrespective of whether or not the In Stock Product item’s packaging (Courier or Fyn & Bos packaging) has been opened or not, and irrespective of whether you are available or present to take delivery at the time when the Courier arrives at your designated address.
12.4 The cancellation fee shall include (without limiting same):
12.4.1 the cost of engaging the services of the Courier if the Product item has already been dispatched to you and for the return of the Product;
12.4.2 the cost of packaging that In Stock Product item;
12.4.3 the bank charges that it costs to refund you after deduction of our cancellation fee; and
12.4.4 a 15% (Fifteen percent) fee of the purchase price of all In Stock Product items that the Customer has purchased, which fee takes into account: the lost opportunity of a sale/s for Fyn & Bos, the timing of the cancellation, the risk of damage to the Product item/s during transit and its high-end nature.
12.5 For the purposes of 12.3, the responsibility is with you to ensure Fyn & Bos gets actual and timeous notice, should you wish to cancel an advance order for an In Stock Product before it is delivered to you. If you are unsure if Fyn & Bos has received your e-mail at the address in 12.2, you can contact us on the mobile number supplied on the contact page of this Website.
13. Limitation of liability & warranties
13.1 Nothing in this Agreement, its terms and conditions shall be construed as extending the protection afforded by either the CPA or ECTRA beyond the intended protected persons stipulated in those acts, nor shall any such extension be applied in a similar manner to any other legislation that may apply to this Agreement.
13.2 All Fyn & Bos’s Products have colour variances from time to time, such colour variances are a natural consequence of the processes required to create them, and as such Fyn & Bos accepts no liability for colour variances: the same applies for small or negligible size variances.
13.3 Should you use your own EFT to effect payment to Fyn & Bos (or other electronic payment channel to effect payment), Fyn & Bos shall not be liable for any losses, damages and/or theft (of whatsoever nature, and whether actual, contingent or consequential) that may arise due to the use of your own payment portal or EFT payment technology to make payment of any amount to Fyn & Bos.
13.4 Insofar as the CPA does not apply to you, all Products are sold voetstoots: however, In Stock items are still subject to 7 (Seven) day return policy set out in clauses 10.1 to 10.6.
13.5 Fyn & Bos shall not be liable to the Consumer for any direct or indirect damages or loss of whatsoever nature (and arising from whatsoever cause), whether actual, contingent or consequential, as a result of entering, using or continuing to use this Website, entering into an agreement with Fyn & Bos and/or from the purchase of any Products from Fyn & Bos or the use of Fyn & Bos services; and whether such damages or loss arise from the negligence of Fyn & Bos and/or its agents or service providers. Fyn & Bos’s limitation of liability extends to the maximum possible extent allowed under any particular jurisdiction, and only to the extent that such limitation of liability exceeds what is permissible under South African law, shall such limitation of liability be reduced to the maximum allowable liability limitation in Fyn & Bos’s favour under South African law.
13.6 Fyn & Bos gives no warranties, express, tacit or implied, other than what are expressly imputed by legislation or expressly provided for in these terms and conditions and this Agreement, in respect of its Products or services (or those of its agents and service providers).
13.7 Fyn & Bos shall not be liable if the Website is down or not functioning (fully or partially), or if plugins applications malfunction or are not working: the provisions of clause 13.5 applying mutatis mutandis (subject to the necessary changes) in such circumstances.
13.8 Fyn & Bos shall not be liable should you make payment into the wrong back account by EFT. It is your responsibility to verify and ensure that you make payment into Fyn & Bos’s designated bank account by EFT. Please also use the correct reference supplied to you by Fyn & Bos – failure to do so will delay the manufacture and/or delivery of a Product you purchase or order.
14. Intellectual property rights
14.1 This Website contains intellectual property in various forms, including without limiting the generality hereof: copyright, trade marks and designs (collectively the “IP”).
