These Terms of Service (“Terms”) are effective as of: 1 June 2021 “Effective Date”
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE. YOUR CONTINUED USE OF THIS WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS WEBSITE IF YOU DO NOT ACCEPT THESE TERMS. ALL SECTIONS OF THESE TERMS ARE APPLICABLE TO ALL USERS UNLESS THE SECTION EXPRESSLY STATES OTHERWISE.
THIS IS AN IMPORTANT DOCUMENT WHICH LIMITS YOUR RIGHTS – PLEASE PAY CLOSE ATTENTION TO CLAUSES 7.3, 7.7, 8.1, 8.5, 12.12, 13.3, 14.2, 20.7, 20.10. 20.11 AND 20.12
1. Introduction
1.1. The website matting.co.za (“the Website”) is operated and/or owned by COBA Africa (Pty) Ltd (bearing registration number: 2015/051813/07) (hereinafter referred to as “COBA Africa”, “we”, “our” or “us”). The Terms herein are entered into by and between COBA Africa and the Customer. Any reference to “COBA Africa”, “we”, “our” or “us”, shall include our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, service providers and suppliers.
1.2. These terms, including any document incorporated by reference herein, including, but not limited to the Privacy Policy (collectively, the “Terms”) apply to any User who uses any one or more of the Services, accesses, refers to, views and/or downloads any information or material made available on the Website for whatever purpose (hereinafter referred to as “User”, “you” or “your”).
1.3. These Terms also apply to all COBA Africa’s sales, whether by way of direct purchase on this Website or in terms of a contract for the supply of goods.
1.4. Accessing and/or use of the Website after the Effective Date will signify that you have read, understand, accept, and agree to be bound, and are bound, by the Terms, in your individual capacity and for and on behalf of any entity for whom you use the Website. Further, you represent and warrant that you have the authority to do so and that you are a Competent Person (as defined in the Protection of Personal Information Act, 4 of 2013, as amended).
1.5. To the extent permitted by applicable law, we may modify the Terms with prospective effect without prior notice to you, and any revisions to the Terms will take effect when posted on the Website. Such modifications will require acceptance by you prior to your continued use of the Website and shall thereby be construed as your consent to the amended or updated Terms. Your only remedy, should you not agree to these Terms, is to refuse acceptance of the amended or updated Terms, thereby preventing your use of this Website.
2. Interpretation
2.1. In these Terms, unless the context otherwise requires the following expressions shall have the following meanings:
2.1.1. “BROWSER” shall mean any person who visits any page of the Website, whether by landing at the home page or any other page through use of a hyperlink of another website or by direct access to the Website and who has no intention of using, or does not use, the Services offered by us.
2.1.2. “BUSINESS DAYS” shall mean any days which are not a Saturday, Sunday, or gazetted public holiday in the Republic of South Africa during working hours.
2.1.3. “CART” shall mean the User’s Cart on the Website in which it stores intended purchases prior to payment being made.
2.1.4. “CONFIDENTIAL INFORMATION” means any and all information (whether written, oral or on magnetic or other media) which is now or at any time hereafter given by COBA Africa to the Customer or comes into the Customer’s possession which relates to COBA Africa including without limitation commercial, financial, marketing or technical information, data, know-how, processes, designs, intellectual property, customer lists, drawings, samples and specifications and any other material bearing or incorporating any information relating to COBA Africa or its goods; ]
2.1.5. “CONTRACT” means any contract for the supply of Goods by COBA Africa to the Customer.
2.1.6. “CUSTOMER” means the individual, firm, company, or other party with whom COBA Africa contracts and includes Users.
2.1.7. “GOODS” means the products and/or services as made available to a User for purchase on the Website or any goods and any instalment of the goods or any parts for them which COBA Africa has agreed to supply under the Contract.
2.1.8. “INTELLECTUAL PROPERTY RIGHTS” means any and all trade marks, rights in design, get up, trade, business or domain names, copyrights, future copyrights, patents, rights in databases (whether registered or not), and any applications to register or rights to apply for registration of any of the foregoing, rights in inventions, software, know-how, trade secrets, and other confidential information and all other intellectual property rights of a similar or corresponding nature which may now or in the future subsist in any part of the world;
2.1.9. “PARTY” or “PARTIES” shall mean COBA Africa and/or or the User or Customer as the context implies
2.1.10. “PREMISES” the premises at which any property of the Customer is stored.
2.1.11. “QUOTATION” the quotation issued by COBA Africa to the Customer in connection with the supply of the Goods.
2.1.12. “REGISTRATION PROCESS” refers to the Registration Process to be followed by a Browser on our Website to enable them to use the Services and thus make the transition from a Browser to a User.
2.1.13. “SERVICES” shall refer to the Services provided by us to the Customer as set out in Clause 4 below.
2.1.14. “SPECIAL-ORDER GOODS” means goods that COBA AFRICA was expressly or implicitly required or expected to procure, create, or alter specifically to satisfy the Customer’s requirements.
2.1.15. “TERMS” shall mean these Terms of Service as read together with the Privacy Policy.
2.1.16. “USER” shall mean the Browser who completes the Registration Process on the Website to make use of the Services.
2.1.17. “WRITING” includes fax and email.
2.2. Any reference in these Terms to a statute or any provision of a statute shall unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, re-enacted, consolidated, modified, replaced, or extended.
2.3. The headings in these Terms are for convenience only and shall not affect their interpretation.
2.4. References to clauses are to clauses of these Terms unless stated otherwise.
2.5. Any use of the above terminology or other words in the singular, plural, capitalisation and/or he/she or they, are taken as interchangeable and therefore as referring to the same .
