SWARTLAND WINERY WEBSITE TERMS & CONDITIONS
1 WEBSITE TERMS AND CONDITIONS OF USE
1.1 This document sets out the terms and conditions (“Terms”) of Swartland Winery (“Swartland”) pertaining to the access and use of the information, products, services and functions provided on www.swartlandwinery.co.za (“Website”).
1.2 A user (“the user”) shall mean a natural person over the age of 18 years old.
1.3 The user’s access to and use of the Website is subject to compliance with, and acceptance of the Terms set out below.
1.4 Should the user access the Website and disagree with any of the Terms, the user must refrain from accessing the Website and/or using Swartland’s services.
1.5 If the user is under the age of 18, such user is not entitled to the use of the Website.
1.6 Swartland reserves the right, in its sole discretion, to amend and/or replace any of, or the whole of, the Terms. Such amendments shall supersede and replace any previous Terms and shall be made available on the Website. Each time the user accesses the Website and/or uses the services, the user shall be deemed to have consented, by such access and/or use, to the Terms, as amended and/or replaced by Swartland from time to time. If the user is not satisfied with the amended Terms, the user should refrain from using the Website.
1.7 Swartland shall be entitled to collect Personal Information from the user from time to time in accordance with the Protection of Personal Information Act 4 of 2013 (“POPI”) and our Privacy Policy.
1.8 If there is anything in these Terms that the user does not understand then please contact Swartland as soon as possible using the contact details below. Please note that calls are charged at national rates and may be monitored for training, security and quality assurance purposes.
2 CONTENT OF THE WEBSITE
2.1 The Website is a secure web-based platform, enabling the user to view information pertaining to Swartland, view, order and purchase Swartland’s range of alcoholic and non-alcoholic wines (“Products”), view Swartland’s range of services and provides the user with Swartland’s contact information.
2.2 To enable the user to order, purchase and pay for any Products on the Website, an online store is available under the “Buy Wine” label displayed on the Website. Swartland reserves the right to add or remove any Products at any time in its sole discretion. The ordering, purchasing, payment and delivery of any Products on the Website are subject to these Terms.
2.3 Swartland reserves the right to make improvements, to change or to discontinue, without notice, any aspect or feature of the Website and any information or content on the Website.
2.4 Swartland reserves the right to change and amend the type of services, prices and rates quoted on this Website from time to time without notice.
2.5 The contents of this Website, including all intellectual property rights, are protected by law, including but not limited to copyright and trademark law, and are owned by or licenced to Swartland.
2.6 Users do not acquire a right, title or interest in any of the intellectual property rights and any unauthorised use, distribution or reproduction thereof is strictly prohibited.
3 DISCLAIMER
3.1 The user shall use the Website at his/her own risk.
3.2 Swartland makes no representations or warranties, whether express or implied, as to the accuracy, completeness or reliability of any information, data and/or content on the Website, including without limitation:
3.2.1 Products and information regarding our Products on the Website are provided “as is” without a warranty and Swartland expressly disclaims all implied warranties, including without limitation, warranties of merchantability, fitness for a particular purpose, completeness, or non-infringement;
3.2.2 Whilst Swartland has taken reasonable measures to ensure the integrity of the Website and its contents, no warranty, whether express or implied, is given that any files, downloads or applications available via this Website are free of viruses, or any other data or code which has the ability to corrupt, damage or affect the operation of the user’s system;
3.3 To the extent permissible by law:
3.3.1 Neither Swartland, its affiliates, shareholders, agents, consultants or employees shall be liable for any damages whatsoever, including without limitation any direct, indirect, special, incidental, consequential or punitive damages, howsoever arising (whether in an action arising out of contract, statute, delict or otherwise) related to the use of, or the inability to access or use the content of the Website or any functionality thereof, or the information contained on the Website, or of any linked Website, even if Swartland knows or should reasonably have known or is expressly advised thereof.
3.3.2 The liability of Swartland for faulty execution of the Website as well as all damages suffered by the user, whether direct or indirect, as a result of the malfunctioning of the Website shall be limited to Swartland rectifying the malfunction, within a reasonable time and free of charge, provided that Swartland is notified immediately of the damage or faulty execution of the Website. This liability shall fall away and be expressly excluded if the user attempts to correct or allows third parties to correct or attempt to correct the Website without the prior written approval of Swartland. However, in no event shall Swartland be liable to the user for loss of profits or for special, incidental, consequential or punitive losses or damages arising out of or in connection with the Website or its use or the delivery, installation, servicing, performance or use of it in combination with other computer software.
