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Terms and Conditions

Smartware Terms and Conditions

smartware® is a brand trading within smartware Southern Africa Pty Ltd, registration number 2014/284222/07.

These terms govern your use of the smartware website. Access to the services, content and downloads available on the smartware website may be classified as “electronic transactions” as defined in terms of the Electronic Communications and Transactions Act, Act No. 25 of 2002(ECT Act).

  1. We provide the smartware website as a convenience to you. To use the smartware website for services including but not limited to online shopping, browsing, product information, store locations, subscribing as a user, connecting to sales consultants, viewing and managing your account and orders, etc. we may require you to provide your personal information.
  2. We reserve the right to change the documents and/or other materials contained on this website from time to time without notice. This Right also applies to these terms and conditions. smartware will post the revised terms on the website. You may use the smartware website for your personal and non-commercial use, not for republication, distribution, sale or any other use.
  3. If there is a conflict of meaning between these website terms of use and any other terms, policies or notices, the specific terms, policies or notices will take preference where it applies to your use of the smartware website.
  4. The Terms make up the entire agreement between the parties. If any term is void, unenforceable, or illegal, the term will be severed and the rest of the terms will be effective.
  5. Unless otherwise specified, we intend the goods and services offered on this site for citizens of the Republic of South Africa only. The terms are governed by and interpreted according to the laws of the Republic of South Africa without giving effect to any principles of conflict or law. By you ticking the “I confirm I have read and understood the ‘Terms & Conditions’ box, forms a legally binding agreement between you and smartware.

DEFINITIONS

1“terms” mean these website terms of use, any specific terms, the privacy policy and any other terms, policies or notices agreed between you and SMARTWARE;

2“we” or “us” or “Smartware” means Smartware, whichever one applies;

3“website” means www.Smartware.co.za;

4“Smartware website” means www.smartware.co.za;

5“you” or “user” means any person who visits, accesses or uses the website.

Registration and Use of the Website

As a user, smartware grants you a limited, non-transferable revocable license to access and use the website subject to the terms and conditions. Your license does not extend to the website’s source code or to the source code of any software or computer program that forms part of the website. You may only use the website for personal use, limited to viewing the website, providing information to the website, downloading product information for your review from the website or purchasing goods or services from the website.

You may only use the website if, in terms of South African law, you have the legal capacity to agree.

You may only link to the website by linking to the home page of the website.

You, the customer, agrees and acknowledges that:

  1. You will at all times comply with the Law(s); including the National Credit Act of 2005 and the Consumer Protection Act and/or any other applicable legislation (if it applies to the customer for the receiving, compiling and reporting of information.) Without limiting the generality of the foregoing, the customer specifically agrees that when reporting Personal and other information to smartware;
  2. Such information will include all mandatory data;
  3. You will have taken all reasonable steps to ensure that the information submitted is accurate, up-to-date, relevant, complete and valid when submitting such information;
  4. You may submit the information to Smartware, to make such information available to its associated partners, to render the services offered, and that such information is not subject to a duty of confidentiality between Smartware and the customer.
  5. As a Visitor or User, you agree that we may electronically accumulate, keep and use the following of your information:
  6. Internet usage information, including your Internet Protocol (“IP”) address, click patterns, browsing habits, version of software installed, system resolutions and type, plug-ins, colour capabilities, cookie preferences, language settings, search engine meta words (keywords), JavaScript enablement, unique user ID, the pages and content that you access on the Platform/Website and the dates and times that you visit the Website, besides paths taken and time spent on pages/sites within the Website (“Usage Details”); and
  7. Additional information you may provide voluntarily, such as demographic information or data related to your favourite social networking site (e.g. the site name, address and description(s)), or information relating to your participation in Smartware competitions, promotions, studies, reviews and surveys, and additional services. (“Optional Details”).
  8. Details submitted, when registering or transacting, to use the services on the Smartware website. You may submit optional Details to us if you upload or download certain content (or products) from the Website/Platform, enter competitions, partake in promotions, respond to reviews/surveys, subscribe to or register for specific additional services; or else use any of the optional features and functionality of the Website/Platform.
  9. “Cookies” Information: When you access the Website/Platform, we may send one or more cookies (these are small text files containing a string of alphanumeric characters) to your computer to collect certain Usage Details. Smartware may use both session cookies (which disappears after you close your browser) and persistent cookies (which remain after you close your browser, which can be removed manually) and may be used by your browser on subsequent visits to the Website/Platform. Please note the use of cookies is a norm/standard on the internet and many major websites use them. Please refer to your web browser “Help” file to learn more about changing your cookie settings.
  10. when you access the Website/Platform or open one of our HTML emails, we may automatically collect and record certain Usage Details from your system by using different tracking technology.
  11. Our Website may contain electronic image requests (called a “single-pixel gif” or “web beacon” request) that allow us to count page views and to access cookies. Any electronic image viewed as part of a web page (including an ad banner); can act as a web beacon. Web beacons are typically 1by1 pixel files, (tiny unnoticeable files), but their presence can usually be seen within a browser by clicking on “View” and then on “Source.” We may also insert web beacons in HTML-formatted newsletters, which we send to “opt-in” subscribers to count how many newsletters they have read. Smartware web beacons do not gather, monitor or share any personally identifiable information about our customers. They are just the technique we used to compile anonymous information about the Website and Service.
  12. Smartware may use any Optional Details provided by you, for such purposes as shown to you at the time you agreed to provide such Optional Details.