3. Your agreement to these Terms
3.1. Subject to, and based on a User’s acceptance of the Terms, we grant to you a limited, revocable, non-transferable license to access and use the Website in accordance with the various policies and agreements which may govern such use and access
3.2. All Contracts shall be subject to these Terms and except as provided in clause 3.4 no representative or agent of COBA Africa has authority to agree any terms or make any representations inconsistent with them or to enter a contract except based on these Terms.
3.3. Unless otherwise agreed in writing by a director of COBA Africa pursuant to clause 3.4, the Contract will be subject to these Terms to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of the order, specification or pre-contract negotiations) or any inconsistent terms implied by law or trade custom, practice or course of dealing.
3.4. These Terms apply to all COBA Africa sales and any variation to these Terms and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of COBA Africa.
3.5. For the avoidance of doubt, where COBA Africa has not given a written acknowledgment of the Customer’s order these Terms will nonetheless apply to the Contract.
4. Description of our Services
4.1. The Website enables you to shop for and purchase Goods
5. Registration Process
5.1. To register as a User, you will, through the Registration Process, be prompted to provide login details as well as submit certain Personal Information as contained in the Privacy Policy
5.2. The provisions pertaining to the processing of your Personal Information are set our more fully in our Privacy Policy
5.3. In the event of a User being of the view that their login details are being used by someone else, please contact us immediately at sales@cobaafrica.com
6. Purchase of Goods on Website
6.1. The Goods as selected by the User for purchase together with the individual price thereof shall be reflected in the User’s Cart. The price of each of the Goods shall automatically be tallied in the Cart, as a total, which total shall be inclusive of VAT to the extent that we are registered for VAT.
6.2. The cost of delivery of the Goods shall also be included in the total comprising the User’s Cart.
7. Quotations
7.1. No order in pursuance of any Quotation or otherwise shall be binding on COBA Africa unless and until such order is accepted by COBA Africa pursuant to clause 7.4. If COBA Africa so requires verbal orders shall be confirmed by the Customer in writing.
7.2. Any Quotation given by COBA Africa relating to the price of the Goods and the time or period for delivery of the Goods or otherwise is based on the relevant conditions and information known to COBA Africa at the time and does not constitute an offer. Unless previously withdrawn or otherwise agreed in writing, any Quotation shall be valid for a period of 30 days, or if different, for the period stated in the Quotation. However, all Quotations and orders are subject to withdrawal or alteration in whole or in part by COBA Africa at any time.
7.3. No order for special-order goods which has been accepted by COBA Africa may be cancelled by the Customer except with the agreement in writing of COBA Africa and on terms that the Customer shall indemnify COBA Africa in full against all loss (including but not limited to loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by COBA Africa as a result of cancellation.
7.4. Each order for Goods by the Customer shall be deemed to be an offer by the Customer to purchase Goods on these Terms.
7.5. The quantity and description of the Goods and the specification for them shall be as set out in the Quotation or in the acceptance of order issued by COBA Africa.
7.6. Except when incorporated in the Quotation by specific reference all specifications, drawings, particulars of weight, shapes, descriptions, illustrations, prices, and other advertising material contained in COBA AFRICA’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them and will not form a representation or be part of the Contract.
7.7. Without prejudice to clauses 3.2 and 3.4 any advice or recommendation given by COBA Africa, its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by COBA Africa is followed or acted upon entirely at the Customer’s own risk, and accordingly COBA Africa shall not be liable for any such advice or recommendation which is not so confirmed.
7.8. Any typographical, clerical, or other error or omission in any sales literature, Quotation, price list, acceptance of offer, invoice or other document or information issued by COBA Africa shall be subject to correction without any liability on the part of COBA Africa. Furthermore, COBA Africa reserves the right to correct any clerical or typographical errors made by its employees at any time.
8. Specifications, Instruction or Design
8.1. If the Goods are to be made by COBA Africa in accordance with a specification, instruction or design submitted by the Customer or any third party on behalf of the Customer then
8.1.1. the suitability, accuracy, and completeness of any terms of any order, the specification, instruction, drawing or design will be the Customer’s responsibility;
8.1.2. the Customer will indemnify COBA Africa against any infringement or alleged infringement of any third-party Intellectual Property Rights and any loss, damage or expense which it may incur by reason of any such infringement or alleged infringement in any country; and
8.1.3. the Customer will indemnify COBA Africa against any loss, damage, or expense in respect of any liability arising in any country by reason of the Goods being made to such specification, instruction, drawing or design.
8.2. COBA Africa reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or, where the Goods are to be supplied to COBA Africa’s specification, which do not materially affect their quality or performance.
8.3. The Customer shall supply details of briefs and specifications and any necessary information relating to the Goods in a reasonable time to enable COBA Africa to complete design development and production in respect to the Goods within the time quoted by COBA Africa pursuant to clause 12.7.
8.4. Where appropriate COBA Africa will implement the production part approval process (“PPAP”) whereby detailed plans, samples, drawings, descriptions, illustrations, dimensions, particulars and/or prototypes of the Goods (the “Materials”) will be issued for the Customer’s approval after the receipt of the Customer’s brief and/or specifications. The Customer will approve the Materials within the timescale stipulated by the Customer and in any event in a reasonable time to enable COBA Africa to deliver the Goods on time.
