AGULHAS GEAR COMMERCIAL TERMS
(“Commercial Terms”)
(Version 1.0 – Effective as of 20 November 2023)
IMPORTANT – PLEASE READ THESE TERMS CAREFULLY WHEN PURCHASING GOODS FROM AGULHAS GEAR
1. INTRODUCTION
1.1. This website can be accessed at www.agulhasocean.com (the “Website”) and is owned and operated by Agulhas Gear IP Limited Registration Number: 13778403 incorporated in terms of the laws of the United Kingdom.
1.2. The Website enables you to shop online for ocean exploration apparel (“Goods”).
1.3. These Commercial Terms are binding and enforceable against every person who uses the Website and purchases Goods from the Website (“you”, “your” or “user”).
1.4. These Commercial Terms govern the ordering, sale and delivery of Goods, and constitute a legally binding agreement between you and Agulhas Gear IP Limited Registration Number: 13778403 incorporated in terms of the laws of the United Kingdom if you reside outside of the Republic of South Africa or Agulhas Gear (Pty) Ltd Registration Number: 2021/804608/07 incorporated in terms of the laws of the Republic of South Africa if you reside within the Republic of South Africa (“us”/ “we”/ “Agulhas Gear”).
1.5. BY COMPLETING THE ELECTRONIC ACCEPTANCE PROCESS, CLICKING THE “SUBMIT” OR “ACCEPT” or “BUY” BUTTONS, USING ANY OF THE SERVICES, PURCHASING GOODS OR OTHERWISE INDICATING ACCEPTANCE OF THESE TERMS, YOU AND ANY PARTY OR ENTITY THAT YOU ARE USING/PURCHASING THE GOODS ON, YOU REPRESENT AND WARRANT THAT: (i) YOU ARE AUTHORISED TO BIND YOURSELF AND ANY OTHER PARTY ON WHOSE BEHALF YOU USE THE WEBSITE, AND (ii) YOU AGREE TO BE BOUND BY ALL OF THESE TERMS (INCLUDING THE DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY SECTIONS SET FORTH BELOW) TO THE EXCLUSION OF ANY OTHER RIGHTS AND
OBLIGATIONS.
1.6. We may in our sole discretion change any of the Commercial Terms at any time. It is your responsibility to regularly check these Commercial Terms and make sure that you are satisfied with the changes. Should you not be satisfied, you must not place any further orders on, or in any other way use the Website.
1.7. Any such change will only apply to your use of this Website after the change is displayed on the Website. If you use the Website after such change has been displayed on the Website, you will be deemed to have accepted such changes.
2. IMPORTANT NOTICE
There are other terms that are applicable to your use of our Website. Browser Terms can be found at: www.agulhasocean.com/terms-conditions/ on our Website. The Privacy Policy can be found at: www.agulhasocean.com/privacy- policy/ . If there is a conflict between the Browser Terms and these Commercial Terms, the Commercial Terms will apply.
3. BUYING FROM US
3.1. You may place orders for Goods, which we may accept or reject. Whether or not we accept an order depends on the availability of Goods, correctness of the information relating to the Goods (including without limitation the price) and receipt of payment or payment authorisation by us for the Goods.
3.2. We will indicate the acceptance of your order by delivering the Goods to you, and only at that point will a Commercial Terms of sale between you and us come into effect. This is regardless of any communication from us stating that your order or payment has been confirmed. We will indicate the rejection of your order by cancelling it and, as soon as possible thereafter, refunding you for any amount already paid.
3.3. You acknowledge that the stock of all Goods on offer is limited. In the case of Goods for sale by us, we will make all reasonable efforts to monitor stock levels and ensure that when stock is no longer available, offers thereof are discontinued on the Website. However, we cannot guarantee the availability of stock. When Goods are no longer available after placing an order, we will notify you and you will be entitled to a refund of the amount paid by you for such Goods.
4. PAYMENTS
4.1. We are committed to providing secure online payment facilities. All transactions are encrypted using appropriate encryption technology.
4.2. The following payment methods are accepted and available:
4.2.1. Stripe online buying platform.
5. DELIVERY
5.1. We offer one method of delivery of Goods to you, which is via courier and the cost of delivery is for your account and will be charged in addition to the actual retail cost of the Goods purchased.