We may use your Usage Details to:

  1. Automatically validate and/or verify your identity; for the website and transaction security purposes via Smartware or via a third-party service provider;
  2. Automatically provide you with the latest version of the Smartware application on your system;
  3. Remember your information so you will not have to re-enter it during your visit the next time you access the Website/Platform;
  4. Monitor aggregate Website usage metrics such as total number of visitors and pages accessed; and
  5. Track your entries, submissions, and status in any promotions or other activities in connection with your usage of the Website/Platform.
  6. Smartware shall take all reasonable steps to protect the personal information of the Users and for this purpose, “personal information/personal details”; shall be defined as contained and detailed in the Promotion of Access to the Information Act 2 of 2000 (PAIA).
  7. If you are a Smartware website user, you agree that we may also electronically gather, save and use the following information:
  8. Name and surname, birth date, gender, identity number and /or passport number, nationality and country of residence (“Personal Information/Details”);
  9. E-mail address, mobile number, home and delivery address and credit card billing address (“Contact Details “);
  10. the credit or debit card number, cardholder name and expiration date you submit to Smartware website regarding your credit or debit card(s), (Credit or debit cards)

Smartware Website Users collects the aforesaid information from you in the following manner:

  1. User-provided Information: Your Personal Information/Details, Contact Details and Debit or Credit Card Details will be provided by you directly to us during your registration as a Smartware website user and/or thereafter by you actively transacting, updating or supplementing such details in your Smartware website users Account.
  2. Smartware uses the information that Smartware website users provide (or that we collect) to operate, validate, verify, maintain, enhance and provide all the features of the Services, and as may be necessary to comply legally when conducting online payment transactions and related service provided.
  3. We use your Debit or Credit Card Details to provide the Services (including the verification thereof when you transact with smartware) and, should fees be charged for some Services and you have selected a credit or debit card as your means of payment, we shall debit that credit or debit card for such fees owed by you. We use your Personal Information/Details to greet you when you access your Smartware User Account, to manage and administer your use of the Services and fulfil our contractual obligations, including the verification of your identity when you transact with Smartware.
  4. We use your Contact Details to verify your identity and to inform you of facts relating to your use of the Service(s) (e.g. notifications regarding major updates or content you have posted or downloaded from the Website/Platform, customer service notifications, and to address any copyright infringement or defamation issues); as well as to inform you, subject to obtaining your prior agreement, of competitions, promotions and special offers from us and/or any of our partners and/or affiliates.
  5. Any user, who commits any of the offences detailed in section 85 to 88 of the ECT Act 25 of 2002 shall, notwithstanding criminal prosecution, be liable for all resulting losses or damages suffered and/or incurred by Smartware and its partners/affiliates.