14.2 This Website contains IP which is either owned by or licensed to Fyn & Bos, alternatively it is owned by (or licensed by) a third party or third parties.
14.3 Without limiting the generality hereof , the IP consists of the following from time to time:
14.3.1 copyright in the following (without limitation) works: literary, artistic and/or computer program/s;
14.3.2 design rights, in respect of designs applied to articles featured in this Website from time to time;
14.3.3 trade marks featured in this Website;
14.3.5 the whole or components of the above intellectual property forms, as well as combinations and overlapping elements of the above intellectual property forms; and
14.3.6 any one or combination of 14.3.1 up to an including 14.3.5 insofar as it applies to third party IP contained or reflected on this Website.
14.4 As copyright subsists in the various works featured or contained within this Website (from time to time), all Customers (including any and all viewers, entrants, users and/or purchasers) are prohibited from – without limiting the generality hereof:
14.4.1 in respect of literary works, artistic works and computer programs: reproducing, copying, adapting, publishing and/or causing to be transmitted by diffusion service;
14.4.2 in respect of literary works and computer programs: performance in public;
14.4.3 in respect of artistic works: inclusion in a cinematograph film or television broadcast;
14.4.4 in respect of computer programs: letting, or offering or exposing for hire by way or trade, either directly or indirectly, a copy of the computer program;
14.4.5 in respect of an adaptation of a literary work, artistic work or computer program, doing any of the acts listed in 14.4.1 up to and including 14.4.4.
14.5 Unauthorised use (per section 34 of the Trade Marks Act), reproduction or passing-off of any trade marks contained in this Website is prohibited.
14.6 Unauthorised use, making, importing or disposing of any design on an article that may become registered, or a design that may be the subject matter of a design application, is prohibited.
14.7 Failure of these terms to identify or address each and every form of IP contained in this Website from time to time, shall not be construed that such IP does not exist or is not protected. All IP remains protected herein, and all rights are reserved in respect of the IP in this Website.
14.8 No license of whatsoever nature (including any possible sub-license) is granted (whether tacitly, by implication, expressly, verbally or in writing) in respect of any of the IP contained in this Website. Such prohibition applies in respect of IP that is owned by third parties including, without limiting the generality hereof, plugins: provided that the limited and lawful entry, viewing and use of intended functionalities is permitted, at all times subject to this Agreement and the terms and conditions applicable to IP that is owned by third parties (which are not be contained in this Agreement).
14.9 Further to 14.4.4, in respect of the computer program and source code of this Website, the Customer (or any other person accessing this Website) shall not reverse engineer, disseminate, hack, crack, alter, copy, tamper, access, reproduce, manipulate, decompile, interfere, corrupt, destroy (information, databases or computer systems) and/or use devices to overcome security measures of this Website, any component thereof, or the plugins contained thereon. No spidering, scraping, framing or hyperlinking of this Website, its copyright material or IP on this Website, is permitted; provided that a limited non-exclusive right is granted for hyperlinking of the Fyn & Bos Website (only) on the following conditions: the hyperlink does not portray this Website or Fyn & Bos, its directors, members, agents, service providers, employees, Products and/or Services in a defamatory, offensive, prejudicial, misrepresentative or any other negative light, and the site which hyperlinks to this Website does not itself contain defamatory, offensive, prejudicial, hateful or any other negative material. Should you wish to frame any portion of this Website, the prior written permission of Fyn & Bos will be required – please contact is on email@example.com. Any license to hyperlink or permission to frame does not in any way detract from the IP protection envisaged in this Agreement, nor shall it construed as permission granted by any third party’s whose IP is contained on this Website to hyperlink, frame or otherwise deal with that IP – refer to the relevant party’s website for their terms, conditions and policies pertaining to IP.
14.10 The protection afforded to the IP in this clause applies irrespective of whether the whole or only a component or part of IP is infringed in any of the manners anticipated in this Agreement and this clause 14. The protection afforded (now or in the future) to trade marks referred to in 14.5 and designs in 14.6 is limited to the territory of the Republic of South Africa at present, but this position may change without notice.