8.5. Any Materials submitted by COBA Africa to the Customer pursuant to clause 8.4 are approximate only and are only issued for the sole purpose of giving an approximate idea of the Goods described in them. They must not be taken as binding in detail and COBA Africa will not be liable for any error or omission, where the Goods delivered to the Customer corresponds in all material respects and characteristics to that which an ordinary alert consumer would have been entitled to expect based on the Materials.
9. Price of the Goods purchased in terms of Contract
9.1.1. Without prejudice to clause 7.2 the price of the Goods shall be COBA Africa’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price which has been agreed between the parties in Writing prior to the formation of the Contract and for which COBA Africa invoices the Customer in accordance with clause 11.1 hereof.
9.1.2. COBA Africa reserves the right and shall be entitled, by giving notice to the Customer at any time before delivery of the Goods to increase the price of the Goods to take account of any increase in the cost to COBA Africa which is due to any factor beyond the control of COBA Africa, including, without limitation, currency regulation, any increase in the costs to COBA Africa of labour, purchasing or supplying goods, materials (including without limitation raw materials) or services or other costs of manufacture, (including but not limited to any such increase arising from any error, inadequacy or change to any specification, instructions, information or design provided by the Customer and whether requested by the Customer, another third party or otherwise), any change in delivery dates or quantities, or any delay caused by any instructions or failure of the Customer to give COBA Africa adequate information or instructions or any change in taxes, customs duties, freight charges, insurance premiums or exchange rates. Such increased prices ruling at the date of delivery of the Goods by COBA Africa shall be substituted for the previous Contract price.
9.1.3. The price for the Goods is exclusive of (i) any value-added tax, and all taxes, duties and other government charges; and (ii) except where the parties agree otherwise all costs or charges in relation to loading, unloading, carriage and insurance; all of which amounts the Customer will pay in addition when it is due to pay for the Goods.
10. Payment
10.1. Payment can be made via EFT. Banking details are provided at the bottom of quotes and invoices.
10.1. Payment for Goods purchased may also be made on-site via Visa and MasterCard.
10.3. An extra 3% will be charged for any on-site card payments.
10.2. We may require additional information to authorise and/or verify the validity of payment. In such cases we are entitled to withhold delivery until such time as the additional information is received by us and authorisation is obtained by us for the amounts. If we do not receive authorisation your order for the Goods will be cancelled. You warrant that you are fully authorised to use the credit card supplied for purposes of paying the Goods. You also warrant that your credit card has sufficient available funds to cover all the costs incurred because of the services used on the Website.
10.4. The merchant outlet country at the time of presenting payment options to the cardholder is Republic of South Africa. Transaction currency is South African Rand (ZAR).
10.5. COBA Africa takes responsibility for all aspects relating to the transaction including sale of goods and services sold on this website, customer service and support, dispute resolution and delivery of goods.
10.6. Goods will only be released for delivery once payment has been received into our banking account.
11. Terms of payment in terms of Contract
11.1. Subject to any special terms agreed in Writing between the Customer and COBA Africa, COBA Africa shall be entitled to invoice the Customer for the Goods on or at any time after the Customer places its order and COBA Africa will be permitted to submit invoices for the Goods in one lump sum or in instalments at COBA Africa’s sole discretion.
11.2. COBA Africa reserves the right in its sole discretion to request payment and be paid by the Customer when the Customer places its order for the Goods from time to time. Without prejudice to the aforesaid the Customer shall pay the price of the Goods and (where applicable) any charges under clause 12.11.1 by the end of the month following the month in which the Goods have been invoiced and COBA Africa shall be entitled to recover the price, notwithstanding that delivery may not have taken place and/or that the property in the Goods has not passed to the Customer. The time for payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
11.3. No payment shall be deemed to have been received until COBA Africa has received cleared funds. Payment shall be made by telegraphic transfer in the currency specified by COBA Africa except where COBA Africa agrees otherwise in writing. The Customer shall be responsible for all bank charges and other expenses arising in connection with any payments to COBA Africa.
11.4. If the Customer fails to make any payment on the due date, then, without prejudice to any other right or remedy available to COBA Africa, COBA Africa shall be entitled to:
11.4.1. suspend any future performance of the Contract or any other contracts with the Customer;
11.4.2. appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and COBA Africa) as COBA Africa may think fit (notwithstanding any purported appropriation by the Customer); and
11.4.3. charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of five percent per annum above the Prime interest rate charged by Absa Bank from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
11.5. The Customer shall make all payments due under the Contract or under any other contract with COBA Africa without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by COBA Africa to the Customer.
11.6. All payments payable to COBA Africa under the Contract shall become due immediately upon termination of the Contract despite any other provision.
12. Delivery
12.1. The Goods purchased on the Website shall be delivered to the User through the services of a courier of our selection:
12.1.1. The Goods shall be delivered to the User at the address selected during the payment process
12.1.2. The Goods shall be delivered, where possible on a Business Day, but this shall depend on the courier company
12.1.3. Any additional charges that may be levied in respect of the delivery of the Goods or forced return of the Goods such as, but not limited to, custom blockage in respect of a User outside of the Republic of South Africa, shall be for the User’s account
12.2. Alternatively to 12.1, the Goods shall be made available for collection by the User at COBA Africa’s place of business for a period of one week after the order was placed on the Website.
12.3. We shall endeavour to have the Goods delivered to you within seven days of payment being received by us. However, we shall not be held liable for any late deliveries attended to.
12.4. Our obligation to provide the Goods to you is fulfilled upon delivery/collection thereof. We are not responsible for any loss or unauthorised use of the Goods after provision thereof to you.