You may not:

  1. Provide any incorrect information to the website or Smartware;
  2. Change, copy, decompile or reverse-engineer the website or use the website to make derivative copies;
  3. Lease, sell, assign or in any other way to distribute the website or any information gotten from the website without the prior written consent of Smartware;
  4. Use malicious search technology, including but not limited to spiders and crawlers;
  5. Frame any pages of the website;
  6. Deep-link to any pages of the website in a way to suggest that you are the owner or license of any intellectual property in the website.
  7. Use the interactive sections of the website, for instance, forums, clubs, surveys and e-mails, to post any material which in Smartware discretion is false, defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, sexually-oriented, threatening, invasive of a person’s privacy, or otherwise violates any laws. Smartware does not have editorial control over the submission of any content to interactive sections of the website. You submit all information, including the publication of pictures and/or articles, at your sole risk and responsibility. Smartware is not liable for damages or other adverse consequences caused by the use of the submissions.

In line with the Film and Publication Board Act 3 of 2009 (FPB) as amended; to intensify the efforts to protect children from harmful images within the media, including films, exhibitions, games, the internet and other publications, the website is not targeted at children under the age of eighteen (18) and Smartware will not knowingly collect information from users in this age group.

No transaction will be concluded between Smartware and a person under the age of 18 unless written consent thereto is received by Smartware from a parent or legal guardian. Smartware, therefore, reserves it’s Right to request proof of identity before concluding any transaction. Your continued use of this website confirms that you are 18 years old or older

  1. A sales order will only be deemed as completed once you have completed the purchase cycle, an approved payment/order confirmation is received and delivery has taken place. We will confirm your purchase order with you via your specified email. By placing a product in your shopping cart or adding a product to a wish-list does not make up a sale nor are such products, its price nor its quantities reserved. If you complete the purchase cycle for such products at a later stage Smartware cannot be held liable to honour any price changes or if such products are not available.
  2. Smartware shall use reasonable attempts to make the advertised stock available at the displayed price, for the period specified. Where there is expressed stock limitation or availability, Smartware shall supply the consumer with equivalent stock as an alternative to the advertised stock. In the event of running out of stock on the expressed stock limits, Smartware may limit the number of sale goods per consumer. However, Smartware strives to ensure that we minimise out-of-stock situations and will take all reasonable measures to make your purchased product available at the advertised price or inform you of an equivalent product option.

Registration and Use of the Website

A refund is deposited directly into your credit, debit card or bank account. This process may take up to 10 working days. A refund processing period will only start from the time we have received the returned goods.

  1. Return of Goods

Goods may only be returned in terms of the Consumer Protection Act, Act 68 of 2008 (“the CPA”). If you are entitled in law to return goods, then and in line with the CPA, a handling fee of up to 15% of the value of the goods may be charged when the product/packaging is not returned in its original purchase condition.