14.11 The protection afforded to the IP contained in this Website:
14.11.1 continues to apply after that IP is removed from this Website;
14.11.2 applies no matter what interface the IP is accessed;
14.11.3 is limited by territorial nature of trade mark law and design law;
14.11.4 applies whether the IP accessed on the URL (uniform resource locator) of this Website, or on any other website, including (without limiting the generality hereof) social media sites;
14.11.5 applies to any know-how or analytics contained or acquired through this Website.
14.12 No derivative works of any IP contained in this Website may be made.
14.13 The provisions of this clause 14 and any other IP rights expressed on this Website extend to any social media platform (without limitation including Facebook and Instagram) which Fyn & Bos uses or any site that hyperlinks or frames Fyn & Bos IP material.
15. Fyn & Bos services
15.1 Fyn & Bos services consist inter alia of interior design services, interior décor, renovations, alterations, from conceptual stage, planning and technical drawings, to implementation thereof.
15.2 We will discuss the terms of our service level agreement with you at our first consultation and thereafter we will enter into a service level agreement which is tailored for your specifications before we commence with our services.
15.3 Fyn & Bos commissions for Product development and design will be dealt with in a similar manner to 15.2 to their interior design services, and an agreement will be reached before work will commence with the commission.
Should either Party breach any term of this Agreement, the other Party shall be entitled to on 21 (Twenty One) days written notice – addressed to the chosen domicilium address of the other party – be entitled to cancel this Agreement or claim specific performance, with or without a claim for damages.
17. Domicilium: notices & legal process
17.1 The Parties choose as their respective domicilia citandi et executandi (address for filing of legal process and all notices) the following addresses:
Fyn & Bos: 139 Kusweg, Reebok, Mossel Bay, 6503
Customer: the physical address specified when completing your address details at any juncture where this is requested in the Website.
Fyn & Bos: firstname.lastname@example.org, postal address or physical address, in that order of preference
Customer: either at the e-mail address, facsimile address, postal address or physical address, in that order of preference: specified when completing your address details at any juncture where this is requested in the Website.
17.2 Deemed receipt days for notices at designated addresses in 17.1:
17.2.1 A notice sent by pre-paid registered post shall be deemed to have been received after the 14 (Fourteenth) day of posting;
17.2.2 A notice sent by e-mail shall be deemed to be received on the same day that the e-mail was sent;
17.2.3 A facsimile shall be deemed to have been received on the same day that the facsimile was sent;
17.2.4 A notice delivered by hand to a responsible person at the designated domicilium address shall be deemed to have been received on the date of delivery.
17.3 Either Party may change their domicilium address/es by notice to the other Party on 7 (Seven) days’ notice to the other Party, provided that Fyn & Bos may at any stage with immediate effect change any of its addresses by changing this clause, alternatively by updating its details on the contacts page of this Website.
17.4 Any physical address specified must be an address in the Republic of South Africa.
18.1 By agreeing to any click wrap agreement (ticking the appropriate boxes on this Website) and/or completing any personal or financial details on this Website:
18.1.2 you are warrant that you are representing yourself and no other person; or
19. General & miscellaneous clauses
19.1 Entire Agreement
This Agreement contains all the express provisions and terms agreed between the Parties and no Party may rely on any provision that is not recorded in this Agreement.
No Party may rely on a representation that allegedly induced them to enter into this Agreement unless such representation is expressly recorded in this Agreement.
19.3 Variations, additions, waivers and consensual cancellations
No variation, addition, review or consensual cancellation shall be of force and effect unless recorded in writing and signed by and on behalf the Parties representatives, no waiver shall be of force and effect unless reduced to writing and signed in the same manner.
19.4 Cession & delegation
No Party shall be entitled to cede and/or delegate its rights and obligations respectively unless the prior written consent of the other Party has been obtained.