3.3.3 The user hereby unconditionally and irrevocably indemnifies Swartland and agrees to hold Swartland free from all loss, damages, claims and/or costs, of whatsoever nature suffered or incurred by Swartland or instituted against Swartland as a direct or indirect result of:
3.3.3.1 the user’s use of the Website and Swartland’s services;
3.3.3.2 software, programs and support services supplied by, obtained by or modified by the user or any third party without the consent or knowledge of Swartland;
3.3.3.3 the user’s failure to comply with any of the Terms or any other requirements which Swartland may impose from time to time;
3.3.3.4 the actions or requirements of any telecommunications authority or a supplier of telecommunications services or software; or
3.3.3.5 any unavailability of, or interruption in, the service which is beyond the control of Swartland.
4 TERMS OF USE
4.1 Only users over the age of 18 may use the Website.
4.2 Before entering the Website, the user will be required to warrant that he/she is over the age of 18 years old.
4.3 No Products shall be sold to users under the age of 18 years old.
4.4 The relevant terms of the Consumer Protection Act 68 of 2008 shall be applicable to the user as a “consumer” for the purposes of these Terms, where necessary.
4.5 Swartland processes and stores any personal information you provide in terms of POPI and Swartland’s Privacy Policy.
4.6 By accepting these Terms the user confirms that he/she has read and understand Swartland’s Privacy Policy.
4.7 The user agrees that he/she will not in any way use any device, software or other instrument to interfere or attempt to interfere with the proper working of the Website. In addition, the user agrees that he/she will not in any way use any robot, spider, other automatic device, or manual process to monitor, copy, distribute or modify the Website or the information contained herein, without the prior written consent from Swartland (such consent is deemed given for standard search engine technology employed by internet search websites to direct internet users to this Website).
4.8 The user may not use the Website to distribute content which is defamatory, offensive, contains or amounts to hate speech or is otherwise unlawful.
4.9 The user may not in any way display, publish, copy, print, post or otherwise use the Website and/or the information contained therein without the express prior written consent of Swartland.
5 ONLINE WINE STORE TERMS AND CONDITIONS
5.1 ACCOUNT REGISTRATION
5.1.1 Although the creation of an account on the Website is not compulsory, the user may create an account on the Website whereby he/she can regularly order and purchase Products.
5.1.2 To register an account on the Website the user must provide a unique username, password and certain personal information which will grant the user access to his/her account when on the Website.
5.1.3 When creating an account, the user warrants the following:
5.1.3.1 the personal information submitted is accurate, current and complete;
5.1.3.2 the user’s username and password shall be used for personal use only; and
5.1.3.3 the user’s username and password shall not be disclosed to any third party.
5.1.4 The user agrees that, once the correct username and password for his/her account has been entered, he/she will be held liable for payment of any order made on his/her account, except if the order has been cancelled in terms of clause 5.3 or 5.6 of these Terms.
5.2 AVAILABILITY:
5.2.1 Swartland displays a selection of Products on the Website for purchase in the Republic of South Africa only, subject to availability.
5.2.2 Swartland may from time to time offer special promotions, subject to terms and conditions and availability.
5.3 ORDERS:
5.3.1 The user may order Products for purchase by entering the “Buy Wine” label on the Website.
5.3.2 The user may order any available Products displayed on the “Buy Wine” page by selecting the “Add to Cart” label, which will automatically add the Products to the user’s shopping cart and constitute an offer to purchase the selected Products at the quoted price, subject to the minimum allowable order constituting an order of 12 bottles of the selected Products.
5.3.3 The user is entitled to cancel the order any time prior to payment at no charge.
5.3.4 Upon the user being satisfied with the Products ordered, the user shall be required to confirm the Products ordered in his/her shopping cart for purchase, select his/her preferred method of delivery, and confirm the order by clicking on the “Proceed to Checkout” label.
5.3.5 Swartland and the user shall conclude an agreement of sale in respect of the Products ordered upon Swartland receiving confirmation of payment, whereafter the user shall receive a confirmatory email confirming the order.
5.3.6 Swartland reserves the right to cancel any order at its sole discretion for any reason or unforeseen circumstance. Should Swartland exercise its right to cancel the user’s order, Swartland shall not be held liable for any losses or damages suffered on the part of the user and shall only be liable to refund the user the amount he/she paid for the order within 5 business days.