    1. Non-returnable/ non-refundable items:
      1. Delivery and or installation costs,
      2. Any damaged or abused items.
  2. Under no circumstances will we accept returned goods where the consumer has been allowed to inspect the goods before the purchase and subsequently changed his/her mind about the goods; they have damaged the goods in negligence; the goods have been disassembled, permanently installed, physically altered, used or installed contrary to our own or the manufacturer’s instructions, and/or have been subjected to misuse or abuse.
  3. We sell goods for domestic use only and for the purpose for which we manufactured them. It will also exclude normal wear and tear. If you want to return alleged defective goods in terms of the LifeTime Warranty, we will assess the goods to determine the reason for the defect.
  4. Subject to these terms, some goods carry an implied LifeTime Warranty by following the Consumer Protection Act 68 of 2008, (“CPA”) which gives the consumer the right to return the defective goods in terms of section 20, read together with section 56 of the CPA. The implied Lifetime Warranty on goods supplied places an obligation on Smartware to accept the return of unsafe or defective goods. In the event of the goods not complying with requirements and standards contemplated in section 55 of the CPA, the consumer has the right to return goods to smartware if:
    1. The consumer finds within 10 days that the goods are unsuitable for a particular purpose for which the consumer has expressed intention to use the goods as contemplated in s55(3);
    2. The consumer did not examine the goods and rejected delivery of the goods for any reasons contemplated in section 19(5); and
    3. The consumer has refused delivery of those goods because they were mixed with items that were not ordered, as contemplated in section 19(8).
  5. You are entitled to cancel any sale concluded on this Website (online sales) within 10 working days after receipt of the goods and to get a refund on terms that the goods are still in their package and in good condition. You may also cancel a sale where delivery is delayed beyond the stipulated delivery date/timeframe (or where none is specified, beyond 30 days from the order date).
  6. In the unfortunate event that your purchased goods become defective. You are entitled to the following option of as per the CPA (after goods have been inspected and assessed):
    1. Have such goods repaired
    2. Have goods replaced
  7. If we find the goods to not be faulty, you will be liable for all handling and shipping charges; for the collection and the re-delivery of the product to you. You will be liable if the goods are damaged or faulty because of misuse, abuse or negligence.
  8. The LifeTime Warranty does not cover any defects caused by foreign objects, including but not limited to;
    1. Use other than domestic use by the customer or his/her immediate resident family at the declared addresses appearing on the front of this document;
    2. Failure by the customer or any other person to comply with the manufacturers’ instructions for installation, maintenance or use;
    3. The use of accessories which have not been approved by the manufacturer;
    4. Fire, flood, war, civil disturbance, industrial action, acts of God or any other causes beyond the reasonable control of Smartware;
    5. Any loss or destruction of, or any damage to any property, or any loss expense arising therefrom, or any consequential loss or any liability of nature directly or indirectly caused by or contributed to, by or arising from ionizing radiation or contamination by radioactivity from any nuclear fuel or any nuclear waste from the combustion of nuclear fuel. Combustion shall include any self-sustain process of nuclear fission, or any loss, destruction, damage or disability directly or indirectly caused by or contributed to, by or arising from nuclear weapons material.
  9. Smartware will not be liable for the costs of;
    1. Maintenance, including cleaning, clearing of blockages and overhaul or insect infestation;
    2. And material or labour which is recoverable from the manufacturer or any person who may be held responsible in terms of the LifeTime Warranty.
  10. Repairs may not be effected without prior authorisation from Smartware.
  11. ware’ authorised repairers reserve the right to not do house calls in areas where their safety may be at risk

Displaying of prices

All pricing displayed on the web is inclusive of the current South African VAT, in South African Rands, and are subject to price changes and may change with no warning or notification. Please note that all prices displayed exclude the cost of delivery. Smartware takes utmost care to ensure that the displayed prices are correct. Where pricing on the website differs from the actual in-store pricing, the applicable price will be the lesser of the two prices, unless the lesser price is made in error and we have taken reasonable steps to rectify the error and, or where it is a website specific promotion for online purchases only or in branch-specific promotion for branch purchase only. Hence such promotional pricing will not be honoured. If a mistake is made or we display the incorrect price, we will correct this as soon as we are made aware of the incorrectly displayed price.

Currency, Payment Methods and Transactional Security

We conduct all transactions in South African RAND (R) (ZAR) through Peach Payments. When Patfast Payments processes a transaction for you via any of their secure payment web services, the transaction is encrypted. The Peach security policy can be found at (insert link).

Please also read the Payfast Payments Terms and Conditions, at Payfast. By submitting a sales order through any of the Smartware website services, you warrant that you are acting within the bounds of the law and that you have the legal capacity to transact or have the mandate to transact to do so. This includes that you have got the express permission (indemnity) of the person and or business whose information you are submitting/using through any of our services and that you are not in breach of the Consumer Protection Act or National Credit Act, or any other applicable legislation. You indemnify Smartware, its Members and employees from any claim and/or liability from any third party arising out of your instructions and/or use of the service(s).

Smartware accepts the following payments on its website:

  1. Credit Card payments: Only South African issued (Visa and Master) credit cards are accepted for online payments. On completing the purchase cycle we send the sales details to the bank if payment is unsuccessful or authorisation is not issued by the bank we cannot complete your purchase cycle.
  2. No cheque deposits are accepted.

Your order number needs to be used in the reference section of the deposit slip or the electronic transfer, we will not be held liable for any delays should you fail to include these. Your delivery timeframe is dependent and will commence on the time and date of the funds reflecting in Smartware account.

Depending on the bank, some payments may take up to three business days to reflect in our account. In such circumstances, there will be a delay in having your order shipped.