5.2. Where any customs or duties are payable, such costs will be for your account.
5.3. Except if the order is rejected, we will deliver the Goods to you as soon as reasonably possible, but no later than 30 (thirty) days of receipt of your payment (“Delivery Period”). We will notify you if we are unable to deliver the Goods during the Delivery Period. Except in the instance where the Goods are held up at customs, you may then, within 7 (seven) days of receiving such notification elect whether or not to cancel your order for the Goods. If you elect to cancel your order, we will reimburse you for the purchase price. The terms relating to all customs, taxes and duties applicable to our business operations can be found here and its terms are specifically included in these terms and conditions.
6. CANCELLATION
Prior to delivery of your collection of the Goods, you may cancel an order at any time provided you do so before receiving a dispatch or delivery notice. After delivery of your collection of the Goods, you may return the Goods only in accordance with the returns policy below.
7. RETURNS POLICY
If you are not completely satisfied with your purchase, you can return the Goods to us and we will either repair/replace it, or provide you with a refund, subject to the following terms:
7.1. Return of Goods where there is no defect or damage:
7.1.1. If you have not received the correct Goods or you have changed your mind about the purchase, you can return the Goods to us within 30 (thirty) days from receipt thereof, to receive a credit on your account or a refund ( in the case where the incorrect Goods were delivered). Please follow the instructions on the Website to log a return request.
7.1.2. We will collect the Goods from you. Once we have inspected the Goods and validated your return, we will credit your account with the purchase price of the Goods within 10 (ten) days of the return (or refund, if that is your preference in the case where the incorrect Goods were supplied by us).
7.1.3. The refund is conditional on receiving the Goods in a similar condition as dispatched and when purchased. See clause 7.4 below on preparing the Goods for return.
7.1.4. All costs incurred in returning Goods will be split equally between you and us.
7.2. Goods damaged on delivery/during transit:
7.2.1. Should the Goods be damaged during transit or at the time of delivery, please notify us within 30 (thirty) days of delivery by logging a return on the Website.
7.2.2. We will arrange to collect the Goods from you at no charge. Once we have inspected the Goods and validated your return, we will at your choice repair/replace the Goods as soon as possible (if such repair is possible/we have the same product in stock to use as a replacement) or credit your account with the purchase price of the Goods (or refund you if that is your preference).
7.3. 1 Year Warranty For Defective Masks:
7.3.1. We give a 1-year warranty on all Masks (“Masks” mean the diving masks manufactured and sold by us)Goods purchased:
7.3.1.1. If you have received Masks which are defective or otherwise of poor quality, please notify us as soon as reasonably possible after you become aware of the defect or poor quality, but in any event before 1 year after delivery of the Mask/s.
7.3.1.2. You can log a return on the Website and we will arrange to collect the Goods from you at no charge.
7.3.1.3. Once we have inspected the GoodMask/s and validated your return, we will at your choice repair / replace the GoodMask/s ( if such repair is possible / we have the same product in stock to use as a replacement) or credit your account with the purchase price of the GoodMask/s (or refund you if that is your
preference).
7.3.1.4. If the repair /replacement takes longer than 21 days, we will get in touch with you to see if you would rather receive a credit/refund.
7.4. Whenever preparing your Goods for return, you are responsible for the following:
7.4.1. Package the Goods safely and securely for protection during transit;
7.4.2. Clearly mark your return reference number on the outside of the parcel; and
7.4.3. Include all accessories and parts that were sold with the Goods. Failure to adhere to any of these requirements could delay the processing of your request or result in its decline altogether.
7.5. If you return Goods that do not comply with this clause 7, you will be liable to reimburse us for the cost of collecting the Goods from you and the cost of having the Goods returned to you.
8. VOUCHERS
We may from time to time make electronic gift vouchers and electronic promotional coupons available for use on the Website towards the purchase of the Goods. Details will be published on our Website from time to time and be supplemented with our applicable voucher policies.
9. WARRANTIES AND DISCLAIMER
9.1. We do not give any other warranty (express or implied) other than in terms of clause 7.3 nor make any further representation that our Goods will be error-free.
9.2. You warrant to and in favour of us that:
9.2.1. you have the legal capacity to agree to and be bound by these Commercial Terms; and/or
9.2.2. you are 18 (eighteen) years or older or are emancipated; and
9.2.3. these Commercial Terms constitute a contract valid and binding on you and are enforceable against you.
9.3. Each of the warranties given by you will:
9.3.1. be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in these Commercial Terms;
9.3.2. continue and remain in force irrespective of whether your account is active, suspended or cancelled; and
9.3.3. be deemed to be material.