19.5 Waiver and delay in enforcement
No delay or indulgence on the part of either Party to exercise a right in terms of this Agreement shall be construed or deemed a waiver by that Party of that right which has accrued to it in terms of this Agreement, or of its ability to enforce such right immediately or at a later stage.
The terms and provisions of this Agreement are severable: should any term or provision be found to wholly or partially unlawful, void or unenforceable, such unlawfulness, voidness or unenforceability shall not affect the Agreement or its remaining terms and provisions, all of which remain valid and of force and effect, the offending term or provision being severable.
Headings to clauses are for convenience only and shall not be used in applying interpretation.
For the purposes of this Agreement (and unless expressly stated otherwise), a reference to one gender shall include the other (and vice versa), the reference to the singular shall include the plural (and vice versa) and words referring to natural persons shall include juristic, quasi-juristic or legal persona (and vice versa). In the event the numerals are followed by words and there is a conflict between the numerals and the words, the words shall prevail.
As this Agreement was concluded by negotiation the rule of interpretation that any ambiguity created shall be applied against the principal drafter shall not apply.
19.8 Substantive provisions
Any right or obligation that may exist or be implied in any definition or addendum to this Agreement shall be treated as if a substantive provision imposing such right or obligation (as the case may be) in the main body of this Agreement.
19.9 Calculation of days
For the calculation of days in terms of this Agreement, the first day shall be excluded and the last day included in such computation, unless such last day falls on a Saturday, Sunday or public holiday, in which case the last day shall fall on the next day which is not a Saturday, Sunday or public holiday.
19.10 Schedules and Addenda
All addenda and schedules to this Agreement shall be deemed to be part of this Agreement.
19.11 Accrued rights
In the event of termination or cancellation of this Agreement or any part thereof (for whatsoever reason or cause), nothing in this Agreement shall be construed as detracting from rights that may have accrued prior to or as at such termination or cancellation date, rights that by their nature survive such termination or cancellation, or any right which a Party may otherwise have at law: such rights remaining fully enforceable after such termination or cancellation.
19.12 Stipulation for the benefit of another
Fyn & Bos is a contracting party to this Agreement. There are benefits and rights within this Agreement that do not accrue to Fyn & Bos. As such, Fyn & Bos acts as the recipient of these benefits and rights on behalf of those parties (who are aware of, been offered and have already accepted such benefit/s) not referred to in this Agreement: for these purposes only this Agreement shall operate as a stipulation for the benefit of another (stipulateri alteri), allowing Fyn & Bos to accept the benefits conferred on such parties on their behalf, which it duly does. No other stipulation for the benefit of another is to be inferred in this Agreement, unless expressly stated herein.
Either Party may institute legal proceedings in connection with any dispute that arises out of this Agreement in the magistrates’ court for the Republic of South Africa, to which court’s jurisdiction the Parties consent.
19.16 Governing law
The Parties agree and consent to this Agreement being governed and construed in accordance with the laws of the Republic of South Africa.
19.17 No partnership, joint venture or agency
Nothing in this Agreement shall be construed as creating a partnership, joint venture or principal-agent relationship between the Customer on the one hand, and Fyn & Bos and/or its service providers on the other.
20. Contact and Business hours
20.1 Fyn & Bos has the following office hours: 8am – 5pm Monday to Thursday and 8am – 4pm Fridays.
20.2 Fyn & Bos is not contactable on weekends or public holidays.
20.3 Fyn & Bos will advise Customers on the Website of last order dates for any Product or range of Products for the year, and when orders for Products may not be made.
21. Member’s login
21.1 Should you wish to become a member, we welcome to use our member’s login functionality. We will keep you posted of latest products, events, design, conservation and other related topics.
21.2 We reserve the right to remove you as a member from our Website.
21.3 Please ensure that your password is kept secure and that it meets the minimum password difficulty standards.