It requires registration with 3D Secure when shopping online with us as a 3D secure merchant. No username and password to remember anymore. You will now receive a one-time pin (OTP) instead that will only be valid for one transaction when shopping at a 3D Secure merchant, protecting your Debit & Credit Card against fraudulent online use. We all love the convenience of shopping online but concerned about the risks that may be involved. Therefore, we at Smartware deploy technology, such as 3D Secure, which will protect you while you shop.

Smartware reserves the right, to prevent suspected fraud, to refuse to accept or process the payment of any order, and/or to cancel any sale concluded between you and Smartware, in whole or in part, on notice to you. Smartware shall only be liable to refund monies already paid by you and accepts no other liability, which may arise as a result of such refusal to process any order/sale

Delivery

General Delivery Information:

Unless otherwise specifically stated or specifically agreed to, the delivery charges will be for your account.

  1. Smartware delivers within the borders of South Africa only.
  2. Deliveries are door-to-door and must be to a physical address within the borders of South Africa and not a Post Box. We do not deliver to any postal addresses. Please ensure all delivery details including the postal code are accurate, as you will be liable for all additional handling and shipping charges because of such errors. Please ensure someone is available to sign for and receive your goods at the time of delivery. We will deem it you, as the purchaser, assigns without prejudice and without a proxy, to a party other than yourself, to sign for your goods at your specified and confirmed delivery address should you not be present at the time of delivery.
  3. You accept that Smartware does not have to prove that you received the delivery of such goods. You agree that it would only require us to prove that someone, not necessarily yourself, signed for the goods at your specified and confirmed delivery address. Although we monitor every purchase order to ensure we deliver your package.
  4. Should you have not received your delivery of goods after 24 hours of the expired delivery period, you need to contact us within a maximum of 48 hours. Should you not notify us of a ‘no delivery’ within the period, you agree that we would deem you received the purchased goods.
  5. Delivery of products purchased through the online store is subject to the geographical delivery framework as determined by our courier partner. Should your delivery address fall into one of these categories, you will be liable for any additional costs incurred in delivery, storage and or returning the parcel. (Category list as follows; plots, farms, mines, military bases, major chain stores, power stations, game reserves and lodges and harbours)

Failed delivery:

  1. We will notify you of a failed delivery i.e. where no one was at the specified delivery address to receive and sign for the goods at the time of delivery. We will attempt to reschedule the delivery with you within 24–48 hours; however, you may be liable if we incur any additional handling and shipping charges for a re-delivery.
  2. Goods shipped in error /Incorrect goods delivered:

In the unfortunate event that you receive a delivery whereby the goods delivered to you does not match your products or its quantity as per your waybill/purchase order, you agree to notify us immediately upon receipt of such delivery on 010 824 0161, to have the incorrect goods collected and the correct goods delivered to you.

Damaged Goods delivered:

Please notify us within 24 hours of receipt of delivery on 010 824 0161, in the regrettable event that you receive a damaged product. We will do our best to have the damaged product collected and a new product delivered to you within a maximum of 48 hours (weekdays only).

Price of delivery:

The will be a standard flat rate delivery fee of R120 which will be delivered within 3 – 7 working days.

Express Flat rate delivery fee of R140, which will be delivered within 2 – 3 working days.

The Delivery period is based on the following:

  1. Location within major centres or outlying Delivery Areas.
  2. Weight and Dimensions of the total purchase order.
  3. In the event of special delivery deals, the price of the product or total purchase order value could determine the delivery rate.
  4. The price of your delivery is calculated automatically and will be displayed before the payment process, in the shopping cart and at checkout.

Delivery Periods important to note:

  1. Delivery service will start on payment confirmation received.
  2. Delivery periods will be effected within the selected delivery type timeframe, after collection from point of dispatch and between Major Centres from Monday to Friday.
  3. We deliver from Monday to Friday from 08:00 to 17:00 to both business and residential addresses. No deliveries take place on a Saturday or Sunday or any other Public Holiday. We may request identification upon delivery. Major centres include any destination within a 40km radius of the following cities: Pretoria, Johannesburg, Bloemfontein, Cape Town, George, Port Elizabeth, East London, Durban, Pietermaritzburg and Nelspruit. Delivery to the major centres is usually within 7 working days. The following areas may experience delays because of airline constraints: George, Nelspruit, Richards Bay, Polokwane and Welkom.