12.5. Unless otherwise agreed in writing by COBA Africa delivery of the Goods purchased in terms of Contract shall take place at COBA Africa’s place of business, and COBA Africa will notify the Customer when the Goods are ready for collection. Where COBA Africa agrees to deliver the Goods to an address stated on the order or otherwise agreed in writing by COBA Africa, COBA Africa shall specify the mode of delivery and the carrier and except where the parties agree otherwise, the carrier shall be deemed to be the Customer’s agent and not the agent of COBA Africa and delivery shall still be deemed to take place at COBA Africa’s place of business.
12.6. The Customer will provide at its expense, at the place of delivery adequate and appropriate equipment and manual labour for loading and unloading the Goods.
12.7. Any dates quoted or specified by COBA Africa for delivery of the Goods are approximate only and time for delivery shall not be of the essence or made of the essence by notice. If no dates for delivery are so specified, delivery will be within a reasonable time. The Goods may be delivered by COBA Africa in advance of the quoted delivery date upon giving reasonable notice to the Customer.
12.8. If COBA Africa delivers to the Customer a quantity of Goods of up to 5% less than the quantity ordered by the Customer, the Customer shall not be entitled to object to or reject the Goods or any of them by reason of the shortfall and shall pay for such Goods at the pro rata Contract rate.
12.9. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by COBA Africa to deliver any one or more of the instalments in accordance with these Terms or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
12.10. The Customer will take delivery of the Goods within 5 working days of COBA Africa giving it notice that the Goods are ready for delivery and the Customer will collect the Goods during the time slot allocated by COBA Africa to the Customer for collection. Further, the Customer acknowledges that it will only be permitted to collect the Goods if it produces the collection reference number for such Goods as allocated by COBA Africa.
12.11. If for any reason the Customer fails to collect or take delivery of the Goods during the time slot allocated by COBA Africa or will not accept delivery of the Goods when they are ready for delivery, or COBA Africa is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licenses, or authorisations then without prejudice to any other right or remedy available to COBA Africa
12.11.1. COBA Africa may store the Goods until actual delivery whereupon the Customer will be liable for all related costs and expenses (including without limitation storage and insurance) and COBA Africa will be entitled to invoice the Customer for such costs and expenses monthly in arrears;
12.11.2. save where clause 12.11.4 applies the risk in the Goods will pass to the Customer (including for loss or damage caused by COBA Africa’s negligence, other than gross negligence);
12.11.3. save where clause 12.11.4 applies, the Goods will be deemed to have been delivered; and
12.11.4. COBA Africa may sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
13. The Customer’s Property
13.1. While COBA Africa will take reasonable care of the Customer’s property whilst it is in COBA Africa’s possession, control or custody the Customer’s property will (unless otherwise agreed in writing) remain at the Customer’s risk and all replacements and alterations of and repairs to the Customer’s property will be the Customer’s responsibility. COBA Africa will not be liable for any loss or damage to the Customer’s property unless such loss or damage arises because of COBA Africa’s negligence.
13.2. The Customer will ensure that the Customer’s property is suitable for use by COBA Africa in the performance of the Contract and while COBA Africa will use reasonable endeavours to verify the relevant aspects of the Customer’s property no responsibility is accepted by COBA Africa for its accuracy.
13.3. The Customer will keep COBA Africa indemnified in full against all liability, loss, damage, injury, claim, action, demand, expense or proceeding awarded against or incurred or paid by COBA Africa as a result of or in connection with the use by COBA Africa of the Customer’s property or in respect of any damage caused to the Premises in the course of the Customer or its authorised representative removing, moving or altering its property, unless such loss is directly or indirectly attributable to the gross negligence of COBA Africa or any person acting for or controlled by COBA Africa.
13.4. COBA Africa (without prejudice to any other remedy it may have) has a general lien on all of the Customer’s property in its possession (for any reason) in respect of all sums owed to COBA Africa by the Customer.
13.5. Without prejudice to clause 22.4 only tooling, drawings and other equipment that are specially made or produced by COBA Africa for the Customer in connection with the Goods and separately charged to the Customer in full, will, when paid for by the Customer, become the property of the Customer.
13.6. COBA Africa reserves the right to destroy or otherwise dispose of the Customer’s property in its possession or custody (whether or not the property of the Customer) from which the Customer has not required Goods to be made for a period of 1 year or more.
13.7. Provided that COBA Africa’s property in COBA Africa’s possession is no longer required in connection with a Contract and on giving to COBA Africa 10 days written notice the Customer will be permitted to enter the Premises to collect its property from COBA Africa. When visiting the Premises, the Customer will comply (and will procure that its employees, agents and sub-contractors comply) with:
13.7.1. the Customer’s premises security policy and health and safety policy; and
13.7.2. all other policies of the Customer which apply to persons permitted access to the Premises; in each case as the same are in force from time to time.
14. Non-Delivery
14.1. The quantity of any consignment of Goods as recorded by COBA Africa at the time of collection from COBA Africa’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
14.2. COBA Africa shall not be liable for any non-delivery of Goods (even if caused by COBA Africa’s negligence, other than gross negligence). However if liability does arise for non-delivery for whatever reason COBA Africa shall not be liable unless written notice is given to COBA Africa within 7 days of the date when the Goods would be in the ordinary course of events have been received and any liability of COBA Africa for non-delivery of the Goods shall at COBA Africa’s discretion be limited to delivering the Goods within a reasonable time and/or issuing a credit note at the pro-rata Contract rate against any invoice raised for such Goods.