10. LIMITATION OF LIABILITY
10.1. We shall make all reasonable efforts to accurately reflect the description, availability, purchase price and delivery charges of Goods on the Website. However, should there be any errors of whatsoever nature on the Website (which are not due to our gross negligence), we shall not be liable for any loss, claim or expense relating to a transaction based on any error, save – in the case of any incorrect purchase price – to the extent of refunding you for any amount already paid, or otherwise as set out in the returns policy, herein.
10.2. We will not, under any circumstances, be liable to you for any costs, claims, damages, penalties, actions, judgements, suits, expenses, disbursements, fines or other amounts which you may sustain or suffer (or with which you may be threatened) as the result of, whether directly or indirectly, any act or omission in the course of or in connection with the implementation of these Commercial Terms or in the course of the discharge or exercise by the parties or their employees, agents, professional advisors or delegates of their obligations or rights in terms of this Commercial Terms or the termination of these terms for any reason, in excess of the amount you have paid for the Goods.
11. NO CONSEQUENTIAL LOSSES
Under no circumstances whatsoever shall either of us be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss or damage was actually foreseen or reasonably foreseeable), including but not limited to any loss of commercial opportunities or loss of profits, and whether as a result of negligent (including grossly negligent) acts or omissions of such party or its servants, agents or contractors or other persons for whose actions such party may otherwise be liable in law.
12. INDEMNITY
You hereby indemnify and hold us harmless (including our shareholders, directors and employees, in whose favour this constitutes a stipulation capable of acceptance in writing at any time) against any claim by any third party for any costs, damages (including, without limitation, indirect, extrinsic, special, penal, punitive or exemplary loss or damage of any kind), penalties, actions, judgements, suits, expenses, disbursements, fines or other amounts arising, from any information furnished by you which is published on our Website, use our Website, purchase of Goods or arising from any breach of any obligations or duties under these Commercial Terms.
13. BREACH
Should a party (“the Defaulting Party”): breach any of the terms and conditions of these commercial terms, then the other party (“the Aggrieved Party”) shall be entitled forthwith where the Defaulting Party has failed to remedy such breach within a period of 14 (fourteen) days after receipt of written notice by the Aggrieved Party requiring it to do so, to claim specific performance or to cancel this Commercial Terms by written notice to that effect given to the Defaulting Party, either of which shall be without prejudice to any other rights which the Aggrieved Party may have at law.
14. GOVERNING LAW AND DISPUTE RESOLUTION
If we end up in a legal dispute you and Agulhas Gear agree to resolve it:
14.1. in an English court of law using the laws of the United Kingdom if you reside outside the Republic of South Africa; or
14.2. in a court in the Republic of South Africa using the laws of the Republic of South Africa if you reside in South Africa.
15. FORCE MAJEURE
15.1. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquakes, labour disputes, actions of governmental entities (including but not limited to delay caused by customs regulations or a change in customs regulations), riots, war, terrorism, fire, epidemics or other circumstances beyond its reasonable control.
15.2. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance, provided that if such period exceeds 60 (sixty) days, then either party shall be entitled to terminate this Commercial Terms immediately on written notice while the party’s performance continues to be prevented.
16. GENERAL
16.1. No relaxation, indulgence or concession granted by any party to the other(s) in respect of any of its obligations hereunder shall constitute a novation of any part of these Commercial Terms nor otherwise prejudice, derogate from, or affect, any rights which the party granting the relaxation, indulgence or concession may have against the party(ies) in whose favour such grant shall have been made.
16.2. Good faith: We both agree to display good faith.
16.3. Address for service: any notice, approval, request, authorisation, direction, or other communication under these terms shall be given in writing, directed to the addresses found on our Website and the addresses provided to us by you during registration, and shall be deemed to have been delivered and given for all purposes:
16.3.1. on the delivery date if delivered by email;
16.3.2. on the delivery date if delivered personally to the Party to whom the same is directed;
16.3.3. 1 (one) business day after deposit with a commercial overnight carrier with written verification of receipt; or
16.3.4. 5 (five) business days after the mailing date whether or not actually received, if sent by registered or recorded delivery post or any other means of rapid mail delivery for which a receipt is available to the contact at the address of the Party to whom the
same is directed.
16.4. Whole Commercial Terms: these Commercial Terms, set forth the entire Commercial Terms and supersede all prior or contemporaneous Commercial Terms and representations, written or oral, between us with respect to the transactions set forth herein, all of which are excluded, except for fraudulent misrepresentations.
16.5. Nothing in these Commercial Terms will negate any consumer protection right you may have in terms of the consumer protection laws applicable to the country you are residing in.