5.4 PAYMENT & CREDIT CARD SECURITY:
5.4.1 All prices quoted on the Website per bottle or per case, as indicated, are in South African Rands and include Value Added Tax.
5.4.2 An additional fixed delivery fee of R 135.00 is charged for any ordered Products not collected directly from Swartland.
5.4.3 Swartland is committed to providing a secure online payment gateway and makes use of PayFast (Pty) Ltd (“Payfast”) who is an approved payment gateway for all South African acquiring banks. Payfast uses the strictest encryption technology, and their security certificate and security policy are available at www.payfast.co.za.
5.4.4 Swartland accepts payment via Visa or Mastercard credit card.
5.4.5 Where payment is made via credit card, the user will be required to submit additional billing information on the Website whereby the validity of payments can be verified. The additional billing information may contain personal information, credit card information, delivery address and contact number(s) which Swartland commits to keeping safe and confidential in accordance with our Privacy Policy and will not be sold or provided to any third party except insofar as required for executing an order or permitted by law or court order.
5.5 DELIVERY OF ORDERS
5.5.1 If selected by the user as his/her preferred method of delivery, Products may be collected directly from Swartland within 48 hours upon the conclusion of an agreement of sale, alternatively as directed by Swartland by notice to the user.
5.5.2 If the user has selected delivery of the Products to his/her own nominated address as his/her preferred method of delivery, the delivery of the Products will be made to the user’s nominated delivery address as provided in the billing information schedule.
5.5.3 Whilst Swartland endeavours to deliver Products as soon as possible, delivery of Products may take between 3 – 14 working days from conclusion of the agreement of sale depending on the location of delivery and courier services.
5.5.4The user is requested to assist the courier services and be present at his/her nominated address to accept delivery of the Products. If the user is not present at the nominated address to accept delivery, the Products will be retained by the courier and the user will be provided with a notification of attempted delivery whereafter the Products will be returned to Swartland. Any further delivery attempts shall be for the account of the user.
5.5.5Risk in and to the Products shall pass from Swartland to the user upon completion of the delivery of the Products and Swartland shall not be liable for any loss, damage, or misplacement of any delivered Products.
5.6 RETURNS AND REFUNDS
5.6.1 If the user has paid for an order but the Product becomes or is unavailable for delivery, Swartland shall refund the user in full within 5 days from date of conclusion of the agreement of sale.
5.6.2 If for any reason the user is dissatisfied with the Products purchased or an order was placed as a result of direct marketing, the user shall be entitled to cancel the order within 5 days from date of delivery. The user shall be liable to return the Products to Swartland at their own risk and cost. Upon receipt of the Products, Swartland shall refund the user and be entitled to charge a fee of 10% of the purchase price as administration costs which amount Swartland shall be entitled to debit from the user’s refund payment. The user will be deemed to be satisfied with the quantity and quality of the Products after 5 days from date of delivery and shall not be entitled to any refund or replacement thereafter, subject to clause 5.6.3 below.
5.6.3 All Products should be stored in accordance with the guidelines provided on the Products and/or be consumed prior to the best before date. If, however, the Products were defective upon delivery or become defective within 6 months from date of delivery and/or the best before date, whichever occurs first, the user shall be entitled to return the Products to Swartland at their own risk and cost and if after inspection it is concluded that the Products are found to be defective, the user shall be entitled to a full refund or have the Products replaced at Swartland’s expense.
5.7 OPT OUT
Users may from time to time receive promotional material and/or information from Swartland. The user may unsubscribe to receipt of such promotional material and/or information by opting out via email to Swartland.
5.8 COUPONS & VOUCHERS
5.8.1 Users in receipt of a coupon and/or voucher from Swartland shall be entitled to redeem the value thereof when ordering any Products by inserting the code at the required location in the online store.
5.8.2 The user shall only be entitled to redeem the coupon and/or voucher once and the use thereof is subject to these Terms.
6 LINKED THIRD–PARTY WEBSITES AND THIRD–PARTY CONTENT
6.1 Swartland may provide links to third party websites on the Website. These links are provided to the user for convenience purposes only and Swartland does not endorse, nor does the inclusion of any link imply Swartland’s endorsement of such websites, their owners, licensees or administrators or such websites‘ content or security practices and operations.