15. Risk and Title
15.1. The risk of damage to or loss of the Goods shall pass to the Customer:
15.1.1. on delivery; or
15.1.2. on the date on which the Customer defaults (which expression shall have the meaning set out in clause 15.2); or
15.1.3. on the date on which the Goods being ready for delivery, delivery or performance of the Contract is postponed at the Customer’s request; whichever shall first occur. For the avoidance of doubt delivery of the Goods shall be deemed to be completed before off-loading of the Goods.
15.2. For clause 15.1.2 “default” shall mean if the Customer fails to take delivery of the Goods on the due date or fails to provide an address for delivery of the Goods (where applicable and as required).
15.3. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, ownership of the Goods shall not pass to the Customer and shall remain with COBA Africa until COBA Africa has received (in cash or cleared funds) payment in full of the price of the Goods and of all other goods sold or agreed to be sold by COBA Africa to the Customer for which payment is then due under any contract.
15.4. Until such time as ownership of the Goods has passed to the Customer, the Customer must:
15.4.1. hold the Goods on a fiduciary basis as COBA Africa’s custodian;
15.4.2. keep the Goods (at no cost to COBA Africa) separate from all other goods of the Customer or any third party and properly stored, protected and insured in such a way that they remain readily identifiable as COBA Africa’s property;
15.4.3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
15.4.4. maintain the Goods in satisfactory condition insured on COBA Africa’s behalf for their full price against all risks to the reasonable satisfaction of COBA Africa and on request the Customer shall produce the policy of insurance to COBA Africa; and
15.4.5. hold the proceeds of the insurance referred to in clause 10.4.4 on trust for COBA Africa and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
15.5. The Customer may resell the Goods before ownership has passed to it solely on the following conditions:
15.5.1. any sale shall be effected in the ordinary course of the Customer’s business at full market value; and
15.5.2. any such sale shall be a sale of COBA Africa’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.
15.6. Until such time that ownership in any of the Goods has passed from COBA Africa to the Customer, COBA Africa shall be entitled at any time to require the Customer to deliver up the Goods to COBA Africa and, if the Customer fails to do so forthwith, to obtain a court order to obtain entry upon any premises of the Customer or any third party where the Goods are stored in order to inspect or repossess the Goods and the Customer shall be liable for COBA Africa’s legal costs for obtaining such order. COBA Africa shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from COBA Africa.
15.7. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of COBA Africa, but if the Customer does so all moneys owing by the Customer to COBA Africa shall (without prejudice to any other right or remedy of COBA Africa) forthwith become due and payable.
16. Warranties by the User
16.1. The User warrants and represents that the Personal Information provided to us is and shall remain accurate, true and correct and that the User will update the Personal Information held by us to reflect any changes as soon as possible
16.2. The User further warrants that when registering on the Website it:
16.2.1. is not impersonating any person; and
16.2.2. is not violating any applicable law regarding use of personal or identification information
16.2.3. Further and insofar as the Registration Process is concerned, the User warrants that the login details shall
16.2.4. be used for personal use only; and
16.2.5. not be disclosed by a User to any third party.
16.3. The User agrees that, once the correct login details relating to the User’s account have been entered, irrespective of whether the use of the Log in Details is unauthorised or fraudulent, the User will be liable for payment of any such Goods purchased.
17. Warranties by COBA Africa and Liability
17.1. We make no representation or warranty (express or implied) that the Website or Services will:
17.1.1. meet a User’s needs;
17.1.2. be always accessible;
17.1.3. be accurate, complete, or current; or
17.1.4. be free from viruses.
17.2. Subject to any express terms, COBA Africa makes no representation or warranty as to the volume or subject area of Services accessible through the Website
17.3. COBA Africa does not warrant that the use of the Website will be uninterrupted or error free, nor does COBA Africa warrant that we will review information for accuracy.
17.4. Except for any express warranties in these Terms the Services are provided “as is”. COBA Africa makes no other warranties, express or implied, statutory, or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or non-infringement. We do not provide any warranties against viruses, spyware or malware that may be installed on your computer because of you accessing or using the Website.
17.5. COBA Africa shall not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of COBA Africa. While a User may have statutory rights, the duration of any such statutorily warranties, will be limited to the shortest period to the extent permitted by required law.
17.6. Where COBA Africa is not the manufacturer of the Goods, COBA Africa will endeavour to transfer to the Customer the benefit of any warranty or guarantee given to COBA Africa.
17.7. Subject to the other provisions of these Terms, COBA Africa warrants that upon delivery [and for a period of 12 months from the date of delivery] the Goods will
17.7.1. where the specification for the Goods has been supplied by COBA Africa, be of satisfactory quality within the meaning of the Consumer Protection Act 68 of 2008; and
17.7.2. comply in all material respects with the specification for the Goods.
17.8. COBA Africa shall not be liable for breach of any of the warranties in clause 17.7 unless:
17.8.1. the Customer gives written notice (whether or not delivery is refused by the Customer) of the defect to COBA Africa, and (if the defect is as a result of damage in transit and only then if COBA Africa has any liability) to the carrier, within 7 days of delivery or (where the defect was not apparent on reasonable inspection) within 7 days after discovery of the defect but in any event no later than [12 months] after the date of delivery save that this clause 17.8.1 will not apply where the Goods are supplied for export outside the Republic of South Africa in which case clause 23.4 shall apply; and
17.8.2. COBA Africa is given a reasonable opportunity after receiving the notice of examining such Goods which are defective and for this purpose the Customer shall provide authority for COBA Africa’s representatives or agents to enter on to its premises to inspect any defective Goods within 14 days of a request being made by COBA Africa.