Ownership and Content

All materials published on the Smartware website are protected by copyright and owned or controlled by Smartware or the party accredited as the producer of the content, software or other material. We shall construe nothing in these terms and conditions of use as conferring by implication or otherwise, any license or right under this copyright, trademark, database right or other intellectual property or proprietary interest of Smartware or any third party. All logos, names and trademarks, which appear on the website are the intellectual property of Smartware or are used by Smartware under license. Smartware will prosecute any violation of intellectual property rights to the fullest extent that the law permits. We prohibit reproduction of part or all of the contents in any form other than strictly for individual use.

If you respond to Smartware via e-mail, surveys, forums, registration, or any other communication medium with any information, including but not limited to feedback, data, questions, comments or suggestions, but excluding your personal data, the information will not be deemed confidential. Smartware will not have any obligation to keep such information confidential and will be free to reproduce, use, disclose and distribute the information to others without limitation. Smartware will also be able to use any ideas, concepts, know-how or techniques in the information for any purpose, including but not limited to developing, manufacturing and marketing products, which incorporate or otherwise rely on the information. You consent to the aforesaid use of such information. By submitting information, you agree that Smartware may publish the information, use it as part of its operations, and incorporate its concepts in Smartware goods or for any other purposes, which Smartware considers necessary, without liability.

Smartware will deal with your personal information in terms of the privacy policy

Availability and Termination of Orders

Smartware may immediately terminate use of and access to the website if you breach the terms. This will be without prejudice to any other remedies and rights that we may have in terms of the law, including but not limited to claims for specific performance and damages. Save for certain exceptions and subject to certain charges

Disclaimer

  1. When you visit the Smartware Website, you consent to receive communication from Smartware electronically and agree that all agreements, notices, disclosures and other communication sent by Smartware satisfy any legal requirements, including but not limited to the requirement that such communications should be “in writing”.
  2. You ensure that the goods are fit for the purpose for which you want to buy them and are in excellent condition and free of any form of defects before you take delivery of the goods. It is the responsibility of the customer to ensure, before delivery, that the goods listed on the till slip or your purchase order correspond in description, price and quantity with the goods purchased. You agree to adhere to the user/manufacturer’s instructions and ensure that you make yourself aware of all product warnings and safety instructions before the installation or use of all products purchased from Smartware. You are to keep proof of any repairs conducted and allowed by Smartware and proof of purchase on all returned goods.
  3. You must make sure of all measurements and sizes before purchasing your goods, as we will not replace or refund you if the goods do not fit into the room/intended location or through a door.
  4. The onus is on you to advise us if the goods are for a particular purpose when entering the transaction, and we cannot be held liable if you have not advised us of the goods particular purpose.
  5. Smartware provides the website “as is” and “as available” and to the extent permissible by law disclaims warranties including but not limited to a warranty of title, merchantability, non-infringement, fitness for a particular purpose and that the website is free from defects, uninterrupted and error-free. While smartware attempts to provide accurate and timely information, Smartware cannot guarantee this. Smartware may correct and change the website if required. The Smartware goods and services described on the website are available in RSA, through the Smartware branch network.
  6. Although Smartware has tried to display the goods and their colours as accurately as possible, the displayed products and colours of the products will also depend upon your equipment and Smartware cannot guarantee that your equipment will display an accurate representation of the actual goods or their colours. Smartware will not be liable for any other website provided by any third party. It does not include all accessories shown with products for presentation in the price, nor are such products guaranteed to be available for sale by Smartware. In the event of delivery delays or out-of-stock situations, we will notify you and we will do our very best to ensure a speedy fulfilment.
  7. Image Disclaimer: Where products are displayed with compatible products, we will not include these products as part of the sales price unless specifically identified as part of a product bundle. In all other cases, we show images to display products within a lifestyle setting and do not include part of a sales proposal including any said products or lifestyle additions

Limitation of Liability

Smartware is to be exempted from any liability due to a customer failing to provide accurate registration information, or a customer failing to view special warnings, etc.

Subject to applicable law, you agree to indemnify, defend, and hold Smartware harmless against any claim or liability (including attorneys’ fees) arising out of your use of the website

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