6.2 While Swartland tries to only provide links to reputable websites or online partners, Swartland cannot accept responsibility or liability for the information provided on other websites. Linked websites or pages are not under, nor subject to, the control of Swartland. Swartland is not responsible for and gives no warranties or makes any representations in respect of the privacy policies or practices of linked or any third party or advertised websites on the Website.
6.3 The user agrees that Swartland shall not be held liable, directly or indirectly, in any way for the content, the use or inability to use or access any linked website or any link(s) contained in a linked website, nor for any loss or damage of any sort incurred as a result of any dealings with, or as the result of the presence of such third party linked websites on the Website. Any dealings that the user may have with any linked websites, including advertisers, found on the Website, are solely between the user and the third–party website.
7 USAGE RESTRICTIONS
7.1 Swartland hereby grants the user a non-exclusive, non-transferable, right to use the Website, subject to these Terms. All rights not expressly granted to the user are reserved by Swartland.
7.2 The user hereby agrees that he/she shall not itself, nor through a third party:
7.2.1 copy (other than for backup, archival or disaster recovery purposes), reproduce, translate, adapt, vary, modify, lease, licence, sub-licence, encumber or in any other way deal with any part of the Website for any reason and in any manner, unless it is consistent with the intent and purpose of these Terms;
7.2.2 decompile, disassemble or reverse engineer any portion of the Website;
7.2.3 write and/or develop any derivative of the Website or any other software program based on the Website;
7.2.4 modify or enhance the Website. In the event of the user effecting any modifications or enhancements to the Website in breach of this clause, such modifications and enhancements shall be the property of Swartland;
7.2.5 without Swartland‘s prior written consent, provide, disclose, divulge or make available to or permit the use of or give access to the Website by persons other than the user;
7.2.6 remove any identification, trademark, copyright or other notices from the Website;
7.2.7 post or transmit, by means of reviews, comments, suggestions, ideas, questions or other information through the Website, any content which is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, ob-scene, sexually explicit, profane or hateful, or racially, ethnically or otherwise objectionable content of any kind; and/or
7.2.8 notwithstanding anything contained to the contrary in these Terms, use the Website for any purpose other than personal, non–commercial and information purposes.
8 SECURITY
8.1 In order to ensure the security and reliable operation of the services to all users of the Website, Swartland hereby reserves the right to take whatever action it may deem necessary to preserve the security, integrity and reliability of its Website, network and back-office applications.
8.2 The user may not utilise the Website in any manner which may compromise the security of Swartland’s networks or tamper with the Website in any manner whatsoever, which shall include without limitation, gaining or attempting to gain unauthorised access to the Website, or delivering or attempting to deliver any unauthorised, damaging or malicious code to the Website, all of which is expressly prohibited. The user who does so, or attempts to do so, shall be held criminally liable. Further, should Swartland suffer any damage or loss, civil damages shall be claimed by Swartland against the user.
8.3 Any user who commits any of the offences detailed in Chapter 13 of the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) (specifically sections 85 to 88 (inclusive)) shall, notwithstanding criminal prosecution, be liable for all resulting liability, loss or damages suffered and/or incurred by Swartland and its affiliates, agents and/or partners.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 For the purpose of this clause, the following word shall have the following meaning ascribed to it:
9.1.1 “Intellectual property rights“ means all and any of the rights in and to intellectual property of any nature whatsoever owned and/or controlled directly or under licence by Swartland, now or in the future, including without limitation, Swartland’s rights, title and interest in and to all technology, source code/s, trade secrets, logos, systems, methods, trademarks, trade names, styles, insignia, designs, patents and copyright, and all similar proprietary rights which may subsist in any part of the world, whether registered or not.
9.2 All copyright and other intellectual property rights in all content, trademarks, software, data, material, including logos, databases, text, graphics, designs, icons, hyperlinks, confidential information, agreements, and multimedia works, published on or via the Website (“proprietary material”), are the property of, or are licensed to Swartland and as such are protected from infringement by local and international legislation and treaties.
9.3 All rights not expressly granted are reserved and no right, title or interest in any proprietary material or information contained in this Website is granted to the user.
9.4 Except with Swartland’s express written permission, no proprietary material from this Website may be copied or retransmitted.
9.5 Irrespective of the existence of copyright, the user acknowledges that Swartland is the proprietor of all material on the Website (except where a third party is indicated as the proprietor), whether it constitutes confidential information or not, and that the user has no right, title or interest in any such material.