17.9. COBA Africa shall not be liable for a breach of any of the warranties in clause 17.7 and shall be under no liability under any other warranty, condition or guarantee if:
17.9.1. any defect in the Goods or part thereof (including without limitation any shrinkage) arises from, the use of the Customer’s property, or any drawing, design, instructions or specification supplied by the Customer;
17.9.2. any defect arises from fair wear and tear, wilful damage, negligence, or abnormal working conditions or because the Customer has failed to follow COBA Africa’s instructions (whether oral or in writing), including but not limited to as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
17.9.3. the defect arises because of any parts, materials or equipment not manufactured or workmanship not performed by COBA Africa, in which case the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to COBA Africa;
17.9.4. the Customer makes any further use of such Goods after giving notice under clause 17.8;
17.9.5. the Customer misuses, alters, processes, or repairs such Goods without the written consent of COBA Africa.
17.10. Subject to clauses 17.7 and 17.9 and where applicable, clause 23.4 if any of the Goods do not conform with any of the warranties in clause 17.7 COBA Africa shall at its option either repair or replace the Goods (or the defective part) free of charge or refund to the Customer the price of such Goods at the pro rata Contract rate provided that if COBA Africa so requests, the Customer shall, at COBA Africa’s expense, return the Goods or a sample or the part of such Goods which is defective to COBA Africa and at COBA Africa’s request destroy any remaining Goods which are defective.
17.11. If COBA Africa complies with clause 17.10 it shall have no further liability for a breach of any of the warranties in clause 17.7 in respect of such Goods.
18. Unauthorised use of the Website or email addresses as provided by us
18.1. A User may not use the Website for any objectionable or unlawful purpose
18.2. A User, apart from uploading Personal Information as required when completing the Registration Process may also after the purchase of Goods add a review or comment relating to the Goods so purchased by it
18.3. We reserve the right to remove any such review if same is untrue, provocative, or defamatory.
18.4. A User undertakes not to send to us spam mail or make use of other unsolicited mass e-mailing techniques.
18.5. A User shall not introduce any virus, worm, trojan horse, malicious code or other program which may damage computers or other computer-based equipment through email communication with us.
18.6. A User may not sell, redistribute, or use information contained on the Website for a commercial purpose without our prior written consent.
18.7. A User may not remove or alter our copyright notices or other means of identification including any watermarks, as they appear on the Website or any of our emails.
18.8. A User understands and agrees that it is solely responsible for compliance with any and all laws, rules and regulations that may apply to its use of the Website or the Services.
19. Links to other Websites
The Website may contain links or portals to other websites. We have no control over websites operated by third parties and the User agrees that we are not responsible for and will have no liability in connection with a User’s access to or use of any third-party website.
20. Limitation of Liability
20.1. The Website shall be used entirely at a User’s own risk.
20.2. We are not responsible for, and the User agrees that we will have no liability in relation to, the use of and conduct in connection with the Website, or any other person’s use of or conduct in connection with the Website, in any circumstance.
20.3. We cannot guarantee or warrant that any file downloaded from the Website or delivered to you via email will be free of infection or virus, worms, trojan horses or other code that has contaminating or destructive qualities. A User is responsible for implementing appropriate processes, systems, and procedures to protect itself from this type of issue.
20.4. A User indemnifies us, and agrees to keep us indemnified, from and against any claim, loss, damage, cost, or expense that we may suffer or incur because of or in connection with a User’s improper use of or conduct in connection with the Website, including any breach by a User of these terms or any applicable law or licensing requirements.
20.5. To the maximum extent permitted by law we exclude all implied representations and warranties which, but for these terms, might apply in relation to a User’s use of the Website.
20.6. Subject to clause 17, the following provisions set out the entire financial liability of COBA Africa (including any liability for the acts or omissions of its employees, agents, and sub-contractors) to the Customer in connection with and/or arising out of these Terms including without limitation in respect to:
20.6.1. any breach of these Terms or the Contract; and
20.6.2. any representation, statement or unlawful act or omission including but not limited to negligence (other than gross negligence) arising under or in connection with the Contract.
20.7. Save as expressly provided in these Terms all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
20.8. Nothing in these Terms excludes or limits the liability of COBA Africa for death or personal injury caused by COBA Africa’s negligence or for fraudulent misrepresentation or liability to consumers for defective products including liability in terms of Section 61 of the Consumer Protection Act 68 of 2008.
20.9. To the extent that our liability cannot be excluded by law, our maximum liability, whether in contract, equity, statute, or delict (including negligence), to a User will be limited to the minimum amount imposed by such law.
THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSES 20.10, 20.11 AND 20.12
20.10. Subject to and without prejudice to clauses 14, 17.7, and 17.11 COBA Africa’s total liability in contract, delict (including negligence, other than gross negligence, or breach of statutory duty or where the Goods breach, infringe or make unauthorised use of third party rights), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall not exceed R2,000,000 and be in-accordance with our Product and Public Liability Insurance
20.11. COBA Africa shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract or for any loss of profits [or any product recall costs] or for any indirect, punitive, special or consequential loss or damage (whether for loss of business, depletion of goodwill or otherwise), costs or expenses or other claims for compensation whatsoever (howsoever caused) which arise out of or in connection with the interruption of the Services, the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or the use or resale of the Goods by the Customer.
20.12. COBA Africa accepts no responsibility or liability where the Goods cannot be provided because of any act or omission of the Customer and in such event the Customer shall still be liable to pay COBA Africa for the Goods as if the same had been duly delivered.
21. Copyright
21.1. The contents of the Website are the property of COBA Africa, unless specified otherwise, and are protected by South African and international copyright laws. Furthermore, the compilation (meaning the collection, arrangement, and assembly) of all content on the Website and/or the Services, is our property, unless credit is attributed to the author thereof, and is, likewise, protected by South African and international copyright laws.
21.2. Except as stated in the Terms, none of the contents may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, except as permitted by the fair use privilege under the South African copyright laws or without our prior written permission, which should such consent be provided, we reserve our right to withdraw such consent at any stage, in our sole and absolute discretion.
21.3. Users are expressly prohibited to “mirror” any content, contained on the Website, on any other server unless our prior written permission is obtained, which should such consent be provided, we reserve our right to withdraw such consent at any stage, in our sole and absolute discretion.
21.4. The User is granted a limited, revocable, and non-exclusive right to create a hyperlink to the Website, so long as the link does not portray us, our affiliates, Goods or Services in a false, misleading, derogatory, or otherwise offensive manner. A User may not use our logo or other proprietary graphic or trademark as part of the link without our permission or the permission of our affiliates or content suppliers
22. Intellectual Property and Confidential Information
22.1. All trademarks and copyrights, together with any other intellectual property rights, in and to any of the content of the Website, where not evidently that of third parties, are the exclusive property of COBA Africa.
22.2. A User undertakes not to attempt to decipher, decompile, disassemble, or reverse engineer any of the software or code comprising or in any way making up a part of the Website including any algorithm used by us.
22.3. We own or are licensed to use all intellectual property on the Website. A User may not use any of our intellectual property for any purpose other than as may be required to use the Website for its intended purpose.
22.4. In the absence of contrary written agreement between the Customer and COBA Africa, all Intellectual Property Rights subsisting in, resulting from or relating to the Goods (except those Goods that are bespoke and manufactured to the Customer’s specification) or in any associated drawings, photographic material of any description, designs, technical information, descriptions, catalogues, blueprints, software or other documentation or materials supplied by COBA Africa to the Customer or produced for the purpose of producing the Goods (except where these relate solely to the Customer’s property) will vest in and remain vested in COBA Africa or be assigned to COBA Africa and upon receipt of a written request from COBA Africa the Customer agrees to execute any document COBA Africa deems necessary to give effect to this clause.
22.5. Subject to clause 22.6, the Customer shall treat the Confidential Information that it may acquire as strictly confidential and shall not disclose it to any third party except as provided in clause 22.6 and the Customer will only use the Confidential Information exclusively for the purpose of the Contract and not for any other purpose at any time.
22.6. The Customer may disclose the Confidential Information:
22.6.1. if and to the extent required by law or any regulatory or governmental body;
22.6.2. to its employees, agents or subcontractors who need to know the same provided that such employees, agents, or subcontractors are bound by like obligations of confidentiality as bind the Customer;
22.6.3. if the information is in the public domain other than because of a breach by the Customer of this clause 22.6.]
23. Export Terms
23.1. Where the Goods are supplied for export from the Republic of South Africa, the provisions of this clause 15 shall apply, (subject to any special terms agreed in Writing between the Customer and COBA Africa) notwithstanding any other provision of these Terms.
23.2. The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods in the country of destination and for the payment of any duties on them.
23.3. Where the Goods are supplied for export from the Republic of South Africa, COBA Africa shall submit the Goods for its standard works tests (“the “Works Tests”) before delivery to the Customer. We do not carry out works tests but can offer to make the loading of the goods something that can be monitored by the customer – the customer normally signs the delivery declaration to confirm that loading of the goods is satisfactory and that quantities match.
23.4. The Customer or its authorised representative may attend the Works Tests. COBA Africa shall give the Customer at least 7 (seven) days written notice of the date and time at which COBA Africa proposes to carry out the Works Tests. In the event of any delay or failure by the Customer or its authorised representative in attending the Works Tests at such time, COBA Africa reserves the right to proceed with the Works Tests without the Customer. In any event, the Customer shall be responsible for arranging for inspection of the Goods at COBA Africa’s premises before shipment. In relation to the Goods supplied for export, COBA Africa shall have no liability pursuant to clause 17.7 for any claims in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit. COBA Africa shall not be liable for any defects discovered by the Customer once the Goods have been exported from the Republic of South Africa.
24. Breach
24.1. If either Party commits a breach of the Terms and fails to remedy such breach within 7 (seven) days of receipt of written notice requiring the breach to be remedied, then the Party giving notice shall be entitled, at its option, either to cancel the Terms and claim damages or alternatively to claim specific performance of all the defaulting Party’s obligations, together with damages, if any, whether or not such obligations have fallen due for performance
25. Termination
25.1. For the purposes of this clause a “Default Event” shall mean any such event as is described in clause 25.3.
25.2. If there shall be a Default Event COBA Africa may, within a reasonable time thereafter, defer or cancel any further deliveries of the Goods stop any Goods in transit and treat the Contract of which these Terms form part as terminated but without prejudice to its rights to the full purchase price for the Goods delivered and damages for any loss suffered in consequence of such termination. Where the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
25.3. A Default Event shall be any of the following:
25.3.1. failure by the Customer to make any payment when it becomes due;
25.3.2. breach by the Customer of any of the terms and conditions of the Contract;
25.3.3. where the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
25.3.4. an encumbrancer takes possession, or a receiver is appointed, over any of the property or assets of the Customer; or
25.3.5. the Customer ceases, or threatens to cease, to carry on business; or
25.3.6. COBA Africa reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
25.4. All rights and obligations of the parties shall cease to have effect immediately upon termination of the Contract except that termination shall not affect:
25.4.1. the accrued rights and obligations of the parties at the date of termination; and
25.4.2. the coming into force or the continuance in force of any provision which is expressly or implied intended to come into or continue in force on or after termination.