9.6 Swartland authorises the user only to view, copy, temporarily download to a local drive and to print the content of this Website, or any part thereof, provided that such content is used for personal purposes and for information purposes only, and such content is used for non–commercial purposes.
10 BREACH & CANCELLATION
10.1 Swartland is entitled without notice, in addition to any other remedy available to it at law or under these Terms, including obtaining an interdict, to cancel these Terms, limit or deny the user use of the Website and services, or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to Swartland‘s right to claim damages, should the user:
10.1.1 breach any of these Terms;
10.1.2 in the sole discretion of Swartland, use the Website in an unauthorised manner; or
10.1.3 infringe any statute, regulation, ordinance or law.
10.2 Breach of these Terms entitles Swartland to take legal action without prior notice to the user and the user agrees to reimburse the costs associated with such legal action to Swartland on an attorney and own client scale.
11 COMPLIANCE WITH SECTION 43(1) OF ECTA
In compliance with section 43(1) of the ECTA, the following is noted:
11.1 Full name: SWARTLAND WYNKELDER (PTY) LTD
11.2 Registration number: 2006/022778/07
11.3 VAT number: 486 010 4480
11.4 Description of service: 1) PRODUCTION OF ALCOHOLIC AND NON-ALCOHOLIC WINES 2) SALE AND MARKETING OF ALCOHOLIC AND NON-ALCOHOLIC WINES
11.5 Registered address and address for service of legal notices: DOORNKUIL, MALMESBURY, WESTERN CAPE
11.6 Postal address: PO BOX 95, MALMESBURY, 7299
11.7 Telephone number: 022 482 1134
11.8 Website address: www.swartlandwinery.co.za
11.9 E-mail address: info@swwines.co.za
11.10 Name of duly authorised person: MORNÉ LE ROUX
12 COMPLIANCE WITH LAWS
The user shall comply with all applicable laws, statues, ordinances and regulations of the Republic of South Africa pertaining to the use of and access to this Website.
13 NOTICES
Except as explicitly stated otherwise, any notices shall be given by email to info@swwines.co.za (in the case of Swartland) or to the e-mail address the user has provided to Swartland (in the user’s case), or such other address that has been specified. Notice shall be deemed given 48 (forty-eight) hours after an email is sent, unless the sending party is notified that the email address is invalid. Alternatively, Swartland may give the user notice by registered mail, postage prepaid and return receipt requested, to the address which the user has provided to Swartland. In such case, notice shall be deemed given 7 (seven) days after the date of mailing. The user acknowledges that all agreements, notices or other communication required to be given in terms of the law or these Terms may be given via electronic means and that such communications shall be “in writing“. Notwithstanding anything to the contrary, a written notice or communication received by a party shall be an adequate written notice or communication to it, notwithstanding that it was not sent to or delivered at its chosen address(es) for that purpose.
14 GENERAL CLAUSES
14.1 These Terms shall be governed in all respects by the laws of the Republic of South Africa as such laws are applied to agreements entered into and to be performed within the Republic of South Africa.
14.2 This Website is controlled, operated and administered by Swartland from its offices within the Republic of South Africa. Swartland makes no representation that the content of the Website is appropriate or available for use outside of the Republic of South Africa. Access to the Website from territories or countries where the content of the Website is illegal is prohibited. Users may not use this Website in violation of the Republic of South Africa’s laws and regulations. If the user accesses this Website from locations outside of the Republic of South Africa, that user is responsible for compliance with all applicable local laws.
14.3 Swartland does not guarantee continuous, uninterrupted, or secure access to its services, as operation of its Website may be interfered with as a result of a number of factors which are outside of Swartland’s control.
14.4 If any provision of these Terms is held to be illegal, invalid or unenforceable for any reason, such provision shall be struck out from these Terms and the remaining provisions shall be enforced to the full extent of the law.
14.5 Swartland’s failure to act with respect to a breach by the user or others does not constitute a waiver of Swartland’s right to act with respect to subsequent or similar breaches.
14.6 The user shall not be entitled to cede its rights or assign its rights or delegate its obligations in terms of these Terms to any third party without the prior written consent of Swartland.
14.7 No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
14.8 The head notes to the paragraphs to these Terms are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
14.9 Words importing the singular shall include the plural and vice versa, and words importing the masculine gender shall include females and words importing persons shall include partnerships and corporate and unincorporated entities.
14.10 These Terms set forth the entire understanding and agreement between Swartland and the user with respect to the subject matter hereof.