26. Arbitration
26.1. Any dispute which arises between the Parties in respect of the Terms shall require the Parties to use their best endeavours to resolve the dispute informally within 7 (seven) days of the dispute having been raised in writing.
26.2. If either Party provides written notification to the other that such attempt has failed then each Party shall attempt to agree upon the appointment of a suitably qualified mediator, within 10 (ten) days of such dispute being referred.
26.3. If agreement is not reached as to the appointment of such mediator within 10 (ten) days after either Party has in writing called for the appointment of a mediator, or where an appointment has been agreed upon and such mediator is not able to mediate a resolution of such dispute within 30 (thirty) days after such appointment then any Party may give written notice to the other Parties referring the dispute to arbitration in accordance with the rules of Arbitration Foundation of South Africa (“AFSA”) by an arbitrator or arbitrators appointed by AFSA.
26.4. Either Party may demand that a dispute be referred to arbitration by giving written notice to that effect to the other Party. This clause shall not preclude either Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
26.5. The arbitration shall be held –
26.5.1. at/in Western Cape or other venue agreed by the parties in writing;
26.5.2. in English; and
26.5.3. immediately and with a view to its being completed within 21 (twenty-one) days after it is demanded.
26.5.4. The Parties irrevocably agree that the decision in arbitration proceedings:
26.5.4.1. shall be final and binding upon them;
26.5.4.2. shall be carried into effect
26.5.4.3. may be made an order of any court of competent jurisdiction.
27. Assignment and Sub-contracting
27.1. The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of COBA Africa.
27.2. COBA Africa may assign, transfer or sub-contract the Contract or any part of it to any person, firm or company.
28. Force Majeure
28.1. In this clause “Force Majeure” means any Act of God, governmental actions, war or national emergency, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock outs, strikes or other labour disputes, (whether or not relating to either party’s workforce), restraints or delays affecting carriers or inability to or delay in obtaining supplies of adequate or suitable materials or late delivery or performance or non-delivery or non-performance by suppliers or subcontractors, import or export regulations or embargos, power failure or breakdown in machinery and acts, restrictions, regulations, bylaws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, or any other event beyond the control of the Parties.
28.2. If a Party is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.
28.3. The Parties shall not be liable or be deemed to be in breach of this Agreement by reason of any delay in performing, or failure to perform, any of its obligations under the Contract if the delay or failure is due to Force Majeure and the time for performance of the obligations under the Contract shall be extended accordingly. If the Force Majeure event continues for a continuous period more than [12] months, either party shall be entitled to give notice in writing to the other party to terminate the Contract.
29. General
29.1. Each right or remedy of COBA Africa under the Contract is without prejudice to any other right or remedy of COBA Africa whether under the Contract or not.
29.2. Failure or delay by COBA Africa in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
29.3. No waiver by COBA Africa of any breach of, or any default under, any provision of the Contract by the Customer shall be considered or be deemed as a waiver of any subsequent breach or default of the same and will in no way affect the other terms of the Contract.
29.4. If any provision of these Terms (or any other conditions or other terms which may be agreed in writing between COBA Africa and the Customer) is held by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly invalid, unenforceable, illegal, void, voidable or unreasonable for any reason it shall to the extent of such invalidity, unenforceability, illegality, voidness, voidability, unreasonable or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
29.5. To the extent permitted by law, these Terms shall be governed by and be construed in accordance with South African law, and any dispute arising out of these Terms shall be submitted to the competent South African courts having the requisite jurisdiction to hear the matter.
29.6. Subject to the dispute resolution provisions above, to the extent necessary and/or possible, you consent to the non-exclusive jurisdiction of the High Court in Western Cape or an alternative appropriate South African court seized with appropriate jurisdiction in all disputes arising out of the Terms, our Services, and/or related agreements incorporated by reference.
30. Domicilium Citandi Et Executandi and Contact Information
30.1. The Customer and COBA Africa choose as their respective domicilium citandi et executandi for the purpose of legal proceedings and for the purpose of giving or sending any notice provided for or necessary of these Terms, the following:
30.1.1. COBA Africa (Pty) Ltd: 7 Vuurslag Avenue, Spartan, Kempton Park, Gauteng, South Africa.
30.1.2. Customer: The address as provided by the User when registering on the Website or the Customer’s address appearing on the Contract.
30.2. Both the Customer and COBA Africa may change its domicilium to any other physical address or email address by written notice to the other to that effect. Such change of address will be effective 7 (Seven) days after receipt of notice of change of domicilium
30.3. Any notice or other communication to be given under these Terms must be in writing and may be delivered or sent by registered mail or email.
30.4. Any notice or document shall be deemed served if delivered, at the time of delivery; if posted, 5 days after posting; and if sent by email, on the business date following the date sent.
31. Customer Privacy policy
COBA Africa shall take all reasonable steps to protect the personal information of Customers. For this clause, “personal information” shall be defined as detailed in the Promotion of Access to Information Act 2 of 2000 (PAIA). The PAIA may be downloaded from http://www.polity.org.za/attachment.php?aa_id=3569.